Civil Procedure 2005

LECTURE NOTES ON CIVIL PROCEDURE
Revised August 2005
WHAT IS CIVIL PROCEDURE
It is the procedure governing the filing, processing and adjudication of civil

actions. It essentially is the lawyer’s law that defines the rules of the game that
lawyers and judges play.
It is embraced in Rules 1 to 71 of the Rules of Court and after its revision, is now
commonly known as the 1997 Rules of Civil Procedure. It is divided into the
following topics: General Provisions (Rule 1), Ordinary Civil Actions (Rules 2-5),
Procedure in Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43),
Procedure in the Court of Appeals (Rules 44-55), Procedure in the Supreme
Court (Rule 56), Provisional Remedies (Rules 57-61), and Special Civil Actions
(Rules 62-71).
Included within its scope are the 1991 Rules on Summary Procedure and Local
Government Code provisions on the Katarungang Pambarangay.
JURISDICTION
Any discussion of procedural rules should always be preceded by a discussion of

jurisdiction.
The presence of jurisdiction gives rise to the application of the rules for the
purpose of resolving the action that is brought before a court. Absent jurisdiction,
the only thing a court can do as provided by the rules is to dismiss the action. If a
court acts without jurisdiction, all its acts are null and void. Further, any decision
it may render is not a decision in contemplation of law and cannot be executory.
See: Abbain v. Chua 22 SCRA 748, Estoesta vs. CA 179 SCRA 203, Dava v.
People 202 SCRA 62
Simply defined JURISDICTION refers to the power and authority of a court or

tribunal to hear, try and decide a case. It has also been defined as the authority
by which courts and judicial officers take cognizance of and decide cases.
REQUISITES FOR A VALID EXERCISE OF JURISDICTION
1. It must have jurisdiction over the persons of the parties. It is acquired over
the plaintiff upon his filing of a complaint. On the other hand, it is acquired over
the defendant by his voluntary appearance before the court or the employment of
the coercive power of legal process.
2. It must also have jurisdiction over the subject matter in controversy

Jurisdiction over the subject matter of the complaint is determined by the
allegations in the complaint and the law in force at the time of the
commencement of the action.
2.1 Determined by allegations in the complaint
2.1.a The facts allege dispossession of the property by force – the allegations
make out a case for forcible entry – The law provides that such cases fall within
the jurisdiction of the MTC.
2.1.b The allegation is for recovery or payment of the sum of 500,000, subject
matter jurisdiction is with the RTC
2.1.c The plaintiff claims PHP 500,000 but after trial he is only entitled to PHP
100,000, subject matter jurisdiction is with the RTC. See: Ratilla v. Tapucar, 75
SCRA 64
2.1.d It cannot be made to depend on the defenses interposed in an answer or

a motion to dismiss AS IT IS THE COMPLAINT, PETITION OR INITIATORY
PLEADING THAT BRINGS THE CASE FOR TRIAL AND JUDGMENT –
ALTHOUGH THE DEFENDANT MAY IN HIS ANSWER OR MOTION ATTACK
JURISDICTION – if the Rule were otherwise – NO ACTION CAN PROSPER as
all the defendant has to do is to allege that jurisdiction is vested in another court.
The EXCEPTION is the defense of agricultural tenancy. See Section 3, Rule 70
2.2 Determined by the law in force at the time of the commencement of the
action
2.2.a If action for payment of a sum of money is filed after the effectivity of RA
7961 on April 15, 1994 (Expanding the jurisdiction of the MTC and implemented
by Adm. Circular 9-94-June 14, 1994) interest, damages of whatever kind ( as
long as incidental), attorney’s fees, litigation expenses and costs are not to be
considered in fixing the jurisdictional amount, but must be specifically alleged and
filing fees paid thereon
2.2.b There is a shipment of goods from HK to Manila. The shipment was short.
Consignee sued in Manila, carrier moved to dismiss for lack of jurisdiction since
the Bill of Lading provided that in case of dispute, suit must be brought in HK.
Motion will not prosper as jurisdiction is conferred by law and cannot be
stipulated by the parties.
DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY

THE COURTS
1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION – it is

General, meaning it is exercised over all kinds of cases or Limited, meaning it
exercised over and extends only to a particular or specified cases
2. AS TO THE NATURE OF THE CAUSE OR THE ACTION – it is Original,

meaning it is exercised by courts in the first instance or Appellate, meaning it is
exercised by a superior court to review and decide a cause or action previously
decided by a lower court.
3. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION – it is

Exclusive, meaning it is confined to a particular court or CONCURRENT,
meaning two or more courts have jurisdiction at the same time and place. In this
instance, the court which has first validly acquired jurisdiction takes it to the
exclusion of the others. NOTE THOUGH the DOCTRINE OF HIERARCHY OF
COURTS which requires litigants to initially seek proper relief from the lower
courts in those cases where the Supreme Court has concurrent jurisdiction with
the Court of Appeals and the Regional Trial Court to issue the extraordinary writs
of certiorari, prohibition or mandamus. The Supreme Court is a court of last
resort and its jurisdiction to issue extra-ordinary writs should be exercised only
when absolutely necessary, or where serious and important reasons therefor
exist. See Pearson v. IAC, 295 SCRA 27. Also, concurrence of jurisdiction does
not grant any party seeking any of the extra-ordinary writs the absolute freedom
to file the petition with the court of his choice. See: Ouano vs. PGTT International
Investment Corporation, 384 SCRA 587
4. AS TO SITUS – it is Territorial, meaning it is exercised within the limits of

the place where the court is located or Extra-Territorial meaning it is exercised
beyond the confines of the territory where the court is located.
WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED
Jurisdiction once acquired continues until the case is terminated. It is not affected
by subsequent legislation placing jurisdiction in another tribunal. See Mercado
vs. Ubay, 187 SCRA 719. The exception is when the expressly provides for
retroactivity. See Latchme Motoomull v. Dela Paz, 187 SCRA 743
DOCTRINE OF PRIMARY JURISDICTION
That which vests in an administrative tribunal the jurisdiction to determine a

controversy requiring the exercise of sound administrative discretion – stated
otherwise – if jurisdiction is vested upon an administrative body, no resort to
courts can be made until the administrative body shall have acted on the matter.
WHEN CAN THE ABSENCE OF JURISDICTION BE QUESTIONED
The general rule is jurisdiction may be questioned at any stage of the

proceedings, even on appeal, BUT a party may be barred from raising it on the
ground of laches or estoppel when he has actually invoked the jurisdiction of the
court by participating in the proceedings, then belatedly questions lack of
jurisdiction after judgment has gone against him. See: Tijam v. Sibonghanoy, 23
SCRA 29, Lopez v. Northwest 223 SCRA 469, Soliven v. FastForms Phil. Inc, GR
No. 139091, October 18, 2004, citing PNOC v. CA,. 297 SCRA 402, APT v. CA
300 SCRA 597 and Producers Bank v. NLRC, 298 SCRA 517. See also: Sections
2 and 3, Rule 47 – Annulment of Judgment based on extrinsic fraud or lack of
jurisdiction.If based on lack of jurisdiction before it is barred by laches or
estoppel.
PROBLEM AREAS AFFECTING JURISDICTION
1. ACTIONS INCAPABLE OF PECUNIARY ESTIMATION
1.1 Generally, it is one where the basic issue is something other than the right
to recover money, where the money claim is incidental to or is a consequence of
the principal relief being sought. It is a claim, the subject of which cannot be
estimated in terms of money.
1.2 Examples: Action for specific performance – although damages are being
sought BUT if damages are part of an alternative prayer, jurisdiction should be
based on the amount. OTHERS: Action for appointment of receivers,
expropriation, interpleader, support, and rescission
1.3 In determining which court has jurisdiction, the applicable test is the
NATURE OF THE ACTION TEST (Determination as to whether or not the action
is capable of pecuniary estimation. If not capable, jurisdiction is with the RTC. If
capable-jurisdiction is determined by the amount claimed/value of the personal
property) BUT this test must yield to the PRIMARY OBJECTIVE TEST (where
notwithstanding the fact that the action appears to be incapable of pecuniary
estimation, if the primary objective is to recover real property, jurisdiction will be
determined by the assessed value of the real property)
2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE

JURISDICTION AND PAYMENT OF DOCKET FEES -
2.1 Foreclosure of chattel – to collect 100K but actual value is 500K – MTC –
RULE: Jurisdiction is determined by the amount claimed by the plaintiff.
2.2 Action for removal of improvements with prayer for 10,000 for attorney’s
fees – RTC incapable of pecuniary estimation.
2.3 Action to collect sum of money – within jurisdiction of the MTC but with
accessory prayer for damages beyond MTC jurisdiction – MTC - if action is
personal, damages are to be excluded – (Adm Circ. 09-94 – June 14, 1994) for
determining jurisdiction but payment is still to be collected – Damages, Interest,
Attorney’s fees and Litigation costs.
BUT – if action is for damages over 400K – RTC because it is the main cause of
action or one of the causes of action.
3. IF DOCKET FEES ARE INCORRECT – The trial court should allow the
plaintiff to pay within a reasonable period of time before the expiration of the
applicable prescriptive or reglamentary period – EFFECT – defendant must move
to dismiss the complaint on the ground of lack of jurisdiction – if not he may be
considered to be in estoppel. See NSC v. CA – GR 123215, Feb 2, 1999)
4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT THOSE FOR

RELATED DAMAGES ARE NOT PAID –Trial court may expunge the claims or
allow on motion, a reasonable time for amendment of the complaint or accept
payment of the requisite legal fees.
5. IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER FILING –The

required additional fee shall constitute a lien on the judgment
LEVELS OF SUBJECT MATTER JURISDICTION
1. JURISDICTION OF THE SUPREME COURT
The jurisdiction of the Supreme Court in civil cases of which it cannot be

deprived and which cannot be diminished by Congress is to review, revise,
reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court
may provide, final judgments and orders of lower courts in: (a) all cases in which
the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is in question; (b) all cases involving the legality of any tax, impost, assessment,
or toll, or any penalty imposed in relation thereto; (c) all cases in which the
jurisdiction of any lower court is in issue; and (d) all cases in which only an error
or question of law is involved.
The foregoing Constitutional definition is of appellate jurisdiction.
Congress, however, is not prohibited from increasing or adding to this
Constitutionally-defined jurisdiction. And so Congress has given the Supreme
Court original jurisdiction over cases affecting ambassadors, other public
ministers, and consuls and petitions for the issuance of writs of certiorari,
prohibition and mandamus against the Court of Appeals. Congress has also
vested the Supreme Court with jurisdiction, concurrent with the RTCs, over
petitions for the issuance of the writs of certiorari, prohibition, habeas corpus, and
in actions brought to prevent and restrain violations of law concerning
monopolies and combinations in restraint of trade.
The appellate jurisdiction in civil cases of the Supreme Court as defined in

the Constitution had been revised and expanded a little bit more by law to
include all cases involving petitions for naturalization or denaturalization, all
decisions of the Auditor General, if the appellant is a private person or entity, and
final judgments or orders of the Commission on Elections.
2. JURISDICTION OF THE COURT OF APPEALS
The Court of Appeals has both original and appellate jurisdiction. Its
original jurisdiction, which is exclusive, is over actions for annulment of RTC
judgments. Its original jurisdiction, which is concurrent with the Supreme Court
and the RTCs, is to issue writs of mandamus, prohibition, certiorari, habeas
corpus and quo warranto, and auxiliary writs or processes, whether or not in aid
of its appellate jurisdiction.
The appellate jurisdiction of the Court of Appeals, which is exclusive, is

over final judgments or resolutions of RTCs and quasi-judicial agencies, such as
the Securities and Exchange Commission, Sandiganbayan an National Labor
Relations Commission.
3. JURISDICTION OF REGIONAL TRIAL COURTS
The RTCs are our second-level trial courts. As the Supreme Court and the
Court of Appeals, RTCs have both original and appellate jurisdiction in civil
cases.
Their original jurisdiction is concurrent with the Supreme Court and the
Court of Appeals in the issuance of writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injunctions but, as issued by RTCs, these writs
may be enforced only within their respective regions, and over actions affecting
ambassadors and other public ministers and consuls. The original jurisdiction of
RTCs, which is exclusive, is broad and covers the following cases: (1) all civil
actions in which the subject of the litigation is incapable of pecuniary estimation;
(2) all civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value of the property involved exceeds
Two hundred thousand pesos (P200,000.00) or for civil actions in Metro Manila,
where such value exceeds Four hundred thousand pesos (P400,000.00) except
actions for forcible entry into and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts; (3) all actions in admiralty and
maritime jurisdiction where the demand or claim exceeds Two hundred thousand
pesos (P200,000.00) or in Metro Manila, where such demand or claim exceeds
Four hundred thousand pesos (P400,000.00); (4) all matters of probate, both
testate and intestate, where the gross value of the estate exceeds Two hundred
thousand pesos (P200,000.00) or, in probate, both testate and intestate, where
the gross value of the estate exceeds Two hundred thousand pesos
(P200,000.00) or, in probate matters in Metro Manila, where such gross value
exceeds Four hundred thousand pesos (P400,000.00); (5) all actions involving
the contact of marriage and marital relations; (6) all cases not within the
exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction
of any court, tribunal, person or body exercising judicial or quasi-judicial
functions; (7) all civil actions and special proceedings falling within the exclusive
jurisdiction of a Juvenile and Domestic Relations Court and of the Court of
Agrarian Relations as then provided by law; and (8) all other cases in which the
demand, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs or the value of the property in controversy exceeds
Two hundred thousand pesos (P200,000.00) or, in such other cases in Metro
Manila, where the demand, exclusive of the above-mentioned items exceeds For
hundred thousand pesos (P400,000.00).
The appellate jurisdiction of the RTCs is over all cases decided by

Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in their respective territorial jurisdiction.
The term “damages of whatever kind” has been specially defined by the
Supreme Court for purposes of determining the jurisdictional amount in respect
to the jurisdiction of the RTC. This term is understood to apply only to cases
when the damages are merely incidental to or a consequence of the main cause
of action, and that therefore where the claim for damages is the main cause of
action or one of the causes of action, the amount of the claim shall be considered
in determining the jurisdiction of the court.
The Supreme Court has however designated certain branches of the

RTCs to handle exclusively certain cases as corporate and intellectual property
cases.
4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL

TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS
The MTCs are the first-level trial courts in this country. They have
therefore no appellate jurisdiction and all their jurisdiction is exclusive and
encompasses the following cases: (1) all civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or amount of the demand does
not exceed Two hundred thousand pesos (P200,000.00) or, in Metro Manila
where such personal property, estate, or amount of the demand does not exceed
Four hundred thousand pesos (P400,000.00), exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs, the amount of
which must be specifically alleged: Provided, That where there are several claims
or causes of actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the claims in
all the causes of action irrespective of whether the causes of action arose out of
the same or different transactions; (2) cases of forcible entry and unlawful
detainer: Provided, That when, in such cases, the defendant raises the question
of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the issue of ownership shall be resolved
only to determine the issue of possession; and (3) all civil actions which involve
title to, or possession of, real property or any interest therein where the assessed
value of the property or interest therein does not exceed Two hundred thousand
pesos (P200,000.00) or, in civil actions in Metro Manila, where such assessed
value does not exceed Four hundred thousand pesos (P400,000.00) exclusive of
interest, damages of whatever kind, attorney’s fees, litigation expenses and
costs.
The MTCs may however be assigned by the Supreme Court to hear and
determine certain cadastral cases and petitions for habeas corpus.
RULE I GENERAL PROVISIONS
The Rules shall be known and cited as the Rules of Court. 1 They shall apply in
all courts, except as otherwise provided by the Supreme Court 2 in civil, criminal
and special proceedings.3They do not apply to election cases, land registration,
cadastral, naturalization and insolvency, and other cases not herein provided,
except by analogy or in suppletory character and whenever practicable and
convenient.4
For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules of Civil
Procedure shall be discussed herein.
1. A Civil Action is one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong. Examples: To
enforce payment of a loan or to eject an intruder on one’s property.
1.1 A Civil Actions may be:
1.1.a ORDINARY or SPECIAL – both are governed by the rules for ordinary civil
actions, subject to specific rules prescribed for a special civil action.
1.1.b IN PERSONAM- brought against a person based on personal liability to

the person bringing the action
1.1.c IN REM- it is directed against the thing itself rather than the person
1.1.d QUASI IN REM – names a person as a defendant but its object is to

subject the person’s interest in property to a corresponding lien or obligation
(Ramos vs. Ramos, 399 SCRA 43)
1.2 Distinguishing it from other kinds of actions:
1.2.a CRIMINAL - one by which the state prosecutes a person for an act or
omission punishable by law.
1.2.b SPECIAL PROCEEDING – remedy by which a party seeks to establish a

status, right or a particular fact.
1.3 DISTINCTIONS BETWEEN A CIVIL ACTION AND SPECIAL

PROCEEDINGS –
CIVIL ACTION SPECIAL PROCEEDINGS
Adversarial-between plaintiff and not necessarily as it may involve only 1

and defendant party
formal demand of a right by one declaration of a status, right or a parti-

1
Section 1, Rule 1, 1997 Rules of Civil Procedure
2
Supra, Section 2, Rule 1
3
4
Supra,,Section 4, Rule 1
against the other cular fact.
WHEN AN ACTION IS COMMENCED
An action is commenced upon the filing of the original complaint in court. If an

additional defendant is impleaded in a later pleading – it is commenced on the
date of the filing of the later pleading IRRESPECTIVE OF WHETHER THE
MOTION FOR ITS ADMISSION, IF NECESSARY, IS DENIED BY THE COURT. 5
1. Note though that FILING IS DEEMED DONE ONLY UPON PAYMENT OF

THE DOCKET FEE REGARDLESS OF ACTUAL DATE OF THE FILING OF THE
COMPLAINT6 (MAGASPI V. RAMOLETE 115 S 193)
EXCEPT – if the plaintiff is authorized to litigate as a pauper litigant – he is

exempt from filing fees.
2. Note that the commencement of the action interrupts the period of

prescription as to the parties to the action.7
HOW SHOULD THE RULES BE CONSTRUED
The rules shall be construed liberally in order to promote their objective of

securing a just speedy and inexpensive disposition of every action or
proceeding.8
1. Liberal construction is the controlling principle to effect substantial justice.

Litigation should as much as possible, be decided on their merits, and not on
technicalities. It does not mean, however, that procedural rules are to be ignored
or disdained at will to suit the convenience of a party. 9
2. Liberal construction of the rules should be made by the courts in cases:

(1) a rigid application will result in manifest failure or miscarriage of justice,
especially if a party successfully shows that the alleged defect in the questioned
final and executory judgment is not apparent on its face or from the recitals
contained therein (2) where the interest of substantial justice will be served (3)
where the resolution of the motion is addressed solely to the sound and judicious
discretion of the court (4) where justice to the adverse party is not commensurate
with the degree of this thoughtlessness in not complying with the procedure
prescribed.10
3. Note that in doing so, substantial justice and equity considerations must
not be sacrificed. Periods for filing are as a matter of practice, strictly construed.
Neither can liberality of the rules be invoked if it will result in the wanton
disregard of the rules or cause needless delay in the administration of justice. 11
4. Concommitant to a liberal application of the rules of procedure should be
an effort on the part of the party invoking liberality to adequately explain his
failure to abide by the rules.12
5
6
Magaspi v Ramolete, 115 SCRA 193
7
Cabrera v Tiano,8 SCRA 542
8
Supra,Section 6, Rule 1
9
Vda De Toledo v Toleda, 417 SCRA 260
10
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
11
El Reyno Homes v Ong, 397 SCRA 563
12
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
5. The rules and procedure laid down for the trial court and the adjudication
of cases are matters of public policy. They are matters of public order or interest
which can in no wise be changed or regulated by agreements between or
stipulations by parties to an action for their singular convenience. 13 (Republic vs.
Hernandez, 253 SCRA 509)
6. The Supreme Court has the power to suspend or set aside its rules in the
higher interest of justice.14
RULE 2 CAUSE OF ACTION
The basis of an ordinary civil action is a cause of action. 15 A cause of action is the
act or omission by which a party violates a right of another. 16
WHAT ARE THE REQUISITES OF A CAUSE OF ACTION
The requisites for a cause of action are: (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created (2) an obligation
on the part of the defendant to respect and not to violate such right (3) an act or
omission on the part of the defendant constituting a violation of the plaintiff’s
right.17
DISTINGUISHING IT FROM RIGHT OF ACTION
RIGHT OF ACTION is the right to commence and maintain an action, it is a

remedial right that depends on substantive law, while a CAUSE OF ACTION is a
formal statement of the operative facts that give rise to such remedial right
which is a matter of statement and is governed by procedural law. WHEN ALL
ELEMENTS OF A CAUSE OF ACTION ARE PRESENT, THERE WILL BE A
RIGHT OF ACTION
The distinction is best used to explain the principle that the existence of a cause
of action may only be ascertained from the allegations of the complaint. 18
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION
A party may not institute more than one suit for a single cause of action. 19
1. If a party institutes more than one suit, the filing of one or a judgment upon
the merits in anyone is available as a ground for the dismissal of the others. 20
This is also known as SPLITTING A CAUSE OF ACTION.
2. The SINGLENESS OF CAUSE OF ACTION of a cause of action is
determined as follows:
2.1 In an action EX DELICTO, the singleness of a cause of action lies in the

singleness of the delict or wrong violating the right of a person. If however, one
13
Republic v Hernandez, 253 SCRA 509
14
Fortica v Corona, GR No. 131457, April 24, 1998
15
16
17
Navao v CA, 251 SCRA 545
18
Equitable Bank v CA, 425 SCRA 544
19
20
injury results from several wrongful acts, only one cause of action arises.
Example: A party who is injured could not maintain an action for damages based
on a breach of the contract of carriage against the owner of the vehicle in which
he was riding and another action for quasi-delict against the driver/owner of the
offending vehicle. The recovery under one remedy necessarily should bar
recovery under another. This, in essence, is the rationale for the proscription in
our law againt double recovery for the same act or omission which, obviously
stems from the fundamental rule against unjust enrichment. 21
2.2 In an action EX CONTRACTU, the rules are as follows:
2.2.a In a single or indivisible contract, only one cause of action arises from a
single or several breaches. Example: In a contract of sale of personal property by
installments, the remedies of the unpaid seller is alternative, they are: (1) elect
fulfillment (2) cancel the sale, should the vendee’s failure to pay cover two or
more installments, and (3) foreclose the mortgage on the thing sold if one has
been constituted should the vendee fail to pay two or more installments. 22
2.2.b If the contract provides for several obligations, each obligation not
performed gives rise to a single cause of action. But if upon filing of the complaint
several obligations have already matured, all of them shall be integrated into a
single cause of action. Example: Contract for delivery of goods in part or over a
period.
2.2.c If the contract is divisible in its performance, and the future performance is
not yet due, but the obligor has already manifested his refusal to comply, the
contract is entire and the breach is total. Thus, there can only be one action. 23
IF A PARTY HAS SEVERAL CAUSES OF ACTION
He can join his causes of action 24 as he may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against the
opposing party, subject to the following conditions:
1. party joining the causes of action shall comply with the rule on joinder of
parties, which provides that : All persons in whom or against whom any right to
relief is respect to or arising out of the same transaction is alleged to exist,
whether jointly, severally or in the alternative, may except as otherwise provided
in these rules, join as plaintiffs or be joined as defendants in one complaint,
where any question of law or fact common to all such plaintiffs or to all such
defendants may arise in the action.25
2. joinder does not allow the inclusion of special civil actions or actions
governed by special rules . Example: An action for a sum of money cannot be
joined with an action for iIlegal detainer
3. where causes of action are between same parties but pertain to different
venues or jurisdictions, joinder may be allowed in the RTC provided one of the
causes of action falls within its jurisdiction and venue lies therein.
4. when the claims in all causes of action are principally for recovery of
money, the aggregate amount shall be the test of jurisdiction.
21
Joseph v Bautista, 170 SCRA 540
22
Articles 1484,1486, NCC
23
Blossom & Co v Manila Gas Corporation, 55 Phil 226
24
25
EFFECT OF MISJOINDER
Upon motion of a party or on the initiative of the court, a misjoined cause of

action may be severed and proceeded with separately. 26
RULE 3 PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL ACTION
Only natural or juridical persons or entitles authorized by law may be parties in a

civil action.27 They are called: PLAINTIFF – he is one who has interest in the
subject of the action and obtaining the relied demanded. He may be the claimant
in the original complaint, the counter-claimant in the counter claim, or cross-
claimant in a cross-claim or the third party plaintiff and the DEFENDANT – he is
one who has an interest in the controversy adverse to the plaintiff. He may be the
original defending party, the defendant in a counter-claim, or cross-defendant in a
cross-claim.
For ready reference, a COUNTER-CLAIM is any claim which a defending party

may have against an opposing party. 28A CROSS-CLAIM is a claim by one party
against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counter-claim therein. 29A THIRD PARTY
CLAIM is a claim that a defending party may, with leave of court, file against a
person not party to an action for contribution, indemnity, subrogation or any other
relief, in respect to his opponent’s claim. 30
1. The state or any of its political subdivisions, while considered as juridical

entities, they can sue but as a general rule, they cannot be sued without its
consent.
2. A foreign corporation cannot be a plaintiff in suit when it is transacting

business in the Philippines without a license.
3. Entities authorized by law are recognized labor organizations and entities

without legal personality referring to 2 or more persons not organized as an entity
with juridical personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known but in their answer to the
complaint, their names and addresses must be revealed. 31
4. A sole proprietorship may not be a party as it is neither a natural, juridical

or entity allowed or authorized by law. If one sues as such, the action may be
dismissed on the ground of lack of capacity to sue. It does not possess a juridical
personality separate and distinct from the personality of the owner of the
enterprise.32It cannot sue or file or defend an action in court. 33
PARTIES IN INTEREST
26
27
Supra,,Section 1, Rule 3
28
29
30
31
32
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
33
Juasing Hardware v Mendoza, 115 SCRA 783
A real party in interest in the party who stands to be benefited or injured by the
judgment or party entitled to the avails of the suit. UNLESS OTHERWISE
AUTHORIZED BY LAW OR THE RULES – all actions must be prosecuted or
defended in the name of the real party in interest. 34
1. A real party in interest-plaintiff is one who has a legal right, while a real
party in interest-defendant is one who has a correlative obligation, whose act or
omission violates the legal rights of the former.35
2. WHEN A SUIT IS NOT BROUGHT IN THE NAME OF THE REAL PARTY

IN INTEREST,it may be dismissed on the ground that the complaint states no
cause of action.36 Note that the dismissal is not due to lack of or no legal capacity
to sue nor lack of legal personality, as the latter is not ground for dismissal for
dismissal under the 1997 Rules of Civil Procedure.
2.1 It states NO CAUSE OF ACTION BECAUSE IT IS NOT BEING

PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST.
2.2 LACK OF LEGAL CAPACITY TO SUE means that the plaintiff is not in
exercise of his civil rights, does not have the necessary qualification to appear or
does not have the character or representation he claims. Example: Trustee or
Minor, AS DISTINGUISHED FROM LACK OF LEGAL PERSONALITY means
that the plaintiff is not the real party in interest. Dismissal is based on the fact that
the complaint states no cause of action
3. Legal standing means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the act being
challenged. The term interest is material interest, an interest in issue, and to be
affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. Moreover, the interest must be personal
and not one based on a desire to vindicate the constitutional right of some third
or unrelated party.
CLASSIFICATION OF REAL PARTIES IN INTEREST
1. INDISPENSABLE PARTY is a party without whom no final determination

can be had of an action.37 They are those with such an interest in the controversy
that a final decree would necessarily affect their rights, so that the courts cannot
proceed without their presence. Example: owners of property over which
reconveyance is asserted are indispensable parties without whom no relief is
available and without whom the court can render no valid judgment. 38
1.1 Without the presence of indispensable parties to the suit, the judgment of
the court cannot attain real finality.39
2. NECESSARY PARTY is a party who is not indispensable but who ought

to be joined as a party if complete relief is to be accorded as to those already
parties or for a complete determination or settlement of the claim subject of the
action.40 A necessary party’s presence is necessary to adjudicate the whole
34
35
Gan Hock v. Court of Appeals, 197 SCRA 223
36
Tankiko v Cesar, 302 SCRA 559
37
38
Valenzuela v Court of Appeals, 363 SCRA 779
39
Domingo v Scheer, 421 SCRA 468
40
controversy but whose interests are so far separable that a final decree can be
made in their absence without affecting them. Example: If the plaintiff only sues a
one of his joint debtors, the joint debtor who is not sued is merely a necessary
party. As a consequence, the plaintiff only recovers the share of the debt due
from the joint debtor defendant.
2.2 A necessary party is to be impleaded as a party for complete

determination of an action, while an indispensable party is impleaded for a final
determination of an action.
PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST
The following may sue in behalf of a real party in interest
1. REPRESENTATIVES- actions are allowed to be prosecuted / defended by

a representative or by one acting in a fiduciary capacity BUT the BENEFICIARY
SHALL BE INCLUDED IN THE TITLE and shall be deemed to be the REAL
PARTY IN INTEREST.41
1.1 Examples of representatives are: (1) trustee of an express trust (2) a

guardian, executor or administrator, or (3) a party authorized by law or the Rules.
1.2 An agent acting in his own name and for the benefit of an unknown
principal may sue or be sued without joining the principal except when the
contract involves things belonging to the principal. This refers to an AGENCY
WITH AN UNDISCLOSED PRINCIPAL.42
2. HUSBAND AND WIFE- as a general rule shall sue or be sued jointly,

except as provided by law.43 Non joinder of party’s husband is not fatal. It is a
mere formal defect.44
2.1 They are required to sue and be sued jointly as they are joint
administrators of the Absolute Community or the Conjugal Partnership. 45
2.2 The exceptions provided by law are when the property relations of
husband and wife are governed by the rules on separation of property 46 or one is
disposing of exclusive property.47
2.3 NOTE that the legal provision against the disposition of conjugal property
by one spouse without the consent of the other has been established for the
benefit, not of third persons, but only for the spouse for whom the law desires to
save the conjugal partnership from damages that might be caused. No other
party can avail of the remedy other than the aggrieved spouse. 48
3. MINORS OR INCOMPETENTS- may sue or be sued with the assistance

of father, mother, guardian or, if he has none, a guardian ad litem. 49
3.1 A guardian ad litem is a special guardian appointed by the court in which a

particular litigation is pending to represent or assist a minor or an incompetent
41
42
Article 1883, NCC
43
44
Miranda v Besa, 435 SCRA 532
45
Articles 96 and 124, Family Code
46
Article 145, Family Code
47
48
Villaranda v Villaranda, 423 SCRA 571
49
person involved in or has interest in the property subject of litigation. His status
as such exists only in that particular litigation in which the appointment occurs.
3.2 Note that the appointment of a guardian ad litem may occur in the
following: for minor heirs when substituting for a deceased party 50, incompetency
or incapacity of a party 51, service of summons on a minor or incompetent 52, and
when the best interest of the child require it.53
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single suit either
as plaintiffs or defendants.
1. The rule on joinder of parties states that: All persons in whom or against
whom any right to relief in respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the alternative, may except as
otherwise provided in these rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common to all such plaintiffs or
to all such defendants may arise in the action.54
2. Joinder of Parties, as a rule, is permissive when there is a question of law

or fact common to all the plaintiffs or defendants. This means that the right to
relief or to resist the action arises out of the same transaction or event or series
of transactions or events. Example: action by passengers of a common carrier
for injuries sustained in an accident, there is no community of interest, the extent
of the interest is limited to the extent of damages being claimed by each.
3. It becomes compulsory when the parties to be joined are indispensable

parties.55
4. The exception to compulsory joinder of parties is when the subject of the

action is proper for a class suit. The subject matter of the controversy is proper
for a class suit when it is one of common or general interest to many persons so
numerous that it is impractical to join all as parties. 56 All the parties who are
interested in the action as plaintiffs or defendants are all indispensable parties
but not all need to be joined.
4.1 The requisites of a class suit are:
1. The subject matter of the controversy is one of common or general

interest to many persons. There must be an INDIVISIBLE RIGHT AFFECTING
MANY INDIVIDUALS WHOSE PARTICULAR INTEREST IS OF
INDETERMINATE EXTENT AND IS INCAPABLE OF SEPARATION. This
requires that the benefit to one is a benefit to all. Examples: stockholder
derivative suits and taxpayer suits.
1.1 Improper for a class suit is when a claimant is interested only in collecting
his claims and has no concern in protecting the interests of the others. 57
50
51
52
53
54
55
56
57
Cadalin v POEA Administrator, 238 SCRA 721
2. The parties affected are so numerous that it is impracticable to join all as
parties
3. The parties bringing or defending the class suit are found by the court to
be sufficiently numerous and representative as to fully protect the interest of all.
To comply with the 2nd and 3rd requisite, the Complaint most allege: (1) existence
of a subject matter which is of common or general interest to many persons, and
(2) existence of a class and the number of persons belonging to that class
4.2 It can be brought by the plaintiffs as a class or may be filed against the
defendants as a class
4.3 Any party in interest shall have the right to intervene to protect his
individual interest.
4.4 The general rule, is that the party bringing the suit in his own name and
that of others similarly situated has the right to control the suit, BUT, it shall not
be dismissed or compromised without the approval of the court. 58
5. If there is a failure to join an indispensable party, the court must order the
plaintiff to amend his complaint for the purpose of impleading the indispensable
party. If the plaintiff fails, refuses or the party cannot be sued because he is a
non-resident defendant in a personal action, the complaint must be dismissed. 59
6. If there is a failure to join a necessary party, the pleader in the pleading in

which a claim is asserted without joining a necessary party shall (1) set forth the
name of the necessary party, if known and (2) state the reason for omission. If
the court finds the reason for the omission is not meritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his person is obtained.
If pleader fails to comply with order for inclusion without justifiable cause, it shall
be deemed a waiver of the claim against the party, BUT the non-inclusion does
not prevent the court from proceeding in the action, and the judgment therein
shall be without prejudice to rights of such necessary party. 60
7. MISJOINDER OR NON JOINDER NOT A GROUND FOR

DISMISSAL.Parties may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage of the action and on such terms that
are just. Any claim against a misjoined party may be severed and proceeded
against separately.61
NOTE HOWEVER – that if the party to be joined is indispensable and the plaintiff
fails or refuses or such party cannot be sued – the complaint must be dismissed
(NDC v. CA 211 S 422)
8. IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR

CANNOT BE OBTAINED he may be made a defendant and the reason therefor
shall be stated in the complaint.62
58
59
NDC v Court of Appeals, 211 SCRA 422
60
61
62
DISTINCTIONS BETWEEN
Indispensable party Necessary party
if not joined – action cannot proceed if not joined–action proceeds judgment

judgment is not valid is voted but does not resolve the contro-
versy.
-non joinder – dismissed non joinder – waiver of claim
WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN
If he (plaintiff) uncertain – against who of several persons he is entitled to relief –

HE MAY JOIN ANY OR ALL OF THEM AS DEFENDANTS – in the
ALTERNATIVE – although a right to relief against one may be inconsistent with a
right of relief against the other. 63
EXAMPLE: An action where the owner of goods is not sure whether they were
lost in transit or while it was on deposit in the warehouse of the arrastre operator
– He may sue the shipper or the operator of the warehouse in the ALTERNATIVE
– although the right against the SHIPPER is based on ADMIRALITY, while that
against the OPERATOR is based on CONTRACT. Action for damages arising
from loss of goods due to a collision.
IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN
He may be sued as the unknown owner, heir, devisee or by such other

designation as the case may require – WHEN THE IDENTITY OR NAME IS
DISCOVERED – the pleading must be amended accordingly. 64 EXAMPLE: Action
to recover real property from several unknown heirs of a common ancestor.
EFFECT OF DEATH OF A PARTY (Sec 16)
When a party dies and his claim is not extinguished – it shall be the duty of
counsel – to inform the court within 30 days after such death of the : (1) FACT
OF DEATH (2) NAME AND ADDRESS OF LEGAL REP/REPS
IF NOT, Counsel may be subject to disciplinary action.
ONCE NOTICE IS GIVEN – The COURT SHALL ORDER THE LEGAL REP/S
TO APPEAR AND BE SUBSTITUTED WITHIN 30 DAYS FROM NOTICE.
Note: Heirs may be allowed to be substituted for the deceased without requiring
the appointment of an executor or administrator and the court can appoint a
guardian ad litem for minor heirs.
63
64
IF LEGAL REP/S DO NOT APPEAR OR NOTICE IS NOT GIVEN-
The court can order the opposing party, within a specified time – to procure the
appointment of an executor or administrator to appear for and in behalf of the
deceased – Expenses – if paid by opposing party can be recovered as costs
IF DEATH/SEPARATION OF A PUBLIC OFFICER (Sec 17)
If sued in his public capacity – and he dies, resigns or otherwise ceases to hold
office –
The action may be MAINTAINED AND CONTINUED by or against his successor,

if within 30 days after successor assumes the office or such time as granted by
the court – it is SATISFECTORILY SHOWN by a party that there is a substantial
need for continuing and maintaining it and that the successor ADOPTS or
CONTINUES OR THREATENS to adopt or continue the action of his
predecessor.
BEFORE SUBSTITUTION – IF NO EXPRESS ASSENT, the public officer shall

be given reasonable notice of the application and be accorded an opportunity to
be heard.
EFFECT OF DEATH OF DEFENDANT ON A CONTRACTUAL MONEY CLAIM
If the action is for the recovery of money that arises from a CONTRACT, express
or implied, and the defendant dies BEFORE ENTRY OF A FINAL JUDGMENT,
the RULE is – it will not be dismissed but shall be allowed to continue until entry
of judgment, a favorable judgment obtained shall be enforced in the manner
provided by the rules for prosecuting claims against the ESTATE OF A
DECEASED PERSON.65
1. RULES TO BE OBSERVED IN CASE OF DEATH OF OBLIGOR are: (a) If

he dies before the action is filed, a money claim must be filed in the testate or
intestate proceedings (b) if he dies during the pendency of an action, the action
continues until entry of judgment, and the judgment claim is then filed with the
testate or intestate proceedings. It must be noted that a money claim judgment
need not be proven because it is conclusive. NOTE FURTHER, that if property
has been levied upon before death. It can disposed of in the manner provided by
the rules on execution of judgments because it has already been segregated
from estate. If there is a deficiency, a money claim can be filed subsequently.
2. IF IT DOES NOT ARISE FROM CONTRACT, RE: CLAIMS FOR

RECOVERY, ENFORCEMENT OF A LIEN OR DAMAGES DUE TO TORT, the
rules are: (a) if he dies before the action is filed, it may be filed against the
executor or administrator (b) if already filed , it continues to final judgment and
may be executed on as against the executor or administrator. 66
3. In a case for ejectment where the defendant died before the case could be
decided and without being able to testify on his counterclaim for damages. The
trial court dismissed the ejectment suit and ordered the plaintiff to pay the wife of
the defendant moral damages and attorney’s fees. The plaintiff contends on
appeal that the counterclaim should have been dismissed pursuant to Rule 3,
Section 21 (old rule). HELD: The argument is misplaced, defendant was the
plaintiff in his counterclaim, the rule is not applicable as it pertains to a defendant
65
66
who dies before final judgment. In this case, it is the plaintiff who died and all that
is required is a timely motion for substitution. No recovery though can be allowed
as no evidence was adduced.67
4. If a claim involves a conjugal debt that was not brought and one of the
spouses die before filing, the claim must be brought in the testate or intestate
proceedings of the deceased spouse.68 ( Alipio v. CA, GR. 134100, 9-29-2000)
5. IF IT IS THE PLAINTIFF WHO DIES: (a) if action is purely personal to

him, the action is abated (b) if action is not purely personal, it continues but
counsel must give notice of death.
EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION
1. The court, upon motion with notice, may allow the action to be continued
by or against the incompetent or incapacitated person assisted by his guardian or
guardian ad litem.69
EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION
1. The action may be continued by or against the original party, unless the
court upon motion directs the person to whom interest is transferred to be
substituted in the action or joined with the original party. 70
2. The rule refers to a transfer pendente lite. The transferee pendente lite
shall stand exactly in the shoes of the transferor. Consequently, any judgment will
be binding upon him.
3. A transferee pendent elite does not have to be included or impleaded by

name in order to be bound by the judgment because the action or suit may be
continued for or against the original party or the transferor and still binding on the
transferee.71
4. In a case on appeal where the transferee pendente lite did not appeal, he
nevertheless was benefited by the appeal of the transferor pendent elite. 72
INDIGENT/PAUPER LITIGANT
1. An indigent or pauper litigant Is one who litigates on a claim that he has no

money, or property sufficient and available for food, shelter and basic necessities
for himself and his family.73
2. An indigent or pauper litigant must file an ex-parte application for authority

to litigate as an indigent that is too be resolved by the court after hearing.
Attached to the motion is an affidavit attesting to the fact that he does not earn a
gross income of PHP 4000.00 in Metro-Manila, or PHP 3,000.00 elesewhere and
has no real property with a fair market value of PHP 50,000.00. Said affidavit
must be supported by another affidavit of a disinterested person. Note that
recently, an indigent litigant has been defined as one (a) whose gross income
67
UST v Court of Appeals, GR No. 124250, October 18, 2004
68
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
69
Supra, Section 3 and 18, Rule 3
70
71
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
72
Jocson v Court of Appeals, GR 88297, March 22, 1990
73
Supra, Section 21
and that of their immediate family does not exceed an amount double the
monthly minimum wage of an employee and (b) who does not own real property
with a fair market value as stated in the current tax declaration of more than PHP
300,000.00. If there is any falsity in the affidavit or that of the disinterested
person, it shall constitute sufficient ground to dismiss the action or strike out the
pleading, without prejudice to whatever criminal liability is incurred. 74
3. The effect of being allowed to litigate as an indigent or pauper litigant are:

(1) exemption from the payment of docket fees and other lawful fees (2)
exemption from TSN fees which the Court may order to be furnished BUT, the
amounts due shall be a LIEN on a favorable judgment unless the Court orders
otherwise.
4. The allowance to litigate as an indigent or pauper litigant can be contested

at any time before judgment is rendered by any adverse party. If found to be
meritorious, the proper fees are assessed and are to be collected. IF NOT PAID,
execution shall issue on the payment thereof without prejudice to other
sanctions.
5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.
WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR
In any action involving the validity of any treaty, law, ordinance, executive order,
presidential decree, rule or regulation, the court, in its discretion, may require the
appearance of the SOLGEN, who may be heard in person or through a
representative duly designated by him.75
RULE 4 – VENUE OF ACTIONS
1. Venue is the place where the action is to be commenced and tried. It has
also been defined as the proper location for the trial of a case.
2. Distinguishing it from jurisidiction: (a) venue is the place where action is

commenced and tried, jurisdiction is the authority of a court to hear and decide
the action (b) venue may be waived, jurisdiction over the subject matter cannot
be waived, but that over the person can be waived (c) venue may be the subject
of a written agreement, jurisdiction cannot be subject of a written agreement (d)
a court cannot motu-propio dismiss on improper venue, while when there is
no jurisdiction, a court can motu-propio dismiss the action.
3. The following are the rules on venue:
3.1 IF IT IS A REAL ACTION or one that affects title to or possession of real

property, or interest therein, it shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real property involved or a
portion thereof is situated. Forcible Entry and Detainer actions are to be
commenced and tried in the Municipal Trial Court which has jurisdiction over the
area wherein the real property involved, or any portion thereof, is situated. 76
2. IF IT IS A PERSONAL ACTION or one that is brought for the recovery of

personal property, for the enforcement of a contract or recovery of damages for
its breach of for the recovery of damages due to injury to person or property or
74
Section 19, Rule 141, Rules of Court
75
76
such all other actions shall be commenced or tried where the plaintiff or ANY OF
THE PRINCIPAL PLAINTIFFS reside or any of the defendants reside, or if a
NON-RESIDENT DEFENDANT, where he may be FOUND at the election of the
plaintiff77
2.1 RESIDE – means the place of abode, whether permanent or temporary –

as distinguished from domicile – fixed permanent residence, where if one is
absent he intends to return.
2.2 Is the complaint for cancellation of a real estate mortgage with damages, a
real or personal action? It is a real action, the controlling factor in determining
venue of such a case is the primary objective for which it is filed. An action for
cancellation of a real estate mortgage is necessarily an action affecting title to
real properties since the primary objective is to recover the properties that the
bank had foreclosed on.78
2.3 In personal actions, it is the residence of the proprietor, not the business
address of the sole proprietorship that is considered to determine venue as a
sole proprietorship has no legal personality.79
2.4 R engaged the services of L as geodetic surveyor to subdivide two parcels

of land located in Batangas. As payment for L’s services, R agreed to given him
one lot. After the survey, R delivered to L possession of one lot as payment for
his services. However, R failed to deliver to L the tile of the lot. L, who resides in
Quezon City, filed with the RTC of Quezon City an action against R for specific
performance to compel R to deliver to him the title to the lot. R moved to dismiss
on the ground of improper venue, contending that since his is a real action, the
complaint must be filed in the RTC of Batangas where the lot is situated. Is R
correct? No, R is not correct. This action for specific performance is a personal
action. The venue therefore, was properly laid in Quezon City where the plaintiff
resides. It is not a real action because plaintiff L is not seeking the recovery of the
lot as he is already in possession thereof. He is merely asking the delivery of the
title to him, which is a personal action.80
3. IF DEFENDANT IS A NON-RESIDENT or one who does not reside and is

not found in the Philippines, and the action affects the personal status of the
plaintiff , or any property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the plaintiff resides,
or where the property or any portion thereof is situated or found. 81
3.1 The provision refers to a Quasi in Rem action in which an individual is

named as a defendant, and the purpose of the action is to subject his interest
therein to an obligation or lien burdening the property.
77
78
Go v UCPB, GR No. 156187, November 11, 2004
79
Mangila v Court of Appeals, 387 SCRA 162
80
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
81
3.2 A non-resident alien who cannot be found can sue and be sued as by filing
his complaint, he submits to the jurisdiction of the Court, even if he has never
been able to enter the Philippines.82 (Dilweg vs. Philipps, 12 S 243)
THE RULES ON VENUE ARE NOT APPLICABLE
The rules on venue will not apply if: (1) in cases where a specific rule or law
provides otherwise (2) Where the parties have validly agreed in writing BEFORE
FILING OF THE ACTION ON EXCLUSIVE VENUE83
1. EXAMPLES: (1) Quo Warranto proceedings may be instituted in the

Supreme Court, Court of Appeals or the Regional Trial Court exercising territorial
jurisdiction over the area where the respondent/s reside. If the Solicitor General
commences the action, he may do so in the Supreme Court, Court of Appeals or
the Regional Trial Court of Manila. 84 The criminal or civil action for damages due
to libel can only be instituted either in Regional Trial Court of the place where he
holds office or in the place where the alleged libelous article was printed and first
published; and if the offended parties are private individuals, the venue shall be
in the Regional Trial Court of the place where the libelous article was printed and
first published or where any of the offended parties actually resides at the time of
the commission of the offense85 or 2. Art 360, RPC. Libel – Civil and Criminal
action to be distributed in the RTC where public official holds office or where
libelous article was first printed or published (3) Intracorporate Controversies are
to be filed in the Regional Trial Court where principal office corporation is
located.86
2. Any agreement as to venue must be in writing and for exclusivity, the

intent must be clear, otherwise, it will be interpreted to allow for an additional
venue.
2.1 The freedom of the parties to stipulate on the venue is however subject to
the usual rules on contract interpretation. Where the provision appears to be one-
sided as to amount to a contract of adhesion, the consent of the parties thereto
may well be vitiated and the venue stipulation will not be given effect. 87
2.2 Venue as stipulated in the promissory note shall govern notwithstanding

the absence of a stipulation as to venue in an accompanying surety agreement
as the latter can only be enforced in conjunction with the former. 88
HOW VENUE IS QUESTIONED
Venue may be questioned in (1) in a motion to dismiss 89, or (2) in an answer by

way of an affirmative defense90. If NOT SO MADE, it is deemed waived.
RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS
82
Dilweg v Philipps, 12 SCRA 243
83
84
85
Article 360, Revised Penal Code
86
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
87
Sweet Lines v Teves, 83 SCRA 361
88
Philippine Bank of Communications v Lim, 455 SCRA 714
89
Supra, Section 1 (c) ,Rule 16
90
The procedure in Municipal Trial Court shall be the same as in the Regional Trial
Court, except when (1) a provision applies only, expressly or impliedly, to a
particular court, or (2) In civil cases covered by the Rules on Summary
Procedure
1. An example of a provision that applies only to a Municipal Trial Court is

that which refers to an appeal taken from an order of the lower court dismissing
the case without trial on the merits.91
PROCEDURE IN REGIONAL TRIAL COURTS
RULE 6- KINDS OF PLEADINGS
PLEADING DEFINED is a written statement of the respective claims and

defenses of the parties submitted to the court for appropriate judgment. 92
1. The pleadings that are allowed are: (a) Claims of a party are asserted in
the complaint, counterclaim, cross-claim, 3 rd party complaint (4th…..), or
complaint in intervention (2) Defenses of a party are alleged in the answer to the
pleading asserting a claim against him (3) Reply to the answer 93
2. The specific KINDS OF PLEADINGS are: (a) COMPLAINT, which is the

pleading alleging the plaintiff’s cause of action or causes of action. The
names/residences of the plaintiffs and defendants must be stated in the
complaint94 (b) ANSWER, which is a pleading in which a defending party sets
forth his defenses95. Its essential purpose is to secure joinder of the issues and
not to lay down evidentiary matter.96
2.1 The following are the kinds of defenses97 that may be interposed in an
answer:
2.1.1 NEGATIVE DEFENSE which is a specific denial of a material fact or facts

alleged in the pleading of a claimant essential to his cause/s of action. A specific
denial is made98 by: (a) Specifically denying the material averment in the
pleading of the adverse party and setting forth the substance of the matter upon
which he relies for such denial (b) Deny only a part of the averment by specifying
that so much of it is true and deny the remainder (c) Allegation of lack of
knowledge or information sufficient to form a belief as to the truth of the material
averment in the pleading of the adverse party.
2.1.2 AFFIRMATIVE DEFENSE which is an allegation of new matter, which

although hypothetically admitting the material allegations in the pleading would
nevertheless bar or prevent recovery. They include fraud, statute of limitations,
release, payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, or any other matter by way of confession and
avoidance.
91
92
93
94
95
96
Naga Development Corporation v Court of Appeals, 41 SCRA 105
97
98
Any of the grounds for a motion to dismiss may be pleaded as an affirmative
defense. He may then move for a preliminary hearing as if a timely motion to
dismiss has been filed.99
NOTE that the rule that a defending party who sets up an affirmative defense
HYPHOTHETICALLY ADMITS the allegations does not apply if the defense set
up is any of the grounds for extinguishment of the obligation. The EFFECT is that
the defending party is deemed to have admitted the validity of the obligation, and
if the motion to dismiss is denied, what is left to be proven is the fact of payment
or non-payment.
3. COUNTERCLAIM, which is any claim which a defending party may have

against an opposing party.100
3.1 KINDS OF COUNTERCLAIMS
COMPULSORY PERMISSIVE
(1) Arises out of or is connected does not arise out of or is not connected
w/ the transaction or occurrence w/the transaction or occurrence constitu-
constituting the subject matter of ting the subject matter of the opposing
the opposing party’s claim party’s claim
(2) barred if not set up in the not barred even if not set up in the
answer answer
(3) plaintiff need not answer plaintiff must answer once docket fees are
paid
(4) if not answered – no default if not answered – default lies
(5) does not require a certification being an initiatory pleading – it requires a

as to non-forum shopping certification as to non-forum shopping
3.2 The REQUISITES OF A COMPULSORY COUNTER-CLAIM are:(a) It

arises out of or is necessarily connected w/the transaction or occurrence that in
the subject matter of the party’s claim (b)It does not require for adjudication the
presence of 3rd parties over whom the court cannot acquire transaction (c) It
must be cognizable by the regular courts of justice (d) It must be within the
jurisdiction of the court both as to amount and the nature thereof, except that in
an original action before the RTC, counterclaim is considered compulsory
regardless of amount (e) It must already be existing at the time defending party
files his answer (Rule 6, Sec. 7, Rule 11, Sec. 8)
See Reyes De leon v Del Rosario, 435 SCRA 232, test to determine whether
counterclaim is compulsory or not.
3.2.1 A compulsory counterclaim that is not yet in existence at the time of the
filing of an answer may be presented or set-up by a supplemental pleading
before judgment.101
3.2.2 A compulsory counterclaim may implead persons not parties to the original
complaint as their presence is required for granting complete relief in the
99
100
101
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
determination of a counter-claim or cross claim, the court shall order them
brought in as defendants, if jurisdiction over them can be obtained. 102 Summons
must thus be served upon them as they must answer the counterclaim as they
cannot rely on the rule that the defendant in the counterclaim is deemed to have
adopted the allegations of the complaint in his answer. 103
3.3 The REQUISITES OF A PERMISSIVE COUNTERCLAIM are: (a) It does

not require for adjudication the presence of 3 rd parties over whom the court
cannot acquire jurisdiction (b) It must be cognizable by the regular courts of
justice (c) It must be within the jurisdiction of the court both as to amount and the
nature thereof, except that in an original action before the RTC, counterclaim is
considered compulsory regardless of amount
4. A CROSS-CLAIM is a claim by one party against a co-party arising out of

a transaction/occurrence that is the subject matter either of the original action or
the counter-claim.
It may include a claim that a party against whom it is asserted is or may be liable
to the cross claimant for all or part of a claim asserted in the action against the
cross-claimant. 104
NOTE that counterclaims may be asserted against an original counter-claimant

and that cross-claims may also be filed against an original cross-claimant. 105
5. A REPLY is a pleading, the office or function of which is to deny or allege

facts in denial or avoidance of new matters alleged by way of defense in the
answer and thereby join or make an issue as to such matters.
5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff
wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended/supplemental complaint.
5.2 If the defense is based on an actionable document, it must be replied to,

otherwise it is admitted.
6. A 3RD PARTY COMPLAINT is a claim that a defending party may, WITH

LEAVE OF COURT, file against a person, NOT A PARTY, called 3 RD party
defendant. FOR CONTRIBUTION INDEMNITY, SUBROGATION, OR ANY
OTHER RELIEF in respect of his opponent’s claim. 106
6.1 EXAMPLES:
CONTRIBUTION- A sues X for collection of money based on a promissory note

signed jointly and severally with Y. X may file a complaint against Y for
contribution
INDEMNITY – S, as surety, is sued for recovery of the obligation of M. S may file

a complaint against M for whatever amount he may be adjudged to pay as surety
102
103
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
104
105
106
SUBROGATION – X, as lessor, sues Y, as lessee for repairs. Y may file a
complaint against his sub-lessee who filed to comply with the obligation to repair
OTHER RELIEF – X bought land from Y. Later X is sued by A for recovery of the
land. X may file a complaint against Y for his warranty against eviction.
6.2 An ANSWER TO 3RD PARTY COMPLAINT may include (a)DEFENSES

COUNTERCLAIMS OR CROSS-CLAIMS – including such defenses that the 3 RD
PARTY PLAINTIFF may have against the original plaintiff’s claim, and (b) IN
PR0PER CASES, he may assert a counter-claim against the ORIGINAL
PLAINTIFF in respect to his claim against the 3rd party plaintiff.107
EXAMPLE: – a REINSURER (3 rd party defendant) may set up in his answer the

defense alleged by defendant insurer that loss is caused by plaintiff insured.
However 3rd party defendant cannot file a counterclaim against the original
plaintiff as there is no privity of contract.
WHEN NEW PARTIES CAN BE BROUGHT
If the presence of others besides the parties is required for the granting of full
relief in the determination of a counter-claim or cross- claim the court shall order
them to be brought in as defendants, if jurisdiction over them can be obtained 108.
RULE 7 – PARTS OF A PLEADING
The PARTS OF A PLEADING of a pleading are CAPTION, BODY, SIGNATURE,

ADDRESS, VERIFICATION, AND CERTIFICATION AGAINST FORUM
SHOPPING.
1. CAPTION – it sets forth the (a) NAME OF THE COURT (b) THE TITLE OF
THE ACTION- this includes an indication of the NAME of the PARTIES, who are
REQUIRED to be NAMED in the ORIGINAL COMPLAINT OR PETITION. In
subsequent pleadings, the name of the first party on each side is sufficient with
an appropriate indication when there are other parties. NOTE: In an appeal,
Sections 5 and 6, Rule 41 requires all names to be indicated in the NOTICE OF
APPEAL and RECORD ON APPEAL (c) DOCKET NUMBER , if one has already
been assigned.109
2. BODY - sets forth its designation, the allegations or a party’s claims /

defenses, the relief prayed for, and the date of the pleading –
2.1 The allegations in the body shall be divided unto paragraphs so

NUMBERED to be readily IDENTIFIED. Each shall contain STATEMENT OF A
SINGLE SET OF CIRCUMSTANCES so far as it can be done with convenience.
A paragraph may be referred to by its number in all succeeding pleadings.
2.2 Headings must be used when 2 or more causes of action are joined, the
statement of the first shall be prefaced by : FIRST CAUSE OF ACTION etc.
WHEN: 2 or more paragraphs are addressed to one or several causes of action
in the complaint, they shall be prefaced by: ANSWER TO THE FIRST CAUSE OF
107
108
109
ACTION – and so on. If it addresses several causes of action, the paragraphs
shall be prefaced accordingly.
2.3 Relief should be specified but it may add a general prayer for such further
or other relief as may be deemed just and equitable.
2.4 Date – every pleading is required to be dated.
3. SIGNATURE AND ADDRESS- every pleading must be signed by the party

OR counsel representing him, stating in either case his ADDRESS which should
not be a post office box.
3.1 NOTE the word OR because a party may litigate / defend PRO SE or for
himself without aid or counsel. This applies even if a party is already represented
by counsel.
3.2 AN ADDRESS IS REQUIRED for service of pleadings or judgments
3.3 SIGNIFICANCE OF COUNSEL’S SIGNATURE – it is a CERTIFICATE BY

HIM THAT: (a) He has read the pleading (b)To the best of his information,
knowledge and belief there is good ground to support it (c) It is not interposed
for delay
3.4 IF PLEADING IS UNSIGNED It produces NO LEGAL EFFECT. However,

the court in its discretion can allow the deficiency to be remedied if: it SHALL
APPEAR THAT THE SAME IS DUE TO INADVERTENCE AND NOT INTENDED
FOR DELAY
3.5 COUNSEL SUBJECT TO DISCIPLINARY ACTION IN RELATION TO the

Rule when (a) He deliberately files an unsigned pleading (b) Signs a pleading in
violation of the Rule (c) Alleges scandalous or indecent matter (d) Fails to
promptly report to the court a change in his address
4. VERIFICATION is an affidavit that the affiant has read the pleading and
that the allegations therein are TRUE and CORRECT of his PERSONAL
KNOWLEDGE AND/OR IS BASED ON AUTHENTIC RECORDS.
4.1 IF A PLEADING REQUIRED TO BE VERIFIED CONTAINS A

VERIFICATION BASED ON – INFORMATION AND BELIEF, OR – UPON
KNOWLEDGE INFORMATION AND BELIEF, OR LACKS A PROPER
VERIFICATION, it shall be treated as an UNSIGNED PLEADING.
4.2 A pleading need not be verified, except when otherwise specifically

required by LAW OR RULES110.
4.3 A VERIFICATION IS REQUIRED under rules governing (a) cases covered

by the Rules on Summary Procedure (b) Petition for relief from judgment /
order111 (c) Petition for review112 (d) Appeal by certiorari113 (e)Petition for
annulment of judgment 114 (f) Injunction115 (g) Receivership116 (h) Support117 (i) 69)
110
111
112
113
114
115
116
117
Certiorari, Prohibition or Mandamus 118 (j) Quo Warranto119 (k) Expropriation120 (l)
Forcible Entry / Detainer121 (m) Indirect Contempt 122
4.4 An improper verification is cured by amending the pleading with the

CORRECT VERIFICATION
5. CERTIFICATION AGAINST FORUM SHOPPING is executed by the

plaintiff or principal party who shall certify under OATH in the COMPLAINT or
INITIATORY PLEADING ASSERTING A CLAIM OR RELIEF – OR IN A SWORN
CERTIFICATION ANNEXED THERETO AND SIMULTANEOUSLY FILE
THEREWITH: (1) That he has not therefore commenced any action or filed any
claim involving the same issues in any COURT, TRIBUNAL OR QUASI-
JUDICIAL AGENCY, AND to the best of his knowledge, no such other claim or
action is pending therein (2) If there is such other pending action or claim, a
complete statement of the present status thereof (3) That if he should thereafter
learn that the same or similar action has been filed or is pending, he shall report
that fact within 5 days therefrom to the court wherein his complaint / initiatory
pleading has been filed.123
5.1 The lack of a certification is not curable by amendment, but such shall be
cause for dismissal of the complaint. The dismissal shall be without PREJUDICE
unless otherwise provided, upon motion and after hearing. 124
5.2 The NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS OR

SUBMISSION OF A FALSE CERTIFICATE shall constitute indirect contempt
without prejudice to corresponding administrative and criminal actions.
PROVIDED, that if the acts of the party or counsel clearly constitute WILLFUL
and DELIBERATE forum shopping, it shall then be ground for SUMMARY
DISMISSAL WITH PREJUDICE, and shall constitute DIRECT CONTEMPT as
well as cause for administrative sanctions.
5.3 Forum Shopping exists when as a result of an adverse opinion in one

forum, a party seeks a favorable opinion, other than by appeal or certiorari, in
another, or when he institutes two or more actions or proceedings grounded on
the same cause, on the gamble that one or the other court would make a
favorable disposition. The most important factor in determining the existence of
forum shopping is the vaxation caused the courts and parties-litigants by a party
who asks different courts to rule on the same or substantially the same reliefs. 125
5.3.1 It also occurs when a party attempts to have his action tried in a particular
court or jurisdiction where he feels he will receive the most favorable judgment.
5.3.2 It has been said to exist also where the elements of litis pendentia are
present or where a final judgment in one case will amount to res judicata in
another. Hence, the following requisites concur: (a) identity of parties, or at least
such parties represent the same interests in both actions (b) identity of rights
asserted and relief prayed for, the relief being founded on the same facts, and (c)
identity of the two preceding particulars is such that any judgment rendered in the
118
Supra, Sections 1,2,3, Rule 65
119
120
121
122
123
124
Castillo v Court of Appeals, 426 SCRA 369
125
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
other action will, regardless, of which party is successful, amount to res judicata
in the action under consideration. 126
5.4 The purpose of the certification against forum shopping is to prohibit and
penalize the evils of forum shopping. 127 Forum Shopping is a deplorable practice
because it results in unnecessarily clogging of the already heavily burdened
docket of the courts.128
5.5 The execution of the certification is required to be accomplished by the

petitioner himself as it is the petitioner himself who has actual knowledge of
whether or not he has initiated similar actions or proceedings in different courts
or agencies.
5.5.1 If there are several plaintiffs, the general rule is that all of them must sign
BUT IT MUST BE NOTED that there is jurisprudence to the effect that: (1) the
execution by one of the petitioners or plaintiffs in a case constitutes substantial
compliance where all the petitioners, being relatives and co-owners of the
properties in dispute, share a common interest in the subject matter of the
case.129 (2) the case is filed as a collective raising only one cause of action or
defense130 (3) the signing by 1 spouse substantially complies as they have a
common interest in the property131 or is signed by husband alone is substantial
compliance as subject of case is recovery of conjugal property 132 (4) 2 of the
parties did not sign as they were abroad. It was considered reasonable cause to
exempt them from compliance with the requirement that they personally execute
the certificate133
5.5.2 If the plaintiff or petitioner is a juridical person, the Board may pass a
specific resolution allowing a representative to sign.
5.5.3 Counsel has been allowed to sign the certification in the following
instances: (a) Where the counsel is the Solicitor General has been deemed to be
substantial compliance134 (b)Certification by acting regional counsel of NPC was
accepted because it was his basic function to prepare pleadings and to represent
NPC – Mindanao – as such he was in the best position to know and certify if a
similar action was pleading or had been filed 135 (c) Certification was signed by
counsel. The procedural lapse may be overlooked in the interest of substantial
justice.136 (d) Certification was executed by an in house counsel is sufficient
compliance with the Rules137
SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005
126
TADI v Solilapsi, 394 SCRA 269
127
BA Savings Bank v Sia, 336 SCRA 484
128
Ruiz v Drilon, 209 SCRA 695
129
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
130
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners
Association, 411 SCRA 504
131
Dar v Alonso Legasto, 339 SCRA 306
132
Docena v Lapesura, 355 SCRA 658
133
Hamilton v Levy, 344 SCRA 821
134
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
135
Robern Development Corporation v Quitain, 315 SCRA 150
136
Sy Chin v Court of Appeals, 345 SCRA 673
137
Mercury Drug Corporation v Libunao, 434 SCRA 404
The rule in Section 1, Rule 17 is that the plaintiff may dismiss his complaint by
filing a notice of dismissal at any time before service of the answer or of a motion
for summary judgment. As a general rule, such dismissal is without prejudice.
Suppose P filed a complaint against D, and before service of the answer or of
motion for summary judgment, P caused the dismissal of his complaint by filing a
notice of dismissal. Months later, P filed the same complaint against D. In the
certification on non-forum shopping appended to the second complaint, P failed
to mention about the prior filing and dismissal of the first case. Is P’s failure to
mention about the prior filing and dismissal of the first case fatal?
No. An omission in the certification on non-forum shopping about any event or

case which would not constitute res judicata or litis pendentia is not fatal. In the
problem presented, the dismissal of the first case would not constitute res
judicata precisely because such dismissal is without prejudice to the refilling of
the case. (Roxas v. CA, G.R. No. 139337, Aug. 15, 2001.)
To be included as 4th paragraph of the answer in Q&A No. 13; p. 62:
Also, a case pending before the Ombudsman cannot be considered for purposes
of determining forum shopping as the power of the Ombudsman is only
investigative in character and its resolution cannot constitute a valid and final
judgment because its duty is to file the appropriate case before the
Sandiganbayan. (Sevilla v. Laggui, A.M. No. RTJ-01-1612, Aug. 14, 2001.)
CAN THE CERTIFICATION BE FILED LATER-
General Rule – NO – Note Uy v. Land Bank GR 136100 July 24, 2000-

REINSTATEMENT OF THE CASE AFTER MOTION TO ADMIT CERTIFICATION
BUT: Loyola v. CA 245 S 477 – one day after, Roadway Express v. CA 264 S 696
– 14 days before the CA dismissed Petition for Review.
Shipside v. Ca – GR 143377, Feb 20, 2001 – motion for reconsideration –

showing authority of petitioner to execute certification prior to filing.
REASON – special or compelling reasons justified relaxation of the Rule – IN

Shipside – merits of case justified deviation.
DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION
Verification Certification
-allegations are true and correct no action/claim involving the same

based on personal knowledge / issues have been filed or is pending
authentic records
-required in complaints, initiatory required only in complaints/initiatory

pleadings and in some responsive pleadings.
pleadings.
-may be cured by amendment or cannot be cured by amendment

order to verify
-may not result in dismissal results in dismissal
-may be signed by counsel by the party himself
RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS
HOW ALLEGATIONS ARE MADE IN A PLEADING
In general, a pleading must contain in a METHODICAL and LOGICAL form a

PLAIN, CONCISE, and DIRECT statement of the ULTIMATE FACTS on which
the party pleading relies for his claim or defense 138
1. ULTIMATE FACTS are the essential facts constituting the plaintiff’s cause
of action. A fact is essential if it cannot be stricken out without leaving the
statement of the cause of action insufficient. Examples: (a) That an obligation has
been constituted, that party must comply, that there is no compliance (b)That
party is the owner of property, that he has a right to its use/possession, that he
has been dispossessed
2. Mere EVIDENTIARY FACTS or those that are necessary for the

determination of the ultimate facts are to be omitted. Evidentiary facts are the
premises upon which conclusions of ultimate facts are based. Examples: (a)That
obligation as covered by promissory note was executed before specified
persons, that defendant has several letters indicating intention to/or not to pay (b)
How property was acquired
3. LAWS may be pleaded only if the pleading is an Answer.
PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES
1. A party may set forth two or more statements of a claim or a defense

alternatively or hypothetically, either in one cause of action or defense or in
separate causes of actions or defenses. If two or more statements are made in
the alternative and if one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of the
alternative statements.139Example: (a) allegations for breach of contract of
carriage and tort (b) allegations for breach of contract and fraud (c) defense of
failure to repurchase by plaintiff and that property was inherited are inconsistent
defenses.
2. Overruling of one does not bar other defense. However, if not set up,
determination of one shall bar the determination of the other.
3. The OBJECT OF PROVISION is to relieve a party from making a definite

election in cases where his claim or defense might fall within two different
substantive classes. SO, a party may state as many claims/defenses as he has
regardless of inconsistency.
HOW TO PLEAD CONDITIONS PRECEDENT
138
139
A general averment of the performance or occurrence of all conditions precedent
is sufficient.140 (a) that earnest efforts at a compromise have been exerted, the
suit being one between members of the same family (b) that prior resort to
conciliation has been undertaken to no avail
PLEADING CAPACITY TO SUE AND TO BE SUED
The following must be averred: (1) capacity to sue or be sued (2) authority of a
party to sue or be sued in a representative capacity (3) legal existence of an
organized association of persons that is made a party. 141
1. Note the cross reference to Sections 1 and 3, Rule 3 referring to who may
be parties and representative parties, and to Section 1(d), Rule 16 referring to a
motion to dismiss on the ground of lack of legal capacity to sue, meaning that a
party is not in possession of his civil rights, does not have the qualification to
appear, or does not have the character or representation claimed.
2. A party desiring to raise the issue of lack of legal capacity shall do so by

specific denial, which shall include such supporting particulars as peculiarly
within the pleader’s knowledge.
HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND
Fraud and mistake must be stated with particularity. Condition of mind, such as
malice, intent, knowledge may be averred generally. 142
HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN

COURT, JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL BOARD
It is sufficient that a general allegation of the existence of the judgment is made,

without setting forth matter showing jurisdiction to render it. 143 Jurisdiction in this
case is presumed.
IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT
1. Where the action or defense is based on a written document ( an

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

under oath and setting forth what he claims to be the fact.
2.1 The requirement DOES NOT APPLY IF: (a) adverse party is not/does not
appear to be a party to the actionable document. Example: Heirs are sued on a
document executed by a person they will inherit from (b) when compliance with
an order for an inspection of the original document is refused. 145 (c) when the
document is not an actionable document but is merely evidence of the claim or
existence of the actionable document . Example: demand letters (d) when the
party who has the benefit of an implied admission waives the benefit Example:
he presents evidence as to genuineness and due execution
140
141
142
143
144
145
3. The EFFECT of not SPECIFICALLY DENYING AN ACTIONABLE
DOCUMENT UNDER OATH is that the genuineness and due execution is
admitted. MEANING, that it was executed by him/by someone authorized by him,
it was in the words/figures set forth in the pleading, and that the formal
requirements of law have been observed. THUS, there is no need to present it
formally in evidence because it is an admitted fact.
3.1 A PARTY THOUGH IS NOT BARRED FROM INTERPOSING OTHER

DEFENSES as long as it is not inconsistent with the implied admission.
Example: (a) the defense of forgery would be inconsistent, ON THE OTHER
HAND (b) Fraud/Payment are not inconsistent and may be allowed.
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED
It is sufficient to aver that document was issued or act done in compliance with
law.146 Example: issuance of certification to file action by Lupon Tagapayapa
chair.
HOW ARE SPECIFIC DENIALS MADE
A specific denial is made147 by: (a) Specifically denying the material averment in
the pleading of the adverse party and setting forth the substance of the matter
upon which he relies for such denial (b) Deny only a part of the averment by
specifying that so much of it is true and deny the remainder (c) Allegation of
lack of knowledge or information sufficient to form a belief as to the truth of the
material averment in the pleading of the adverse party.
1. If allegations are not denied in the prescribed manner, a party is deemed

to have made a GENERAL DENIAL which is TANTAMOUNT TO AN
ADMISSION.148(Section 11)
1.1 An exception to the rule are allegations that pertain to UNLIQUIDATED

DAMAGES
1.2 Note that when the allegations pertain to (a) allegations of usury in a
complaint to recover usurious interest,OR (b) genuineness and due execution of
an actionable document are required to be made UNDER OATH OTHERWISE
THEY ARE ADMITTED.
STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN
If the pleading or any matter therein is SHAM, FALSE, REDUNDANT,

IMMATERIAL, IMPERTINENT OR SCANDALOUS, the court can order the
pleading or matter contained therein to be stricken therefrom (a) upon motion
made by a party before responding to a pleading (b) if no responsive pleading is
allowed / permitted by the Rules, upon motion by a party within 20 days after
service of the pleading, OR (c) upon the Court’s own initiative 149
146
147
148
149
RULE 9 – EFFECTS OF FAILURE TO PLEAD
The general effect of the failure to plead is that the defenses / objections not so
pleaded in an Answer or a Motion to Dismiss are deemed waived. HOWEVER, if
it appears from the pleadings or evidence on record that (a) the Court has no
jurisdiction over the subject matter (b) there is another action pending between
the same parties for the same cause, or (c) the action is barred by prior judgment
or statute of limitations, the court shall DISMISS the claim. 150 These defenses are
not barred if not set up (Section 1)
1. A compulsory counterclaim or a cross-claim not set up shall also be

barred.151 Note that this is in consonance with the requirement of the Rules that a
a compulsory counterclaim or cross claim existing at the time of the filing of the
answer must be contained therein 152 BUT if it arises after the filing of an answer,
it may be set up in a supplemental pleading before judgment 153 OR if failure is
due to oversight, inadvertence, excusable neglect or when justice requires, it
may be set up by amendment with leave of court before judgment. 154
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER

WITHIN THE TIME ALLOWED
If there is failure to plead within the time allowed, the defendant may be declared
in default upon compliance with the following: (a) the plaintiff must file a motion to
declare the defendant in default (b) serve notice of his motion to defendant,
which must include a notice of hearing (c) at the hearing, show proof of failure on
the part of the defendant to file his answer within the reglamentary period. 155 Note
that a court cannot motu propio declare a defendant in default.
ONCE DECLARED IN DEFAULT
The court can proceed to render judgment granting the claimant such relief as his
pleading may warrant, UNLESS, the Court in its discretion requires the claimant
to submit the evidence. Such reception may be delegated to the Clerk of Court,
who must be a member of the BAR
1. In addition, the defaulted defendant is entitled to NOTICE OF

SUBSEQUENT PROCEEDINGS but HE CANNOT TAKE PART IN THE TRIAL.156
2. EFFECT OF A PARTIAL DEFAULT, where a pleading asserting a claim

states a common cause of action against several defending parties, some of
whom answer while others do not , THE COURT SHALL TRY THE CASE
AGAINST ALL UPON THE ANSWERS THUS FILED AND RENDER JUDGMENT
UPON THE EVIDENCE PRESENTED.157
3. THE EXTENT OF RELIEF THAT MAY BE AWARDED shall not exceed the
amount or be different in kind from that prayed for nor award unliquidated
damages.158
150
151
152
153
154
155
156
Supra, Section 3 (a), Rule 9
157
Supra, Section 3 (c), Rule 9
158
Supra, Section 3 (d), Rule 9
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
The available remedies of a defendant who is declared in default are as follows:
1. MOTION TO SET ASIDE ORDER OF DEFAULT- under oath, filed at any

time after notice of declaration in default and before judgment. Defendant must
show by an AFFIDAVIT OF MERIT that failure to file an answer was due to FAME
and that he has a meritorious defense
2. MOTION FOR NEW TRIAL on the ground of FAME if the trial court has
rendered judgment but it has not yet become final
3. APPEAL the judgment by default (not the order as it is interlocutory, and

cannot be appealed) within 15 days from notice of judgment. Note: that if in the
meantime, a motion to set aside order of defendant has been denied, it can be
assigned as an error in the appeal. THE NON FILING THOUGH DOES NOT
BAR APPEAL
4. PETITION FOR RELIEF FROM JUDGMENT – based on FAME – provided

no appeal has been taken within 60 days from notice and 6 months from entry of
judgment.159
5. ACTION TO ANNUL JUDGMENT – based on EXTRINSIC / COLLATERAL

FRAUD – within 4 years from discovery of the fraud (ONE THAT INDUCES ONE
NOT TO PRESENT HIS CASE/PREVENTS FULL AND FAIR HEARING)
6. CERTIORARI if improperly declared in default OR motion to set aside was

denied and is tainted with grave abuse of discretion. Filed within 60 days from
notice or judgment order resolution or 60 days from denial (notice) of motion for
reconsideration.160
CASES WHERE NO DEFAULT LIES
In the following cases, default does not lie: (a) annulment of marriage
(b)declaration of nullity of marriage (c) legal separation (d) expropriation, and (e)
forcible entry, illegal detainer and the other actions covered by the Rules on
Summary Procedure. In the first three cases, the court shall order the
prosecuting attorney to investigate whether or not collusion exists, and if there is
no collusion, to intervene for the state in order to see that the evidence so
presented is not fabricated.161
RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS
WHAT ARE AMENDMENTS
Amendments consist of: (1 )Adding or striking out an allegation or the name of

any party (2) Corrections of mistakes in the name of a party or mistaken or
inadequate allegation or description in any other respect.
PURPOSE FOR ALLOWING AMENDMENTS

159
Supra, Rule 38
160
Supra, Rule 65
161
Supra, Section 3,(e), Rule 9
Actual merits of the controversy may speedily be determined without regard to
technicalities and in the most expeditious and inexpensive manner. 162
KINDS OF AMENDMENTS
The kinds of amendments are:
1. Formal Amendments which are defects in the designation of the parties,

other clerical or typographical errors that may summarily be corrected provided
no prejudice is caused the adverse party and are allowed at any stage, at the
Court’s own initiative or on motion.163
2. ALL OTHER AMENDMENTS ARE considered as SUBSTANTIAL.
WHEN AMENDMENTS CAN BE MADE
1. Formal and Substantial amendments can be made once as a matter of

right before a responsive pleading is served, or in case of a Reply, at any time
within 10 days after it is served.164
1.1 Note that the FILING OF MOTION TO DISMISS does not bar an
amendment as it is not a responsive pleading, but can no longer be made if the
order dismissing the complaint has become final.
1.2 Prior to the filing of an answer, the plaintiff has the absolute right to amend
the complaint whether a new cause of action or change in theory is introduced. 165
2. After the filing of a responsive pleading, Substantial amendments require

leave of court, but leave may be refused if it appears to the court that the motion
was on made with INTENT TO DELAY. Orders related to leave shall be made
upon motion filed in court, with notice to the adverse party and opportunity to be
heard.166
2.1 That the amendments should not substantially alter the cause of action or
defense is NO LONGER THE RULE as the Rules now allow the pleading of
alternative causes of action/defenses167 and that all such causes or defenses
must be pleaded in accordance with the rule on waiver. 168
2.2 The Trial Court may refuse leave or amendments when: (a) a responsive
pleading has been filed and the motion for leave to amend is made with intent to
delay (b) purpose is to confer jurisdiction as the court must first acquire
jurisdiction before it can act169 (c) purpose is to cure the defect of a non-existent
cause of action. Example: An amendment of the complaint to correct its having
been filed prematurely or when the obligation was not yet due.
2.3 IF NO LEAVE IS OBTAINED, the pleading it has no standing and may be

stricken from records
162
163
164
165
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
166
167
168
169
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
2.4 PROBLEM: Complaint is filed against several defendants. Some
defendants answer, the others have not yet filed their answers. Amendments will
be allowed as a matter of right against those who have not filed answers, and
with leave of court, as against those who have filed their answers. 170
3. Substantial amendments can also be made when it is necessary to

conform to the evidence. This occurs when issues are tried with the express or
implied consent of parties. If such, they are treated in all respects as if they have
been raised in the pleadings171, thus paving the way for an amendment of the
pleadings to conform to the evidence. This is made upon motion of any party,
even after judgment THOUGH FAILURE TO AMEND DOES NOT AFFECT THE
RESULT OF THE TRIAL. Example: Increased claim for the payment of damages
OR made to authorize presentation of evidence. This occurs when evidence is
objected to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings amended and shall do so with
liberality to authorize presentation of evidence. 172
3.1 THUS, the failure of a complaint to state a cause of action may be cured
by (1) Presentation of evidence to prove that cause of action followed by an
amendment to conform to evidence, OR (2) Evidence is objected to and the trial
court sustains the objection, this is then followed by an amendment with leave of
court to authorize presentation of evidence. Same remedies may be resorted to
WHEN A PARTY FAILS TO RAISE A DEFENSE IN HIS PLEADING.
THE EFFECTS OF AN AMENDED PLEADING
1. It supersedes the pleading that it amends
2. Admissions in the superseded pleading may be received in evidence

against the pleader because it is not expunged from the records and admissions
in the superseded pleading are in the nature of judicial admissions made by a
party in the course of the proceedings which do not require proof and ordinarily
cannot be contradicted except by showing that it was made through palpable
mistake or that no such admission was made.173
3. Claims or defenses alleged in the superseded pleading but not

incorporated in the amended pleading shall be deemed waived. 174
HOW IS AN AMENDED PLEADING FILED
A new copy of the entire pleading incorporating the amendments which shall be
indicated by appropriate marks shall be filed.175
1. NOTE that the date of filing of amended pleadings does not retroact to the
date of the filing of the original pleading. Hence, the statute of limitations runs
until the filing of the amendment, but, an amendment that merely supplements
and amplifies facts originally alleged in the complaint relates back to the date of
the commencement of the action and is not barred by the statute of limitations
that expired after service of the original complaint. Example: The statement of a
cause of action is imperfect and is corrected by an amended complaint, the plea
of prescription relates to the time of filing BUT the rule will not apply if a new
170
Siasoco v Court of Appeals, 303 SCRA 186
171
Bernardo v Court of Appeals, 263 SCRA 660
172
173
174
175
defendant is impleaded in the amended complaint and prior to its filing
prescription has set in.
WHAT IS A SUPPLEMENTAL PLEADING
A supplemental pleading setting forth transactions, occurrences or events which

have happened since the date of the pleading sought to be supplemented
Example: Setting up counterclaims after an answer has been filed. 176
1. A supplemental pleading is always upon motion, and on such terms as are

just and upon reasonable notice and the ADVERSE PARTY IS GIVEN 10 DAYS
FROM NOTICE OF ORDER ADMITTING THE SUPPLEMENTAL PLEADING TO
PLEAD THERETO.177
2. A supplemental pleading is meant to supply deficiencies in aid of an

original pleading, not to entirely substitute the latter. 178 Thus, when the cause of
action stated in the supplemental complaint is different from the cause of action
mentioned in the original complaint, the court should not admit the supplemental
complaint.179
DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A

SUPPLEMENTAL PLEADING
(1) An amended pleading is filed either as a matter of right or with leave, a

supplemental pleading is always with leave (2) An amended pleading alleges
matters occurring before the filing of the original pleading, while a supplemental
pleading alleges matters occurring after the filing of the original pleading (3) An
amended pleading supersedes the original pleading, while a supplemental
pleading allows the original pleading to stand.
RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED
ANSWER TO THE COMPLAINT
1. Within 15 days after service of summons unless a different period is fixed

by the Court.180 The same period applies to third party complaints. 181
2. If covered by the Rules on Summary Procedure, it is 10 days
3. If the complaint is amended: (a) as a matter of right, within 15 days from

being served with a copy (b) if with leave of court, within 10 days from notice of
order admitting the same. If no new answer is filed, a previously filed answer may
serve as the answer.HOLDS ALSO FOR ANSWERS TO AMENDED COUNTER-
CLAIMS, CROSS CLAIMS, THIRD PARTY (ETC) CLAIM OR COMPLAINTS IN
INTERVENTION.182
4. If defendant is a foreign private juridical entity, within 15 days if service of

summons is made on the resident agent, within 30 days from receipt of summons
176
Supra, Section 9, Rule 11 and Section 2, Rule 9
177
178
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
179
APT v Court of Appeals, 324 SCRA 533
180
181
182
by the entity at its home office if received by the government office designated by
law.183
5. If it is a complaint –in- intervention, within 15 days from notice of the order

admitting the complaint in intervention
6. If it is a supplemental complaint, within 10 days from notice of the order

admitting the supplemental complaint. The answer to the complaint shall serve
as the answer to the supplemental complaint if no new or supplemental answer is
filed.184
7. If it involves a complaint served on a non-resident defendant who is not in
the Philippines through any of the modes of extra-territorial service, including by
publication, within a reasonable time which shall not be less than 60 days after
notice as the court may specify in its order granting leave to effect extra-territorial
service of summons
ANSWER TO A CROSS CLAIM OR COUNTER CLAIM
The answer to a cross claim or a counter-claim shall be filed within 10 days from
service.185 NOTE that compulsory counterclaims need not be answered unless it
raises issues not covered by the complaint .
NOTE that it is required that a compulsory counterclaim or a cross claim existing

at the filing of defendant’s answer must be included therein BUT, if it matures / or
is acquired after serving of answer, it may with the court’s permission be
presented as such in a supplemental pleading. If already existing and not set up
through oversight, inadvertence, or excusable neglect, it may, by leave of court
be set up as such by amendment before judgment.186
REPLY
It must be filed within 10 days from service of the pleading responded to. 187
Altough the filing of a reply is optional as if one is not filed, all new matters are
deemed controverted.188
MAY THE TIME TO PLEAD BE EXTENDED
Upon motion and on terms as may be just, the Court it may extend or allow it to
be filed after the time fixed by the Rules. 189 The court may also, upon like terms,
allow an answer or other pleading t be filed after the time fixed by these Rules.
1. NOTE that in cases covered by the Rules on Summary Procedure, the

period cannot be extended nor shortened.
2. In quo warranto cases, the period may be shortened. 190
183
Supra, Section 2, Rule 11, Section 128, Corporation Code
184
185
186
Supra, Sections 8,9, and 10, Rule 11
187
188
189
190
3. A lawyer shall not, after obtaining extensions of time to file pleadings,
memoranda, or briefs, let the period lapse without submitting the same or offering
an explanation for failure to do so.191
WHEN A COMPLAINT SHOULD BE FILED
A complaint is not a responsive pleading. It is to be filed upon accrual of the

cause of action or any time thereafter but before it is barred by prescription.
RULE 12 – BILL OF PARTICULARS
WHAT IS A BILL OF PARTICULARS
It is a definitive statement of any matter which is not covered with sufficient

definiteness or particularity to enable him to properly prepare his responsive
pleading.192
1. The PURPOSE of which is to make more particular or definite the ultimate
facts in a pleading but is NOT INTENDED TO SUPPLY EVIDENTIARY
MATTERS
2. It is to be resorted to when the complaint is deficient in details with respect

to the factual basis of each and every item claimed, but such deficiency is not
such as to amount to a failure to state a cause of action as the remedy then is to
file a motion to dismiss.193
WHEN SHOULD IT BE FILED
Before filing or responding to a pleading or before filing an answer. If pleading is

a reply, within 10 days from service thereof
WHEN WILL OR WHEN CAN COURT ACT UPON IT
Upon filing of the motion that points out the defects complained of, the
paragraphs wherein they are contained, and the details desired (it is a litigated
motion, thus requires a notice of hearing) – the CLERK OF COURT must
IMMEDIATELY BRING IT TO THE ATTENTION OF THE COURT, who may deny
or grant the motion OUTRIGHT or allow the parties an opportunity to be heard. 194
1. IF GRANTED, whether in WHOLE or in PART, the compliance therewith

must be effected within 10 days from notice of order, unless a different period is
fixed by the Court.
2. The BILL OF PARTICULARS – may be filed either in a separate or in an

amended pleading, serving a copy on the adverse party. 195 ONCE filed, it
becomes part of the pleading for which it is intended. 196
EFFECT OF NON-COMPLIANCE WITH ORDER
In case of failure to obey or insufficient compliance, the Court may order the
pleading or portions thereof to which the order was directed to be stricken out OR
191
Rabanal v Tugade, 383 SCRA 484
192
193
Sabangan v Manila Railroad Company, 28 SCRA 772
194
195
196
make such order as it deems just. 197 HENCE, it may also dismiss for failure of the
plaintiff to obey order of the Court. 198 The striking out of a complaint by the lower
court upon motion of the defendant for failure of the plaintiff to comply with an
order requiring him to submit a bill of particulars as a ground for dismissal is
equivalent to an adjudication on the merits unless otherwise provided by the
court.199
WHEN MUST A RESPONSE / ANSWER BE FILED
After service of a bill / definitive pleading OR notice of denial of the motion for a
bill of particulars, the moving party has the remaining period that he was entitled
to at the time of the filing of the motion, which shall not be less then 5 days in any
event.200
RULE 13 – FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER

PAPERS
The Rule applies to all pleadings / papers as well as service thereof, except
those for which a different mode of service is prescribed. 201
FILING / SERVICE DEFINED
FILING is the act of presenting the pleading or other paper to the clerk of court,
while SERVICE is the act of providing a party with a copy of the pleading / paper
IF A PARTY IS REPRESENTED BY COUNSEL service is made upon counsel or
one of them UNLESS service is ordered to be made upon the party by the Court.
If there is one counsel for several parties, he is entitled to only one copy served
by the opposite side. 202
MODES OF FILING
The modes of filing are (1) Presenting the original copies of pleadings,
appearances, motions, notices, orders, judgments and all other papers to the
clerk of court, OR (2) By registered mail.203
1. The clerk of court shall if filing be PERSONAL, endorse on the pleading,

the date and the hour of filing. If it BY MAIL, the date appearing on the post office
stamp / registry receipt shall be date of the filing / deposit of court. The envelope
shall be attached to the record. It bears stressing that it is the date of mailing, not
the date of receipt of the mail matter, which shall be considered as the date of
filing.204 This has been the practice since mail is considered an agent of the
Government.205This is also known as the MAILBOX RULE.
2. The PAPERS that are to served or ARE TO BE FILED / SERVED are

JUDGMENTS, RESOLUTIONS, ORDERS, PLEADINGS SUBSEQUENT TO
THE COMPLAINT, WRITTEN MOTIONS, NOTICE, APPEARANCES, REMAND,
197
198
199
Vda. De Quillosa v Salazar, 14 SCRA 656
200
201
202
203
204
Ansel v Aledo, 420 SCRA 645
205
Supra, Mintu v Court of Appeals, 53 SCRA 114
OFFER OF JUDGMENT OR SIMILAR PAPERS SHALL BE FILED AND
SERVED UPON AFFECTED PARTIES206
WHAT ARE THE MODES OF SERVICE
The general rule is that PLEADINGS, MOTION, NOTICES, ORDERS,

JUDGMENTS AND OTHER PAPERS shall be served PERSONALLY or by
MAIL.207
1. IF PERSONALLY served, it may done: (a) by delivering personally a copy

to party or his counsel, OR (b) leaving it in his office with a clerk or person having
charge thereof, OR (3) IF NO PERSON IS FOUND IN THE OFFICE OR HE HAS
NO OFFICE, by leaving a copy between the hours of 8am to 6pm at party’s /
counsel’s residence, if known, with a person of sufficient age and discretion
residing therein.208
2. IF BY MAIL, by depositing a copy in the post office in a sealed envelope,

plainly addressed to the party or counsel, if known, at his address / office,
OTHERWISE, at his residence, if known, postage prepaid and with instructions
to the postmaster to return the mail to sender after 10 days if UNDELIVERED. If
no registry service is available in the locality of the addressee or sender, service
may be by ordinary mail.209
2.1 If mailed by PRIVATE CARRIER, the date of actual receipt by the court of
such pleading and not date of delivery to the carrier is deemed the date of filing
of that pleading.210
3. NOTE THOUGH THAT JUDGMENTS, FINAL ORDERS OR

RESOLUTIONS shall be served personally or by registered mail.
3.1 ALSO, if a party is summoned by publication, and he has failed to appear,

judgments, final orders / resolutions shall also be served upon him by publication
at the expense of the prevailing party. 211
4. IF SERVICE CANNOT BE MADE personally or by mail, SUBSTITUTED

SERVICE MAY BE AVAILED OF as long as the office and place of residence of
the party or his counsel is also unknown, service may be made by delivering a
copy to the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery. 212
WHEN SERVICE IS COMPLETE

Service will be deemed complete: (a) Upon actual delivery if undertaken
personally (b) Upon expiration of 10 days after mailing, unless the Court orders
otherwise if undertaken by ordinary mail (c) Upon actual receipt by addressee or
after 5 days from the date he received the 1 st notice of the postmaster, whichever
date is EARLIER, if undertaken by registered mail 213 (d) At the time of delivery to
the clerk of court, if undertaken by substituted service
WHAT IS THE RULE ON PRIORITY OF SERVICE

206
207
208
209
210
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
211
212
213
Whenever practicable, service and filing of pleadings and other papers shall be
done personally EXCEPT, with papers emanating from the court. A resort to other
modes must be accompanied by an explanation why service or filing was not
done personally. IF NOT, it may be cause to consider the paper as not filed. 214
1. Where the address of the respondent’s counsel is 83 kilometers away

from the address of petitioner’s counsel, such distance makes personal service
impracticable, and a written explanation why service was not done personally
might have been superfluous. Liberal construction has been allowed in cases
where the injustice to the adverse party is not commensurate with the degree of
thoughtlessness in not complying with the procedure prescribed. 215
WHAT CONSTITUTES PROOF OF FILING
Proof of filing is shown by: (a) existence of the pleading or other paper in the
records of the case (b) If not in the record, but is claimed to be: (1) FILED
PERSONALLY by the written / stamped acknowledgment of its filing by the Clerk
of Court on a copy, and (2) FILED BY REGISTERED MAIL by the registry
receipt and the affidavit of the person who did the mailing containing a FULL
STATEMENT OF: (a) Date and place of depositing in the post office in a sealed
envelope addressed to the Court, with postage prepaid, and (b) Instructions are
given to the postmaster to return the mail to sender after 10 days, if
undelivered.216
WHAT CONSTITUTES PROOF OF SERVICE
Proof of service is shown by: (a) Written admission of the party served OR
official return of the server, or affidavit of the party serving, containing a full
statement of the DATE, PLACE, MANNER OR SERVICE if served personally (b)
An affidavit of the person mailing of facts showing compliance with Section 7 of
the Rule if served by ordinary mail (c) An affidavit and registry receipt issued by
the mailing office. The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof, the unclaimed letter together of the sworn
/ certified copy of the notice given by the postmaster to the addressee. 217
1. If service is by registered mail, proof of service consists of the affidavit of

the person mailing and the registry receipt, both of which must be appended to
the motion. Absent one or the other, or both, there is no proof of service. 218
2. Late filing of the affidavit of service may be considered as substantial

compliance with the Rules.219
3. Failure of a party to comply with the required proof of service may be

excused where the motion is not a contentious motion and therefore, no right of
the adverse party would be affected by the admission thereof. 220
NOTICE OF LIS PENDENS
214
215
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
216
217
218
Cruz v Court of Appeals, 388 SCRA 72
219
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
220
PEA v Caoibes, Jr., 312 SCRA 767
Is an announcement to the world that a particular property (real) is in litigation,
serving as a warning that one who acquires the property or an interest therein
does at his own risk which is filed with the Office of the Register of Deeds of the
place where the property is located.
1. It shall contain (a) the names of the parties (b) object of the action or
defense (c) description of the property. 221
2. It is only from the time of the filing of the notice for record shall a
purchaser or encumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action and only of its pendency against
parties designated by their real names
3. It is available only in an action affecting title or right of possession of real

property. Specifically in actions (a) to recover possession of real estate
(b)to quiet title (c) to remove a cloud (d) for partition (e) other proceeding of any
kind in court directly affecting title to the land or the use or occupation thereof or
buildings thereon.222
WHO MAY AVAIL OF IT
The plaintiff or the defendant – when affirmative relief is claimed in the answer
WHEN MAY IT BE CANCELLED
Upon order of the court when: It is shown that it has for the purpose of molesting
the adverse party or it is not necessary to protect the rights of the party who
caused it to be recorded.223
RULE 14 – SUMMONS
DEFINED
It is a writ issued sealed and signed by the clerk of court upon filing of a
complaint and payment of requisite legal fees 224 ISSUED to and DIRECTED to
the defendant containing the following: (a) name of the court and of the parties
(b) a direction that the defendant answer within the time fixed by the Rules, and
(c) notice that unless defendant answers, plaintiff will take judgment by default
and may be granted the relief prayed for. ATTACHED THERETO IS A COPY OF
THE COMPLAINT AND ORDER FOR THE APPOINTMENT OF A GUARDIAN
AD LITEM, IF ANY.225
1. It shall also contain a reminder to the defendant to observe restraint in

filing a motion to dismiss and instead allege the grounds thereof as defenses in
the answer.226
WHO SERVES SUMMONS
221
222
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA
756
223
Lim v Vera Cruz, 356 SCRA 386
224
225
226
A.M. No. 03-1-09-SC
The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by
any suitable person authorized by the court issuing the summons. 227
1. An Officer having management of a jail or institution, if a defendant is a

prisoner therein is deputized as a special sheriff for service of summons. 228
SIGNIFICANCE OF SUMMONS
The significance of summons is that it is the primary means by which a Court is

able to acquire jurisdiction over the person of the defendant and to give notice
that an action has been commenced against him.
1. Jurisdiction cannot be acquired over the person of the defendant even if

he knows of the case against him unless he is validly served with summons 229
OR the defendant voluntarily appears in the action.
2. Voluntary appearance shall be equivalent to service of summons. The

inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a voluntary appearance. 230
2.1 The rule abandons previous rulings of the Supreme Court that a motion to
dismiss on the ground of lack of jurisdiction over the person be based solely on
that ground, otherwise, it is a voluntary appearance. This is so because of the
OMNIBUS MOTION RULE231 that all objections then available be included
otherwise they are waived, as the only exceptions are (1) the Court has no
jurisdiction over the subject matter; (2) there is another action pending between
the same parties for the same cause; (3) or, the action is barred by prior
judgment or statute of limitations.232 These defenses are not barred if not set up.
WHAT ARE THE MODES OF SERVICE
1. Service in person on the defendant by handling a copy thereof to the

defendant in person, or if he refuses to receive and sign for it, by tendering it to
him233
2. Substituted service by leaving a copy of the summons at defendant’s

residence with some person of suitable age and discretion, then residing therein
or leaving it at defendant’s office or regular place of business with some
competent person in charge thereof.234
2.1 BUT, it may only be resorted to, if for justifiable causes, the defendant
cannot be served personally within a reasonable time. The impossibility of
service in person must be indicated in the return, otherwise, substituted service is
void. 235
2.2 Service of summons on the defendant shall be by personal service first

and only when the defendant cannot promptly be served in person will
substituted service be availed of.236
227
228
229
UCPB v Ongpin, 368 SCRA 464
230
Supra, Section 20, Rules 14
231
232
233
234
235
Hamilton v Rey, GR 139283, November 15, 2000
236
Samartino v Raon, 383 SCRA 664
3. Service by publication with leave of court, obtained by the filing of a
motion in writing, supported by an affidavit of the plaintiff or some person in his
behalf, setting forth the ground that allows resort to it. 237
3.1 The grounds that allow service of summons by publication are: (a) Identity
of the defendant is unknown OR whereabouts of the defendant is unknown and
cannot be ascertained by diligent inquiry238 (b) Defendant does not reside and is
not found in the Philippines but the suit can be maintained against him because it
is in REM OR QUASI IN REM239 (c) Defendant is a Philippine resident but is
temporarily out of the country. 240 Note the cross reference with Section 15 and
the fact that SUBSTITUTED SERVICE MAY ALSO BE AVAILED OF.
4. Extra-Territorial Service is allowed in suits against a non-resident

defendant not found in the Philippines can be made by:
4.1 (a) Personal service (b) Publication in a newspaper of general

circulation in such places and for such time as the court may order, in which case
a copy of the summons and order of the court shall be sent by registered mail to
the last known address (c) Or any other manner the court may deem
sufficient.241 Resort to registered mail has been deemed appropriate. 242
4.2 EXTRA-TERRITORIAL SERVICE CAN BE AVAILED OF when: (a) Action

affects the personal status of the plaintiff (b) Action relates to, or the subject of
which is property within the Philippines in which the defendant has or claims a
lien or interest, actual or contingent (c) When the relief demanded, in whole or in
part consists of excluding the defendant from any interest in property located in
the Philippines (d) When the defendant’s property has been attached in the
Philippines.243
4.3 Resort to extra-territorial service requires leave of court.
UPON WHOM MAY SERVICE OF SUMMONS BE MADE
Service of summons is to be made upon the defendant. If the defendant is: (a)
AN ENTITY WITHOUT JURIDICAL PERSONALITY it is to be served upon any
one of them or upon person in charge of the office or place of business
maintained in such name BUT such shall not bind individually any person whose
connection with the entity has, UPON DUE NOTICE, been severed before the
action has brought244 (b) MINOR, INSANE OR OTHERWISE INCOMPETENT it is
to be served upon him personally and his guardian / or guardian ad litem. In
addition, in case of a minor, service may also be made on his father or mother 245
(c) REPUBLIC OF THE PHILIPPINES it is to be served on the Solicitor General
246
(d) PROVINCE, CITY,MUNICIPALITY OR SIMILAR PUBLIC CORPORATION
it is to be served on the executive head, or on such other officers as the law or
court may direct247 (e) DOMESTIC PRIVATE JURIDICAL ENTITY its is to be
served on the president, managing partner, general manager, corporate
237
238
239
240
241
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
242
Cariaga v Malaya, 143 SCRA 441
243
244
245
246
247
secretary, treasurer or in house counsel. 248 Note the abandonment of doctrine of
substantial compliance.249 (f) FOREIGN PRIVATE JURIDICAL ENTITY it is to be
served upon its resident agent. If there be no resident agent, the Government
official designated by law such as the SEC, Insurance Commissioner,
Superintendent of Banks. If none, any of its officers or agents in the Philippines.
Note the required sequence of service. In addition, if a lawyer enters an
appearance without proof of having been engaged by the foreign corporation, no
voluntary appearance can be inferred.250
AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO
1. Within 5 days after completion, a copy of the return must be served,

personally or by registered mail, to plaintiff’s counsel, and he shall return the
summons to the clerk of court who issued it together with proof of service. 251
2. PROOF OF SERVICE is the writing executed by the server setting forth

(1) the manner, place and date of service; (2) the paper/s which have been
served with the process and name of the person who received the same. IT
SHALL BE SWORN TO WHEN MADE BY A PERSON OTHER THAN THE
SHERIFF / DEPUTY.252
2.1 IF SUMMON IS BY PUBLICATION, PROOF OF SERVICE CONSISTS

OF: (a) Affidavit of printer, foreman, principal clerk editor, business manager or
advertising manager, COPY OF PUBLICATION ATTACHED, and (b) Affidavit
showing the deposit of a copy of the summons and order for publication in the
post office, postage prepaid directed to the defendant by registered mail at / to
his last known address.253
RULE 15 – MOTIONS
DEFINED
A motion is an application for relief other than a pleading. 254
REQUISITES OF A VALID MOTION
1. Shall be in writing except when made in open court or in the course of the
hearing or trial.255 Example: a motion for continuance made in presence of
adverse party.
2. It must state the relief sought to be obtained and the grounds on which it is
based, and if required by the rules or necessary to prove facts alleged therein, it
shall be supported by affidavits or other papers. 256
3. It shall be set for hearing by the applicant except when the motion can be
acted upon by the court without prejudicing the rights of the adverse party. 257
Example: Motion for extension of time to plead
248
249
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
250
Litton Mills v Court of Appeals, 256 SCRA 696
251
252
253
254
Supra, Section 1, Rule 15,
255
256
257
4. It must contain a notice of hearing addressed to all parties concerned,
specifying the time, date of the hearing which must not be later than 10 days
after the filing thereof. 258
4.1 A motion without a notice of hearing is pro-forma or a mere scrap of paper.

It presents no question which the court should decide. The rationale behind the
rule is plain: unless the movant sets the time and place of hearing, the court will
be unable to determine whether the adverse party agrees or objects to the
motion, and if he objects, to hear him on his objection. The objective is to avoid a
capricious change of mind in order to provide due process to both parties and
ensure impartiality.259
4.2 The absence of the notice of hearing will not toll the running of the
reglementary period for appeal.260
5. It must be served, together with the notice of hearing on the adverse party
at least 3 days before the date of hearing UNLESS THE COURT FOR GOOD
CAUSE SETS THE HEARING EARLIER.261
5.1 The purpose of the three day notice rule is to avoid surprise upon the
opposite party and to give him time to study and meet the arguments of the
motion.262
6. There must be proof of service of every written motion set for hearing
otherwise it shall not be acted upon.263
6.1 As a general rule, proof of service is mandatory. 264
6.2 A judge can act ex-parte on a motion where the rights of the adverse party
are not affected.265
WHEN SHOULD MOTIONS BE SET
All motions must be scheduled for hearing on Friday afternoons or if it be a non-

working holiday, in the afternoon of the next working day UNLESS THE MOTION
REQUIRES IMMEDIATE ACTION.266This day is MOTION DAY.
WHAT SHOULD A MOTION CONTAIN
1. A motion attacking a pleading (motion to dismiss) order, judgment, or

proceedings (motion for reconsideration) shall include all objections then
available, and all objections not so included are deemed waived EXCEPT the
defenses of Lack of Jurisdiction, Litis Pendentia, Res Judicata, Statute of
Limitations.267
1.1 This is the OMNIBUS MOTION RULE.268
258
259
Fajardo v Court of Appeals, 354 SCRA 736
260
Cledera v Sarmiento, 39 SCRA 553
261
262
Remonte v. Bonto, 16 SCRA 257
263
264
Cruz v Court of Appeals, 388 SCRA 72
265
Sumadchat v Court of Appeals, 111 SCRA 488
266
267
268
1.2 The purpose of the Rule is to obviate multiplicity of motions as well as
discourage dilatory pleadings.269 Litigants should not be allowed to reiterate
identical motions speculating on the possible change of opinion of the court or
judges thereof.270
1.3 It requires the movant to raise all available exceptions in a single

opportunity to avoid multiple piecemeal objections. But to apply the statutory
norm, THE OBJECTIONS MUST BE AVAILABLE TO THE PARTY AT THE TIME
THE MOTION WAS FILED.271
2. IF MOTION IS ONE FOR LEAVE TO FILE A PLEADING OR MOTION, IT

SHALL BE ACCOMPANIED BY THE PLEADING / MOTION SOUGHT TO BE
ADMITTED.272 Example: Motion for leave to admit amended complaint.
3. As to FORM, the Rules applicable to pleadings shall apply to written

motions as far as it concerns captions, designation, signature and other
matters.273
RULE 16 – MOTION TO DISMISS
WHEN AND HOW IT CAN BE FILED
1. By Motion, within the time for the filing of an answer but before the filing of
an answer.
1.1 The rule is not absolute as a motion to dismiss may still be filed after
answer on the ground of (a) lack of jurisdiction (b) litis pendentia (c) lack of a
cause of action, and (d) discovery during trial of evidence that would constitute
ground for dismissal.274
2. AS AN AFFIRMATIVE DEFENSE IN THE ANSWER, and in the discretion

of the court, a preliminary hearing may be had as if a motion to dismiss has been
filed. IF ACTION IS DISMISSED, it shall be without prejudice to the prosecution
in the same / separate action of a counter-claim pleaded in the answer. 275
WHAT GROUNDS ARE AVAILABLE
A motion to dismiss may be made on any of the following grounds: 276
1. The court has no jurisdiction over the person of the defending party
2. The court has not jurisdiction over the subject matter of the claims
3. Venue is improperly laid
3.1 An objection to improper venue must be made before a responsive

pleading is filed, otherwise it is deemed waived. 277
269
Dacanay v Alvendia, 30 SCRA 31
270
Miranda v Court of Appeals, 71 SCRA 295
271
PH Credit Corporation v Court of Appeals, 370 SCRA 155
272
273
274
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
275
276
277
Fernandez v ICB, 316 SCRA 326
4. Plaintiff has no legal capacity to sue
4.1 This means that he is not in exercise of his civil rights, or does not have
the necessary qualification to appear or does not have the character /
representation he claims AS OPPOSED TO the LACK OF PERSONALITY TO
SUE which means that he is NOT the real party in interest, and the basis for
dismissal then is NO CAUSE OF ACTION or FAILURE TO STATE A CAUSE OF
ACTION.278
5. There is another action pending between the same parties for the same
cause
5.1 This is known as litis pendentia
5.2 The REQUISITES for its application are: (a) Identity of the parties, or at
least such as representing the same interests in both actions (b) Identity of rights
asserted and reliefs prayed for, the relief being founded on the same facts.
Identity in both cases, is such that judgment in the pending case would,
regardless of which party is successful amount to res judicata in the other. 279
5.3 BETWEEN THE FIRST OR SECOND ACTION / OR LATTER ACTIONS –

APPLY THE “PRIORITY IN TIME RULE” BUT RULE MUST YIELD TO THE
“MORE APPROPRIATE ACTION”. Example: An action for declaratory relief to
interpret a lease contract was filed before an ejectment case, where the Supreme
Court held that the ejectment case is the more appropriate action. 280
5.4 There is a 3RD TEST: INTEREST OF JUSTICE RULE which is a

determination of which court would be in a better position to serve the interest of
justice considering : (a) nature of the controversy; (b) comparative accessibility of
the court to the parties; (c) other similar factors. 281
6. The cause of action is barred by a prior judgment or by the statute of

limitations
6.1 The REQUISITES OF RES JUDICATA are: (a) Former judgment must be
FINAL (b) Rendered by a court having jurisdiction over the subject matter and the
parties (c) It must be a judgment or order on the merits (d)There must be
between 1st / 2nd action, identity of parties / subject matter / causes of action
6.2 The DOCTRINE IS FOUNDED ON 2 GROUNDS: (a) Public policy and

necessity which makes it in the interest of the state that there should be an end
to litigation (b) Litigant should be spared the hardship of being vexed twice for the
same cause
6.3 NOTE that there can be no res judicata in support cases as future support
cannot be compromised.282
6.4 Statute of Limitations or prescription is a statute establishing a period of

time from the accrual of a cause of action within which a right of action must be
exercised. If the action is not brought within the period, then it is barred.
278
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of
Appeals, 199 SCRA 205
279
Victronics Computer v RTC, 217 SCRA 517
280
Teodoro v Mirasol, 99 Phil 150
281
Roa-Magsaysay v Magsaysay, 98 SCRA 592
282
De Asis v Court of Appeals, 303 SCRA 176
7. The pleading asserting the claim states no cause of action.
7.1 The TEST OF SUFFICIENCY OF A CAUSE OF ACTION is: Whether

accepting the veracity of the facts alleged in the complaint, the Court can render
judgment (valid) upon the same in accordance with the prayer in complaint.
7.2 NO PRESENTATION OF EVIDENCE IS REQUIRED AS THERE IS A

HYPOTHETICAL ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT
7.3 FAILURE TO STATE A CAUSE OF ACTION/NO CAUSE OF ACTION

DISTINGUISHED FROM LACK OF A CAUSE OF ACTION 283: (a) The former
refers to insufficiency of allegations, while the latter refers to insufficiency of
factual basis (b) The former is raised only in a in a motion to dismiss before
responding to a complaint, while the latter can be raised at any time (c) The
former allows dismissal to be had at the early stages of the action, while the
latter allows dismissal after questions of fact have been resolved after evidence
is presented or stipulations / admissions are had.
8. Claim or demand set forth in plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished
9. Claim on which the action is founded is unenforceable under the

provisions of the statute of frauds.
9.1 Statute of Frauds is statute/s that deals with the enforcement and
requirements of agreements in particular circumstances. It is descriptive of
statutes which require certain classes of contracts to be in writing. 284
10. A condition precedent for filing the claim has not been complied with
10.1 In certain cases, referral of a case to the Lupon is a condition precedent

for filing a complaint in court. It is not jurisdictional. 285 It may be waived if not
raised seasonably in a motion to dismiss.286
RESOLUTION OF A MOTION TO DISMISS
1. It shall BE HEARD287, at the hearing, the parties shall submit arguments

on the questions of law and evidence on the questions of law and fact involved
EXCEPT THOSE NOT AVAILABLE AT THAT TIME. SHOULD THE CASE GO TO
TRIAL, EVIDENCE DURING THE HEARINGS SHALL AUTOMATICALLY BE
PART OF THE EVIDENCE OF PARTY PRESENTING THE SAME.
2. After the hearing, Court shall either DISMISS THE ACTION, DENY THE
MOTION OR ORDER AMENDMENT OF THE PLEADING, stating clearly and
distinctly the reasons for the action taken.288
2.1 It is now mandated that the Court cannot defer resolution of the motion
based on the reason that the ground relied upon does not appear to be
indubitable or sure
283
Supra, Rule 33
284
Litonjua v Fernandez, 427 SCRA 478
285
Junson v martinez, 405 SCRA 390
286
Banares v Balising, 328 SCRA 36
287
288
3. IF MOTION IS DENIED, the movant shall file an answer within the
balance of the period prescribed by Rule 11, which he was entitled to at the time
of serving the motion, but not less than 5 days in any event, COUNTED FROM
NOTICE OF DENIAL. IF ORDERED AMENDED, an answer is to be filed within
period prescribed by Rule 11, counted from service of amended pleading, unless
the court provides a longer period. Note that it is 15 days as no answer has of yet
been filed. Hence the amendment is one that is a matter of right. 289
3.1 The EFFECT OF DISMISSAL is that subject to the right to appeal, an

order granting a motion to dismiss on the grounds of (a) prior judgment or statute
of limitations (b) claim / demand has been paid, waived abandoned or otherwise
extinguished, or (c) is unenforceable under the statute of frauds SHALL bar
refiling of the same.290
RULE 17 - DISMISSAL OF ACTIONS
PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT
A plaintiff may cause the dismissal of his complaint by:
1. Filing of a notice of dismissal at anytime before service of an answer or

motion for summary judgment. Once filed, the court shall issue an order
confirming the dismissal, which is without PREJUDICE, unless stated otherwise.
BUT, such dismissal will operate as adjudication on the merits when filed by a
plaintiff who has once dismissed in a competent court, his action based on or
including the same claim.291 This is known as the 2 dismissal rule.
2. Filing a motion to dismiss but such will not result in dismissal without the
approval of the court and upon terms and conditions as the court deems proper.
BUT, if a counterclaim has been pleaded before service of motion to dismiss –
the dismissal is limited to the complaint. If shall be without PREJUDICE TO
RIGHT OF DEFENDANT to prosecute his counterclaim in a separate action
unless within 15 days from notice of the motion he manifests a preference to
have it resolved in the same action. UNLESS specified, a dismissal is without
prejudice. NOTE also that a CLASS SUIT shall not be dismissed or compromised
without the approval of the Court.292
COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT
The court can motu propio or upon motion of the defendant dismiss a complaint
when: (a)If, for no justifiable reason, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint (b) If, for no justifiable
reason, plaintiff fails to prosecute his action for an unreasonable length of time
(c) If, for no justifiable reason, plaintiff fails to comply with Rules of Court or any
order of the Court. DISMISSAL IS WITHOUT PREJUDICE TO RIGHT OF THE
DEFENDANT TO PROSECUTE HIS COUNTERCLAIM IN THE SAME OR
SEPARATE ACTION and SHALL HAVE THE EFFECT OF ADJUDICATION ON
THE MERITS, UNLESS OTHERWISE DECLARED BY THE COURT. 293
289
290
291
292
293
1. The REMEDIES OF THE PLAINTIFF are: (a) Appeal the dismissal as it is
a FINAL ORDER, or (b) If without prejudice, REFILE THE ACTION as an order
dismissing without prejudice is not subject to appeal.
2. At the pre-trial, the court ordered the parties to submit a compromise

agreement within a ten day period. The parties were unable to submit the
compromise agreement, thus leading to a dismissal. There is nothing in the rules
that imposes a sanction for failure to submit a compromise agreement. 294
APPLICABILITY OF THE RULE
Rule applies to dismissal by the DEFENDANT of his counterclaims cross-claims

or 3rd party claims. Voluntary dismissal by the claimant by notice as under
Section 1 of the Rule shall be made before a responsive pleading, motion for
summary judgment is served, or if there be none, before introduction of evidence
at the trial or hearing.295
RULE 18 – PRE-TRIAL
WHAT IS PRE-TRIAL
It is a procedural devise intended to clarify and limit the basic issues between the
parties. Its main objective is to simplify, abbreviate and expedite trial, or
otherwise dispense with it.296
It is a conference or hearing at which the court, with the cooperation of the

parties, seek to determine definitively what precisely are the factual issues to be
tried and how each party intends to establish his position on each disputed
factual issue.
WHEN CONDUCTED
After the last pleading has been served and filed. It shall be the duty of the
plaintiff to move ex-parte that the case be set for pre-trial. 297
1. SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5

days.
2. SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the

plaintiff fail to move ex-parte to set case for pre-trial, the branch clerk of court
should issue a notice of pre-trial.
2.1 The same circular also requires that the presiding judge direct the parties
to mediation, if possible. If it fails it will schedule the pre-trial BUT IT MAY ALSO
SCHEDULE A PRELIMINARY CONFERENCE before the branch clerk of court to
assist them in REACHING A SETTLEMENT, PRE-MARKING OF DOCUMENTS
AND EXHIBITS AND TO CONSIDER OTHER MATTERS THAT WILL AID IN
PROMPT DISPOSITION. The JUDGE is also directed to consider assisting the
parties in effecting a settlement given the evidence of the parties.
3. The last pleading is the answer to the original complaint, cross claim, or,
third party complaint AND the reply.
294
Ruiz, Jr v CA, 212 SCRA 660
295
296
Interlining v Philippine Trust Company, 378 SCRA 521
297
NATURE AND PURPOSE
Pre-trial is by nature mandatory and the purpose for its conduct is to take up the
following matters:298
1. Possibility of amicable settlement / or submission to alternative modes of

dispute resolution
2. Simplification of the issues
3. Necessity / desirability of amendment to the pleadings
4. Possibility of obtaining stipulations or admissions of fact and of documents

to avoid unnecessary proof
5. Limitation of number of witnesses
6. Advisability of a preliminary reference of issues to a commissioner
7. Propriety of judgment on the pleadings, summary judgment, or dismissing

the action if a valid ground therefor be found to exist
8. Advisability of suspending the proceedings
9. Such other matter as may aid in the prompt disposition of the action
UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED
It shall be served on counsel, or party if not represented by counsel. Counsel is

charged with the duty to notify the party.299
WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL
The parties and counsel are required to be present during the pre-trial. A party
may be excused if: (a) A valid cause is shown therefore (b)A representative shall
appear duly authorized in writing to do the following: (1) enter into amicable
settlement; (2) submit to alternative modes of dispute resolution; (3) enter into
stipulations / admissions of fact / documents. 300
EFFECT OF FAILURE TO APPEAR
1. If plaintiff fails to appear despite DUE NOTICE, he may be declared NON

SUITED and the complaint DISMISSED. The dismissal shall be with prejudice,
unless otherwise ordered by the court. HIS REMEDY is to appeal order of
dismissal because it is a FINAL resolution. If dismissed without prejudice, he can
REFILE the complaint
2. If defendant fails to appear despite due notice, plaintiff IS ALLOWED to

present his evidence ex-parte and the court may render judgment on the basis
thereof. 301
298
299
300
301
3. AS A RULE, THERE CAN BE NO SECOND PRE-TRIAL UNLESS BOTH
PARTIES CONSENT.302
WHAT MUST BE FILED BEFORE PRE-TRIAL
A pre-trial brief must be filed and served on the adverse party at least 3 days
before the pre-trial containing:303
1. Statement of willingness to enter into an amicable settlement, the desired

terms or to submit to alternative modes of dispute resolution
2. Summary of admitted facts / proposed stipulation of facts
3. Issues to be tried or resolved
4. Number of witnesses / names, abstract of testimonies, approximate

number of hours that will be required for presentation of their respective evidence
5. Copies of all documents intended to be presented which statement of the

purposes of their offer
6. Manifestation of their having availed of or their intention to avail of

discovery procedure, or need for referral of any issues to commissioners
7. Applicable law / jurisprudence
8. Available trial dates of counsel for complete presentation of evidence

which must be within a period 3 months from the first day of trial. 304
FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE THE SAME EFFECT AS

FAILURE TO APPEAR
PRE-TRIAL ORDER
Proceedings shall be recorded. Upon termination, court shall issue an order

which shall recite in detail: (a) matters taken up (b) action taken thereon (c)
amendments allowed to the pleadings (d) agreements / admissions made by the
parties as to any of the matters taken (e) explicitly defining and limiting the issues
to be tried. OBJECT – it shall control the subsequent course of the action,
UNLESS MODIFIED TO PREVENT MANIFEST INJUSTICE. 305
1. Pre-trial is primarily intended to make certain that all issues necessary to

the disposition of a case are properly raised. Thus, to obviate the element of
surprise, parties are expected to disclose at a pre-trial conference all issues of
law and fact which they intend to raise at the trial, except such as may involve
privileged or impeaching matters. The determination of issues at a pretrial
conference bars the consideration of other questions on appeal. 306
302
Young v Court of Appeals, 204 SCRA 584
303
304
Section 6, SC Adm. Circular 3-99, January 15, 1999
305
306
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
2. NOTE THAT TRIAL SHALL BE LIMITED TO ISSUES STATED IN THE
PRE-TRIAL ORDER.307
3. Notwithstanding, courts are not required to resolve all issues raised in

pleading unless necessary for the resolution of the case. 308
RULE 19 – INTERVENTION
WHO MAY INTERVENE
A person who has a (a) legal interest in the matter in litigation (b) has legal
interest in the success of either of the parties (c) has an interest against both or
(d) is so situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court or an officer thereof. 309
1. Examples are (a)an action for payment of money, where personal property
of the defendant is attached, a 3 rd person claiming the attached property can
intervene (b) action by alleged owners of the land sought to be foreclosed.
2. The interest which entitles a person to intervene in a suit must be in the

matter in litigation and of SUCH DIRECT OR/AND IMMEDIATE CHARACTER
that intervenor will either GAIN or LOSE by direct legal operation and effect of
judgment. 310
3. Intervention does not lie for a transferee pendente lite. 311
HOW AND WHEN CAN A PERSON INTERVENE
Filing of a motion for leave of court to intervene, attaching thereto a copy of the
pleading in intervention, which is then served on the original parties at any time
before rendition of judgment by the trial court.312
1. The COURT MAY REFUSE TO GRANT LEAVE WHEN (a) It will unduly
delay or prejudice the adjudication of the rights of the original parties. Example:
Delay or laches in bringing intervention, OR (b) Intervenor’s rights may be
fully protected in a separate proceeding. Example: Attachment of real property
subject of a mortgage
2. The pleadings in intervention are (a) Complaint in Intervention, if he

asserts a claim against either or all of the original parties, OR (b) Answer in
Intervention, if he unites with the defending party in resisting the claim of the
plaintiff. 313
3. If granted, a complaint in intervention is to be replied to within 15 days

from notice of the order admitting the same unless a different period is fixed by
the court.
307
308
IBAA vs. IAC, 167 SCRA 450
309
310
Roxas v Dinglasan, 28 SCRA 430
311
312
313
4. NO INTERVENTION IS ALLOWED IN LAND REGISTRATION CASES as
the remedy is to file an OPPOSITION. Neither is it allowed in cases covered by
the Rules on Summary Procedure.
5. Intervention is merely collateral or accessory or ancillary to the principal

action and not an independent proceeding. Hence, with the final dismissal of the
original action, the complaint in intervention can no longer be acted upon. 314
6. An order denying a motion for intervention is appealable. 315
RULE 20 – CALENDAR OF CASES
MAINTENANCE OF THE COURT CALENDAR
The clerk of court, under the direct supervision of a judge, shall keep a calendar
for PRE-TRIAL, TRIAL, TRIALS THAT WERE ADJOURNED OR POSTPONED,
THOSE WITH MOTIONS TO SET FOR HEARING. In fixing the calendar,
PREFERENCE IS GIVEN TO HABEAS CORPUS, ELECTION CASES, SPECIAL
CIVIL ACTIONS, AND THOSE REQUIRED BY LAW.316
ASSIGNMENT OF CASES
The assignment of cases shall always by raffle done in open session of which
adequate notice shall be given to afford interested parties the opportunity to be
present.317 The purpose is to obviate public suspicion regarding assignment of
cases to predetermined judges.318
RULE 21 – SUBPOENA
WHAT IS A SUBPOENA
A process directed to a person requiring him to attend and testify at the hearing
or trial of an action, or at any investigation conducted by competent authority, or
the taking of his deposition
KINDS OF SUBPOENA
The kinds of subpoena are: (a) SUBPOENA AD TESTIFICANDUM if it directs

and requires a person to attend and testify, OR (b) DUCES TECUM if it requires
him to bring books/documents/or other things under his control. 319
BY WHOM ISSUED
A subpoena is issued by (a) The court before whom the witness is required to
attend (b) The court where deposition is to be taken (c) Officer or body
authorized by law to do so in connection with investigations that it may conduct
(d) Any justice of the Supreme Court/Court of Appeals in any case or
investigation pending within the Philippines 320
314
Barangay Matictic v Elbinias, 148 SCRA 83
315
Foster-Gallego v Galang, 435 SCRA 275
316
317
318
Ang v Bello, 163 SCRA 358
319
320
1. A request by a party for the issuance of a subpoena does not require
notice to other parties to the action.321
2. In taking depositions, the clerk of court shall not issue a subpoena duces
tecum without a court order.322
3. Absent any proceeding, suit or action, commenced or pending before a

court, a subpoena may not issue.323
WHEN IS A WITNESS NOT BOUND BY A SUBPOENA
1. Witness resides more than 100 kilometers from his residence to the place
where he is to testify by the ordinary course of travel. 324 This is also called the
VIATORY RIGHT OF A WITNESS or the right not to be compelled to testify in a
civil case if he lives more than 100 kilometers from his residence to the place
where he is to testify by ordinary course of travel.
1.1 If the viatory right is invoked, a witness can still be compelled to testify by
the taking of his deposition in a place within 100 kilometers from where he
resides, observing the following steps: (a) Party desiring to take deposition shall
give reasonable notice in writing to every other party in the action stating the
TIME, PLACE AND NAME/ADDRESS OF PERSON WHOSE DEPOSITION IS
TO BE TAKEN. There should be proof of service of the notice (b) Proof of service
of notice to take deposition shall be presented to the clerk of court of the place
where deposition is to be taken (c) On the basis of such proof of service, the
clerk upon authority and under seal of the court, shall issue the subpoena BUT a
subpoena duces tecum cannot be issued without an order of the Court (4)
Subpoena is to be served on witness whose deposition is to be taken. 325
2. Witness is a detention prisoner, if no permission of the court in which his

case is pending is obtained or if the witness is a prisoner sentenced to death,
reclusion perpetua or life imprisonment and is confined in a penal institution, if
authority of the SC to bring out the prisoner has not been obtained. The court
should examine and study the application properly to determine if it is being
made for a valid purpose.326
FORM AND CONTENTS OF SUBPOENA
A subpoena must contain the following: (a) Name of the court (b) Title of
action/investigation AND IS TO BE DIRECTED to the person whose attendance
is required. IF DUCES TECUM, in addition, it must contain a reasonable
description of the books, documents, things demanded which is must appear to
the Court to be PRIMA FACIE relevant.327
WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
1. If DUCES TECUM, it may be quashed on the following grounds: (a) It is

unreasonable and oppressive (b) Relevancy of the books, documents or things
do not appear (c) Person in whose behalf subpoena is issued fails to advance
the reasonable costs of the production thereof (d) The witness fees and
kilometrage allowed by the rules were not tendered when subpoena was served.
321
Adorio v Bersamin, 273 SCRA 217
322
323
Collado v Bravo, 356 SCRA 411
324
325
326
327
Under A.M. No. 04-2-04-SC, witness fees shall be PHP 200.00 a day inclusive of
all expenses
2. If AD TESIFICANDUM, it may be quashed on the following grounds: (a)

Witness is not bound by the subpoena (b) Witness fees and kilometrage allowed
by rules were not tendered when the subpoena was served. 328
HOW IS A SUBPOENA SERVED
In the same manner as personal or substituted service of summons, original is to

be exhibited and delivered to person on whom it is served – tendering the fees
for one day attendance at the kilometrage allowed by Rules EXCEPT if
subpoena is issued by or on behalf of the Republic of the Philippines or an officer
or agency thereof. Tender must be made so as to allow the witness a reasonable
time for preparation or travel to the place of attendance. 329
1. If DUCES TECUM, the cost of production of books, papers or things must

also be tendered.
2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP
100.00 per witness.
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A

SUBPOENA
Yes, when he is PRESENT IN COURT, in which event it is as if he were in

attendance upon subpoena issued by the Court. 330
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA
The consequences of disobedience are: (a) He may be arrested and brought

before the Court where his attendance is required, the cost of warrant and
seizure shall be paid by the witness if the Court finds disobedience to be willful
and without just excuse. 331 (b) Citation in contempt by the court from which the
subpoena is issued. It not issued by a Court, then in accordance with the
applicable rule / law.332
RULE 22 – COMPUTATION OF TIME
HOW COMPUTED
The day of the act / event from which the designated period of time begins to run
is excluded and date of performance included. If the last day falls on a Saturday,
Sunday or legal holiday in the place where the Court sits, the time shall not run
until the next working day.333
EFFECT OF INTERUPTIONS
328
329
330
331
332
333
Allowable period after interruption shall start to run on the day after, notice of the
cessation of the cause thereof. The day of the act that caused cessation shall be
excluded in the computation of the period.
1. RULE ON COMPUTATION OF TIME DOES NOT APPLY TO

PRESCRIPTION OF OFFENSES or PRESCRIPTION OF CAUSES OF ACTION.
Hence, if the last day falls on a Saturday, Sunday or legal holiday, it prescribes
on the said date.
RULES 23 TO 29 – MODES OF DISCOVERY
WHAT IS DISCOVERY
The methods used by the parties to a civil action to obtain information held by the
other party that is relevant to the action.
PURPOSES OF DISCOVERY
The purposes of resort to discovery are: (a) It is a device to narrow down / clarify
the basic issues between the parties (b) It is a device to ascertain the facts
relative to the issues
WHAT ARE THE MODES OF DISCOVERY
The modes of discovery (a) Deposition pending action 334 (b) Deposition before
action or pending appeal 335(c) Interrogatories to parties 336 (d) Request for
admission by adverse party337 (e) Production or inspection of documents /
things338 (f) Physical / mental examination of persons339
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN
1. WITH LEAVE OF COURT, after jurisdiction has been acquired / obtained

over any defendant or over property which is the subject of the action as the
issues are not yet joined and disputed facts are not yet clear OR if a person is
confined in a prison with LEAVE OF COURT ONLY, on such terms that the Court
may prescribe.
2. WITHOUT LEAVE OF COURT, after an answer has been served. 340
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
Any person, whether a party or not, upon ORAL EXAMINATION OR WRITTEN

INTERROGATORIES upon the initiative of ANY PARTY.
SCOPE OF A DEPOSITION
GENERALLY, the deponent may be examined regarding any matter, NOT

PRIVILEGED, which is RELEVANT TO THE SUBJECT OF THE PENDING
ACTION whether it RELATES TO CLAIM OR DEFENSE of any other party.
INCLUDING THE EXISTENCE, DESCRIPTION, NATURE, CUSTODY,
334
Supra, Rule 23
335
Supra, Rule 24
336
Supra, Rule 25
337
Supra, Rule 26
338
Supra, Rule 27
339
Supra, Rule 28
340
CONDITION, LOCATION of any BOOKS, DOCUMENTS OR OTHER TANGIBLE
THINGS and the IDENTITY and LOCATION of persons having knowledge of
relevant facts.341
1. The limitation as to the taking and scope of a deposition after notice is

served for its taking by oral examination, UPON MOTION SEASONABLY FILED
by a PARTY OR of the PERSON to be examined, and for GOOD CAUSE shown,
the court in which the action is pending may order: (a) Deposition not be taken
(b)It be taken only at some designated place other than that stated in the notice
(c)It be taken only on written interrogatories (d) That certain matters shall not be
inquired into (e) That scope of the examination shall be held without anyone
present except the parties to the action, and their officers of counsel (f)That after
depositions are sealed, they shall be opened only by order of the court (g)That
secret processes, developments or research need not be disclosed (h)That
parties shall simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the Court (i) That court may make
any order which justice requires to protect the party or witnesses from annoyance
embarrassment or oppression.342
2. During the taking of the deposition, it shall be taken subject to the

following limitations:
2.1 During the taking of the deposition, on motion or petition of any party or
the deponent upon showing that the examination is being conducted in BAD
FAITH on IN SUCH MANNER as UNREASONABLY to ANNOY EMBARRASS
OR OPPRESS the DEPONENT, or a party – the COURT where the action is
pending or the RTC of the place where deposition is being taken may ORDER
the officer taking the examination to cease forthwith – or limit the scope as
provided in Section 16.
2.2 If terminated, it shall be resumed thereafter only upon order of the Court in
which the action is pending. UPON DEMAND of the OBJECTING
PARTY/DEPONENT, the taking shall be suspended for the time necessary to
make a notice for an order. In granting/refusing such order, the court may impose
upon either party or upon the witness the requirement to pay costs/expenses as
the Court may deem reasonable.343
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1. WITHIN THE PHILIPPINES: a judge, notary public, or person authorized

to administer oaths, at any time or place if so stipulated in writing by the
parties.344
2. IN FOREIGN COUNTRIES: On notice before a secretary of the embassy

or legation or the diplomatic minister and his staff, consul general, consul, vice
consul or consular agent of the Republic of the Philippines, or before such
person or officer as may be appointed by commission or letters rogatory. 345
2.1 A Commission is an instrument issued by a court of justice or other

competent tribunal to authorize persons to take a deposition or do any other act
341
342
343
344
Supra, Sections 10 and 14, Rule 23
345
Supra, Sections 11, 12, and 14, Rule 23
by authority of such court or tribunal. A Commission is addressed to officers
designated by name or descriptive title.
2.2 Letters Rogatory is an instrument sent in the name and by authority of a

judge or court to another, requesting the latter to cause to be examined, upon
interrogatories filed in a case pending before the former, a witness who is within
the jurisdiction of the judge or court to whom such letters are addressed. Letters
Rogatory are addressed to a judicial authority in a foreign country AND may be
applied for and issued only after a commission has been returned unexecuted.
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS
Person who is a relative within the 6 th degree of consanguinity / affinity OR

employee or counsel of any of the parties OR relative within the same degree or
employee of counsel OR is financially interested in the action. 346
KINDS OF DEPOSITIONS – HOW TAKEN
A. DEPOSITION UPON ORAL EXAMINATION
1. Giving of reasonable notice in writing to every other party to the action,

which must state the time / place of the taking of the deposition and the name
and address of the person to be examined, if known, IF NOT KNOWN, a general
description sufficient to identify him or the particular class or group to which he
belongs. ON MOTION OF PARTY UPON WHOM NOTICE IS SERVED, the
COURT, for CAUSE, may ENLARGE OR SHORTEN THE TIME. 347
2. Officer taking the deposition shall put the witness under oath and shall
personally, or by someone acting under his direction and his presence record the
testimony of the witness stenographically unless the parties agree otherwise.
All objections as to QUALIFICATION OR OFFICER TAKING DEPOSITION,

MANNER OF TAKING EVIDENCE PRESENTED, CONDUCT OF PARTIES OR
ANY OTHER OBJECTION – shall be NOTED – ANY EVIDENCE OBJECTED TO
SHALL BE TAKEN SUBJECT TO OBJECTIONS. PARTIES SERVED WITH
NOTICE, IN LIEU OF PARTICIPATING IN THE TAKING OF DEPOSITION, may
submit written interrogatories – which the officer taking the deposition shall
propound to the witness and record the answers VERBATIM. 348
3. After the taking of the deposition – and testimony is transcribed – it is

submitted to the witness for examination and shall be read to or by him, unless
such is waived by the witness and the parties. IF THERE ARE CHANGES – IN
FORM / SUBSTANCE – which the witness desires to make – it shall be entered
upon the deposition by the officer with a statement as to the reason given by the
witness as why they are being made. The deposition is then SIGNED BY THE
WITNESS, unless the parties by stipulation waive the signing, or the witness is ill
OR cannot be found OR refuses to sign.
IF NOT SIGNED, officer shall sign it and state on the record why it was not
signed together with reasons. If there is refusal to sign, the EFFECT is that the
deposition then may be used fully as though signed, unless on a motion to
suppress under Sec 29 (f) {errors or irregularities in preparation}, the Court holds
346
347
348
that the reason for refusal to sign require rejection of the deposition in whole or in
part.349
4. Once signed, the officer shall certify on the deposition that the witness
was duly sworn to by him and that the deposition is a true record of the testimony
of the witness. He shall then securely seal the deposition in an envelope
endorsed with the title of the action and marked “deposition of _______” to be
promptly FILED WITH THE COURT WHERE ACTION IS PENDING – OR SENT
BY REGISTERED MAIL TO THE CLERK THEREOF FOR FILING. 350
5. Notice of filing shall then promptly be given by the officer to all parties 351
and upon payment of reasonable charges, he is to furnish copies of the
deposition to any party or the deponent. 352
EFFECT OF NON-APPEARANCE
1. IF PARTY GIVING NOTICE FAILS TO APPEAR AND ANOTHER

ATTENDS IN PERSON OR BY COUNSEL, the Court may order the party giving
notice to pay reasonable expenses incurred to attend, including reasonable
attorney’s fees. 353
2. IF PARTY GIVING NOTICE DOES NOT SERVE SUBPOENA AND

WITNESS DOES NOT APPEAR, Court can order party giving notice to pay
reasonable expenses for attendance plus attorney’s fees to a party who appears
in person or by counsel354 (Section 24)
B. DEPOSITION UPON WRITTEN INTERROGATORIES
1. Party desiring to take the deposition upon WRITTEN

INTERROGATORIES shall serve them upon every other party with notice stating:
(1) name and address of the person who will answer them (2) descriptive title
and address of the person who will take the deposition (3) Within 10 days, party
served may serve cross-interrogatories on the party proposing to take the
deposition (4) Within 5 days thereafter, the latter may serve re-direct
INTERROGATORIES upon the party serving cross–interrogatories (5) within 3
days after being served of re-direct INTERROGATORIES, a party may serve re-
cross interrogatories upon party proposing to take deposition. 355
2. A copy of the notice and copies of all interrogatories shall be delivered by

the party taking the deposition to officer designated in the notice, who shall
proceed promptly in the manner provided by Sections 17, 19 and 20 to take the
testimony of the witness in response to the interrogatories and to prepare, certify,
and file / mail the deposition attaching copies of the notice and interrogatories. 356
3. Officer must promptly give notice of filing / and may furnish copies to
parties and deponent upon payment of reasonable charges. 357
NOTE: that Sections 15, 16 and 18 are applicable and that by motion, it can be
asked that the deposition be upon oral examination.
349
350
351
352
353
354
355
356
357
4. SEE: Gerochi vs. Dept of Energy GR 159796, April 5, 2005
DISTINGUISHED FROM INTERROGATORIES TO PARTIES UNDER RULE 25
An interrogatory under Rule 25 is allowed UNDER THE SAME CONDITIONS AS

SPECIFIED IN SECTION 1, RULE 23 as to when it is to be had and is for the
purpose of enabling any party desiring to elicit material facts / relevant facts from
any ADVERSE PARTY by the filing and service upon the latter of a written
interrogatory to be answered by the party served or if party is public / private
corporation or a partnership / association by any officer thereof competent to
testify in its behalf.358
HOW AND WHEN ANSWERED
Responses, which must be signed and sworn to, must be filed within 15 days
from service, unless the Court on motion and for good cause shown extends or
shortens the time359
CAN THEY BE OBJECTED TO
Yes, objections may be presented to the court within 10 day after service of
notice as in the case of a motion, answers shall then be deferred until objections
are resolved, which shall be as early a time as is practicable. 360
HOW MANY INTERROGATORIES
No party may, without leave of court, serve more than one set of interrogatories
to be answered by the same party.361
SCOPE AND USE
It may relate to any matters that can be inquired into under Section 2, Rule 23
and the answers used for the same purpose provided for by Section 4, Rule 23 362
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
Unless thereafter allowed by the court for good cause shown and to prevent
failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court or give a
deposition pending appeal.363
FURTHER DISTINGUISHING DEPOSITION UPON WRITTEN

INTERROGATORIES AND WRITTEN INTERROGATORIES
1. Any person, party or not can be required to or compelled to give a

deposition upon written interrogatories, while only the adverse party may be
compelled to answer a written interrogatory.
358
359
360
361
362
363
2. A deposition upon written interrogatory is taken before an officer, while an
adverse party without appearing before an officer shall answer them in writing
and under oath.
C. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL UNDER RULE

24 (IN PERPETUAM REI MEMORIAM)
HOW IS A DEPOSITION BEFORE ACTION OBTAINED
By the filing of a verified petition by a person desiring to perpetuate his testimony

or that of any person in relation to any matter cognizable in any court in the
Philippines in the Court in the place of residence of the expected adverse party.
364
1. The CONTENTS OF THE PETITION which shall be entitled in the name of

the petitioner and should show: (a) That petitioner expects to be a party to an
action in a Court in the Philippines but is presently unable to bring it or cause it to
be brought (b) The subject matter of the expected action and his interest therein
(c) The facts that he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it (d) The names or description of the person
he expects will be adverse parties and their addresses so far as known (e) The
names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each AND SHALL THEN ASK FOR AN
ORDER authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their testimony. 365
2. To Perpetuate means to preserve or make available testimony for later

use at a trial by means of deposition.
WHAT IS DONE AFTER PETITION IS COMPLETED
Petitioner shall serve a notice upon each person named in the petition as an
expected adverse party, together with a copy of the petition stating that: he will
apply to the Court at a time and place stated therein, for the order described in
the petition. At least 20 days before the date of the hearing, the Court shall cause
notice thereof to be served on the parties and prospective deponents in the
manner provided for service of summons.366
WHAT WILL OCCUR THEREAFTER
If the Court is satisfied that the perpetuation of testimony may prevent a failure of
justice or delay of justice, it shall make an order designating or describing the
persons whose depositions are to be taken, specifying the subject and whether it
will be upon oral execution or written interrogatories under Rule 23. 367For
purposes of applying Rule 23, references to the court in which the action is
pending shall be deemed to refer to thecourt in which petition for such deposition
is filed. 368
USE OF DEPOSITION
364
365
366
367
368
Deposition taken under the Rule or although not so taken, it would be admissible
in evidence, it may be used in any action involving the same subject matter
contained in petition subsequently brought in accordance with Sections 4 and 5
of Rule 23.369
WHEN DEPOSITIONS PENDING APPEAL ARE TAKEN
If appeal is taken from a judgment of a Court including the CA in proper cases or

before the taking of an appeal if the time therefore has not yet expired. The Court
in which judgment was rendered may allow taking of depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings in the said
Court.
HOW TAKEN
Party makes a motion in said Court for leave to take depositions – upon the said
notice and service thereof as if the action was pending therein – MOTION states
(1) name and addresses of persons to be examined and substance of testimony
to be elicited (2) reasons for perpetuating testimony.
If Court finds that it is proper to avoid failure or delay of justice – it may allow the
depositions to be taken and used in the same manner and under same
conditions as prescribed for depositions in pending actions. 370
EFFECT OF TAKING DEPOSITIONS
A party shall not be deemed to make a person his own witness by taking his
deposition.371
EFFECT OF USING DEPOSITIONS
If introduced in evidence in whole/part for any purpose OTHER THAN

contradicting or impeaching the deponent, such makes the deponent the witness
of the party introducing the deposition BUT it does not apply to the use of an
adverse party of a deposition as described in Par. (b) Section 4 of Rule 23. 372
USE OF DEPOSITION
When can it be used? – at the trial, upon the hearing of a motion or an

interlocutory proceeding – ANY PART or ALL OF A DEPOSITION, so far as
admissible under the rules of evidence may be used AGAINST any party who
was present, or represented at the taking or had due notice thereof, in
ACCORDANCE WITH THE FOLLOWING:
a. May be used by any party for the purpose of contradicting or impeaching

the testimony of deponent as a witness
b. Deposition of a party or any one who at the time of the taking was an
officer, director, or managing agent of a public/private corporation
partnership/association which is a party may be used by an adverse party for any
purpose
369
370
371
372
c. Deposition of a witness, party or not, may be used by any party for any
purpose if the court finds that: (1) witness is dead (2)witness resides more than
100 kilometers from the place of trial/hearing or is out of the Philippines
UNLESS, it appears that his absence is procured by the party offering the
deposition (3) witness is unable to attend/testify because of age, sickness,
infirmity or imprisonment (4) party offering the deposition has been unable to
procure the attendance of the witness by subpoena (5) upon application and
notice, exceptional circumstances exist as to make it desirable in the interest of
justice and with due regard to the importance of presenting the testimony of
witness in open court, to allow the deposition to be used.
d. If only a part of the deposition is offered in evidence by a party, the

adverse party may require him to introduce all of which is relevant to the part
introduced, and any party may introduce the other parts. 373
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE

USED AS EVIDENCE
1. If the deponent is a party, the opposing party can use it to prove his claim
or defense. It may also be used to impeach or contradict the party deponent if he
testifies.
2. If the deponent is only a witness, his deposition can only be used to

impeach/contradict him if he testifies BUT if Paragraph (c ) of Section 4 applies, it
can be used for any purpose.
WHEN DEPOSITIONS ARE PRESENTED – CAN THEY BE OBJECTED TO-

WHEN
Subject to the provisions of Section 29, OBJECTION may be made at the TRIAL
or HEARING to receive in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were then
present and testifying.
1. As to notice – are waived unless written objection is promptly served upon

the party giving the notice
2. As to disqualification of the officer is waived unless make before the taking

of the deposition or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
3. As to competency relevancy of evidence – objections as to competency of

the witness or competence, relevancy or materiality of the evidence/testimony –
are not waived by the failure to make them before or during the taking of the
deposition – UNLESS the ground of the objection is one which a right have been
OBVIATED or REMOVED IF PRESENTED AT THAT TIME
4. As to oral examination and other particulars – Errors and irregularities

occurring at the oral examination in the manner of taking, the form of the
questions and answers, in the oath/affirmation, or the conduct of the parties and
errors of any kind which might be obviated, removed or cured it promptly,
prosecuted, are WAIVED, unless reasonable objection thereto is made at the
taking of the deposition.
5. As to from of written interrogatories – objections are waived unless served

in writing upon party propounding them within the time allowed for the serving of
373
succeeding cross or other interrogatories and within 3 days after service of the
last interrogatory authorized.
6. As to manner of preparation – objections as to the manner in which the

testimony is transcribed, or the deposition is prepared, signed certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer are WAIVED,
unless a motion to suppress the deposition or part thereof is made with
reasonable promptness after such defect is, or with due diligence, might have
been ascertained.374
HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS

BEEN USED, WHAT CAN ADVERSE/ OTHER PARTIES DO
1. Generally, the deponent is called to testify. Hence he may be

examined/cross-examined as permitted at the trial under Sections 3 to 18, Rule
132.375
2. At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other party. 376 This
is called rebutting a deposition.
IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION

WHEN IT WAS TAKEN
No, because substitution of parties does not affect the right to use depositions
previously taken, when the action is DISMISSED and another action involving the
same subject is afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if originally taken therefor. 377
RULE 26 – REQUESTS FOR ADMISSIONS
WHAT IS A REQUEST FOR ADMISSION
It is a written request for the (1) admission of the genuiness of any material and
relevant document described in and exhibited with the request or (2) the truth of
any material or relevant matter of fact set forth in the request. A party may file
and serve a request for admission upon any other party at any time after the
issues have been joined.378
EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY
Each of the matters of which an admission is requested shall be deemed

admitted UNLESS, within a period designated in the request, which shall not be
less than 15 days after service thereof or such period which the Court will allow
on motion, the party served files and serves upon the requesting party a sworn
statement, either denying specifically the matters is setting forth in detail the
reason why he cannot truthfully either admit / deny.
374
375
376
377
378
Objections if any shall be submitted to the Court within the period for complying
and prior to filing of the Sworn Statement – compliance is then deferred until
objections are resolved which should be done as early as practicable. 379
EFFECT OF ADMISSIONS
It is for the purpose of the pending action only and shall not constitute an
admission by him for any purpose or used against him in any other proceeding 380
THOUGH any admission, express or implied may be allowed by the court to be
withdrawn or amended upon such terms as may be just. 381
EFFECT OF FAILURE TO SERVE
Unless otherwise allowed by the Court for good cause and to prevent failure of
justice, a party who fails to serve a request for admission of material / relevant
facts at issue on the adverse party, which are or ought to be within the latter’s
personal knowledge, shall not be permitted to present evidence on such facts. 382
RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS ON THINGS
HOW
On motion of any party showing GOOD CAUSE, the COURT where the action is
pending MAY ORDER, specifying the time, place and manner AND prescribing
such terms and conditions as are just:
1. Any party to produce and permit the inspection, copying, photographing,

by or on behalf of a having party of any designated DOCUMENT, PAPERS,
BOOKS, ACCOUNTS, LETTERS, PHOTOGRAPHS, OBJECTS OR TANGIBLE
THINGS – NOT PRIVILEGED – which CONSTITUTE OR CONTAIN EVIDENCE
MATERIAL TO ANY MATTER INVOLVED IN THE ACTION which are in his
possession and control, OR
2. Permit entry upon designated land or other property in his possession /

control for the purpose of INSPECTING, MEASURING, SURVEYING, TAKING
PHOTOGRAPHS of the property or any designated RELEVANT OBJECT or
OPERATION thereon.383
RESORTED TO DETERMINE CONTENTS, STATUS OR PRESERVATION OF

THE SAME.
RULE 28 – PHYSICAL / MENTAL EXAMINATION OF PERSONS
WHEN AVAILED OF
In an action in which the MENTAL / PHYSICAL condition of a party is in

controversy, a court in its discretion, can order him to submit to physical / mental
examination by a physician.384
379
380
381
382
383
384
1. It can be ordered ONLY upon motion for good cause shown, with NOTICE
to the party to be examined and to all other parties, specifying the time, place,
manner, condition and scope of the examination and person/s by whom it is to be
made.385
2. ONCE EXAMINATION IS COMPLETED, the party examined may request

that a detailed written report of the examining physician setting forth his findings /
conclusions.
2.1 If requested and delivered, the party causing examination to be made is

entitled to request and receive from examined party a like report of the same
mental / physical examination / condition PREVIOUSLY OR THEREAFTER
MADE.
2.2 If request is refused, the court on motion may order delivery by the party
examined on such terms as are just. If the physician fails / refuses to make such
report, his testimony may be excluded if his testimony is offered at trial. 386
2.3 NOTE a WAIVER OF PRIVILEGE that is caused by requesting and

obtaining a report of the examination ordered or by taking the deposition of the
examiner, party examined WAIVES ANY PRIVILEGE he may have in that action
or any other involving the same controversy regarding the testimony of every
other person who has examined or may thereafter examine him in respect of the
same mental / physical examination. 387 This refers primarily to the privilege
between doctor and patient.
RULE 29 – REFUSAL TO COMPLY WITH MODES OF DISCOVERY
1. If he refuses to answer upon being directed to do so or refuses to be

sworn, it will constitute CONTEMPT OF COURT. A citation in contempt shall
ensue after the following steps have been followed or observed:
a. If the party/deponent refuses to answer any question upon oral

examination, the deposition may be completed on other matters or adjourned as
the proponent may prefer.
b. The proponent may then apply for an order to compel an answer in the
proper court where the deposition is being taken. This is also applicable to
interrogatories.
c. If granted, the court can order that answer be made and if it finds that
refusal is without substantial justification – it may impose upon deponent /
counsel advising that no answer be given or both – reasonable expenses and
attorney’s fees in obtaining the order. If denied and the court finds application
was filed without substantial justification proponent / counsel advising application
or both may in the same manner be sanctioned.388
2. Other consequences – (applicable to Sec 1, Rule 29, Rule 27 and Rule

28) the Court may issue an:
a. order that the matters regarding which the questions are asked,
character / description of thing or land / contents of a paper or physical / mental
385
386
387
388
condition of a party shall be taken to be established in accordance with the claim
of the party obtaining the order.
b. order refusing to allow the disobedient party to support / oppose

designated claims / defenses – or prohibiting him from introducing in evidence
the designated things / documents or items of testimony or from introducing
evidence of physical / mental condition.
c. order striking out pleadings or parts thereof or staying proceedings until

the order is obeyed, dismissing the action or proceeding or any part thereof, or
rendering judgment by default against the disobedient party.
d. In lieu or in addition to orders, the disobedient party can be ordered

arrested except in relation to a physical / mental examination. 389
OTHER SANCTIONS
1. Expenses on refusal to admit – if requested party serves a sworn denial

and party serving request proves genuineness / truth, he may apply for an order
directing the requested party to pay expenses incurred in making proof plus
attorney’s fees. Order is issued except if court finds good reasons for denial or
admissions were of no substantial importance. 390
2. Failure of a party to willfully appear before the officer taking the deposition,
after being served with a proper notice, or fails to serve answers to written
interrogatories properly served, court may on motion and notice: (a)Strike out all
or any part of the pleading of that party (b) Dismiss the action / proceeding / part
thereof (c) Enter judgment by default against that party, (d) and ,in its discretion,
order payment of reasonable expenses and attorney’s fees 391 BUT no expenses
or fees are to be assessed against the Republic of the Philippines. 392
RULE 30 – TRIAL
NOTICE OF TRIAL
Upon entry of a case in the trial calendar – the clerk shall notify the parties of the
date of the trial in such manner as to ensure receipt of the notice at least 5 days
before such date.393
MAY TRIAL BE POSTPONED / ADJOURNED
Courts may adjourn a trial from day to day, and to any stated time – as the
expeditious and convenient transaction of business may require – but it shall
have no power to adjourn for a longer period than one month for each
adjournment, nor more than three months in all, except when authorized in
writing by the Court Administrator of the Supreme Court. 394
IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE
389
390
391
392
393
394
Can only be granted upon affidavit showing the materiality / relevancy of the
evidence and that due diligence has been used to procure it, BUT, if the adverse
party admits the facts to be given in evidence, or even if he objects or reserves
the right to object to their admissibility, the trial shall not be postponed. 395
IF DUE TO ILLNESS OF PARTY OR COUNSEL
May be granted, if it appears upon affidavit or sworn certification that the

presence of party / counsel at the trial is indispensable and that character of
illness is such as to render non-appearance excusable. 396
WHAT IS THE ORDER OF TRIAL
Subject to Section 2, Rule 31 on separate trials and unless the court orders for
special reasons, it shall be limited to the issues stated in the pre-trial order and
shall proceed as follows:
1. Plaintiff adduces evidence in support of his complaint

2. Defendant adduces evidence in support of his defense, counterclaim,
crossclaim and 3rd party complaint
3. Third party defendant, if any, shall adduce evidence of his defense,
counterclaim, crossclaim and 4th party complaint.
4. Fourth party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them.
5. Parties against whom any counterclaim/crossclaim has been pleaded shall
adduce evidence in support of their defense, in the order prescribed by the Court.
6. The parties may then respectively adduce rebutting evidence, unless the
Court, for good reasons and in the furtherance of justice, permits them to adduce
evidence upon their original case.
7. Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or submit memoranda or
any further pleadings.
If several defendants or 3rd party defendants and so forth, having separate

defenses appear by different counsel, the court shall determine the relative order
of presentation of their evidence. 397
MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF

THE CASE FOR JUDGMENT WITHOUT INTRODUCTION OF EVIDENCE
Yes, provided it be in writing. If the parties agree only on some facts, trial shall be
held as to the disputed facts 398 BUT, no judgment based on stipulation of facts is
allowed in legal separation, annulment of marriage and declaration of nullity.
NOTE: that in the same cases, neither is there judgment by default, judgment on
the pleadings, summary judgment, judgment upon confession, judgment upon
compromise, judgment based on stipulation of facts.
WHAT ARE TO BE MADE OF RECORD
395
396
397
398
All proceedings, including any statement made by the judge with reference to the
case, or to any of the parties, witnesses or counsel shall be made of record in the
stenographic notes.399
WHO IS TO RECEIVE EVIDENCE
The judge is required to personally receive the evidence. But in default / ex-parte
or when parties agree in writing it may be delegated to the clerk of court who is
member of the bar though he has no power to resolve objections to any question
or admission of exhibits . Such shall be resolved by the court upon submission of
his report and transcripts within 10 days from termination of the hearing. 400
CAN ACTIONS BE SUSPENDED
Actions may be suspended as governed by the provisions of the Civil Code 401:
(a)if willingness to discuss a compromise is expressed by one or both parties (b)if
it appears that one of the parties, before the commencement of an action /
proceeding, offered to discuss a possible compromise but the other party refused
the offer.402
RULE 31 – CONSOLIDATION OR SEVERANCE
WHEN CAN CONSOLIDATION TAKE PLACE?
When actions involving a common question of law or fact are pending before the
court, it may order joint hearing or trial of any or all the matters in issue in the
actions, it may order all actions consolidated. Then it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs /
delay403
MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN

DIFFERENT COURTS
Yes, involving the consolidation of civil action WITH criminal action, if filed before
criminal action and trial has not yet commenced. 404
PURPOSE OF ALLOWING CONSOLIDATION
The purpose of allowing consolidation is to avoid multiplicity of suits, guard

against oppression or abuse, prevent delay, clearing of dockets, simplify the work
of trial court, save unnecessary expenses / costs.
1. NOTE though that if actions involve a common question of law or fact

because they arise from a single cause of action between the same parties, the
remedy is dismissal on litis pendentia, not consolidation.
WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER
399
400
401
402
Civil Code, Article 2030
403
404
Section 1, Rule 111 of the Rules on Criminal Procedure
Covers any claim, cross-claim, counterclaim or third party claim or any separate
issue or of any number of claims, cross-claims, counter claims, third party
complaints, or issues in furtherance of convenience or to avoid prejudice. 405
RULE 32 – TRIAL BY COMMISSIONER
WHEN RESORTED TO
Trial by commissioners may be resorted to upon order of the court, which will
then refer any or all issues when: (a)Parties agree in writing and the
commissioner may either be agreed upon or appointed by the Court (b) When
parties do not consent, on court’s own motion or upon application of either party,
if may be directed in the following: (1) Trial of an issue of fact requires
examination of a long account (2) The taking of an account is necessary for the
information of the court before judgment or for carrying judgment / or order into
effect (3)A question of fact, other than upon the pleadings arises upon motion or
otherwise, in any stage of the case, or for carrying a judgment or order into
effect.406
1. The term commissioner may include a referee, an auditor or examiner 407
2. A commissioner is designated or authorized by an ORDER OF

REFERENCE– which will specify or limit his powers, direct him to report only on
or upon particular issues or do or perform particular acts, receive or report
evidence only and fix date for beginning / closing hearings and for the filing of the
report.
2.1 He shall then have and exercise the power to: (a)Regulate the proceeding
before him (b)Do all acts and take all measures necessary or proper for the
efficient performance of his duties upon the order (c)Issue subpoenas (d) Swear
witnesses (e)Unless otherwise provided, rule upon the admissibility of
evidence408
3. THE TRIAL / HEARING SHALL PROCEED IN ALL RESPECTS AS IT

WOULD BE HELD IN COURT.
PROCEDURE
1. Commissioner takes oath and be sworn to a faithful and honest

performance of his duties409
2. Upon receipt of the Order of Reference, and unless otherwise stipulated

he shall forthwith set a time and place for the first meeting of the parties and
counsel within 10 days after the date of the order of reference, and shall notify
parties / counsel410
3. If parties / counsel fail to appear, he may proceed ex-parte or in his

discretion, adjourn the proceedings, giving notice to the absent party or counsel
of the adjournment411
405
406
407
408
409
410
411
4. He shall avoid delay as he is duty bound to proceed with all reasonable
diligence. Either party on notice to other parties and the commissioner may apply
for a court order to expedite proceedings / report 412
5. If witness refuses to obey a subpoena or give evidence. It shall constitute

contempt of the appointing court 413
6. Upon completion of trial / hearing / proceeding – he shall file with the court
has report in writing upon the matters submitted to him by the order of reference.
When powers are not specified or limited, he shall set forth his findings of fact
and conclusions of law in his report. He shall also attach all exhibits, affidavits,
depositions, paper and transcripts of the testimonial evidence given 414
7. Notice is then given by the clerk to the parties of the filing of the report,
they shall then be allowed 10 days within which to signify objections to the
findings in the report, is so desired.
7.1 NOTE: Objections to the report based on grounds available to the parties
during the proceedings before the commissioner, other than as to the findings /
conclusions, shall not be considered unless made before the commissioner. 415
8. Upon expiration of the period, the report shall be set for hearing, after
which the court shall issue an order – adopting, modifying, or rejecting the report
in whole or in part or recommitting it with instructions or requiring the parties to
present further evidence to the commissioner416
9. If the parties stipulate that the commissioner’s findings of facts shall be

final, only questions of law shall be thereafter considered. 417
9.1 Note that the findings of the commissioner are merely advisory and are
not absolutely binding upon the court.418
EXPENSES / COMPENSATION
They shall be reasonable as warranted by the circumstances and are to be taxed

as costs against the defeated party or apportioned as justice requires 419
WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES
Reference to commissioners is required in the following cases: (a)Expropriation

under Rule 67 to determine just compensation (b)Partition under Rule 69, when
parties cannot agree as to the manner of partition.
RULE 33 – DEMURRER TO THE EVIDENCE
WHO FILES AND WHEN FILED
412
413
414
415
416
417
418
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
419
The defendant is the party who may move for the dismissal of the action after
presentation by the plaintiff of evidence ON THE GROUND that upon the facts
and the law, plaintiff has shown no right to relief. 420
EFFECTS OF FILING AND RESOLUTION
1. If granted, the action is dismissed, BUT if appealed and reversed, he loses

his right to prevent evidence and judgment is rendered in favor of the plaintiff 421
1.1 An order dismissing a case for insufficiency of evidence is a judgment on

the merits, it is imperative that it be a reasoned decision and distinctly stating
therein the facts and the law on which it is based. 422
2. If denied, defendant may present his evidence as it does not constitute a

waiver of right to do so.
3. It is an error on the part of the Court of Appeals to order REMAND, if

dismissal is elevated to it on appeal, it must decide on the evidence adduced by
the plaintiff.423
DISTINGUISHED FROM CRIMINAL CASES
(a) In both civil and criminal actions, the basis for both is the insufficiency of
evidence. (b) In a civil action, dismissal by demurrer is by motion only, while in a
criminal action, dismissal by demurrer is upon the court’s initiative or motion
giving the prosecution an opportunity to be heard. (c) In a civil action, leave is
not required prior to filing, while in a criminal action leave may / may not be
obtained. If obtained – no waiver of right to present evidence if denied and if
there is no leave, it is a waiver (d) In a civil action, if granted, plaintiff’s remedy is
appeal, while in a criminal action, if granted, there is no appeal as such will
constitute double jeopardy.
RULE 34 – JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS
Can be had if the ANSWER fails to tender an issue or otherwise admits the
material allegations of the complaint 424
1. There is no MOTU PROPIO RENDITION OF JUDGMENT as it is always

by motion.
2. An answer fails to tender an issue when it fails to comply with the

requirements of specific denial or is deemed to have admitted the allegations in
the complaint425
3. An answer admits the material allegations when it expressly confesses the

truthfulness thereof or where it omits to deal with them all.
420
421
Quebral v Court of Appeals, 252 SCRA 353
422
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
423
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
424
425
Supra, Sections 8,9 and 11, Rule 8
4. NOTE that when an answer raises factual issues involving damages, it is
not proper to render judgment on the pleadings as presentation of evidence is
required.
WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS
Only the plaintiff in original complaint, or of the counter-claim, or of the cross

claim, or of the third party complaint may so move for judgment on the pleadings.
WHEN NOT ALLOWED
Judgment on the pleadings is not allowed in cases of: (a)Declaration of nullity of

marriage (b) Annulment of marriage (c) Legal separation. In these cases, the
plaintiff is required to prove the material facts regardless of whether the answer
tenders an issue.
RULE 35 – SUMMARY JUDGMENT
WHAT IS SUMMARY JUDGMENT
Is a devise for weeding out sham claims or defenses at an early stage of the
litigation thereby avoiding the expense / loss of time involved in a trial. Its very
object is to separate what is formal or pretended in denial or averment from what
is genuine and substantial so that only the latter may subject a suitor to the
burden of trial.
1. This is also known as ACCELERATED JUDGMENT426
WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN
Either plaintiff or defendant may move for a summary judgment:
1. If plaintiff or claimant (of original complaint / counterclaim / cross-claim),

he may file the motion at any time after the pleading in answer to his claim has
been filed on the ground that although there is an apparent issue, the same is
SHAM / FALSE427 .Example: Answer admits obligation but states that the amount
is wrong or less than that claimed. If plaintiff has proof that there is written
acknowledgment that as of a date or period prior to that of the filing, the
defendant was aware of the true amount, there can be summary judgment.
2. If movant is the defending party, he may file the motion at any time before
or after he files his answer on the ground that plaintiff’s claim against him is
SHAM or FALSE 428
3. An issue is sham or false if it is not genuine. GENUINE means that the

issue of fact is one that calls for the presentation of evidence. 429
4. In either case, the motion must be filed along with supporting affidavits,
depositions or admissions.
5. The PROCEDURE for the filing and resolution of a motion for summary
judgment is as follows:
426
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
427
428
429
Excelsa Industries v Court of Appeals, 247 SCRA 560
1. Plaintiff/Defendant serves on the defendant/plaintiff a copy of the motion
at least 10 days before the date of hearing specified in the motion.
2. The defendant/plaintiff MAY serve opposing affidavits, depositions or

admissions at least 3 days before the date of the hearing.
3. Court hears the motion.
4. If after hearing, it finds that the motion filed by PLAINTIFF justified, thus
there is no genuine issue as to any material fact, it will render summary judgment
for the plaintiff. If not, it will deny, set the case for pre-trial, then trial. If filed by the
defendant and is justified, the complaint is dismissed, otherwise the case
proceeds with the filing of answer or pre-trial is set and conducted.
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
1. They shall be made on personal knowledge, setting forth such facts as

would be admissible in evidence and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Certified copies of all papers /
parts thereof shall be attached and served therewith. 430
2. If affidavits have been determined to the satisfaction of the court that they
are presented in bad faith or solely for the purpose of delay, the Court may
forthwith order the offending party to pay reasonable expenses which may have
been incurred by the other party, including attorney’s fees. It may also find /
adjudge, after hearing, that attending party / counsel are guilty of contempt. 431
EFFECT OF THE RENDITION OF SUMMARY JUDGMENT
1. The aggrieved party may appeal the summary judgment as such is final
judgment as defined by Section 1, Rule 41.
2. IF DENIED, it is not appealable as order of denial of motion is interlocutory

THOUGH certiorari may lie if the rendering of a summary judgment is clear, plain
and patent but the court refuses or declines to render it.
WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT
When the Court finds that a judgment cannot be rendered upon the whole case
or for all the reliefs because there are controverted facts which require trial. A
PARTIAL SUMMARY JUDGMENT is not appealable and shall be taken together
with the judgment that a trial court will render after trial. Thus it cannot be
executed.432
DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS
(a) A Judgment on the Pleadings is available when there is no genuine issue as

answer fails to tender an issue or otherwise admits material allegations, while
Summary Judgment is available when there is an apparent issue but is a sham,
fictitious or false (b) A Judgment on the Pleadings is based exclusively on the
pleadings (complaint / answer), while Summary Judgment is based not only on
pleadings but also on affidavits, depositions and admissions, showing that except
as to damages there is no genuine issue (c) A Judgment on the Pleadings can
430
431
432
be filed only after an answer has been filed, while in Summary Judgment, there
may or may not be an answer (d) A Judgment on the Pleadings can only be had
by the plaintiff, while in Summary Judgment, either plaintiff or defendant may
move for it (e) a motion for Judgment on the Pleadings is required to be served
on adverse party at least 3 days prior to the hearing, while a motion for
Summary Judgment requires service at least 10 days prior to the hearing
1. Judgment on the Pleadings is a judgment on facts as pleaded, Summary

Judgment is a judgment as summarily proven by affidavits, depositions,
admissions. If an answer tenders an issue, there can be no Judgment on the
Pleadings but there can be Summary Judgment, if issue/s is later shown to be
false, sham or fictitious.
RULE 36 – JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
REQUISITES OF A JUDGMENT/FINAL ORDER
The requisites of a judgment or final order are: (1) It must be in writing (2) It must
be personally and directly prepared by the judge (3) It must state clearly and
distinctly the facts and the law on which it is based (4) It must be signed by the
judge (5) It must be filed with the clerk of court.433
1. NOTE that a judge who has been reassigned can pen a decision as long
he is still an incumbent judge.434
WHEN IS JUDGMENT RENDERED
Ordinarily after trial, except in judgment on the pleadings, summary judgment,

judgment by compromise, judgment based on stipulation of facts, judgment upon
confession, order of dismissal in instances when it considered as an adjudication
on the merits, judgment in cases covered by the Rules of Summary Procedure.
1. It is the filing of the judgment or final order with the clerk of court that
constitutes RENDITION OF JUDGMENT, not the date of the writing of the
decision or judgment, nor the signing thereof or even promulgation thereof. 435
2. A MEMORANDUM DECISION is one which adopts by references findings

of facts and conclusions of law contained in the decision of an inferior tribunal.
Note that this does not violate the rule as to statement of the facts and law. This
kind of a decision can only be rendered by an appellate court.
3. A SIN PERJUICIO JUDGMENT is one which is without a statement of

facts and is to be supplemented later by the final judgment. Such a judgment is
void.
DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL
If no appeal or motion for reconsideration or new trial is brought within the time
provided, the judgment / final order shall forthwith be entered by the clerk in the
BOOK OF ENTRIES OF JUDGMENT. The date of finality shall be deemed the
date of entry and shall contain the dispositive portion and signed by the clerk
433
434
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
435
Castro v Malazo, 99 SCRA 164
which a certificate that such judgment / final order has become final and
executory.436
1. Note that date of entry retroacts to date of finality. Hence, both occur
simultaneously by operation of law.
2. JUDGMENTS THAT ARE FINAL AND EXECUTORY CAN BE

CORRECTED but limited only to NUNC PRO TUNC amendments or those that
are merely clerical or typographical.
3. Correction or amendment is also allowed if purpose is to clarify an

ambiguity caused by an omission or mistake, judgment / final order.
4. A COMPROMISE after finality of a judgment is allowed. The basis of the

allowance is the principle of novation, which is a mode of extinguishing an
obligation.437
Pet for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005
JUDGMENTS MAY BE
1. Given for or against one or more several plaintiffs or for or against one or
more several defendants. Courts, when justice demands require parties on each
side to file adversary proceedings as between themselves to determine their
ultimate rights / obligations.438
2. In an action against several defendants, the courts if proper may render

judgment against one or more, leaving the action to proceed against the
others.439 Example: Judgment against a surety for admitted liability.
3. Separate judgments may be rendered when more than one claim for relief
is presented, the court at any stage – upon determination of the issues material
to a particular claim and all counter claims arising therefrom – may render a
separate judgment disposing of the claim and proceeding with the others. BUT, it
may stay execution or enforcement until rendition of subsequent judgment/s and
may prescribe such conditions to secure benefit thereof to the party in whose
favor the judgment is rendered. 440 Example: It may occur when causes of action
have been joined
4. Judgment against entity without juridical personality it shall set forth the
individual names / proper names if known of persons composing it. 441
RULE 37 – NEW TRIAL OR RECONSIDERATION
WHEN FILED
A motion for new trial or reconsideration may be filed within the period for taking
an appeal.442
436
437
Magbanua v. Uy, 458 SCRA 185
438
439
440
441
442
GROUNDS FOR A MOTION FOR NEW TRIAL
1. Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence

could not have guarded against and by reason of which the aggrieved party was
probably impaired in his rights.
1.1 Fraud should be extrinsic or collateral, which refers to such acts that
prevents a party from having a trial / presenting his case in court. It refers to all
kinds of deceptions, whether through insidious machination, manipulation or
concealment or misrepresentation that leads another party to error. 443 Examples
are: false promise to compromise or connivance of lawyer with adverse party.
This does not include INTRINSIC FRAUD or acts of a party at trial that prevents
fair determination. Examples are: perjury, falsification.
1.2 Accident is a fortuitous event, circumstance, or happening; an event

happening without any human agency or if happening wholly or partly through
human agency, is an event which under the circumstances is unusual or
unexpected by the person to whom it happens. 444– sickness of a party, lack of
notice – when sent to other address.
1.3 Mistake refers to some unintentional act, omission, or error arising from
ignorance, surprise, imposition, or misplaced confidence. It pertains generally to
mistake of fact, not of law.445– failure to answer / act because he believed it
unnecessary because of a compromise or other document.
1.4 Excusable 446Negligence is an excusable omission to do something which

a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affiants, would do; or the reasonable doing of something which
a prudent or reasonable man would not do. – failure is really that of the party or
counsel – non submission on time because of distance traveled.
2. Newly Discovered Evidence, which the aggrieved party could not with
reasonable diligence, have discovered or produced at the trial and which would
probably alter the result.
2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such
could not have been discovered and produced at the trial with reasonable
diligence (c) Evidence is material – NOT cumulative, corroborative, or
impeaching, and is of such weight that, if admitted, could probably change the
judgment.447
GROUNDS FOR MOTION FOR RECONSIDERATION
The grounds for a motion for reconsideration are: (a) Award of excessive
damages (b) Insufficiency of evidence to justify the decision or final order (c)
Decision / final order is contrary to law
HOW FILED / CONTENTS
It shall be made in writing stating the ground/s, written notice of which shall be
served by the movant on the adverse party.
443
Maestrado v Court of Appeals, 327 SCRA 678
444
Jarco Marketing v Court of Appeals, 321 SCRA 375
445
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
446
Mckee v Intermediate Appellate Court, 211 SCRA 517
447
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
1. If the Motion for New Trial is based on Fraud, Accident, Mistake or
Excusable Negligence, it should be supported by affidavits of merit, which may
be rebutted by affidavits. The requirement of an affidavit is essential because
obviously a new trial would be a waste of the court’s time if the complaint turns
out to be groundless or the defense ineffective. 448
2. If based on NEWLY DISCOVERED EVIDENCE it should be supported by

affidavits of the witnesses by whom such evidence is expected to be given or by
duly authenticated documents which are proposed to be introduced as evidence.
3. If MOTION FOR RECONSIDERATION, it should point out specifically the

finding / conclusions which are not supported by the evidence / contrary to law,
making express reference to testimonial / documentary evidence or provisions
alleged to be contrary to such findings or conclusions.
3.1 IF NOT, the motion is considered a PRO FORMA MOTION. It does not toll
the reglementary period of appeal. 449 Note also that such a motion without notice
of hearing and proof of service has the same effect 450
IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES
Court may either deny or set aside the judgment or final order and grant a new
trial451
1. IF denied, another motion be filed, if it is based on a ground NOT

EXISTING NOR AVAILABLE when the first motion has filed. 452 Note that a motion
for new trial is an omnibus motion, thus it should include all grounds then
available as those not included are deemed waived.
2. IF granted, the effects are (a) original order / judgment is vacated (b) the
action shall stand trial de novo (c) recorded evidence, insofar as material or
competent to establish the issues, shall be used at the new trial without need to
retake therein453
IF MOTION FOR RECONSIDERATION IS FILED – WHAT ENSUES
Court may deny or amend its judgment / final order if it finds that excessive
damages are awarded, or that it is contrary to the evidence or the law 454
1. If denied – no second motion for reconsideration is allowed of the

judgment or final order. NOTE THOUGH that if the subject is not a judgment /
final order or is an interlocutory order which does not dispose of a case
completely but leaves something more to be done upon its merits, a 2 nd motion
for reconsideration may be allowed.
2. The filing of a second motion for reconsideration is a prohibited pleading.

Thus it does not toll the running of the reglementary period of appeal. 455
OTHERS
448
Yap v Tanada, 163 SCRA 464
449
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
450
Firme v Reyes, 92 SCRA 713
451
452
453
454
455
Hongria v Hongria-Juarde, 425 SCRA 504
1. The periods for resolving the motions are: (a) MTC / RTC – within 30 days
from the time it is submitted for resolution 456 (b) Court of Appeals- within 60 days
after if declares it submitted for resolution (c) Supreme Court- no period is
prescribed
2. THE DENIAL OF BOTH MOTIONS IS NOT APPEALABLE, IT IS THE

JUDGMENT / FINAL ORDER THAT IS APPEALABLE.457
RULE 38 – RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS
GROUNDS UPON WHICH IT IS TO BE BASED
Judgment / final order is entered, or proceeding is thereafter taken against him

through FRAUD, ACCIDENT, MISTAKE, EXCUSABLE NEGLIGENCE. This
means that the FAILURE TO ACT ON JUDGMENT / FINAL ORDER /
PROCEEDING ARE DUE TO Fraud, Accident, Mistake or Excusable Negligence.
This also applies to a failure to take an appeal is due.
1. The object to the petition is that the judgment, order, or proceeding be set
aside or that the appeal be given due course.
2. The petition must be VERIFIED.458
3. The other ways by which a final and executory judgment may be set aside
is by Petition for Certiorari under Rule 65 and Rule 46 and by Annulment of
Judgment under Rule 47.459
4. The petition is premised on equity. It should therefore be granted only in

exceptional cases. Petitioner must be able to prove fraud, accident, mistake or
excusable negligence and the existence of a good and substantial cause of
action or defense, as the case may be. 460
5. It cannot be availed of if there is another remedy in law 461and is available

only against a final and executory judgment. 462
6. Note though that is the case is covered by the Rules on Summary

Procedure, a petition for relief is a prohibited pleading. 463
WHEN AND WHERE FILED
1. It is to be filed within 60 days after he learns of the judgment final order /

proceeding but not more than 6 month after such judgment / final order was
entered or such proceeding taken.464
1.1 A few days after expiration of the 60 day period is not entirely fatal as long
as it is still filed within the 6 months period.465
456
457
Barnes v Reyes, 411 SCRA 538
458
459
Arcelona v Court of Appeals, 280 SCRA 20
460
Torno v Intermediate Appellate Court, 166 SCRA 742
461
Alquesa v Cavada, Jr. 3 SCRA 428
462
Valencia v Court of Appeals, 352 SCRA 72
463
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
464
465
Mago v Court of Appeals, 303 SCRA 600
1.2 But if it is a judgment by compromise, the 6 months period runs from date
of rendition, because a judgment upon a compromise is immediately executory
and considered to have been entered on the date it was approved by the trial
court.466
1.3 The 6 months period is reckoned from entry of judgment or final order, not
from its rendition or finality467while “from learning” means from notice of judgment
or final order468
2. It is to be filed in the same case and in the same court where the judgment
/ final order was entered or where proceeding is taken.
PROCEDURE
1. Filing of verified petition accompanied by affidavits showing FAME and the

facts showing the petitioner’s good and substantial cause of action or defense, as
the case may be (grounds constituting his cause of action / defense)
2. Order issued requiring adverse party to answer within 15 days from

receipt469 and if warranted a writ of preliminary Injunction may be issued. 470
3. Adverse party answers, but if he does not, he cannot be declared in

default.
4. Court hears and may grant relief if the allegations are true or deny if not
true.
4.1 If granted, the assailed final order / judgment / proceeding is set aside and
proceedings taken as if a timely motion for new trial has been granted. 471 There
are in effect two hearings: the first is as to the merits of the petition, the second is
as the merits of the principal case.
4.2 If denied, the order is not appealable 472 but may be subject of certiorari
under Rule 65
5. Court hears the case as if a timely motion for new trial or reconsideration
has granted. If the subject is denial of an appeal, the lower court shall be
required to give due course to the appeal and elevate the records as if a timely
and proper appeal has been made. 473
6. Judgment is rendered and is appealable
DISTINGUISHED FROM A MOTION FOR NEW TRIAL
They are distinguished as follows: (a) a motion for new trial is filed before
judgment becomes final, while a petition for relies if filed after a judgment
becomes final (b) a motion for new trial applies to judgments / final orders, while
a petition for relief includes proceedings (c) the grounds for a motion for new trial
includes newly discovered evidence, while a petition for relief is limited to FAME
466
Manipor v Ricafort, 407 SCRA 298
467
Bayog v Natino, 258 SCRA 378
468
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
469
470
471
472
Supra, Section 1(b), Rule 41
473
(d) a motion for new trial is filed within the period for perfecting an appeal, while
a petition for relief is filed within 60 days from knowledge but within 6 months
from entry of judgment (e) a motion for new trial if denied allows an appeal, while
a petition for relief from judgment does not allow an appeal (f) a motion for new
trial is a legal remedy, while a petition for relief is a remedy in equity (g) a
motion for new trial requires no verification, while a petition for relief needs to be
verified.
RULE 39 – EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
TWO KINDS OF EXECUTION
1. COMPULSORY is one which issues as a matter of right, or motion, upon a

judgment or order that disposes of the action or proceeding UPON EXPIRATION
of the period to appeal, if no appeal is taken therefrom / is perfected. It also
issues when appeal is duly perfected and finally resolved.
a. It may be applied for in the court of origin, on motion of judgment obligee –

submitting certified true copies of the judgment / final orders / orders sought to be
enforced and ENTRY thereof, with notice to the adverse party. There is no need
for return of records.
b. It may also be applied for in the appellate court, on motion in the same
case, when the interest of justice so requires, direct the court of origin to issue
the writ of execution in the event of the refusal of the court of origin to issue the
writ. 474
c. A motion is required as there may be questions / disputes as to finality or

amounts to be stated in the writ.
2. DISCRETIONARY is one that is issued, on motion, of the prevailing party

for good reasons. This is also known as EXECUTION PENDING APPEAL /
EXCEPTIONAL EXECUTION 475
a. It is filed in the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the case may
be, at the time of the filing of the motion. 476 The COURT, may in its discretion,
order execution of judgment / final order even before the expiration of the period
to appeal. If the trial court has lost jurisdiction, it is to be filed with the appellate
court.
a.1 A court LOSES JURISDICTION when there is perfected appeal and the
period to appeal has expired. When a record on appeal is required, it loses
jurisdiction OVER THE SUBJECT OF THE APPEAL upon perfection of the
appeal and expiration of the period to appeal.
a.2 The REQUISITES OF EXECUTION PENDING APPEAL are: (1) A motion

by the prevailing party with notice to the adverse party (2)There must be good
reason for execution pending appeal (3) The good reason must be stated in a
special order. They must constitute superior circumstances demanding urgency
474
475
476
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
which will outweigh the injury or damage should the losing party secure a
reversal of the judgment on appeal. 477EXAMPLES OF GOOD REASONS are:
deterioration of the goods, prevailing party’s inability to enjoy the decision, or it’s
becoming illusory. In a recent case, OLD AGE was found to be a good reason. 478
NOTE: corporation’s financial distress was not considered a good reason.
b. DISCRETIONARY EXECUTION BE STAYED upon approval by the proper

court of a sufficient supersedeas bond filed by the party against whom it is
directed – CONDITIONED UPON THE PERFORMANCE OF THE JUDGMENT /
FINAL ORDER allowed to be executed in case finally sustained in whole in part.
The bond may then be proceeded against on motion with notice to the surety. 479
BUT, the mere filing of a bond by a successful party allow execution pending
appeal nor constitute good ground.480
b.1 There are JUDGMENTS NOT STAYED BY APPEAL such as judgments in

injunction, to include a judgment dissolving it 481 receivership, accounting and
support and such other judgments as are now or hereafter be declared to be
immediately executory, shall be enforceable upon their rendition, they shall not
be stayed by an appeal taken therefrom, unless otherwise ordered by the trial
court. IF STAYED, it shall be upon such terms as to bond or otherwise as may be
considered proper for the security / protection of the rights of the adverse party.
ON APPEAL THOUGH, the appellate court may make an order – suspending,
modifying, restoring or granting the injunction, receivership, accounting or award
of support.482
b.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are
immediately executory.483 The same is true of a judgment by compromise. 484
b.3 IF THERE ARE SEPARATE JUDGMENTS / OR SEVERAL OR PARTIAL

JUDGMENTS, they may executed under the same terms and conditions as
execution of a judgment / final order pending appeal. 485
b.4 IF EXECUTION IS GRANTED BUT JUDGMENT / FINAL ORDER IS

REVERSED ON APPEAL totally / partially or annulled, on appeal or otherwise,
the trial court, on motion, may issue orders of reparation or restitution of
damages as equity and justice may warrant under the circumstances. 486 The
phrase “or otherwise” applies to reversal after a petition for relief has been
granted under Rule 38 and upon a favorable judgment in a petition for
annulment of judgment under Rule 47
b.5 The Court of Appeals has no authority to issue immediate execution

pending appeal of its own decision. Discretionary execution applies only to a
judgment or final order of the trial court. 487
WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION
477
Jaca v Davao Lumber Company, 113 SCRA 107
478
FEBTC v Toh, Sr. 404 SCRA 590
479
480
International School v. Court of Appeals, 309 SCRA 474
481
ITC v PTA, 341 SCRA 90
482
483
484
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
485
Supra, Section 2 (b), Rule 39
486
487
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
Only judgments or final orders, or one which disposes of the whole subject
matter or terminates a particular proceeding or action, leaving nothing to be done
but to enforce by execution that which has been determined. AS OPPOSED TO
-Interlocutory orders which cannot be enforced by execution, one that does not
dispose of a case completely, but leaves something to be done on the merits.
1. An EXCEPTION is a judgment for support pendente lite. 488
2. Distinguishing a “final judgment or order” from one which has become

“final and executory”. A final judgment is one that finally disposes of a case,
leaving nothing more to be done by the court in respect thereto. It is an
adjudication on the merits. Once rendered, the task of the court is ended, as far
deciding the controversy or determining rights and liabilities of litigants. Nothing
more is to be done but to await the parties’ next move, and ultimately, to cause
execution of the judgment once it becomes final and executory. 489
HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED
A final and executory judgment may be enforced by (1) By motion within 5 years
from date of entry of judgment (2) By action after the lapse of 5 yrs from date of
entry of judgment but before barred by statute of limitations, which is 10 years.
This is known as “action to revive judgment”.490
1. The revived judgment may also be enforced by motion within 5 yrs from
date of entry, and thereafter by action before it is barred by the statute of
limitations. The purpose of the action is not to re-examine the issues as the
cause of action is the judgment itself and not the merits of the original action. 491
2. RECONCILING WITH ACTIONS UPON A JUDGMENT under Article 1144,

NCC WHICH PRESCRIBES IN 10 YEARS. The Rules of Court refer to the
manner of execution of the judgment.
3. Note that this is not applicable in land registration cases or other special
proceedings, IN CIVIL ACTIONS ONLY.
4. There are however instances when judgment / final order can still be
enforced by motion even after lapse of 5 years when the delay is caused or
occasioned by the actions of the judgment obligee or incurred for his benefit or
advantage.492 The liberal construction of the rule resulting in non inclusion of the
period of delay occasioned by the acts of the judgment oblige in the counting of
the period was resorted to as strict adherence to the letter of the law would result
in absurdity and manifest injustice.493
ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION
A writ of execution shall (1)Issue in the name of RP from the Court that granted
the judgment (2) State the name of court, case number, title, and dispositive
portion (3) Require the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms, in the manner herein provided: (a)
execution be against property of judgment obligor, to satisfy judgment with
488
489
Denso Philippines, Incorporated v IAC, 148 SCRA 280
490
491
Laperal v Ocampo, 410 SCRA 339
492
Camacho v Court of Appeals, 287 SCRA 611
493
Republic v Court of Appeals, 260 SCRA 344
interest, out of his real or personal property (b) if against real or personal
property, in the hands of personal representatives, heirs, devisees, legatees,
tenants trustees of the judgment obligor, to satisfy the judgment, with interest, out
of such property (c) if it be for sale of real / personal property, to sell it, describing
it, and apply the proceeds in conformity with the judgment, the material parts of
which shall be recited in the writ (d) if it be for delivery of the possession of
real / personal property, to deliver the possession of the same, describing it, to
the party entitled thereto and to satisfy any costs, damages, rents, profits
covered by the judgment out of the personal property of the person against
whom it was rendered, and if no sufficient personal property be present, out of
real property (e) in all cases, the writ shall specifically state the amount of
interest, costs damages, rents, profits due as of the date of issuance of the writ
aside from the principal obligation under judgment 494
MANNER OF EXECUTION
I. FOR SUMS OF MONEY
1. Immediate payment on demand from judgment obligor payable in cash of

certified bank check payable to the obligee or any form acceptable to him plus
lawful fees to be turned over to the clerk of court of the court that issued the writ.
If judgment obligee is not present to receive the amounts, it shall be delivered by

judgment obligor to the sheriff, turning in all amounts on the same day to the
clerk of court or if not practicable, to deposit in the nearest government
depository bank of Regional Trial Court in the locality, then arrangements are
then made for remittance to clerk of court issuing the writ for delivery to the
judgment obligee. IN NO CASE SHALL SHERIFF DEMAND PAYMENT BY
CHECK PAYABLE TO HIM
2. Satisfaction by levy – if not paid in cash, the sheriff shall levy on the
properties of judgment obligor of any kind / nature which may be disposed of for
value and not otherwise exempt from execution – giving obligor the option to
immediately choose which property or part thereof may be levied upon to satisfy
judgment. If not – sheriff shall levy on personal properties first, if any, then on
real properties if insufficient to answer for judgment. Sheriff can only sell
sufficient portion of the personal / real property levied upon when there is more
property then is sufficient to satisfy judgment, on so much of it to satisfy judgment
is to be sold. The conduct of the SALE SHALL FOLLOW THE PROCEDURE
LAID DOWN BY THE RULES TO IMPLEMENT SALE OF PROPERTY.
2.1 EFFECT OF LEVY. A levy on execution shall create lien in favor of the
judgment obligee over the right, title and interest of the judgment obligor in such
property at the time of levy – subject to liens / encumbrances then existing –
effect then on 3rd persons – depends on when their liens / encumbrances – if any,
was annotated or interposed.495
2.2 PROBLEM if LEVY is made beyond the period of 5 years from entry of
judgment. The same is NOT VALID as lifetime or a writ of execution is 5 years
from date of entry of judgment.496
494
495
496
3. Garnishment of debts and credits. The officer may levy on debts due the
judgment obligor and other credits. Examples: bank deposits, financial interests,
royalties, commissions, and other personal property. These are not capable of
normal delivery and are in the possession and control of third parties.
3.1 Levy shall be made by serving notice on the person owing such debts or
having in his possession or control such credits to which the judgment obligor is
entitled.
3.2 The garnishee, shall then make a written report to the court from service
of notice stating whether or not the judgment obligor has sufficient funds or
credits to satisfy the judgment – the garnished amount shall then be delivered
directly to the judgment obligee within 10 working days from service of notice on
him requiring delivery – less lawful fees to be paid directly to the Court.
3.3 If there are 2 or more garnishees – the judgment obligor shall have the
right to indicate the garnishee/s who shall deliver, otherwise it shall be the choice
of the judgment obligee.497 (Section 9)
4. Writ is to be returned to the Court issuing it immediately after judgment

has been satisfied in part or in whole. If not / cannot be satisfied in full within 30
days from receipt of the writ, the officer shall report to the court and state the
reason therefor. Such writ will continue to be in effect during the period within
which judgment may be enforced by motion, the officer shall then make a report
to the Court every 30 days on the proceedings taken thereon until the judgment
is satisfied in full or its effectivity expires. The returns / reports shall set forth the
proceedings taken, filed with the court and copies promptly furnished parties. 498
II. FOR SPECIFIC ACTS499
1. If CONVEYANCE, DELIVERY OF DEEDS OR OTHER SPECIFIC ACTS –

party is directed to comply if he fails to do so within the period specified, court
may direct the act to be done at the cost of the disobedient party, by some other
person appointed by the court and when so done it is as if done by the
disobedient party. If it involves real / personal property located in the Philippines,
the court in lieu of directing a conveyance thereof may by an order divest title and
vest it in others, which shall have the force and effect of a conveyance executed
in due form of law.
2. If for SALE OF REAL/PERSONAL PROPERTY – the property is to be

sold, describing it, and apply the proceeds in conformity with the judgment.
2.1 The procedure is as follows:
a. Notice must be given as follows:
1. Perishable property – posting of written notice (of time, place, sale) in 3

public places preferably in conspicuous areas of the municipal/city hall, post
office, public market, for such a time as may be reasonable depending on
circumstances.
2. Personal property – posting of written notice in 3 public places for not less
than 5 days.
497
498
499
3. Real property – posting of written notice in 3 public places for at least 20
days, describing the property, where it is to be sold, and if assessed value is in
excess of PHP 50,000.00, publishing the notice in a newspaper of general
circulation once a week for 2 consecutive weeks.
IN ALL CASES – written notice is also given to judgment obligor at least 3 days
before the sale except in (a) notice is given at any time in the same manner as
personal service of pleadings. 500
4. The CONTENTS OF NOTICE are the place, date exact time not earlier
than 9:00 am or later than 2:00 pm. The place may be agreed upon, if not,
Real/Personal property not capable of manual delivery shall be sold at the Office
of the Clerk of Court of Regional or Municipal Trial Court issuing the writ. If
capable of manual delivery, where personal property is located.
5. If there is a sale WITHOUT NOTICE, the officer is liable for punitive

damages in the amount of PHP 5,000 in addition to actual damages sustained by
injured person. IF DEFACED / REMOVED before the sale / satisfaction of the
judgment, the person so defacing or removing shall be liable to pay PHP
5,000.00 plus actual damages. These are recoverable upon motion. 501
b. All sales shall be by public auction. This applies also when property is
levied upon. Sale is made to the highest bidder, to start at the exact time stated
in the notice.
1. If sufficient property has been sold, no more shall be sold and any excess
property / proceeds shall be delivered to the judgment obligor or his
representative, unless otherwise directed by the court EXAMPLE- other debts
due to be paid
2. If sale is of real property – consisting of several known lots – they must be

sold separately or if claimed by a 3rd person, he may require it to be sold
separately.
3. Personal property capable of manual delivery – it must be sold within view

of those attending and in such parcels so as to bring the highest price.
4. The judgment obligor, if present may direct the order in which the property
is to be sold when such property consists of several parcels / known lots which
can be sold to advantage separately.
5. No officer or his deputies, can be a purchaser, nor be interested directly or

indirectly in any purchase at such sale.502
6. By written consent of both judgment obligor / obligee or their duly

authorized representatives, the auction sale may be adjourned to any date or
time agreed by them. Without an agreement – officer may adjourn from day to
day if it becomes necessary.503
WHAT HAPPENS WHEN A PURCHASER REFUSES TO PAY

500
501
502
503
Officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby, like when it is resold for less. But,
the court may order the refusing purchaser to pay unto the Court such loss, and
punish him with contempt if he disobeys. Payment shall inure to the benefit of
party entitled to execution, unless he has been satisfied, in which case to the
judgment obligor. IN ADDITION: officer may thereafter reject all bids of such
purchaser.504
CAN JUDGMENT OBLIGEE PURCHASE
Yes, and if no 3rd party claim has been filed, he need not pay the amount if it
does not exceed the amount of his judgment. If it does he shall only pay the
excess. 505
EFFECT OF PAYMENT BY JUDGMENT OBLIGOR BEFORE SALE OF

PROPERTY ON EXECUTION
Sale is prevented by the payment required by execution and cost incurred

therein506
WHAT HAPPENS IF PROPERTY IS CLAIMED BY THIRD PERSON
Third person is called a third party claimant. He is one who claims title to, or right
of possession of the property levied upon by the sheriff. NOTE: there may be a
3rd party claimant in execution, preliminary attachment and replevin.
WHAT DOES 3RD PARTY CLAIMANT DO
He can file a 3rd party claim or a terceria by executing an affidavit showing his
title thereto, or right of possession over the property being levied upon, stating
therein the grounds of such title or right, serving a copy thereof to the sheriff and
judgment obligee. If filed, sheriff is not obliged to proceed unless the judgment
obligee files an indemnity bond in an amount not less than value of the property.
No action on the bond may enforced by the third party claimant unless filed within
120 days from date of the filing of the bond. If bond is filed – 3 rd party claimant
may vindicate his claim within the period OR he may institute a separate action
to vindicate his claim BUT nothing also prevents the judgment obligee from
claiming damages in the same or separate action against a 3 rd party claimant
who files a frivolous / spurious claim.
If writ is issued in the name of the RP, no bond is required. Officer is to be

represented by the SOLGEN, and if damages are assessed, it is to be paid out of
the National Treasury. 507
C. AFTER SALE, CONVEYANCE MADE AS FOLLOWS
I. REAL PROPERTY – a certificate of sale is given stating the description of

the property, price paid for each distinct lot / parcel, whole price paid and a
statement that the right of redemption shall or will expire one year from date of
504
505
506
507
registration of the certificate.508 MAKING MENTION OF THE EXISTENCE OF A
3RD PARTY CLAIM, IF ANY509 Note: the requirement of mentioning a 3 rd party
claim, if any, applies also to conveyance over personal property.
THE PARTIES ENTITLED TO REDEEM ARE:
a. Judgment obligor, or his successor in interest, in whole or any part of the

property
b. A creditor having a lien by virtue of an attachment, judgment, mortgage on

the property sold or on some part thereof, subsequent to the lien under which the
property is sold. Such redeeming creditor is called a REDEMPTIONER. 510
TIME AND MANNER OF REDEMPTION
The judgment obligor / redemptioner may redeem the property from the
purchaser at any time within 1 year from registration by paying the amount of
purchase, plus 1% interest per month at the time of redemption, together with the
amounts of assessments / taxes paid at the purchase and interest on the same
at the same rate, AND, if the purchaser be also a creditor having a prior lien to
that of the redemptioner, other than the judgment, the amount of the lien plus
interest.
Property so redeemed may be redeemed within 60 days after the last redemption
upon payment of the sum paid, w/ 2% interest thereon plus taxes / assessments
paid, and amount of liens held by redemptioner prior to his own. AND SO
FORTH.
Written notice however of redemption must be given to the officer who made the
sale and duplicate with the Registry of Deeds and if any assessments / taxes /
prior liens are paid, notice must also be given to above parties OTHERWISE,
redemption can be effected without paying taxes / assessments / liens. NOTE:
Proof required of redemption under Section 30
PROOF REQUIRED OF REDEMPTION
A redemptioner must produce to the officer, or person from whom he seeks to

redeem, and serve with notice to the officer- a copy of judgment or final order,
certified by the clerk of court. Mortgage / other lien – certified copy by the
Register of Deeds / or memorandum thereof and affidavit showing amount due
on the lien.511
IF JUDGMENT OBLIGOR REDEEMS
He must make all the payments required to effect a redemption by a

redemptioner. Thereupon, no further redemption is allowed and he is restored to
his estate. The person upon whom redemption payment is made shall execute a
Certificate of Redemption after payment. Certificate is then filed with the Office of
the Registry of Deeds.512
508
509
510
511
512
WHO IS ENTITLED TO THE USE OF REAL PROPERTY PENDING
REDEMPTION
1. Person in possession at the time of sale or entitled to possession

afterwards may continue to use it in the same manner as it was previously used,
or to use in the ordinary course of husbandry or to make necessary repairs to
buildings thereon while he occupies the property, BUT the court in proper cases,
may restrain the commission of waste on the property by injunction on the
application of the purchaser / judgment obligee with or without notice. 513
2. Rents, earnings and income shall belong to the judgment obligor until the
expiration of his period for redemption. Neither shall the purchaser or judgment
obligee be entitled to the same when such property is in the possession of a
tenant.514
IF NO REDEMPTION IS MADE
If no redemption is made within one year from date of registration, the purchaser
is entitled to possession and conveyance; OR if so redeemed – whenever 60
days has elapsed and no other redemption is made and the time for redemption
has expired, the last redemptioner is entitled to possession and conveyance.
BUT, in all cases the judgment obligor is entitled to have the entire period of one
year.
Officer shall execute the deed / or his successor in interest with the same effect.
Once done, the purchaser / redemptioner shall be substituted to and acquire all
the rights title and interest and claim of the judgment obligor to the property as of
the time of the levy. Possession shall then be given unless property is held by a
3rd party adverse to the judgment obligor. 515 Manner of effecting transfer of
possession is by writ of possession.516
IF THE SALE IS SUBSEQUENTLY RENDERED INFFECTIVE
If the purchaser of real property or his successor in interest – fails to recover

possession or is evicted therefrom – AS A CONSEQUENCE OF: irregularities in
the proceedings concerning the sale, judgment has been reversed or set aside
(RE: RELIEF),property is exempt from execution , or, 3 rd person has vindicated
his right to the property
HE MAY – on motion in the same action OR in a separate action recover from the
judgment obligee the price paid with interest, or so much thereof as has not been
delivered to the judgment obligor OR, he may on motion have the judgment
revived in his name (if redemptioner) for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor – Judgment revived shall
have the same force and effect as an original judgment would have as of the
date of revived and no more.517
II. PERSONAL PROPERTY -
a. If capable of Manual Delivery, the officer must deliver the property and if
desired, execute and deliver a certificate of sale, which shall conveys all right
513
514
515
516
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
517
with the judgment obligor had in such property as of date of levy on execution or
preliminary attachment. 518
b. If Incapable of Manual Delivery, the officer must execute and deliver a

certificate of sale and such shall convey all rights to purchaser as of the date of
levy on execution or preliminary attachment. 519
3. If for DELIVERY OR RESTITUTION OF REAL PROPERTY – officer shall

demand of the person against whom judgment is rendered and all persons
claiming rights under him to peaceably vacate the property within 3 working days
and restore possession thereof to the judgment obligee – OTHERWISE, officer
shall oust all such persons thereon, with assistance from peace officers
employing reasonable means and place the judgment obligee in possession. Any
costs, damages, rents, profits shall be satisfied in the same manner as a
judgment for money.
4. If for REMOVAL OF IMPROVEMENTS – officer shall not destroy, demolish

or remove except upon special order of the court, issued upon motion / hearing
and after the judgment obligee had failed to remove within a reasonable time
fixed by the rules.
5. If for DELIVERY OF PERSONAL PROPERTY – officer shall take

possession and forthwith deliver it to party entitled thereto and satisfy any
judgment for money as herein provided. 520
EXECUTION OF SPECIAL JUDGMENTS
Performance of an act other than those enumerated in Section 9 and 10, a

certified copy of the judgment shall be attached to the writ of execution and
served upon party against whom it is rendered, or upon any person required
thereby, or by law, to obey the same – if such party / person disobeys – they may
be punished for contempt.521 EXAMPLE: Injunction, Quo warranto
WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION
Except as otherwise expressly provided by law, the following property, and no

other, shall be exempt from execution:
(a) The judgment obligor’s family home as provided by law, or the homestead
in which he resides, and land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his ordinary
occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
518
519
520
521
(e) Household furniture and utensils necessary for housekeeping, and used
for that purpose by the judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one hundred thousand pesos;
(f) Provisions for individual libraries and equipment of judges, lawyers,

physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers,
and other professionals, not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of which
he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are necessary for
the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner

growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
(m) Properties specially exempted by law.
But no article or species of property mentioned in this section shall be exempt

from execution issued upon a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage thereon. 522
Claims for exemption from execution of properties must be presented before its
sale on execution by the sheriff. 523
WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY
It may issue or be enforced:
a. In case of death of judgment obligee, upon application of his executor or

administrator
b. In case of death of judgment obligor, against his executor, administrator, or

successor in interest, IF it be for recovery of real or personal property or
enforcement of a lien.
c. Death of judgment obligor after execution is actually levied upon any of his
property, the same may be sold for the satisfaction of the judgment obligation
and the officer must account to the executor or administrator for any surplus, if
any. 524
AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS

DIRECTED
522
523
Gomez v Gealone, 203 SCRA 474
524
There is a right to contribution or reimbursement if: more than a due portion of
the judgment is satisfied out of the proceeds of the sale of the property of one of
them, OR, one pays, without sale, more than his proportion.
AND, if judgment is upon an obligation of one of them, as security for another,

and the surety pays the amount, or any part thereof, either by sale of property or
before a sale, he may compel repayment from the principal. 525
WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF

EXECUTION IS NOT CARRIED OUT OR JUDGMENT IS NOT SATISFIED
1. Examination of the judgment obligor concerning his property and income

before the court or a commissioner – and proceedings may thereafter may be
had for the application of his property or income towards satisfaction of judgment
BUT – no obligor can be required to appear before a court or commissioner
outside the province or city where he resides. 526
2. Examination of the obligor of the judgment obligor upon proof shown to

the satisfaction of the court that a person, corporation or other juridical entity has
property of the judgment obligor or is indebted to him, the Court may by order
require the person, corporation or juridical entity to appear before the Court /
commissioner and be examined concerning the same.
The service of the order shall bind all credits due the judgment obligor and all
money / property of the judgment obligor in the possession / control of the
person, corporation or juridical entity.
Notice of all proceedings may also be required by the court. 527
Obligor of judgment obligor may thereafter pay after writ of execution on property
has been issued, the amount of his debt or so much thereof as may be
necessary to satisfy the judgment and the sheriff’s receipt shall constitute
sufficient discharge for the amount so paid or directed to be credited by the
judgment obligee on the execution528
In relation to both remedies – party or other person may be compelled to appear

by subpoena and failure to obey an order, subpoena or be sworn or answer as a
witness or subscribe to a deposition is punishable by contempt. 529
3. Order for application of property and income to satisfaction of judgment. –

it may include his property or money due the judgment obligor, not exempt from
execution, in his hands or other person, corporation or juridical entity may be
applied to satisfaction of judgment subject to any prior rights over such property.
ALSO, if upon investigation of current income and expenses, the earnings of
judgment obligor are more than necessary for the support of his family, the court
may order that judgment be paid by monthly installments, failing in which he may
be punished for indirect contempt.530
4. Appointment of a receiver – for the property of the judgment obligor, it may

also forbid a transfer or other disposition of or interference with the property of
525
526
527
528
529
530
the judgment obligor not exempt from execution. 531 Thereafter, there can be a
sale by the receiver upon order of ascertainable interest (or the real estate itself)
of a judgment obligor in real estate in the place where proceedings are had as
mortgagor / mortgagee or otherwise and if his interest can be ascertained without
controversy, the receiver may be ordered to sell and convey such interest or real
estate or the interest of the obligor therein. All proceedings to be approved by the
Court before execution of the deed. 532
In relation to the foregoing, IF IT APPEARS THAT A PERSON OR

CORPORATION, ALLEGED TO HAVE PROPERTY OF THE JUDGMENT
OBLIGOR DENIES OR CLAIMS INTEREST IN THE PROPERTY ADVERSE TO
HIM, The Court may: (1) order judgment obligee to institute an action against
such person or corporation for the recovery of such interest or debt (2) forbid a
transfer / disposition of such interest / debt within 120 days from notice of the
order (3) punish disobedience of such order as for contempt. The order may be
modified or vacated at any time by the court that issued it, or by the court in
which the action is brought, upon terms as may be just. 533
WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED
Entry of satisfaction of judgment by the Clerk of Court in Court Docket and

Execution Book upon RETURN OF WRIT INDICATING SATISFACTION / ON
ADMISSION OF SATISFACTION BY JUDGMENT OBLIGEE / COUNSEL534
It can also be entered upon demand of judgment obligor when judgment is

satisfied in fact – OR upon notice / motion – court may order entry without
admission535
EFFECT OF JUDGMENTS OR FINAL ORDERS
1. Effect of a judgment / final order rendered by a court in the Philippines,

having jurisdiction to pronounce the same.
(a) In case of a judgment / final order against a specific thing, or in respect to

probate of a will or administration of the estate of a deceased person, or in
respect to personal, political or legal condition / status of a particular person or
his relationship to another, the judgment or final order is conclusive upon the title
to the thing, the will, administration status or relationship of the person.
HOWEVER, probate or granting of letters of administration shall only be prima
facie evidence of the death of the testator. 536
(b) Other cases, judgment / final order is with RESPECT TO THE MATTER
DIRECTLY ADJUDGED OR AS TO ANY MATTER THAT COULD HAVE BEEN
RAISED IN RELATION THERETO is CONCLUSIVE BETWEEN THE PARTIES
AND THEIR SUCCESSORS IN INTEREST BY TITLE SUBSEQUENT TO THE
COMMENCEMENT OF THE ACTION OR SPECIAL PROCEEDING LITIGATING
FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE SAME
CAPACITY.537
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former judgment / final
531
532
533
534
535
536
Supra, Section 47 (a), Rule 39
537
Supra, Section 47 (b), Rule 39
order which appears on its face to have been so adjudged or which was actually
and necessarily included therein or necessary thereto. 538
1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is
also known as “bar by prior judgment”. This exists when between the first case
where judgment is rendered, and the second case where such judgment is
invoked, there is identity of parties, subject matter, and cause of action. When all
three are present, the judgment on the merits rendered in the first constitutes an
absolute bar to the subsequent action.
1.2 Paragraph (c) is illustrative of what is known as “conclusiveness of

judgment”, when between the first case wherein judgment was rendered and the
second case wherein such judgment is invoked, there is only identity of parties,
but there is no identity of cause of action, the judgment is thus conclusive in the
second case, only as to the matters actually and directly controverted and
determined, and not as to matters merely involved therein. 539
1.3 CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF

ISSUES or COLLATERAL ESTOPPEL espouses that issues actually and directly
resolved in a former suit cannot again be raised in any future case between the
same parties involving a different cause of action. 540
1.4 The doctrine of “ The law of the case” states that whatever has once been
irrevocably established as the controlling legal rule of decision between the same
parties, whether correct on general principles or not, so long as the facts on
which the decision was predicated continue to be the facts of the case before the
court.541
2. Effect of a foreign judgment/final order
(a) If upon a specific thing, the judgment / final order is conclusive upon title to
the thing
(b) If against a person – it is presumptive evidence of a right between the

parties and their successors in interest by subsequent title.
In either case, judgment / final order may be repelled by evidence of want of

jurisdiction, want of notice, collusion, fraud, clear mistake of fact / law. 542
3. Effect of judgment against a surety
When a judgment is rendered against a party who stands as surety for another,
the latter (principal) is also bound from the time he has notice of the action or
proceeding, and an opportunity at the surety’s request to join in the defense. 543
APPEALS
538
Supra, Section 47 (c), Rule 39
539
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
540
Tan v Court of Appeals, 363 SCRA 444
541
Boiser v NTC, 169 SCRA
542
543
Rule 40 – Appeals from MTC to RTC
WHERE CAN AN MTC DECISION BE APPEALED
A judgment / final order of the Municipal Trial Court is appealable to the Regional
Trial Court exercising jurisdiction over the area to which the Municipal Trial Court
pertains.
1. In the appeal, the case title remains, but party appealing is designated as
appellant, while the adverse party is designated as the party-appellee. 544
WHEN CAN APPEAL BE TAKEN
15 days after notice to the appellant. If record on appeal is required 30 days after
notice BUT period can be interrupted by a motion for reconsideration or for new
trial, though no motion to extend time for its filing is allowed. 545
1. Note the “fresh period rule” that is now applicable to an appeal under Rule
40, Rule 41, Rule 43 and Rule 45, which allows a party intending to appeal
another 15 days from receipt of an order denying a motion for reconsideration or
new trial to file an appeal 546
HOW IS APPEAL TAKEN
1. By notice of appeal indicating parties, judgment or final order appealed

from statement of the material dates showing timeliness of the appeal.
2. By record on appeal in special proceedings or cases allowing for multiple

appeals, like probate or partition. The record on appeal shall contain the
following:
a. Full name of the parties stated in the caption including the judgment / final
order from which appeal is taken
b. In chronological order, copies of all pleadings, petitions, motions, and all
interlocutory orders as are related to the appealed judgment / final order for
proper understanding of the issue.
c. Data to show that appeal was filed on time
d. If issue of fact is to be raised, it should include reference the documentary
evidence by exhibit taken on the issue – specifying the documentary evidence by
exhibit nos. or letters and testimonial evidence by the names of the witnesses. If
the whole of it is included, a statement to such effect is sufficient.
e. If more than 20 pages include a subject index 547
NOTE that the requirement for a Approval of record on appeal 548 – the trial court
may approve it, if no objection is filed by the appellee – or upon its motion /
appellee direct its amendment by the inclusion of omitted matters which are
deemed essential to the determination of the issue of law or facts involved is the
appeal.If amendment is ordered, which the appellant must comply with within the
544
545
546
Neypes v Court of Appeals, GR 141524, September 14, 2005
547
548
period stated, any extension or if none, within 10 days, submitting the redrafted
record for the approval of the Court. Where both parties are appellants, they may
file a joint record on appeal.549
3. Regardless of the mode of appeal, the adverse party is to be furnished

with a copy.
WHEN PERFECTED
As determined by Section 9, Rule 41:
1. If by notice of appeal, it is perfected upon the filing of the notice in due

time. The court loses jurisdiction upon perfection and expiration of the time of
appeal of other parties.
2. If by record on appeal, it is perfected upon approval of record on appeal

filed in due time. Court loses jurisdiction upon approval and expiration of time to
appeal of other parties.
In either case, prior to transmittal of the records, the court may issue orders:
(a)protection and preservation of the rights of the parties not involving any matter
litigated by the appeal (b)approve compromises (c) permit appeals of indigent
litigants (d)order execution pending appeal (e) allow withdrawal of appeal. 550 This
is power is known as “RESIDUAL JURISDICTION”
3. In both cases, DOCKET FEES / OTHER FEES are also to be paid to the
clerk of court of the court that rendered judgment. Proof payment of the same
shall be transmitted to the appellant court together with the records / record on
appeal. 551
a. Late payment of docket fees may be admitted when a party shows a

willingness to abide by the Rules by immediately paying the docket fee six days
after filing a notice of appeal and beyond the period for perfecting an appeal. 552
b. Where delay in the payment of docket fee was not due to a desire to delay
or defeat the ends of justice, late payment thereof which causes no prejudice to
anyone should not result in the dismissal of the appeal. 553
a. THE RECORD/RECORD ON APPEAL IS TRANSMITTED by the clerk of

court within 15 days from perfection, together with transcripts / exhibits, which he
will certify as complete. A copy of the transmittal shall be furnished the parties. 554
WHAT HAPPENS UPON TRANSMITTAL TO THE RTC
Within 15 days from notice, appellant shall submit a memorandum briefly

discussing errors imputed to the lower court, copy furnished the adverse party.
Within 15 days from receipt of appellants’ memorandum, appellee may file his
own memorandum. Failure of appellant shall be ground for dismissal of the
appeal. Upon filing / expiration, the case is submitted for decision on the basis of
the record in Municipal Trial Court and the memoranda submitted by the
parties.555
549
550
551
552
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
553
Lopez v Court of Appeals, 75 SCRA 401
554
555
1. NOTE that if an appeal is taken from an order of the lower Court
dismissing the case without trial on the merits, the Regional Trial Court may
affirm or reverse it as the case may be:
a. In case it is affirmed and ground of dismissal is lack of jurisdiction over the

subject matter of the case, the Regional Trial Court, if it has jurisdiction, shall try
the case on the merits as if the case was originally filed with it. In case of
reversal, it shall be remanded back for further proceedings.
b. If it was tried on the merits, without jurisdiction, the RTC on appeal shall
not dismiss the case if it has original jurisdiction, but shall decide the case in
accordance with Section 7, without prejudice to the admission of amended
pleadings and additional evidence in the interest of justice. 556
RULE 41 – APPEALS FROM REGIONAL TRIAL COURTS
An appeal may be taken from a judgment /final order that completely disposes of
a case, or a particular matter therein when declared by the Rules to be
appealable BUT NO APPEAL CAN BE TAKEN FROM:
(a) Order denying a motion for new trial or reconsideration. An appeal of

judgment/final order is remedy or certiorari under Rule 65
(b) Order denying a petition for relief from judgment or similar motion.
Certiorari under Rule 65 is remedy
(c) Interlocutory order. Certiorari under Rule 65 or mandamus is remedy
(d) Order disallowing or dismissing an appeal. Mandamus or petition for relief

from judgment is the remedy
(e) Order denying a motion to set aside judgment by consent confession,

compromise on the ground of fraud, mistake, duress or any ground vitiating
consent. A petition for relief or a petition to annul judgment under Rule 47 or
Certiorari under Rule 65 is the remedy
(f) Order of execution. Certiorari under Rule 65 is the remedy
(g) Judgment / final order in separate claims, counterclaims, cross claims – 3 rd

party claims, while main case is pending, unless the court allows an appeal
therefrom. The object is facilitate the trial of all issues.
(h) Order dismissing an action without prejudice. The remedy is to refile or

certiorari under Rule 65.557
NOTE: That declaration of presumptive death not appealable by the state,

neither by other party. Remedy of the spouse declared presumptively dead is to
file affidavit of reappearance. See Article 41, Family Code
556
557
WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF
A REGIONAL TRIAL COURT558
(a) Ordinary appeal refers to an appeal by notice of appeal of the decision of

the Regional Trial Court in cases decided in the exercise of its original jurisdiction
raising question of fact or mixed questions of law and fact
1. The period of ordinary appeal is 15 days from notice of judgment / final

order appealed from. If requiring a record on appeal, it is 30 days. Said periods
are interrupted by a motion for new trial or reconsideration but no extension of
time for their filing is allowed. NOTE: That in habeas corpus cases the period is
48 hours from notice of judgment or final order 559 NOTE ALSO: The application
of the “fresh period rule”.
2. Appellate court docket fees / lawful fees shall be paid within the period for
taking an appeal to the clerk of court of the court that rendered judgment BUT
failure to pay is a ground for dismissal of the complaint 560
3. If Appeal is by NOTICE OF APPEAL, it must indicate parties, judgment or

final order appealed from, and include a statement of the material dates showing
timeliness of the appeal.561 or if by RECORD ON APPEAL it must comply with the
requirements as previously discussed in an appeal from the Municipal Trial Court
to the Regional Trial Court.562
4. PERFECTION OF APPEAL IS AS DISCUSSED under Rule 40. 563

Subsequently, it is the DUTY OF CLERK OF COURT OF THE LOWER COURT
within 30 days after perfection of all appeals to: (a) verify correctness of the
original record / record on appeal and make a certification as to correctness (b)
verify completeness of records transmitted to appellate court (c) If incomplete,
take necessary measures as may be required to complete the records, availing
of the authority that he or the court may exercise for this purpose. (d) transmit the
records to the appellate court. (e) then furnish parties of his transmittal. 564
4.1 IF EFFORTS TO COMPLETE FAIL, it shall be indicated in the letter of

transmittal which exhibits / transcripts are not included, the reasons why they
were not transmitted and the steps taken to make them available.
4.2 It is likewise required that the transcripts be transcribed 565 and that the
transmittal to include proof of payment of docket fees.
4.3 Prior to transmittal of record / record on appeal, the court may motu propio
or on motion to dismiss the appeal for having been take out of time OR for non
payment of docket and other lawful fees within the reglementary period. 566 If
transmitted already, the Court of Appeals may dismiss.
5. Other procedural requirements and disposition of the appeal are governed

by Rule 44:
558
559
560
561
562
Supra, Sections 6,7,8, Rule 41
563
564
565
Supra, Section 11 and 12, Rule 41
566
5.1 The title of the case shall remain, party appealing shall be referred to as
appellant / adverse party-appellee.567 Counsel / guardians ad litem of parties shall
likewise be considered as such in Court of Appeals, when others appear or are
appointed, notice shall be filed and furnished adverse parties. 568
5.2 If the RECORDS are not transmitted to the Court of Appeals within 30
days after perfection of the appeal, either party may file a motion with the
Regional Trial Court, with notice to the other, for transmittal. 569
5.3 UPON RECEIPT BY THE COURT OF APPEALS, the clerk shall docket
the case and notify the parties. If appeal is by record on appeal, within 10 days
from receipt of notice, appellant must file with the clerk of court 7 clearly legible
copies of approved record on appeal and proof of service thereof to adverse
party of 2 copies. Any unauthorized, alteration, omission or addition shall be
ground for dismissal of the appeal.570
The Clerk of the CA should also ascertain the completeness of the records. If
incomplete, he shall inform the court and recommend measures to complete the
record within the shortest possible time BUT if it cannot be completed due to
insuperable or extremely difficult circumstances. The court, on its own or upon
motion, may declare the record sufficient to decide issues and explain reason for
such declaration.571
5.4 ONCE DONE, Briefs are to be filed: (a) The Appellant’s Brief must be filed
within 45 days from notice that all evidence, documentary / testimonial are
attached to the record, 7 copies of the brief are to be filed attaching proof of
service of 2 copies to adverse party. 572 Where there are several parties, each
counsel representing one or more but not all may be served with 1 copy. If
several counsel represent one party, service may be made on any one of them. 573
The CONTENTS OF THE APPELLANT’S BRIEF are: (1) subject index
(2)assignment of errors (3) statement of the case (4)statement of facts
(5)statement of issues (6) arguments (7) relief (8) if not by record on appeal, an
appendix, copy of judgment / final order appealed. 574 (b) The Appellee’s Brief is
to be filed within 45 days from receipt of Appellant’s Brief. It is required that 7
copies be filed with proof of service of 2 copies on appellant. The CONTENTS
OF APPELLEE’S BRIEF are: (1) subject index (2) statement of facts, either a
statement of acceptance or counter-statement of facts (3) Arguments 575 (c) A
Reply Brief may be filed by appellant within 20 days from receipt of the
Appellee’s Brief.576 NO EXTENSION OF TIME TO FILE BRIEFS is allowed
except for good and sufficient cause, and only if filed before expiration of the time
sought to be extended577 IN LIEU OF BRIEFS, MEMORANDA is required in
certiorari, prohibition, madamus, quo warranto, hebeas corpus within a non-
extendible period of 30 days from notice that all evidence is attached to the
record. Failure of appellant to file his memoranda is ground to dismiss the
appeal.578
567
568
569
570
571
572
573
574
575
576
577
578
5.5 QUESTIONS OF LAW OR FACT MAY BE RAISED in the appeal, whether
or not a motion for new trial has been filed and must within the issues framed by
the parties.579
As a rule, a party who deliberately adopts a certain theory upon which the case is
tried and decided by the lower court will not be permitted to change his
theory on appeal. Points of law, theories, issues, and arguments not
brought to the attention of the lower court need not be , and ordinarily not
be, considered by a reviewing court, as these cannot be raised for the first
time at such late stage. Basic considerations of due process underlie this
rule.580
6. In Criminal Cases, note the possibility of the filing of two notices of appeal
when the penalty imposed by the Regional Trial Court is life imprisonment or
reclusion perpetua, appeal is by notice to the Court of Appeals, and by notice
again to the Supreme Court. If the penalty is death, it is automatically reviewed
by the Supreme Court, but such shall be made by the Court of Appeals, which
shall render judgment, then certify it to the Supreme Court, who will then enter
the same.581
(b) Petition for Review is an appeal to the Court of Appeals of judgment /

final order of the Regional Trial Court in the exercise of its appellate jurisdiction
under Rule 42
1. It is initiated by the filing of a Verified Petition for Review with the Court of
Appeals, paying at the same time to the Clerk of Court of Appeals the
corresponding docket fees and lawful fees, depositing 500 for costs, furnishing
the Regional Trial Court and adverse party with a copy of the Petition.
2. It is to be filed within 15 days from notice of decision sought to be

reviewed or denial of motion for new trial or motion for reconsideration. UPON
PAYMENT OF DOCKET FEES AND DEPOSIT AND BEFORE EXPIRATION OF
THE PERIOD, the Court of Appeals may grant an extension of 15 days. No
further extension can be given unless for the most compelling reason, but in no
case to exceed 15 days. 582
3. FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed,

indicating the original copy intended for the Court of Appeals containing (a)full
names of parties, without impleading the lower court / judges (b)specific material
dates indicating that it is filed on time (c) statement of matters, issues,
specification of errors of fact / law and reasons / arguments relied upon
(d)accompanied by clearly legible duplicate copies or true copies of judgment of
the lower courts, certified correct by Regional Trial Court clerk of court, pleadings
and other material portions supporting the allegations of the petition (e)
certification against forum shopping / verification. NOTE: Failure to pay fees or
comply with the requirements shall be sufficient ground for dismissal. 583
4. The appeal is deemed PERFECTED upon timely filing of the petition and
payment of docket fees. The RTC loses jurisdiction upon perfection of the appeal
and lapse of time to appeal by the other parties. The Regional Trial Court
579
580
BPI v Leobrera, 416 SCRA 15
581
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
582
583
continues to have RESIDUAL JURISDICTION until the same has been given
DUE COURSE.584
5. NOTE that except in cases covered by the Rule on Summary Procedure,

appeal shall stay the judgment / final order unless Court of Appeals or the Rules
provide otherwise
6. ONCE FILED, the Court of Appeals may: (a) Require the respondent to file
a comment, not a motion to dismiss, within 10 days from notice (b)Dismiss the
petition if found to be patently without merit, prosecuted manifestly for delay, or
questions raised therein are too unsubstantial to require consideration. 585
7. The COMMENT should be filed in 7 copies, accompanied by certified true

copies of such MATERIAL PORTIONS OF THE RECORD AND OTHER
SUPPORTING DOCUMENTS, stating: (a)Statement of whether or not he
accepts the statement of matters (b) Point out the insufficiencies /
inaccuracies (c) State reasons why it should not be given due course. Copy of
which must be served on adverse party. 586
8. A petition is given DUE COURSE when upon the filing of the comment or
expiration of the period to file, the Court of Appeals finds PRIMA FACIE that the
lower court has committed an error of fact / law that will warrant a reversal /
dismissal. CONSEQUENTLY, the Court of Appeals, if it deems necessary, will
order the elevation by the clerk of the Regional Trial Court of the entire record
within 15 days from notice.587
9. IT IS SUBMITTED FOR DECISION after the filing of last pleading or

memorandum. Prior to that though, the Court of Appeals may set it for oral
argument / or require memoranda to be submitted within a period of 15 days from
notice.588
(c) Appeal by Certiorari or Petition for Review on Certiorari which should

involve a pure question of law direct to the Supreme Court under Rule 45
1. A Question of Law is one that requires interpretation or application of a

law, while a Question of Fact is one that pertains to a resolution of a factual
dispute.
1.1 There is a question of law in a given case when the doubt or difference
arises as to what the law is pertaining to a state of acts, and there is a question
of fact when the doubt arises as to the truth or falsity of alleged facts. 589
2. This is initiated by the filing of a Verified Petition for Review on Certiorari

raising only questions of law. This mode of appeal is available to question
judgment / resolutions of the Court of Appeals, the Sandiganbayan, a Regional
Trial Court, and other Courts whenever authorized by law. 590
3. The TIME FOR FILING is 15 days from notice of the judgment, final /
order, or resolution or of denial of petitioner’s motion for new trial /
reconsideration. On motion and with full payment of docket fees and deposit of
584
585
586
587
588
589
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
590
costs, the Supreme Court on justifiable reason may grant an extension of 30
days within which to file the petition.
Docket fees and proof of service of the petition on the lower court and adverse
party must accompany the filing of the petition.591
4. 18 copies of the petition are required to be filed, indicating the original

copy for the court. It should contain: (a) full names of parties (petitioner /
respondent) without impleading court / judge (b) indicate material dates
(c)concise statements of the matters involved and the reason / arguments relied
upon for the allowance of the petition (d) clearly legible copies of judgment / final
order / reconsideration or certified true copy and other material portion supporting
the record (e) Certificate against forum shopping and verification 592
5. UPON FILING, the Supreme Court can:
5.1 DISMISS – (1) for failure to comply with the requirements regarding
payment, proof of service, contents and documents (2) on its own initiative
because it is without merit, prosecuted for delay, or issues are too unsubstantial
to require consideration, OR
5.2 ALLOW REVIEW, which is not a matter of right but is discretionary, when
there are special / important reasons therefor: EXAMPLES- (1) when the court a
quo has decided a matter of substance not therefore determined by the Supreme
Court or decided in a way not in accord with the law or applicable decisions of
the Supreme Court (2) when court a quo has so far departed from the accepted
and usual course judicial proceedings, or so far sanctioned such departure by a
lower court, as to call for an exercise of the power of supervision. 593
6. If given DUE COURSE, the Supreme Court can: (a) Require elevation of
the records / or specified portions thereof within 15 days from notice 594 (b)
Require filing of pleadings, briefs, memoranda or documents as it may deem
necessary within periods / conditions it may consider appropriate and impose
sanctions for non-filing / non-compliance or unauthorized filing. This ALSO
applies to a determination as to whether it should be dismissed or denied. 595 The
RULE APPLIES TO BOTH CIVIL / CRIMINAL ACTIONS, except in cases where
penalty is death, reclusion perpetua / life imprisonment. 596
7. The exceptions to the general rule that only questions of law may be
raised in a petition for review are:(a) when the conclusion is a finding grounded
entirely on speculation, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) where there is a grave abuse of
discretion; (d) when the judgment is based on a misapprehension of facts; (e)
when the findings of fact are conflicting; (f) when the Court of Appeals, in making
its findings, went beyond the issue of the case and the same is contrary to the
admissions of both appellant and appellee; (g) when the findings of the Court of
Appeals are contrary to those of the trial courts; (h) when the findings of facts are
conclusions without citation of specific evidence on which they are based; (i)
when the facts set forth in the petition as well as in the petitioner’s main and reply
briefs are not disputed by the respondents; (j) when the finding of fact of the
591
592
593
594
595
596
Court of Appeals is premised on the supposed absence of evidence but is
contradicted by the evidence on record; and (k) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion. 597
(d) By Petition for Review under Rule 43 in a case decided by the Regional
Trial Court sitting as a commercial court.598
1. Applies primarily to appeals from the Court of Tax Appeals and other
quasi-judicial agencies to the Court of Appeals, but is not applicable to judgments
/ final orders under the Labor Code.599
2. The appeal can include questions of fact, law or mixed questions of law
and fact.600
3. The appeal shall be taken within fifteen (15) days from notice if the award,
judgment, and final order of resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial of the petitioner’s
motion for new trial or reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Only one (1) motion for reconsideration shall
be allowed. Upon proper motion and the payment of the payment of the full
amount of the docket fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall be granted except
for the most compelling reason and in no case to exceed fifteen (15) days. 601
4. All other procedural matters and requirements are similar to a Petition for
Review under Rule 42 EXCEPT that an appeal under this Rule shall not stay the
award, judgment, final order or resolution unless the Court of Appeals deems
otherwise.602
7. In summary judicial proceedings under the Family Code, there is no

reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247 of the
Family Code, are immediately final and executory. 603 Appeal by notice of appeal
is erroneous. The Court of Appeals should have dismissed as it had no
jurisdiction to review on appeal. Per Justice Panganiban, Certiorari under Rule
65 is the remedy of the State.
PROCEDURE WITH THE COURT OF APPEALS
RULE 46 – ORIGINAL CASES FILED WITH THE COURT OF APPEALS
Parties are to be designated as petitioner / respondent 604 and is to apply to cases

of Certiorari, Prohibition, Mandamus, Quo Warranto and to petitions for
annulment of judgment under Rule 47605
CONTENTS OF PETITION – FILING – EFFECTS OF NON COMPLIANCE

597
Martinez v Court of Appeals, 358 SCRA 38
598
A.M. No. 04-9-07-SC, September 14, 2004
599
600
601
602
603
Republic v Bernardez-Lorino, 449 SCRA 57
604
605
Petitions filed before the Court of Appeals must contain the following: (1)
identification of the parties, a concise statement of matters involved, the factual
background of the case, and the grounds relied upon for the relief prayed for
(2)statement of material dates, AND IN A PETITION UNDER RULE 65, material
dates are dates of notice of judgment or final order, when a motion for new trial or
reconsideration was filed, if any, and when notice of denial was received (3)
clearly legible duplicate originals or certified true copy of the attachments
(4)certification against forum shopping (5)docket fees / deposit for cost. 606
FAILURE TO COMPLY IS SUFFICIENT GROUND FOR DISMISSAL OF
PETITIONS
A certified true copy is one the certification of which is made by the proper clerk
of court or his duly authorized representative. 607
HOW DOES THE COURT ACQUIRE JURISIDICTION
Jurisdiction over the person or the respondent is acquired by service of order or

resolution indicating initial action on the petition or voluntary submission to
jurisdiction.608
ACTION TO BE TAKEN BY THE COURT OF APPEALS
1. The COURT may dismiss the petition outright with specific reasons OR
require the filing of a comment within 10 days from notice. ONLY PLEADINGS
REQUIRED CAN BE FILED – OTHERS CAN ONLY BE FILED WITH LEAVE OF
COURT.609
2. If factual issues are to be resolved, the Court of Appeals can conduct

hearings or delegate reception of evidence on such issues to any of its members
or to an appropriate court / agency / office. 610(Section 6, Rule 46)
3. If comment is not filed, it may be decided on the basis of the record

without prejudice to any disciplinary action against disobedient party. 611
4. The COURT, IF THE PETITION IS NOT DISMISSED OUTRIGHT:
4.1 Can call the parties / counsel to a preliminary conference, the object of
which is to : (a) consider compromise agreements, except when case is not
allowed to be compromised (b) define, simplify and clarify issues (c)formulate
stipulation of facts and admissions of documentary exhibits, limit the number of
witnesses in cases falling within its original jurisdiction or those within its
appellate jurisdiction where a motion for new trial is granted on newly discovered
evidence (d) other matters that may aid in prompt disposition of the case. 612
4.2 Record of proceedings is made and a RESOLUTION embodying actions

shall be issued613 which shall be binding upon parties and control subsequent
proceedings unless within 5 days from notice, it can be shown by valid cause
606
607
Paras v Baldado, 354 SCRA 141
608
609
610
611
612
613
why it should not be followed or there is need for modifications to prevent
manifest injustice614
4.3 At it own instance or by motion, to hear the parties in oral argument on the
merits of the case or on any material incident AND is limited to such matters as
the court may specify in its order or resolution.615
4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may
argue for a party. Duration, sequence and all related matters shall be as directed
by the Court.616
4.5 MOTIONS THOUGH ARE NOT TO BE SET FOR HEARING, AND

UNLESS DIRECTED BY THE COURT, NO HEARING OR ORAL ARGUMENTS
shall be allowed in support thereof. The adverse party may file objections within 5
days from notice, then upon expiration of the period, it is submitted for
resolution.617
RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS
In ALL CASES THAT COME BEFORE IT, and besides on a finding that the case
is without merit, prosecuted for delay or issue is too unsubstantial to merit
consideration, ON MOTION OF THE COURT OR OF THE APPELLEE, it may
dismiss the petition on the basis of:
1. Failure of record on appeal to show on its face that appeal was taken
within period fixed by the Rules.
2. Failure to file notice of appeal or record on appeal within period within the
period prescribed by the Rules.
3. Failure to pay docket fees as provided under Section 5, Rule 40 and

Section 4, Rule 41.
4. Unauthorized alterations, omissions, additions on record on appeal as

provided under Section 4, Rule 44
5. Failure of appellant to serve and file required number briefs or memoranda

within provided time by these Rules
6. Absence of specific assignment of errors or page references to the record

as required by Section 13, paragraphs a,c,d, and f of Rule 44
7. Failure of appellant to take necessary steps for the correction or

completion of the records within time limited by the Court
8. Failure to appear at preliminary conference under Rule 48, or comply with

orders, circulars or directives of the Court without justifiable cause
9. The fact that order / judgment appealed from is not appealable. 618
DISMISSAL OF IMPROPER APPEAL
614
615
616
617
618
1. An appeal under Rule 41 from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed as issues purely of law
are not reviewable by the Court of Appeals
2. An appeal by notice of appeal instead of petition for review from a

Regional Trial Court exercising appellate jurisdiction shall be dismissed
3. An appeal erroneously taken to Court of Appeals shall not be transferred

but shall be dismissed outright.619
WITHDRAWAL OF AN APPEAL
An appeal may be withdrawn as of right at any time before the filing of the
appellee’s brief. Thereafter, only upon discretion of the Court. 620
RULE 51 - JUDGMENT
When submitted for judgment:
1. IN ORDINARY APPEALS:
a. Where no hearing on merits is held, upon filing of the last pleading, brief,
memoranda or expiration of period to file.
b. Where a hearing is held, upon termination of hearing or upon filing of the

last pleading, memoranda as may be required or permitted, or expiration of
period to file
2. IN ORIGINAL ACTIONS / PETITIONS FOR REVIEW
a. Where no comment is filed, upon expiration of the period to file comment

b. Where no hearing, same as 1 (a)
c. Where hearing is held, same as 1 (b)621
3. Judgment is rendered by members of the court who participated in the

deliberations on the merits before assignment to a member for writing of the
decision.622
4. Participation of all 3 justices shall be necessary at deliberation and

unanimous vote shall be required for pronouncement. If not, the clerk shall enter
the vote of dissenting justices in the record. Thereafter, Chairman of the division
refers it to the Presiding Justice, who will designate 2 justices by raffle to sit
temporarily and to form a special division of five (5) justices. The participation of
all is required for deliberation. Concurrence of majority is required for
pronouncement.623
Note: That in rendering judgment, harmless errors or those which do not affect
the substantial rights of the parties624 or errors that are not assigned will not be
considered unless they affect jurisdiction, validity of judgment, and of
proceedings.625
619
620
621
622
623
624
625
4.1 HARMLESS ERROR DOCTRINE means that any error or defect which
does not affect substantial rights will be disregarded by the reviewing court or
tribunal. It is followed to deal with evidence improperly admitted during trial
wherein its damaging quality and impact to the substantial rights of the litigant
are examined. If deemed slight and insignificant, the error is disregarded. 626 It is
not a ground for granting of a new trial or for setting aside, modifying, or
disturbing a judgment or final order unless the refusal appears to the Court
inconsistent with substantial justice.
5. JUDGMENTS OF THE COURT OF APPEALS IN THE EXERCISE OF

APPELLATE JURISDICTION MAY affirm, reverse, or modify the judgment or final
order appealed from. It may also order or direct a new trial to be held or that
further proceedings be taken. 627 The decision must state clearly and distinctly the
findings of fact and conclusions of law on which it is based, which may be
contained in the resolution itself or adopted from those set forth in the judgment,
final order appealed from.628
6. PROCEDURE AFTER JUDGMENT IS:
6.1 After signing by the justices, it shall be delivered to the clerk of court, who
shall indicate thereon the date of promulgation and cause true copies thereof to
be served upon the parties or counsel.629
2. If no appeal, or motion for new trial or reconsideration is filed within the

period, the judgment or final resolution shall be entered in the book of Entries of
Judgment. Judgment or final resolution shall be deemed executory as of the date
of entry. The record shall contain the dispositive portion, signed by the clerk with
a statement that it is final and executory.630
3. Execution shall as a rule issue upon a motion in the proper court upon its
entry. In appealed cases, where the motion is filed with the Court of Appeals at
the time that it is in possession of the original records or record on appeal, the
resolution granting the motion shall be transmitted to the lower court from which
the case originated, together with certified copy of the judgment to be executed,
with a directive to said court to issue the proper writ for its enforcement. In
original actions, the writ shall be accompanied by a certified true copy of the
entry of judgment and addressed to appropriate officer for enforcement. 631
RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA
Judgments of the Court of Appeals can be the subject of reconsideration within

fifteen (15) days from notice thereof, with proof of service to the adverse party.
632
1. No second motion for reconsideration will be entertained. 633
626
People v Teehankee, 269 SCRA 54.
627
628
629
630
631
632
633
2. It is to be resolved within sixty (60) days from submission for resolution 634
and while pending, shall stay the execution unless for good reason, court directs
otherwise.635
RULE 53- MOTION FOR NEW TRIAL
It can be filed at any time after appeal from the lower court has been perfected
and before the Court of Appeals loses jurisdiction, on the ground of newly
discovered evidence WHICH COULD NOT HAVE BEEN DISCOVERED PRIOR
TO THE TRIAL IN THE COURT BELOW BY THE EXERCISE OF DUE
DILIGENCE AND WHICH IS OF SUCH A CHARACTER AS WOULD PROBABLY
CHANGE THE RESULT. The motion must be accompanied by affidavits showing
the facts constituting the grounds and the newly discovered evidence. 636
The Court of Appeals shall then consider the evidence and that adduced at the
trial, to determine if it will grant or refuse a new trial, or make such order, with
notice to both parties, as to the taking of further testimony, either orally in court,
by depositions, or render such other judgment as ought to be rendered upon
terms it may deem just.637 IF GRANTED, the procedure shall be the same as that
granted by a Regional Trial Court.638
Motion should be resolved within 90 days from the date it is declared to be

submitted.639
OTHER MATTERS
RULE 54 – Internal Business
Allotment of cases shall be among the different divisions for hearing and
decision. The Court of Appeals En Banc shall make proper orders or rules to
govern allotment, the constitution of such divisions, the regular rotation of
justices, filling of vacancies, and other matters. Such will continue in force and
repealed or altered by it or the Supreme Court. 640
A majority of the court shall constitute a quorum for sessions en banc and a
majority of the members present shall be necessary to pass a resolution. Three
members of a division shall constitute a quorum for sessions of a division and the
affirmative vote of three members shall be necessary for pronouncement of
judgment/resolution, which shall be reached in consultation among them before
the writing of the opinion by any member of the division. 641
RULE 55 – Publication of Judgment/Final Order/Resolution
Judgments and Final Resolutions shall be published in the Official Gazette and in
the Reports officially authorized by the Court, in the language originally written,
together with a syllabi. If not so published, a memoranda shall be made and
published in the like manner. 642 The publication is to be prepared by the
634
635
636
637
638
639
640
641
642
Reporter. 643 Those of the Supreme Court are called Philippine Reports, while
those of the Court of Appeals are called Court of Appeals Reports. 644
RULE 47-ANNULMENT OF JUDGMENT
Annulment of judgment covers judgments of the Regional Trial Court for which
the ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies ARE NO LONGER AVAILABLE THROUGH NO FAULT OF THE
PETITIONER645
1. An important condition for the availment is that the petitioner failed to

move for new trial, or appeal from, or file a petition for relief against, or take other
appropriate remedies through no fault attributable to him. If he failed to avail of
the other remedies through his own fault, he would then benefit from his inaction
or negligence.646 He must allege non availment of other remedies through no fault
of the petitioner, otherwise the petition will be dismissed. 647
1.1 Note that the correctness of the judgment is not in issue as a petition for
annulment is not in issue.648
1.2 It is a remedy that may be availed of by those who are not even parties to
the judgment or to annul even judgments that have been fully executed. 649
2. It is available only on grounds of: (a) EXTRINSIC FRAUD but only

when it was not availed of or could have been availed of in a motion for new trial
or petition for relief OR (b) LACK OF JURISDICTION
2.1 There is extrinsic fraud when the unsuccessful party had been prevented
from exhibiting fully his case, by fraud or deception practice upon him by his
opponent, as keeping him away from the court, or where the defendant never
had knowledge of the suit, being kept in ignorance by the acts of the plaintiff. 650
3. The period for its filing if based on extrinsic fraud is within 4 years from its
discovery, or if based on lack of jurisdiction before it is barred by laches or
estoppel.651
FILING / CONTENTS OF THE PETITION
Filing is by verified petition alleging therein with particularity, the facts and the law
relied upon for annulment as well as supporting petitioner’s good and substantial
cause of action / defense, as the case may be. Containing (1) certified true copy
of judgment / final order / resolution shall be attached to the original copy
intended for the court (2) affidavits of witnesses (3) certification against forum
shopping652
WHAT THE COURT OF APPEALS WILL DO UPON FILING
643
644
645
646
Manipor v Ricafort, 407 SCRA 298
647
Ancheta v Ancheta, 424 SCRA 725
648
Republic v Heirs of Sancho Magdato, 340 SCRA 115
649
Malolos v Dy, 325 SCRA 827
650
Leonardo v ST Best, 422 SCRA 347
651
652
1. If no substantial merit, it will be dismissed outright with specific reasons
for such dismissal.
2. If prima facie merit be found, it shall be given due course and summons
shall be served on the respondent. IF SO, procedure in ordinary civil cases shall
be followed but reception may be referred to a member of the Court or a
Regional Trial Court judge.653
EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT
It shall set aside the questioned judgment / final order / resolution and render the
same null and void – without prejudice to the refiling of the original action in the
proper court . However, where it is set aside by reason of extrinsic fraud, the
court on motion, may order the trial court to try the case again as if a timely
motion for new trial has been granted therein.654
The prescriptive period for the refiling of the original action shall be deemed
suspended from the filing of such original action until finality of the judgment of
annulment. HOWEVER, the prescriptive period is or shall not be suspended
where extrinsic fraud is attributable to the plaintiff is original action. 655
SCOPE OF RELIEF
It may include award of damages, attorney’s fees and other relief. If already
executed, restitution or other relief as justice / equity may warrant. 656
IF ALSO APPLIES TO A PETITION TO ANNUL JUDGMENT / FINAL ORDER OF

A MUNICIPAL TRIAL COURT BUT IS FILED WITH REGIONAL TRIAL COURT
and treated as an ordinary civil action. 657 All sections except Section 5 pertaining
to dismissal or determination of prima facie merit shall apply.
RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS
WHAT IS CERTIORARI
Special Civil Action against a tribunal board or officer exercising judicial or quasi-
judicial function which is alleged in a verified petition filed by an aggrieved party
to have acted without jurisdiction or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction, AND there is no
appeal, or any plain speedy and adequate remedy in the ordinary course of law,
praying for the judgment annulling / modifying the proceedings of such, tribunal
board officer, tribunal and granting such incidental reliefs as law and justice may
require.658
DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI
Certiorari as distinguished from a Petition for Review on Certiorari: (a) In the

former, the issue is whether the lower court acted without, in excess of or with
grave abuse of discretion, while in the latter the issue is based on questions of
law (b) in the former, it is addresses an interlocutory order prior to appeal of a
judgment when there is no appeal or any other speedy or adequate remedy,
653
654
655
656
657
658
while the latter involves a review of judgment/final order/ resolution on the merits
(c) the former is filed within 15 days from notice of judgment / order, while the
latter is filed not later than 60 days from notice of the resolution sought to be
assailed or denial of a motion for reconsideration (d) the former shall stay the
judgment /final order or award, while the latter does not stay the order or
resolution unless a temporary restraining order or preliminary injunction is issued
(e) In the former, the petitioner/respondent are the original parties in the case and
the lower court is not impleaded, while in the latter, the aggrieved party is the
petitioner against the against the lower court, agency and the prevailing party (f)
the former does not require the filing of a motion for reconsideration prior to filing,
while the latter requires a motion for reconsideration prior to filing (g) in the
former, the court is exercising appellate jurisdiction, while in latter, it is exercising
original jurisdiction (h) the former can only be filed in the Supreme court, while
the latter may be filed with Supreme Court, Court of Appeals, or the Regional
Trial Court
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION

PRIOR TO FILING A PETITION FOR CERTIORARI UNDER RULE 65
(1)order is a patent nullity – court a quo has no jurisdiction (2) questions have
been raised in certiorari have been duly raised and passed upon by lower court
(3)urgent necessity for resolution (4)where a motion for reconsideration will be
useless (5)petitioner is deprived of due process, there is extreme urgency for
relief (6) in criminal case, relief from order of arrest is urgent, and grant of relief
by trial court is not probable (7) proceedings in lower court are a nullity for lack
of due process (8) issue is purely of law or where public interest is involved.
WHAT IS PROHIBITION
Special civil action against a tribunal, corporation, board, or person exercising

JUDICIAL – QUASI JUDICIAL – MINISTERIAL FUNCTION which is alleged by
an aggrieved party to be acting or about to act without jurisdiction, in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction and there is no appeal, or any plain, speedy and adequate remedy in
the ordinary course of the law praying that judgment be rendered commanding
the respondent to desist from further proceeding in the action or proceeding
therein or otherwise granting such incidental reliefs as law and justice may
require.659
DISTINGUISHED FROM CERTIORARI
In CERTIORARI the object is to correct the respondent’s acts by annulling

proceedings, while in PROHIBITION it is to prevent the commission of an act by
stopping proceedings. In the former, the assailed acts have already been done,
while in the latter the assailed acts are about to be done or are being done. In the
former, the respondent performs judicial or quasi- judicial, while in the latter, the
respondent performs judicial, quasi-judicial functions or ministerial functions.
WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER
1. The exercise of judicial function is to determine what the law is, and what
the legal rights of parties are, with respect to a matter is controversy; and
659
whenever an office is clothed with that authority, and undertakes to determine
those questions, he acts judicially.660
2. A quasi-judicial act or function is a judicial act or function performed by

one who is not a judge.
WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION
Capricious and whimsical exercise of judgment as may be equivalent to lack or

excess of jurisdiction.
WHAT IS MANDAMUS
A special civil action against a tribunal, corporation, board, or officer alleged in a

verified petition filed by an aggrieved party to have unlawfully neglected the
performance of an act which the law specifically enjoins as a duty resulting from
an office, trust or station, or unlawfully excluded another from the use and
enjoyment of a right or office to which such other is entitled, and there is no plain,
speedy or adequate remedy in the ordinary course of the law, praying that
judgment be rendered commanding the respondent, immediately or at some
other time specified by the Court to do the act required to be done to protect the
rights of the petitioner, pay damages sustained by reason of the wrongful acts.
2 ASPECTS OF MANDAMUS
The aspects of Mandamus are: (a) respondent unlawfully neglects the

performance of an act which the law specifically enjoins as a duty resulting from
an office, trust or station OR (b) respondent unlawfully excludes another from the
use and enjoyment of a right or office to which such other is entitled.
1. The legal right of the plaintiff (petitioner) to the thing demanded must be
well defined, clear and certain. The corresponding duty of the defendant
(respondent) to perform the required act must also be clear and specific. 661
2. Mandamus lies only to compel performance of a ministerial duty but not to

compel performance of a discretionary duty. 662 In granting mandamus,
respondent is commanded to perform the particular act or required to be done
and to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.
3. An act is ministerial when officer or tribunal performs in a given state of

facts, in a prescribed manner in obedience to the mandate of a legal authority
without regard to the exercise of his own judgment. If given the authority to
decide how and when, it is discretionary.
4. Mandamus does not lie to correct / enforce contractual obligations.
HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION
660
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
661
Enriquez, Jr v Bidin, 47 SCRA 183
662
Calderon v Sol, 215 SCRA 876
In MANDAMUS, the respondent is exercising ministerial power and he has
unlawfully neglected to perform it or excluded a party from occupying or enjoying
the privilege of an office to which he is lawfully entitled and the object is to
COMPEL action, while in CERTIORARI, the respondent is exercising judicial or
quasi-judicial powers without jurisdiction or with grave abuse of discretion
amounting to an excess or lack of jurisdiction and the object is to CORRECT. In
PROHIBITION , the respondent is exercising judicial, quasi-judicial or ministerial
powers and he is acting or about to act without jurisdiction or with grave abuse of
discretion amounting to an excess or lack of jurisdiction, and the object is to
PREVENT
WHEN MAY IT BE FILED
Not later than 60 days from notice of the assailed judgment, order or resolution.
BUT if a timely motion for reconsideration is filed, whether required or not, the 60
days period shall be counted from notice of the denial of the motion. 663 An
extension may be granted for compelling reasons but in no case to exceed 15
days.
WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS
The petition may be filed in the Supreme Court, the Regional Trial Court if relates
to an act / omission of a lower court, corporation, board, officer or person within
its territorial jurisdiction, or the Sandiganbayan, if in aid of its appellate jurisdiction
IT IS FILED WITH THE COURT OF APPEALS
Whether or not in aid of its appellate jurisdiction, when it involves acts /

omissions of quasi-judicial body, unless otherwise provided.
PARTIES TO BE IMPLEADED
In addition to the public respondents, the petition shall also join the person/s
interested in sustaining the proceedings and it shall be the duty of the private
respondent to appear and defend both in his behalf and that of the public
respondents and cost awarded shall be against private respondent only.
Unless otherwise directed by the court, the public respondents shall not appear
or file an answer or comment. If elevated to a higher court the public respondents
shall be nominal parties, and unless directed shall not appear or participate in the
proceedings therein.664
ORDER TO COMMENT
If petition is sufficient in form or substance, a comment will be required, not a

motion to dismiss.665 Orders expediting proceedings / temporary restraining order
/ injunctions for the preservation of the rights of the parties may be issued BUT
the filing of the petition shall not interrupt the course of the principal case unless
a Temporary Restraining Order or Injunction is granted enjoining the public
respondent from further proceeding.666
ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY
663
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
664
665
666
Court may hear or require filing of memoranda. If it finds the allegations to be
true, it shall render judgment for the relief prayed for or to which petitioner is
entitled.
It may also dismiss if patently without merit, prosecuted manifestly for delay or
issues are too unsubstantial to require consideration. 667 (Section 8)
SERVICE / ENFORCEMENT OF JUDGMENT –
Certified copy of judgment shall be served in such manger as the court may
direct and disobedience thereto shall be punished as contempt. Execution may
issue for any damages / cost in accordance with Section 1, Rule 39. 668
RULE 66 -QUO WARRANTO
Quo Warranto is a special civil action brought by verified petition in the name of
the Republic of the Philippines against: (a) person who usurps, intrudes into or
unlawfully holds or exercises a public office, positions or franchise (b) public
officer who performs an act that constitutes a ground fro forfeiture of his office (c)
an association that acts as a corporation within the Philippines without legally
being incorporated or without lawful authority to act. 669
1. It literally means “ by what authority”.670
2. An individual can bring a quo warranto action in his name when he is

claiming to be entitled to a public office or position usurped or exercised by
another may bring an action.671
3. A quo warranto action MUST be commenced by the Solicitor General or

Public Prosecutor when directed by the President or upon complaint or otherwise
he has good reason to believe that a cause can be established by proof. 672 If by
complaint, a request for indemnity for expenses and costs may be required to be
deposited.673
3. BESIDES the Court of Appeals, the action can be brought before the
Supreme Court, a Regional Trial Court exercising jurisdiction over the area where
the respondent/s reside BUT, if the Solicitor General commences the action, he
may bring it before a Regional Trial Court in Manila, the Court of Appeals or the
Supreme Court.674
4. WHEN FILED: within 1 year from accrual of the cause of action (ouster or
right to hold position) Damages if recoverable must be in another action filed
within 1 year from entry of judgment.675
5. PARTIES and CONTENTS of the petition: When the action is against the
person for usurping a public office, position or franchise, the petition shall set
forth the name of the person who claims to be entitled thereto, if any with an
averment of his right to the same and that the respondent is unlawfully in
667
668
669
670
Tecson v Comelec, 424 SCRA 277
671
672
673
674
675
possession thereof. All persons who claim to be entitled may be made parties,
and their respective rights may be determined in the same action. 676
6. REDUCTION OF TIME for pleadings and other proceedings may be

directed by the Court to secure the most expeditious determination of the matters
involved therein consistent with the rights of the parties. It can also take
precedence over other civil matters pending before the Court. 677
7. A JUDGMENT where the respondent is found guilty of usurping, intruding

into, or unlawfully holding or exercising a public office, position or franchise shall
state that he be OUSTED AND ALTOGETHER EXCLUDED THEREFROM, and
that the rights of the PETITIONER OR RELATOR, meaning the real party in
interest, be determined as justice requires. 678 It can also include a judgment for
costs679
8. The RIGHTS of a person entitled to public office include the right to

demand of the respondent all books and papers in his custody or control
appertaining to the office, otherwise he may be punished for contempt. 680Note:
the damages aspect must be brought in another action.
DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST
In QUO WARRANTO the issue is the disqualification / ineligibility of the

proclaimed candidate, in a PROTEST the issue is an irregularity in the election. If
in the former, if the respondent is ineligible, the petitioner does not occupy the
position, while in the latter, the protestant can occupy the position if he obtains a
plurality of the votes.
DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION
In quo warranto involving an ELECTIVE POST the issue is the eligibility of

candidate elected, while in that involving an APPOINTIVE POST the issue is the
legality of appointment. In the former, if the respondent is found ineligible, the
found ineligible, 2nd highest vote getter, even if eligible cannot be declared
elected, while in the latter, the resolution shall determine who has been legally
appointed and declare who is entitled to occupy the office.
RULE 56 – PROCEDURE IN THE SUPREME COURT
ORIGINAL CASES
The cases cognizable by the Supreme Court are Certiorari, Mandamus,

Prohibition, Quo Warranto, Habeas Corpus, Disciplinary Actions against
members of the Judiciary and Attorneys, Cases affecting Ambassadors, Public
Ministers or Consuls.681
In resolving the cases, applicable rules in the Court of Appeals are also
applicable in the Supreme Court.682
APPEALED CASES
676
677
678
679
680
681
682
The only mode of appeal to the Supreme Court is by Petition for Review on
Certiorari, except in criminal cases where penalty is death, reclusion perpetua,
and life imprisonment683 NOTE: Except in appeal of criminal cases where penalty
is death, reclusion perpetua, life imprisonment, appeal by Notice of Appeal, will
be dismissed684 AND if by certiorari from the Regional Trial Court to the Supreme
Court, raising issues of fact may be referred to the Court of Appeals for decision
or appropriate action. Determination of the Supreme Court as to whether or not
there are issues of fact is FINAL.
All appealed cases shall be governed by and disposed of in accordance with the
applicable provisions of the Constitution, Rule 45 (Petition for Review on
Certiorari) Rule 48 (Preliminary Conference), Sections 1 (When submitted) 2
(Who renders judgment) and 5 to 11 ( Form to Execution) Rule 51, Rule 52
(Motion for Reconsideration) and Rule 56. 685
GROUNDS FOR DISMISSAL OF AN APPEAL
Motu propio or upon motion of respondent, it may be dismissed on (1) failure to

take appeal within the reglementary period (2) lack of merit (3) failure to pay
docket and lawful fees (4) failure to comply with requirements of proof of service
and documents (5) failure to comply with any circular, directive or order of the
Supreme Court without justifiable cause (6) error in the choice or mode of appeal
(7) that it is not appealable to the Supreme Court 686
IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY

MAJORITY CANNOT BE OBTAINED
It will be deliberated further. If after deliberation, no decision is reached, the

original action commenced in the court shall be dismissed. If appealed, it shall
stand affirmed. If on incidental matters, it shall be denied. 687
PROVISIONAL REMEDIES
RULE 57 – PRELIMINARY ATTACHMENT
WHAT IS PRELIMINARY ATTACHMENT
It is a provisional remedy issued upon order of the court where the action is
pending to LEVY upon the properties of the defendant therein, the same to be
held thereafter by the sheriff as security for the satisfaction of whatever judgment
might be rendered in favor of the attaching creditor.
It can also extend to property of the defendant in the hands of 3 rd persons or

money owed by 3rd persons to the defendant. This is also known as
GARNISHMENT
If judgment has become final and executory, there is a final attachment which is
also known as Levy on Execution
WHEN CAN IT BE AVAILED OF
683
684
685
686
687
At any time before entry of judgment.
DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND

GARNISHMENT
In PRELIMINARY ATTACHMENT there are two parties, the plaintiff or proper

party and the defendant, while in GARNISHMENT, there is an additional party in
the person of the garnishee. In the former, property is actually seized and a lien
is created thereon, while in the latter, there is no actual seizure.
GROUNDS
1. Action for recovery of money or damages other than moral / exemplary, on

a cause of action that arise from law, contract, quasi – contract, delict, or quasi-
delict against a party who is about to depart from the Philippines with intent to
defraud creditors.
2. Action for money or property embezzled or fraudulently misapplied or

converted to his own use by a public officer, an officer of a corporation, or an
attorney, factor, broker, agent or clerk in the COURSE OF HIS EMPLOYMENT as
such, or by any person in a FIDUCIARY CAPACITY, or for WILLFUL VIOLATION
of such duty.
3. Action to recover possession of property unjustly or fraudulently taken,

detained or converted when the property, or any part thereof, has been
concealed, removed or disposed of to prevent its being found or taken by the
applicant or authorized person.
4. Action against a party guilty of fraud in contracting the debt or incurring the
obligation upon which the action is brought or in the performance thereof.
4.1 The fraud should be committed either upon contracting the debt or
incurring the obligation sued upon or in the performance thereof. A debt is
fraudulently contracted if at the time of contracting it, the debtor has a
preconceived plan or intention not to pay.688
5. Action against a party who has removed or disposed of his property, or is

about to do so, with intent to defraud creditors.
6. Action against a party who does not reside and is not found in the PI or on
whom summons may be served by publication.689
HOW APPLIED FOR
1. Generally, by motion or is incorporated in the complaint, accompanied by

an affidavit, containing the following: (a) It is executed by the applicant / or some
person who is aware or personally knows the facts (b) A sufficient cause of action
exists (c) That ground/s as stated in Section 1 (d) There is no other sufficient
security for the claim sought to be enforced by the action (e) The amount due the
applicant or value of the property that he is entitled to recover, IS AS MUCH AS
THE SUM for which the ORDER is granted, above all legal counterclaims 690
688
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
689
690
2. A BOND must then be executed to the adverse party in the amount fixed
by the court, CONDITIONED that the latter will pay all costs which may be
adjudged and all damages sustained by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto. 691
WHEN ISSUED / BY WHOM
Either ex parte or on motion with notice and hearing, by the court in which action
is pending, by the Court of Appeals or the Supreme Court and must require the
Sheriff to attach so much of the property in the Philppines of the party against
whom it is issued NOT EXEMPT FROM EXECUTION as may be sufficient to
satisfy claim UNLESS other party makes a deposit or gives a bond in an amount
equal to that fixed in the order, exclusive of costs. Note: that several writs may be
issued at the same time to the sheriffs of the courts of different judicial regions. 692
1. IT IS ISSUED EX-PARTE when the ground is justified further by the fact

that the defendant might abscond or dispose of his property before the writ is
issued. It CAN TAKE PLACE even before he is summoned BUT note that it
cannot be enforced unless it is preceded or contemporaneously accompanied by
SERVICE OF SUMMONS, together with complaint, application for attachment,
affidavit, bond, order and the writ itself. This is the PRIOR OR
CONTEMPORANEOUS RULE. NOTE: An Alias summons belatedly filed cannot
be deemed to have cured the FATAL DEFECT in the enforcement of the writ of
preliminary attachment.693
2. The prior or contemporaneous rule does not apply when: (a) Summons
could not be served personally or by substituted service despite diligent efforts
(b) Defendant is a resident but temporarily out of the PhiIippines (c) Defendant is
a non-resident of the Philippines (d) It is an action in rem or quasi in rem
2.1 An IN REM action is directly against the thing to determine title to or affect
its interest, while a QUASI-IN-REM is a proceeding against the thing for
satisfaction a claim against a person by adjudication of rights against property
over which jurisdiction can be obtained
BY WHOM / HOW ENFORCED
1. By the sheriff, without delay and with all reasonable diligence
1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary
attachment unlike a writ of execution. 694 What the law provides are enforcing the
writ without delay and making sheriff’s return thereon without delay.
2. He may attach only such property not exempt from execution, as may be
sufficient to satisfy the demand UNLESS defendant makes a deposit or give a
counter bond in an amount equal to the bond fixed by the court or to the value of
the property attached. 695 NOTE: That the attachment shall proceed nevertheless
until there have been proceedings undertaken to discharge the attachment. If
found to be insufficient / or is not filed, a NEW ORDER OF ATTACHMENT MAY
BE APPLIED FOR.696
691
692
693
Mangila v Court of Appeals, 387 SCRA 162
694
Roque v Court of Appeals, 93 SCRA 540
695
696
3. Attachment should be in accordance with the following:
a. If real property, it requires the filing with the Office of the Register of
Deeds of a copy of the order together with notice that property or interest therein
is attached.
b. If personal property capable of manual delivery taking it and safely

keeping it in custody after issuance of proper receipt.
c. If stocks / shares / interest in companies, by leaving with the president or

managing agent a copy of the writ and notice.
d. If debts, credits, bank deposits and other like personal properties not
capable of manual delivery – leaving with such persons owing debt, holding
credits or in possession a copy of the writ and notice.
e. If interest is in the estate of a decedent, by virtue of his being an heir,

legatee, or devisee, by serving the writ / notice on executor or administrator.
f. If in custodia legis – copy of writ is filed if the proper court or quasi-judicial

agency and notice served on the custodian of the property. 697
3.1 Effect of attachment of debts, credits and similar personal property –

persons who have them are liable to the applicant for the amount of such credits
UNTIL the attachment is discharged, judgment is satisfied or debts are paid 698
(Section 8)
3.2 Effect if on property belonging the estate of the decedent, it will not impair
the powers of the executor / administrator or representative – BUT they shall
report the attachment to the court when any petition for distribution is filed – and
in the order made upon such petition – the property may be awarded to the heir /
legatee / devisee , but the property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or person claiming under him. 699
(Section 9)
3.3 THERE CAN ALSO BE EXAMINATION OF THESE PERSONS TO

DETERMINE IF THERE ARE PROPERTIES THAT MAY BE ATTACHED IN
THEIR POSSESSION700
4. Sheriff shall also make a RETURN without delay, containing full statement
of his proceedings under the writ and a complete inventory of property attached,
together with a copy of a counter-bond if one has been filed, furnishing copies
thereof on the applicant.701
5. Property is to be held and disposed of in the following manner:
a. If judgment is recovered by the attaching party
1. Paying to obligee proceeds of all sales of perishable property or others

sold pursuant to order of the court as shall be necessary to satisfy the judgment.
697
698
699
700
701
2. If there is a balance, selling so much of the real or personal property as
may be necessary to satisfy the balance, if enough for that purpose, remains in
the hands of the sheriff or clerk of court. Note that there can be an EARLY SALE
if it is made to appear to the court in which the action is pending that the property
attached is perishable, or that the interest of all the parties to the action will be
subserved by the sale of the properties at public auction, the proceeds to be
deposited with the court to abide the judgment. 702
3. Collecting from all persons having in their possession credits belonging to

the obligor or debts due him
A REPORT / RETURN of all proceedings must be filed with the court and copies
furnished all parties.703
4. If there be a balance, he proceeds to collect as upon ordinary execution. If

there be a surplus, it must be returned.
5. If judgment becomes executory, the surety/ies shall become charged on

the counter-bond and bound to pay the judgment obligee upon demand, the
amount due on the judgment, which amount can be recovered after notice and
summary hearing in the same action.704
6. If money was deposited in LIEU of a bond, it is applied under direction of

the Court and if judgment is against attaching party, the whole sum deposited is
refunded. 705
b. If judgment is for adverse party –
1. All proceeds of sales or money collected by the sheriff and property

attached shall be delivered to the party whose properties were attached and the
order of attachment discharged.
2. Claim for damages before trial, perfection of appeal, or judgment becomes

executory, with due notice to the attaching party and surety setting forth the facts
showing his right to damages in instances where there is improper, irregular or
excessive attachment, are to be awarded after hearing and is to be included in
the judgment in the main case.
2.1 If the judgment favorable to him is rendered by the appellate court, he

must claim the damages during the pendency of the appeal by filing the
application in the appellate court, before the judgment becomes executory. The
appellate court may allow the application to be heard and decided by the trial
court.
2.2 NOTHING, likewise, prevents the party against whom attachment is

issued from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond or
deposit be insufficient.706
702
703
704
705
706
WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE
ATTACHED
1. Discharge the attachment by making a cash deposit or counter bond. 707

NOTE: That bond may be subject to RECOVERY by attaching party;
2. Discharge or set aside the attachment on the ground that it was

improperly issued or irregularly enforced, OR bond is insufficient OR what has
been attached is excessive, the discharge is only for the excess. 708
3. Claim for damages on account of improper, irregular, or excessive

attachment. 709
NOTE: a motion to discharge / dissolve is not allowed if the preliminary

attachment is issued on a ground which is at the same time the applicant’s cause
of action as that is TANTAMOUNT TO TRIAL ON MERITS. Example: action for
money, property embezzled, party guilty of fraud in incurring the obligation
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON
Claim is to be initiated by affidavit. Upon filing, the sheriff not under obligation to
keep the property, unless attaching party files a bond. No claim for damages for
the taking or keeping of the property may be filed / enforced against the bond
unless the action is filed within 120 days from date of the filing of the bond. 710
RULE 58 – PRELIMINARY INJUNCTION
A Preliminary Injunction isan order granted at any stage of an action or

proceeding prior to judgment or final order, requiring a party or a court, agency,
person to refrain from a particular act or acts. It may also require the
performance of an act, if such it is called a preliminary mandatory injunction. 711
1. Note that Injunction may also exist as a cause of action. This is best
illustrated by the appropriate remedies for obligations to do or not to do.
Obligations to do, the remedy is specific performance. Obligation not to do,
remedy is injunction.
PRIMARY PURPOSE OF INJUNCTION
Is to preserve the status quo or the last actual, peaceable, uncontested status
which precedes the pending controversy.
WHO MAY GRANT
Court where the action is pending. If pending in the Court of Appeals or the
Supreme Court, it may be issued by the Court or any member thereof. 712
GROUNDS FOR ISSUANCE
707
708
709
710
711
712
1. The applicant is entitled to the relief demanded, and the whole or part of
the relief consists in restraining the commission / continuance of the act/s
complained of, or in requiring the performance of an act/s, for a limited period or
perpetually.
2. The commission / continuance / non performance of the act/s during

litigation will probably work injustice to the applicant, OR
3. That a party, court, agency or a person is doing, threatening, or is

attempting to do or is procuring or suffering to be done, some act/s in violation of
the rights of the applicant respecting the subject of the action and tending to
render judgment ineffectual.713
REQUISITES FOR ISSUANCE OF AN INJUNCTION
1. Existence of a right to be protected
2. Acts against which the injunction is to be directed are violative of the right
These must clearly appear in the allegations in the complaint – OTHERWISE – it

may be ground for its outright denial for INSUFFICIENCY, which is apparent in
the application itself OR if already granted, may be dissolved. 714
MAY IT BE ISSUED EX-PARTE –
Its issuance requires (1) a hearing (2) reception of evidence with opportunity to
cross (3) finding that prohibited acts are threatened to be committed or that
irreparable injury would be inflicted upon the applicant.
IF GREAT / IRREPARABLE INJURY WOULD RESULT BEFORE THEN: the

Court BY WAY OF EXCEPTION TO THE RULE ON NON EX-PARTE ISSUANCE
(1) can issue a Temporary Restraining Order for 20 days after a summary
hearing OR If it is of extreme urgency, it may issue ex-parte a 72 hour Temporary
Restraining Order. The lifetime of a Temporary Restraining Order is 20 days if
issued by a trial court, 60 days if issued by the Court of Appeals, and until
further orders if issued by the Supreme Court. Note that within the 20 day
effectivity period of the Temporary Restraining Order, the court must order the
party or person to show cause why the injunction should not be granted,
determine also whether or not the preliminary injunction should be granted, and
accordingly issue the order. 715
HOW OBTAINED
A preliminary injunction or temporary restraining order is obtained upon (1) filing

of a verified application showing facts entitling the applicant to the relief
demanded, (2) unless exempted, filing of a bond in an amount fixed by the court,
to the effect that applicant will pay all damages that may be sustained if the court
should finally decide that applicant was not entitled thereto (3) if included in a
complaint / initiatory pleading it shall be raffled only after notice to and in the
presence of the adverse party. In any event, notice shall be preceeded by or
contemporaneously accompanied by service of summons, together with affidavit
and bond (PRIOR OR CONTEMPORANEOUS RULE) but such will not be
applicable if defendant / adverse party cannot be served personally / substituted
service, temporarily absent or is a non-resident. The matter shall thereafter be
713
714
715
acted upon only after all parties are heard in a summary hearing, conducted
within 24 hours after sheriff’s return of service. 716
GROUNDS FOR OBJECTION / DISSOLUTION
1. The application may be denied or if granted, dissolved, upon showing of

insufficiency, or while entitled to an injunction, the issuance or continuance
thereof will cause irreparable damage to the person enjoined while the applicant
can be compensated for the damages and a bond is filed OR if it appears that
extent is too great, it may be modified. 717
2. It may also be dissolved on objection to the sufficiency of the bond, or

upon finding of insufficiency, the failure of surety to justify or filing of a sufficient
bond. If it the objection is to the bond of the party enjoined, the injunction shall be
granted or restored. 718
JUDGMENTS OR ORDERS IN INJUNCTION
1. ORDER DISCHARGING IS IMMEDIATELY EFFECTIVE
2. A Final Injunction is granted if it appears that the applicant is entitled to

have the act/s permanently enjoined or confirming the preliminary mandatory
injunction.719
3. Judgments eventually rendered may include damages against a party and

sureties. 720
4. No injunction can issue against the acts of a co-equal court, except in a 3 rd

party claim where claimant vindicates his right by a separate action.
RULE 59 – RECIEVERSHIP
WHEN IS A RECEIVER APPOINTED
1. When it appears from a verified application, and as such other proof as

the court may require, that the party applying for the appointment of a receiver
has an interest in the property or fund which is the subject of the action or
proceeding as such property / fund is in danger of being lost, removed or
materially injured unless a receiver be appointed to administer and preserve it.
2. When it appears in an action by the mortgagee for the foreclosure of

mortgagee that the property is in danger of being wasted, dissipated or materially
injured – and that its value is probably insufficient to discharge the mortgage debt
or that the parties have so stipulated in the mortgage contract.
3. When after judgment, to preserve the property during the pendency of an

appeal, or to dispose of it according to the judgment, or to aid in execution when
the execution is returned unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment or otherwise carry the judgment into
effect.
716
717
718
719
720
4. Whenever in other cases, it appears that the appointment of a receiver is
the most convenient and feasible means of preserving, administering or
disposing of property in litigation.
WHO APPOINTS A RECEIVER
The court where action is pending or the Court of Appeals, the Supreme Court or
a member thereof. During appeal, the appellate court may allow the application
for the appointment to be filed in the court of origin, which can also decide on the
same to be subject to the control of said court.721
1. A receiver of real or personal property, which is the subject of the action,

may be appointed by the court when it appears from the pleadings or such other
proof as the judge may require, that the party applying for such appointment has:
(a) an actual interest in it, and (b) that (a) such property is in danger of being
lost, removed, or materially injured; or whenever it appears to be the most
convenient and feasible means of preserving or administering the property in
litigation.722
2. A receiver is a person appointed by the court or by a quasi-judicial

administrative agency, in behalf of all the parties for the purpose of preserving
and conserving the property and preventing its possible destruction or
dissipation, if it were left in the possession of any of the parties. It is the duty of
the receiver to administer the assets of the receivership estate; and in the
management and disposition of the property committed to his possession, he
acts in a fiduciary capacity and with impartiality toward all interested persons. 723
3. A receiver is not an agent or representative of any party to the action. He

is an officer of the court exercising his functions in the interest of neither plaintiff
nor defendant, but for the common benefit of al the parties in interest. He
performs his duties “subject to the control of the Court,” and every question
involved in the receivership may be determined by the court taking cognizance of
the receivership proceedings. Thus, unauthorized contracts of a receiver do not
bind the court in charge of receivership. They are the receiver’s own contracts
and not recognized by the court as contracts of the receivership. 724
WHAT ARE THE POWERS OF THE RECIEVER
Subject to the control of the court, HE CAN: (a) Bring and defend actions in his
own name (b)Take and keep possession of the properties in controversy (c)To
receive rent (d)Collect debts, including power to compound and compromise
them, to pay debts (e)Make transfers (f) To divide money or other property (g)
Other acts as may be authorized by the court
1. Funds though may only be invested by order of the court upon written
consent of all parties. No action may be filed by or against the receiver without
leave of court to prevent harassment.725
721
722
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
723
Arranza versus B.F. Homes, Inc., 333 SCRA 799
724
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
725
2. Should there be refusal / neglect to deliver property to a receiver – it is
punishable by contempt and shall be liable for the money or value of the
property, plus damages sustained as a consequence of the refusal / neglect. 726
HOW APPLIED FOR
1. By verified application. Note that more than 1 receiver may be applied for
and appointed by the court. NOTE: That receivership may be a principal action or
an ancillary remedy.
2. If application is granted – the receiver shall await the filing by the applicant
of a bond executed to the party against whom the application is presented in an
amount fixed by the Court to the effect that the applicant will pay such party all
damages that he may sustain by reason of the appointment in case the same
has been procured without SUFFICIENT CAUSE – and the court in its discretion
may require an additional bond to be filed as further security for damages. 727
3. The APPLICATION may be denied or receiver discharged when the

adverse party files a bond executed to the APPLICANT to the effect that such
party will pay to the applicant all damages he may suffer by reason of acts,
omissions or other matters specified as grounds in the application – If may also
be discharged if it is shown that appointment was obtained without sufficient
cause.728
4. BEFORE entering upon his duties, the receiver shall be sworn to perform
them faithfully and shall file a bond executed to such person and in amount fixed
by the court, to the effect that he will faithfully discharge his duties and obey
orders from the Court.729
5. Copies of bonds ( Applicant and Reciever OR Adverse Party) shall be

served on each interested party – who may except to its sufficiency or the surety.
If found to be insufficient or is not justified and a bond sufficient in amount and
surety is not filed, the application shall be denied and the receiver discharged. If
adverse party’s bond is the one excepted to or found insufficient, the receiver
shall be appointed or reappointed as the case may be. 730
WHEN TERMINATED
When the court, motu propio or upon motion, shall determine that the necessity
for a receiver no longer exists, it shall alter due notice, settle all accounts, direct
delivery of the funds / property in his possession to the person adjudged to be
entitled to receive them and order the discharge of the receiver from further duty.
He is to be allowed compensation as circumstances will warrant to be taxed
against defeated party or apportioned as justice may require. 731
Any judgment may include the amount, if any, to be awarded any party upon any
bond.732
RULE 60 – REPLEVIN
WHAT IS REPLEVIN
726
727
728
729
730
731
732
It is a form of a principal remedy and provisional remedy / relief. It is also a mixed
action partly in rem as far as the claim for recovery of personal property and in
persona as far as the claim of damages, the object of which is recovery of
possession of personal property applied for at the commencement of the action
or at any time before answer by the party praying for recovery of personal
property.733
HOW
1. Filing of Affidavit containing the following: (a) that applicant is the owner of
the property claimed, particularly describing it, or is entitled to possession of the
same (b)that property is a wrongfully detained by the adverse party, alleging the
cause of detention according to the best of his knowledge, information or belief
(c) that property has not been distrained or taken for a tax assessment or
payment of fine or seized under execution, preliminary attachment or in custodia
legis, or if so seized, it is exempt from seizure / custody (d) actual market value
NOTE: Not the probable value as declared by the applicant. Should there be a
dispute, it is to be resolved by the Court.
2. Filing of bond in double the value of the property – for return of the
property to the adverse party and payment of such sum as he may recover from
the applicant
3. UPON FILING OF AFFIDAVIT AND BOND, the writ of replevin shall issue
requiring the sheriff to forthwith take the property in custody. 734
3.1 IN TAKING CUSTODY – if concealed, he may demand delivery, if not

delivered, he may cause the building / enclosure to be broken. Once in
possession, it must be kept in a secure place and shall be responsible for its
delivery to the party entitled thereto upon receipt of his fees and expenses. 735
REMEDIES FOR RETURN OF PROPERTY
1. Objection to the sufficiency of the bond / surety but he cannot immediately

require delivery OR at any time before delivery to the applicant, by filing a bond
(redelivery bond) executed to the applicant in double the value of the property as
stated in the applicant’s affidavit.
MANNER OF DISPOSITION BY SHERIFF
1. If within 5 days after taking of the property, the adverse party does not
object to sufficiency of the bond / sureties OR he objects and the court affirms
its approval of the bond or approves a new bond OR if he requires return but his
bond is objected to (adverse party) and he does not forthwith file an approved
bond – THE SHERIFF SHALL DELIVER THE PROPERTY TO THE APPLICANT
– IF FOR ANY REASON IT IS NOT DELIVERED, IT MUST BE RETURNED TO
ADVERSE PARTY.736
2. If claimed by a 3rd PARTY by affidavit, the sheriff is not bound to keep and
deliver the property unless applicant / agent on demand of the sheriff files a bond
approved by the Court to indemnify the 3 rd party claimant in a sum not less than
the value of the property under replevin. In case of disagreement as to value, the
733
734
735
736
court shall determine the same. Note that no action on the bond may be enforced
unless filed within 120 days from filing.
The sheriff shall not be liable for damages for the taking and keeping of
the property to any such 3 rd party if the bond is filed. Nothing also prevents the 3 rd
party claimant or the applicant from vindicating their rights or claims in the same
action or in a separate action.
If writ is issued in the name of RP, no bond is required and the sheriff is to
be represented by the SOLGEN and damages so adjudged are paid out of the
National Treasury. 737
3. SHERIFF must make return within 10 days after taking of the property. 738
4. The JUDGMENT BY THE COURT shall include a determination who has a

better right of possession to and value of the property and render judgment in the
alternative for delivery thereof to the party entitled or its value in case delivery
cannot be made, and also for damages as either party may prove, with costs.
Any amount awarded a party upon any bond shall be claimed, ascertained and
granted as provided by Section 20 of Rule 57. 739
5. A WRIT OF REPLEVIN may be served anywhere in the PI
RULE 61 – SUPPORT PENDENTE LITE
WHEN FILED AND HOW
At the commencement of the proper action or proceeding or at any time prior to a

judgment or final order – a verified application may be filed by a party stating the
grounds for the claim and the financial conditions of both parties, accompanied
by affidavits, depositions, or other authentic documents in support thereof. 740
1. It is also available in criminal cases when: (a) child is born to offended

party allegedly because of the crime (b) civil liability arising from the criminal
action includes support for the offspring (c) civil aspect has not been waived,
reserved or instituted prior to filing of criminal action. This application may be
filed successively by the offended party, her parents, grandparents, guardian or
the State in the corresponding criminal case during its pendency. 741
PROCEDURE:
1. Upon filing of verified application – it shall be served on the adverse party,

who shall have 5 days to comment unless a different period is fixed by the court.
It shall also be verified and accompanied by affidavits, depositions, authentic
documents.742
2. Hearing shall then be conducted no more than 3 days after comment is

filed or the period expires.743
737
738
739
740
741
742
743
3. Court shall determine provisionally the pertinent facts and render such
orders as justice and equity may require, having due regard to the probable
outcome of the case and such other circumstances.
3.1 IF GRANTED, it shall fix the amount of money to be provisionally paid or

such other forms or support as should be provided – taking into account the
necessities of the applicant AND resources or means of the adverse party AND
the terms or mode for providing support.
3.2 IF DENIED, the principal case shall be tried and decided as early as
possible.744
HOW ENFORCED
If adverse party fails to comply, the court shall, motu propio or on motion, issue
an order of execution without prejudice to his liability for contempt. ALSO, if
support be paid by a 3rd person, after due notice and hearing in the same case,
he may obtain a writ of execution to enforce his right of reimbursement against
the person ordered to provide support. 745
RESTITUTION
IF upon judgment / final order – The court finds that the person who has been
providing support is not liable therefor – it shall order the recipient to return the
amounts paid plus interest from dates of actual payment without prejudice to the
right of the recipient to obtain reimbursement in a separate action from the
person legally obliged to give support. Should the recipient fail to reimburse, the
person who provided the same, may, in a separate action, seek reimbursement
thereof from the person obliged to give support. 746
SPECIAL CIVIL ACTIONS
RULE 62 - INTERPLEADER
WHEN PROPER
Whenever conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter, or an
interest which in whole or in part is not disputed by the claimants, he may bring
an action against the conflicting claimants to interplead and litigate their several
claims among themselves.747
PROCEDURE:
1. Upon filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another. If the interest of justice
requires, it may order the subject matter be paid or delivered to the court. 748
2. Summons shall then issued to claimants, together with a copy of the

complaint and order.749
744
745
746
747
748
749
3. Within the time for the filing of an answer, motions to dismiss may be filed,
if denied the claimant must file an answer within the period remaining but in no
case less than 5 days. If not, he may be declared in default and thereafter the
court may render judgment barring him from any claim in respect of the subject
matter. They may also file counter-claims, cross-claims, 3 rd party claims, and
other responsive pleadings.750
4. After the pleadings of the conflicting claimants have been filed, pre-trial
conducted, the court shall proceed to determination and adjudication of their
respective claims. The docket and other lawful fees paid by a party who filed the
complaint, as well as costs / expenses of litigation shall constitute a lien or
charge upon the subject matter, unless the court orders otherwise. 751
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
It is a special civil action brought before the Regional Trial Court ONLY by a
person interested in a DEED, WILL, CONTRACT or OTHER WRITTEN
INSTRUMENT, or whose rights are affected by a STATUTE, EXECUTIVE
ORDER OR REGULATION, ORDINANCE or any government regulation
BEFORE BREACH THEREOF, asking the court to DETERMINE ANY
QUESTION OF CONSTRUCTION OR VALIDITY arising, and for a declaration of
his rights OR duties thereunder.752
1. ACTIONS for REFORMATION OF INSTRUMENT, TO QUIET TITLE OR

REMOVE CLOUDS THEREFROM, or to CONSOLIDATE OWNERSHIP UNDER
Art 1607 NCC may be brought as civil actions for declaratory relief.
2. NOTE THAT AN ACTION FOR DECLARATORY RELIEF may be brought

only before a breach / violation of the statute or instrument. If already brought
AND a breach / violation is committed before final termination, it is converted
into an ordinary civil action. The parties may then file such pleading as may be
necessary or proper.753
WHO ARE THE ALLOWED PARTIES
1. All persons who have or claim an interest which would be affected by the
declaration shall be made parties and NO DECLARATION shall as except as
otherwise provided in these RULES prejudice the rights of persons not parties to
the action.
2. If involving validity of a statute, executive order, regulation, or any other

government regulation. The solicitor general shall be notified and is entitled to be
heard upon such question.754
3. If local government ordinance, the corresponding attorney / prosecutor of

the Local Government Unit shall be similarly notified and heard. If alleged to be
unconstitutional, the Solicitor General shall be notified and heard. 755
750
751
752
753
754
755
ACTION BY THE COURT
Except in actions falling under the 2 nd paragraph of Section 1, the court, motu
propio, or on motion, may refuse to exercise the power to declare rights and to
construe instruments in any case WHERE A DECISION WOULD NOT
TERMINATE THE CONTROVERSY ON UNCERTAINTY THAT GAVE RISE TO
THE ACTION, or in any case, WHERE THE DECLARATION / CONSTRUCTION
is not NECESSARY and PROPER under the circumstances. 756
RULE 64 – REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC

AND COA
A judgment / final order of COMELEC / COA is to be brought by the aggrieved

party to the Supreme Court under Rule 65 but the period for filing is 30 days from
notice of the judgment or final order sought to be reviewed. The filing of a motion
for new trial / recon if allowed under the procedural rules of the COMELEC / COA
will toll the period. If denied, the aggrieved party only has the remaining period
which is no case shall be less than 5 days in any event, reckoned from notice of
denial.757
1. Note that only judgments/final orders of the COMELEC en banc can be

brought to the SC. What is exercised is the power of review.
2. The bringing of a petition, shall not stay the execution of the judgment,
final order or resolution unless directed otherwise by the Supreme Court. 758
RULE 67 – EXPROPRIATION
SEE RP vs. Gingoyon GR 166429, Jan 14, 2005

Rule 67 contemplates two (2) separate final orders, namely:
1. order of expropriation (Section 4, Rule 67) and

2. order of just compensation (Section 8, Rule 67).
An expropriation suit is incapable of pecuniary estimation and falls within

the jurisdiction of the Regional Trial Courts. (Barangay San Roque vs. Heirs of
Francisco Pastor, 334 SCRA 127).
Public purpose which will justify expropriation of property generally means
such activity which will serve as convenience, safety, welfare, advantage, or
benefit to the entire community, and not to a particular individual, class or group
of persons.
Public use is one which confers some benefit or advantage to the public.
It is not confined to actual use by the public. It includes the right of use by the
public, whether it is exercised by one or some or many members of the public.
Public use contemplates indirect public benefit or advantage (Estate of
Salud Jimenez vs. Phil. Export Processing Zone, 349 SCRA 240). It must be
considered in its general concept of meeting a public need or a public exigency.
Manosca vs. CA, 252 SCRA 412).
At present, whatever may be beneficially employed for the general welfare
satisfies the requirement of public use. (Reyes vs. NHA, 395 SCRA 494).
756
757
Supra, Sections 1,2, and 3, Rule 64
758
WHAT IS EXPROPRIATION
The taking of private property for public purpose upon the payment of just
compensation. It is also known as exercise of the power of eminent domain.
HOW EXERCISED
Filing of a verified complaint which shall state with certainty the right and the
purpose of expropriation, describing the real / personal property sought to be
expropriated, joining as defendants all persons claiming / owning or occupying
any part thereof or interest therein. Note that the subject can be either real /
personal property.759
WHERE FILED
Regional Trial Court, regardless of value as it is an action which is incapable of

pecuniary estimation.
UPON FILING, MAY PLAINTIFF TAKE POSSESSION
Plaintiff, upon making a deposit in or with an authorized government depository

of an amount equal to the assessed value of the property for purposes of taxation
may take possession of the real property. If it involves personal property, its value
as provisionally ascertained.760
1. Note that under Section 19 of the Local Government Code, the LGU can
take possession upon deposit with the court of FIFTEEN PERCENT of the Fair
Market Value based on the current tax declaration.
UPON FILING AND SERVICE
1. The DEFENDANT MAY FILE: (a) A Manifestation that he has no objection

or defense to the action, OR (b) An Answer stating all objections and defenses
to the taking of the property. No, counterclaim, cross claim or 3 rd party complaint
shall be allowed in the answer or any subsequent pleading. 761
2. AFTER, the case now proceeds to a determination of:
2.1 Authority of the plaintiff to expropriate. Thereafter, the court may dismiss
the petition or issue an order of expropriation. The order is appealable BUT
SHALL NOT PREVENT DETERMINATION OF JUST COMPENSATION,IF
GRANTED AND PLAINTIFF CANNOT DISMISS OR DISCONTINUE EXCEPT
ON TERMS THAT COURT DEEMS JUST AND EQUITABLE as there is entry
already.762
2.2 NOTE the right of plaintiff to enter into the property and appropriate shall
not be DELAYED by an APPEAL. But if appellate court determines that no right
of expropriation exists. It shall order the RTC to enforce restoration and
determine the damages that the defendant sustained. 763
759
760
761
762
763
3. Just compensation is then determined by no more than 3 court appointed
commissioners. If the Court accepts their report, it will render judgment based
thereon. Such judgment is also appealable.764
3.1 IF upon determination of just compensation, the ownership is uncertain or

claims are conflicting, the court may order sum / sums paid to be given to the
Court for the benefit of the person adjudged in the same proceeding to be
entitled thereto BUT, payment will be required to be given to the defendant or the
court before plaintiff can enter into or retain the property. 765
4. The JUDGMENT shall state definitely, by an adequate description, the

particular property or interest therein expropriated and the nature of the public
use or purpose for which it is expropriated, a certified copy of which judgment
shall be recorded in the registry of deeds and its effect shall to be shall to be vest
in the plaintiff title to the real estate for public use or purpose. 766
RIGHT OF PLAINTIFF UPON PAYMENT / TENDER
The plaintiff shall have the right to enter into the property and expropriate for
public use or retain it if already entered. If defendant or counsel absent
themselves from the court or decline to receive the amount, it shall be deposited
in the court and shall have the effect of ACTUAL PAYMENT. 767
WHO PAYS FOR COSTS
All costs, except that incurred by rival claimants, shall be paid by the plaintiff
unless an appeal is taken therefrom by the owner of the property and the
judgment is affirmed. Costs shall include the fees of the commissioners. 768
RULE 68 – FORECLOSURE OF REAL ESTATE
WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION
The complaint in foreclosure of a mortgage or other encumbrance shall set forth:

(a)Date and due execution of the mortgage (b) Its assignments, if any
(c)Names/residences of mortgagor/mortgagee (d)Description of the mortgaged
property (e) Statement of the date of the note or other documentary evidence of
the obligation secured by the mortgage (f)Amount claimed to be unpaid
(g)Name/residences of persons having or claiming an interest in the property
subordinate in right to that of the holder of the mortgage, all of whom shall be
made defendants.769
WHAT COURT CAN DO
After trial, if the court shall find the facts to be true, it shall ASCERTAIN THE
AMOUNT DUE THE PLAINTIFF AND RENDER JUDGMENT FOR THE SUM
WITH AN ORDER FOR IT TO BE PAID BY ADVERSE PARTY TO THE COURT
OR JUDGMENT OBLIGEE WITHIN A PERIOD OF NOT LESS THAN NINETY
764
Supra, Sections 5,6,7, and 8, Rule 67
765
766
767
768
769
(90) DAYS NOR MORE THAN ONE HUNDRED TWENTY DAYS (120) FROM
ENTRY OF JUDGMENT, AND THAT IN DEFAULT, THE PROPERTY SHALL BE
SOLD AT PUBLIC AUCTION. This period is known as MORTGAGOR’S EQUITY
OF REDEMPTION. 770
DISTINGUISHING EQUITY OF REDEMPTION FROM RIGHT OF

REDEMPTION
Equity of Redemption is the equitable right of the mortgagor to redeem, while

Right of Redemption is the statutory right of the mortgagor to redeem. The former
is available before auction sale, while the latter is available after auction sale.
The former is available only judicial foreclosure, while the latter is available only
in extra-judicial foreclosure, but by exception is allowed in judicial foreclosure
when the mortgagee is the PNB or a bank or a banking institution. The period for
the exercise of the former is within 90 days but no more than 120 days from entry
of foreclosure judgment, while in the latter it is one year from redemption is within
one year from date of registration of the sheriff’s certificate of sale, except when
the mortgagor is a juridical person, in which case, the right to redeem must be
exercised until, but not after, the registration of the certificate of sale with the
applicable register of deeds which in no case shall be more than three months
after foreclosure, whichever is earlier.771
WHAT HAPPENS IF NOT PAID
1. Upon motion, the court shall order the property sold in the manner
prescribed under Rule 39, such SALE shall not affect the rights of persons
holding prior liens/encumbrances on the property or parts thereof.
2. Upon motion, sale shall be CONFIRMED, and such shall operate to divest
the rights in the property of all the parties to the action and to vest their rights in
the purchaser, subject to such rights of redemption as may be allowed by law.
2.1 Note that when judicial foreclosure is resorted to there is no right of

redemption EXCEPT when the law allows a redemption. EXAMPLE: Section 47
of the Philippine General Banking Law which allows a one year period for
redemption.
3. Upon finality of the order of confirmation or upon expiration of the period of

redemption when allowed by law, the purchaser at auction is entitled to
possession unless a third party is holding it adversely to the judgment obligor, in
which case, the purchaser at the auction sale may secure a writ of possession
from the Court ordering the sale.772
3.1 What is to be registered is the order of confirmation. If there is no right of

redemption, the title of the mortgagor is cancelled and a new one issued in the
name of the purchaser.
770
771
Section 47, Philippine General Banking Law
772
3.2 If with right of redemption, the annotation is to await final deed of sale
executed by Sheriff.773 (Section 7)
4. PROCEEDS OF THE SALE shall, after deducting the costs, be paid to the
persons foreclosing the mortgage. If there be a balance or residue, it shall be
paid to the junior encumbrancers, in the order of priority ascertained by the
Court, if none or there still be a balance or residue after payment, to the
mortgagor.774
5. If debt is not all due, as soon as a sufficient portion of the property has
been sold to pay the total amount, the sale shall terminate. Afterwards, no more
shall be sold, BUT if property cannot be sold in portions, the entire property is to
be sold with rebate of interest if proper when the full debt is paid. 775
6. Deficiency judgments, if there is a balance, upon motion, the court shall

render judgment against the defendant for the balance, upon which execution
may issue. If balance is due at the time of rendition of judgment OR at such time
as the remaining balance becomes due under the terms of the original contract,
which time shall be stated in the judgment. 776
7. Note that the provisions of Section 31 as to use of premises by obligor,

Section 32 as to rents still due the obligor, and Section 34 as to recovery of price
if sale is not effective of Rule 39 are applicable as far as the former are not
inconsistent.777
RULE 69 – PARTITION
OBJECT OF PARTITION
Separate, divide and assign a thing that is held in common among those to
whom it may belong. The remedy may be availed of regardless of whether it
involves real or personal property, or both
WHO CAN FILE AND HOW
Any person, having the right to compel partition of real estate may file, setting
forth therein the nature and extent of his title, adequate description of the
property, joining as defendants all other persons interested in the property. 778
1. An action for partition and accounting under Rule 69 is in the nature of a

quasi in rem779.
PROCEDURE
1. If after trial, it finds for the plaintiff, it will order partition. Thereupon, if they
AGREE, the parties may undertake the partition among themselves by proper
instruments. The court shall thereupon confirm the partition so agreed by the
parties. Such partition and order of confirmation shall then be recorded in the
registry of deed of the place where the property is situated.
773
774
775
776
777
778
779
Valmonte v Court of Appeals, 52 SCRA 92
A final order decreeing partition and accounting may be appealed by the party
aggrieved thereby.780
2. If they fail to agree, the Court shall appoint not more than 3
commissioners, commanding them to set-off to the plaintiff and each party in
interest such part and proportion of the property as the court will direct. 781
2.1 Before discharging their duties, the commissioners shall take an oath that
they will faithfully discharge their duties, and in so doing they shall view and
examine the real property , shall hear the preferences of the parties, determine
the comparative value of the property, and shall set apart the same to the parties
in lots or parcels as will be most advantageous and equitable, having due regard
to the improvements, situation and quality of the different parts thereof. 782
2.2 If the property cannot be divided without prejudice to the interest of the
parties, the court may order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such amount as determined by the
commissioners to be equitable, unless one of the interested parties asks that the
property be sold instead.783
2.3 A report should thereupon be made by the commissioners and filed with
the court, which shall then give the parties 10 days within which to file heir
objections to the findings. No proceeding shall pass title to the property or bind
the parties until the court shall have accepted the report and rendered judgment
thereon. Note though that the court has the option to accept or re-commit the
matter to the commissioners.784
3. If actual partition of the property is made, judgment shall state definitely

the metes and bounds and adequate description of the property, the particular
portion allocated to each party and its effect is to vest to each party in the action
in severalty the portion of real estate assigned to him. If the whole property is
assigned to one after payment to the others, judgment has the effect of vesting in
the party making payment the whole of the real estate free from any interest of
the other parties. If the property is sold and proceeds divided, judgment has the
effect of vesting the property or portion sold in the purchaser free from any
interest of the parties to the action. 785Judgment may include recovery from the
other of just share of rents and profits received by the other from the real estate
in question786 and costs equitably apportioned among the parties. 787
DISTINGUISHING BETWEEN ORDER OF PARTITION AND JUDGMENT OF

PARTITION
The Order of Partition finding that plaintiff is entitled to partition, and after which,
if the parties agree, they may partition subject to confirmation by the court, while
Judgment of Partition is the judgment rendered pursuant to the commissioner’s
report after it is accepted by the court. BOTH THOUGH ARE APPEALABLE
780
781
782
783
784
785
786
787
RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER
WHAT IS FORCIBLE ENTRY
An action brought when a person is deprived of possession of land/building by

FORCE, INTIMIDATION, THREAT, STRATEGY, OR STEALTH.
WHAT IS UNLAWFUL DETAINER
An action brought by a lessor, vendor, vendee or other person against whom

possession of land/building is unlawfully withheld after expiration or termination
of the right to hold possession, by virtue of a contract, express or unpaid. Such
action must be brought within one year after withholding such possession. Also
known as an accion interdictal which seeks to recover possession de facto or
physical, actual or material possession.
Note that it is the character or nature of the defendant’s possession which will
determine which of the two actions is appropriate.
UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION INTERDICTAL
DISTINGUISHED
From Accion Publiciana which is a plenary action to recover right of possession

that is brought after one year from accrual of the cause of action in a Regional
Trial Court and Accion Reivindicatoria which is an action to recover ownership,
including possession.
Note: In addition to restitution of possession, damages and costs may also be

recovered.788
WHAT IS REQUIRED FOR THE ACTION TO BE FILED
1. In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed

against lessee only after demand to pay or comply with the conditions of the
lease and to vacate is made upon the lessee, or by serving written notice of such
demand upon the person found within the premises, or by posting such notice on
the premises if no person is found thereon and the lessee fails to comply within
15 days in the case of land or 5 days in case of building. 789
1.1 If action is terminate the lease due to the expiration of its term, demand is
not a prerequisite.790
2. No demand is required in Forcible Entry cases.
WHEN, WHERE FILED AND NATURE OF PROCEEDINGS
Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from
date of actual entry or date of last demand before the Municipal Trial Court and
shall be covered by the Rules on Summary Procedure, irrespective of the
amount of damages or unpaid rentals, unless they are covered by agricultural
tenancy laws or otherwise provided by law.791
PROCEDURE TO BE FOLLOWED
1. The only allowable pleadings are the complaint, compulsory counterclaim

and cross-claim pleaded in the answers and answers thereto. All pleadings are to
be verified.792
2. Upon filing of the complaint, the court may, from an examination of the
allegations in the complaint and such evidence attached thereto, dismiss the
complaint on any of the grounds for a motion to dismiss which are apparent
therein. If not dismissed, it shall proceed to issue summons. 793
3. If summons is issued, the defendant shall file his answer within 10 days
from receipt, serving a copy thereof to the plaintiff. Affirmative or negative
defenses not pleaded are deemed waived, except lack of jurisdiction over the
subject matter. Crossclaims or counterclaims not asserted are barred. If the
788
789
790
Lanuza v Munoz, 429 SCRA 562
791
792
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
793
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
answer contains crossclaims or counterclaims, answers thereto are to be filed
within 10 days from service of the answer in which they are pleaded. 794
4. Failure to answer the complaint within the period above provided, the
court, motu proprio, or on motion of the plaintiff, shall render judgment as may be
prayed for therein: Provided, however, That the court may in its discretion reduce
the amount of damages and attorney’s fees claimed for being excessive or
otherwise unconscionable. This is without prejudice to the applicability of Section
3, Rule 9 of the Rules of Court, if there are two or more defendants. 795
5. A preliminary conference is then scheduled not later than 30 days after the
last answer is filed. The provision of Rule 18 on pre-trial shall be applicable to the
preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be

a cause for the dismissal of his complaint. The defendant who appears in the
absence of the plaintiff shall be entitled to judgment on his counterclaim in
accordance with Section 6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to

judgment in accordance with Section 6 hereof. This Rule shall not apply where
one of two or more defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary conference.
No postponement shall be granted except for highly meritorious grounds

and without prejudice to sanctions which the court may deem to impose. 796
6. Within 5 days after the termination of the preliminary conference, an order

shall be issued by the court stating the following matters: (a) Whether the parties
have arrived at an amicable settlement, and if so, the terms thereof (b)The
stipulations or admissions entered into by the parties (c) Whether, on the basis
of the pleadings and the stipulations and admissions made by the parties,
judgment may be rendered without the need of further proceedings, in which
event the judgment shall be rendered within thirty (30) days from issuance of the
order (d) A clear specification of material facts which remain controverted; and (e)
Such other matters intended to expedite the disposition of the case. 797
7. Within 10 days from receipt of the order, the parties shall submit the
affidavits of their witnesses, evidences and position papers setting forth the law
and the facts relied upon.798 The affidavits submitted shall only state the facts of
direct personal knowledge of the affiant which are admissible in evidence and
must indicate their competence to testify. A violation may subject the party or
counsel to disciplinary action and will be cause to expunge the inadmissible
affidavit or portion thereof from the record. 799
8. The following petitions, motions, or pleadings are PROHIBITED and shall

not be allowed to be filed:
(a) Motion to dismiss the complaint except on the ground of lack of

jurisdiction over the subject matter, or failure to comply with the preceding section
pertaining to referral to the Lupon for conciliation. The case may then be
794
795
796
797
798
799
dismissed WITHOUT PREJUDICE and may be revived upon showing of
compliance.800 The filing of a motion to dismiss after an answer is filed does not
violate the rules. What is proscribed is a motion to dismiss that stops the running
of the period for the filing of an answer and cause undue delay. 801
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for

reopening of trial;
(e) Motion for extension of time to file pleadings, affidavits or any other
paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any

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

by the court upon motion presented within 5 days from the filing of the complaint
to restore him in possession, which should be decided by the court within 30
days from filing thereof803 AND upon motion of the plaintiff, within 10 days from
perfection of an appeal to the Regional Trial Court to restore him in possession if
the court is satisfied that the appeal of the defendant is FRIVOLOUS or
DILATORY, or that his (plaintiff’s) appeal is prima facie meritorious. 804
10. The court shall then render judgment within 30 days after receipt of the
last affidavits and position papers, or the expiration of the period for filing the
same.
However, should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for the
rendition of the judgment.805
800
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
801
Heirs of Olivas v Flor, 161 SCRA 393
802
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
803
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
804
805
Supra, Section 11, Rule 70, Article
11. Should the defense of OWNERSHIP be raised, the court shall only
consider the same if the issue of possession cannot be resolved without deciding
the issue of ownership. It shall thus be resolved only to determine possession
and any judgment shall be conclusive only on possession and shall not be a bar
to another action between the parties respecting the title to the land or building 806
12. The judgment to be rendered by the court in favor of the plaintiff shall
include restitution of the premises, the sum justly due as arrears of rent or as
reasonable compensation for the use of the premises, attorney’s fees and costs.
If the allegations are not true, it shall render judgment for the defendant for
recovery of cost. If a counterclaim is established, the court shall render judgment
for the sum found in arrears from either party and award costs as justice
requires.807 The judgment is APPEALABLE to the appropriate Regional Trial
Court, which shall decide the case on the basis of the entire record of the
proceedings in the court of origin and such memoranda or brief as may be
submitted or required808
Note the ruling in the case of Azcuna Jr. vs. CA, GR No. 116665, March 20,
1996 allowing recovery of liquidated damages.
13. If judgment is rendered against the defendant, the execution shall issue
immediately upon motion, unless an appeal has been perfected AND the
defendant to stay execution files a sufficient supersedeas bond if there are
rentals in arrears809, approved by the court and executed in favor of the
defendant to pay rents, damages and costs accruing down to the time of the
judgment appealed from, AND UNLESS, during the pendency of the appeal, he
deposits with the appellate court the amount of the rent due from time to time
under the contract or the reasonable value for use and occupation adjudged by
the court on or before the 10th day of each succeeding month or period.810
Note that there is no necessity for a motion for the court to fix the supersedeas
bond as the amount of the same can be ascertained from the judgment. Also, if
the records of the case have already been transmitted to the appellate court, the
supersedeas bond may be filed with the appellate court. 811
14. The judgment of the appellate court shall however be subject to immediate
execution without prejudice to a further appeal 812
SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW
All DISPUTES require conciliation except in the following: (1) where one party is
the government or any subdivision or instrumentality thereof (2) where one party
is a public officer or employee, and the dispute relates to the performance of his
official functions (3) offenses punishable by imprisonment exceeding 1 year or a
fine exceeding P 5000.00 (4) offenses where there is no private offended party
(5) where the dispute is brought by or against a corporation, partnership or
juridical entity (6) where the dispute involves real properties located in different
cities or municipalities UNLESS the parties agree to submit their differences to
amicable settlement by an appropriate lupon (7) where dispute involves parties
806
807
808
809
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
810
811
Chua v Court of Appeals, 286 SCRA 437
812
who actually reside in barangays of different cities or municipalities, EXCEPT
when the barangays actually adjoin each other and the parties agree to submit
their differences to amicable settlement by an appropriate lupon (8) such other
classes of disputes which the President may determine in the interest of justice
or upon recommendation by the Secretary of Justice (Section 408, PD 1508). (9)
disputes arising from the implementation of the CARP (10) Employer-Employee
disputes (11) action to annul a judgment upon a compromise. Note however that
while no petition, complaint, action or proceeding within the authority of the lupon
shall be filed directly with the court or any government office for adjudication
UNLESS there has been a confrontation before the lupon chairman or pangkat,
and that no conciliation or settlement has been reached as certified by the lupon
secretary or pangkat secretary, or unless the settlement has been repudiated
within 10 days from its date by a statement sworn before the punong barangay to
the effect that his consent is vitiated by fraud violence or intimidation ( Section
418, PD 1508), the following cases may be filed directly: (1) accused in under
detention (2) person has otherwise been deprived of personal liberty calling for
habeas corpus proceedings (3) when action is coupled with a provisional remedy
(4) where action may otherwise be barred by prescription (Section 412, PD 1508)
The proper VENUE for conciliation is as follows: (1) if between persons actually
residing in the same barangay-before the lupon of the said barangay (2) if
between actual residents of different barangays within the same city of
municipality- before the lupon where the respondent resides, if there be several
respondents- before the lupon where anyone of them resides at the election of
the complainant (3) if involving real property or any interest therein- the barangay
lupon where the property or larger portion is located (4) if arising in the workplace
where the contending parties are employed or at the institution where such
parties are enrolled for study- before the lupon of the barangay where the
workplace or institution is located. Any OBJECTIONS TO VENUE shall be raised
before the Punong Barangay, otherwise they are waived. Legal questions may be
submitted to the Secretary of Justice or his duly designated representative whose
ruling thereon shall be binding.
The procedure for settlement is (1) initiation of complaint, orally or in writing, to

the lupon chairman of the barangay (2) mediation by lupon chairman on the next
working day from receipt of the complaint, failing in which within 15 days from the
first meeting, he shall forthwith set a date for the constitution of the pangkat (3)
the pangkat shall convene not later than 3 days from constitution to hear the
parties and explore the possibility of an amicable settlement within 15 days from
the day it convenes, which period is extendible for another 15 days, except in
clearly meritorious cases. Note however, that while prescription does not run
upon filing of the complaint and shall resume only upon receipt of the complaint
or certificate of repudiation, or certification to file action, the interruption shall not
exceed 60 days from filing of the complaint with the punong barangay. (Section
410, PD 1508)
The FORM of the amicable settlement shall be in writing, in a language/dialect

known to the parties, signed by them and attested by the lupon/pangkat
chairman (Section 411, PD 1508). This shall have the force and effect of a final
judgment of a court upon expiration of 10 days from date thereof unless
repudiation has been made or a petition to nullify the award has been filed before
the proper court. This does not apply to cases already pending but subsequently
referred to the lupon for amicable settlement under the last paragraph of Section
408,as the same is submitted back to the court to serve as basis for rendition of
judgment. (Section 416, PD 1508). The award or settlement may be enforced by
execution by the lupon within 6 months from the date of the settlement. After the
lapse of the said period, by action in the appropriate city of municipal court.
(Section 417, PD 1508)
Note however that if a settlement is not complied with, the injured party may
bring an action against the offending party to recover the original amount of his
claim, thereby rescinding the compromise under Article 2041 of the Civil Code
which was held to qualify Article 2037 of the Civil Code as to the effect of a
compromise being considered as constituting res judicata. 813
REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991

PROVIDING FOR THE REVISED RULE ON SUMMARY PROCEDURE FOR
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg.

129) and to achieve an expeditious and inexpensive determination of the cases
referred to herein, the Court Resolved to promulgate the following Revised Rule
on Summary Procedure:
APPLICABILITY
SECTION 1. Scope: - This rule shall govern the summary procedure in the
Metropolitan Trial Courts in Cities, the Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount
of damages or unpaid rentals sought to be recovered. Where attorney’s fees are
awarded, the same shall not exceed twenty thousand pesos (P20,000).
(2) All other cases, except probate proceedings, where the total amount of
plaintiff’s claim does not exceed one hundred thousand pesos (P100,000) or, two
hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest
and costs. (As amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this
amended took effect on November 25, 2002)
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
813
Chavez v Court of Appeals, GR 159411, March 18, 2005
(4) Violations of Batas Pambansa Blg 22814
(5) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not
exceeding one thousand pesos (P1,000), or both, irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising therefrom:
Provided, however, That in offenses involving damage to property through
criminal negligence, this Rule shall govern where the imposable fine does not
exceed ten thousand pesos (P10,000).
This rule shall not apply to a civil case where the plaintiff’s cause of action
is pleaded in the same complaint with another cause of action subject to the
ordinary procedure; nor to a criminal case where the offense charged is
necessarily related to another criminal case subject to ordinary procedure.
SEC. 2. Determination of applicability. – Upon the filing of a civil or

criminal action, the court shall issue an order declaring whether or not the case
shall be governed by this Rule.
A patently erroneous determination to avoid the application of the Rule of

Summary Procedure is a ground for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings. –
A. Pleadings, allowed. – The only pleadings allowed to be filed are the

complaints, compulsory counterclaims and cross-claims pleaded in the answer,
and the answers thereto.
B. Verification. – All pleadings shall be verified.
SEC. A. Duty of court. – After the court determines that the case falls
under summary procedure, it may, from an examination of the allegations therein
and such evidence as may be attached thereto, dismiss the case outright on any
of the grounds apparent therefrom for the dismissal of a civil action.
If no ground for dismissal is found, it shall forthwith issue summons which

shall state that the summary procedure under this Rule shall apply.
NOTE: That any of the grounds for dismissal under Rule 16 apply although no
motion to dismiss can be filed except on the grounds of lack of jurisdiction and
non-compliance with the requirement on conciliation.
NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to
the filing of an answer but a dismissal grounded on any of the causes stated in
Rule 16 can only be effected prior to the issuance of the court of summons and
not after an answer has been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA
393)
SEC. 5. Answer. – Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed
waived, except for lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be considered barred.
814
A.M. 00-11-01-SC, April 15, 2003
The answer to counterclaims or cross-claims shall be filed and served within ten
(10) days from service of the answer in which they are pleaded.
SEC. 6. Effect of failure to answer. – Should the defendant fail to answer

the complaint within the period above provided, the court, motu proprio, or on
motion of the plaintiff, shall render judgment as may be prayed for therein:
Provided, however, That the court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or otherwise
unconscionable. This is without prejudice to the applicability of Section 4, Rule 18
of the Rules of Court, if there are two or more defendants.
NOTE: Rendition by the court of judgment on account of failure to file an answer

or to appear during the preliminary conference may not require a motion (Sordan
vs. De Guzman, A.M. No. MTJ-00-1296, October 5, 2000)
SEC. 7. Preliminary conference; appearance of parties. – Not later than

thirty (30) days after the last answer is filed, a preliminary conference shall be
held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be

a cause for the dismissal of his complaint. The defendant who appears in the
absence of the plaintiff shall be entitled to judgment on his counterclaim in
accordance with Section 6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to

judgment in accordance with Section 6 hereof. This Rule shall not apply where
one of two or more defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary conference.
SEC. 8. Record of preliminary conference. – Within five (5) days after the
termination of the preliminary conference, the court shall issue an order stating
the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so,
the terms thereof;
(b) The stipulations or admissions entered into by the parties;
(c) Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without the need of
further proceedings, in which event the judgment shall be rendered within thirty
(30) days from issuance of the order;
(d) A clear specification of material facts which remain controverted; and
(e) Such other matters intended to expedite the disposition of the case.
SEC. 9. Submission of affidavits and position papers. – Within ten (10)

days from receipt of the order mentioned in the next preceding section, the
parties shall submit the affidavits of their witnesses and other evidence on the
factual issues defined in the order, together with their position papers setting forth
the law and the facts relied upon by them.
SEC. 10. Rendition of judgment. – Within thirty (30) days after receipt of
the last affidavits and position papers, or the expiration of the period for filing the
same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for the
rendition of the judgment.
NOTE: That hearings are not necessary unless for the purpose of clarifying
certain material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. – The filing of criminal cases falling within the
scope of this Rule shall be either by complaint or by information; Provided,
however, That in Metropolitan Manila and in Chartered Cities, such cases shall
be commenced only by information, except when the offense cannot be
prosecuted de officio.
The complaint or information shall be accompanied by the affidavits of the

complainant and of his witnesses in such number of copies as there are accused
plus two (2) copies of the court’s files. If this requirement is not complied with
within five (5) days from date of filing, the case may be dismissed.
Sec. 12 Duty of court. –
(a) If commenced by complaint. – On the basis of the complaint and the

affidavits and other evidence accompanying the same, the court may dismiss the
case outright for being patently without basis or merit and order the release of the
accused if in custody.
(b) If commenced by information. – When the case is commenced by
information, or is not dismissed pursuant to the next preceding paragraph, the
court shall issue an order which, together with copies of the affidavits and other
evidence submitted by the prosecution, shall require the accused to submit his
counter-affidavit and the affidavits of his witnesses as well as any evidence in his
behalf, serving copies thereof on the complainant or prosecutor not later than ten
(10) days from receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the defense.
Sec. 13 Arraignment and trial. – Should the court, upon a consideration of

the complaint or information and the affidavits submitted by both parties, find no
cause or ground to hold the accused for trial, it shall order the dismissal of the
case; otherwise, the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately

arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.
Sec. 14 Preliminary conference. – Before conducting the trial, the court
shall call the parties to a preliminary conference during which a stipulation of
facts may be entered into, or the propriety of allowing the accused to enter a plea
of guilty to a lesser offense may be considered, or such other matters may be
taken up to clarify the issues and to ensure a speedy disposition of the case.
However, no admission by the accused shall be used against him unless reduced
to writing and signed by the accused and his counsel. A refusal or failure to
stipulate shall not prejudice the accused.
Sec. 15 Procedure of trial. – At the trial, the affidavits submitted by the

parties shall constitute the direct testimonies of the witnesses who executed the
same. Witnesses who testified may be subjected to cross-examination, redirect
or re-cross-examination. Should the affiant fail to testify, his affidavit shall not be
considered as competent evidence for the party presenting the affidavit, but the
adverse party may utilize the same for any admissible purpose.
Except on rebuttal or surrebuttal, no witness shall be allowed to testify

unless his affidavit was previously submitted to the court in accordance with
Section 12 hereof.
However, should a party desire to present additional affidavits or counter-

affidavits as part of his direct evidence, he shall so manifest during the
preliminary conference, stating the purpose thereof. If allowed by the court, the
additional affidavits of the prosecution or the counter-affidavits of the defense
shall be submitted to the court and served on the adverse party not later than
three (3) days after the termination of the preliminary conference. If the
additional affidavits are presented by the prosecution, the accused may file his
counter-affidavits and serve the same on the prosecution within three (3) days
from such service.
Sec. 16. Arrest of accused. – The court shall not order the arrest of the
accused except for failure to appear whenever required. Release of the person
arrested shall either be on bail or on recognizance by a responsible citizen
acceptable to the court.
Sec. 17 Judgment. – Where a trial has been conducted, the court shall
promulgate the judgment not later than thirty (30) days after the termination of
trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. – Cases requiring referral to the Lupon for

conciliation under the provisions of Presidential Decree No. 1508 where there is
no showing of compliance with such requirement, shall be dismissed without
prejudice, and may be revived only after such requirement shall have been
complied with. This provision shall not apply to criminal cases where the accused
was arrested without a warrant.
SEC. 19. Prohibited pleadings and motions. – The following pleadings,

motions, or petitions shall not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or

information except on the ground of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for

reopening of trial;
NOTES: A motion for reconsideration can be filed when the case is already
pending before the appellate court. (Jakihaca vs.Aquino, 181 SCRA 67). A
motion for reconsideration of rulings or pertaining to other incidents, NOT OF
THE JUDGMENT, is allowed ( Lucas vs. Fabros, 324 SCRA 1)
(e) Motion for extension of time to file pleadings, affidavits or any other
paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any

interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be allowed.
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. – The affidavits required to be submitted under this

Rule shall state only facts of direct personal knowledge of the affiants which are
admissible in evidence, and shall show their competence to testify to the matters
stated therein.
A violation of this requirement may subject the party or the counsel who
submits the same to disciplinary action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the record.
SEC. 21. Appeal. – The judgment or final order shall be appealable to the
appropriate regional trial court which shall decide the same in accordance with
Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in
civil cases governed by this Rule, including forcible entry and unlawful detainer,
shall be immediately executory, without prejudice to a further appeal that may be
taken therefrom.
NOTE: That immediate execution requires proof that the losing party has been
served with notice of judgment (Dy vs. CA, 191 SCRA 585) and that notice of the
motion for execution to the adverse party is required ( Limpo vs. CA, 333 SCRA
575)
SEC. 22. Applicability of the regular rules. – The regular procedure

prescribed in the Rules of Court shall apply to the special cases herein provided
for in a suppletory capacity insofar as they are not inconsistent herewith.
SEC. 23. Effectivity. – This revised Rule on Summary Procedure shall be
effective on November 15, 1991.
RULE 71 – CONTEMPT
WHAT IS CONTEMPT
Willful disobedience or open disrespect of the orders, authority, or dignity of a

court or judge acting in judicial capacity by disruptive language or conduct or by
failure to obey the orders of the court
KINDS OF CONTEMPT
1. DIRECT CONTEMPT – consists of misbehaviour in the presence of or so

near a court as to obstruct or interfere with the proceedings before the same, it
includes, disrespect, offensive personalities against others, refusal to be sworn or
answer as a witness, or to subscribe to an affidavit/deposition when lawfully
required to do so.
This kind of contempt may be SUMMARILY ADJUDGED and be punished by a

fine not exceeding P 2,000.00 or imprisonment of not exceeding 10 days or
BOTH if it be by a Regional Trial Court or a fine not exceeding P 200.00 or
imprisonment not exceeding 1 day or BOTH if it be by a Municipal Trial Court.
The remedy therefrom is certiorari/ prohibition, in which case the judgment is

suspended pending the petition provided the petitioner files a bond fixed by the
court which rendered the judgment and conditioned that he will abide by and
perform the judgment should the petition be decided against him. 815
1.1 It is direct contempt if a pleading contains derogatory, offensive or

malicious statements against a particular judge when submitted in the same
court where the judge is presiding. If submitted elsewhere, it is indirect
contempt.816
2. INDIRECT CONTEMPT – consists of (a) Misbehavior of an officer of a

court in the performance of his official duties or in his official transactions; (b)
Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being dispossessed or ejected from
any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such real
property for the purpose of executing acts of ownership or possession, or in any
manner disturbs the possession given to the person adjudged to be entitled
thereto; (c) Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under Section 1 of this
Rule; (d) Any improper conduct tending, directly or indirectly to impede, obstruct,
or degrade the administration of justice; (e) Assuming to be an attorney or an
officer of a court, and acting as such without authority; (f) Failure to obey a
subpoena duly served; (g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an order or process of a court
held by him.
815
816
Ang v Castro, 136 SCRA 453
But nothing in this section shall be so construed as to prevent the court from
issuing process to bring the respondent into court, or from holding him in custody
pending such proceedings.817
2.1 This kind of contempt may be initiated motu propio by the court against
which the contempt was committed by an order or any formal charge requiring
the respondent to show cause why he should not be punished for contempt. In
other cases, it shall be commenced by verified petition with supporting particulars
and certified true copies of documents or papers involved therein, and upon
FULL COMPLIANCE WITH REQUIREMENTS FOR FILING INITIATORY
PLEADINGS in the court concerned. If the charges are related to the principal
action pending before the court, the petition shall so allege such fact but it shall
be DOCKETED, HEARD AND DECIDED SEPARATELY, unless the court in its
discretion orders consolidation of the charge and principal action for joint hearing
and decision.818
2.2 The charge shall be filed in the Regional Trial Court if the contempt is
committed against it or a court of equal or higher rank or against an officer
appointed by it. If against a lower court, it may be filed in the Regional Trial Court
in the place where the lower court sits or in such lower court, subject to appeal to
the Regional Trial Court.819
This kind of contempt is punishable by a fine not exceeding P 30,000.00 or

imprisonment not exceeding 6 months or both, if committed against a Regional
Trial Court. If against a Municipal Trial Court, by a fine not exceeding P 5,000.00
or imprisonment not exceeding 1 month. If it consists in a violation of a writ of
injunction, TRO or status quo order, he may also be ordered to make complete
restitution. A writ of execution may be issued to enforce a fine. 820 If it consists in
refusal or omission to do an act within his power to perform, he may be
imprisoned by order of the court until it is performed. 821
2.3 A judgment for indirect contempt is appealable to the Regional Trial Court,
but execution shall not be suspended without the filing of a bond. 822
2.4 An order dismissing a contempt charge or exoneration from such, is not

appealable.823
OTHERS
1. If no hearings are held forthwith and the respondent has been taken into
custody, he may be released upon payment of a bond, but if he fails to appear on
the hearing of the charge, he may be ordered arrested and the bond forfeited. 824
2. If already imprisoned, the court may discharge the respondent if public

interest will not be prejudiced by the release. 825
APPLICABILITY OF THE RULE
817
818
819
820
821
822
823
In Re, Mison, Jr, 33 SCRA 30
824
825
The rules apply to persons, entities, bodies or agencies exercising quasi-judicial
powers or shall have suppletory effect to their rules. The RTC of the place where
the contempt is committed shall have jurisdiction.826
DEFINING CRIMINAL AND CIVIL CONTEMPT
It is criminal contempt when the purpose is to vindicate the authority of the court
and protect its outraged dignity. It is civil contempt when there is failure to do
something ordered by the court to be done for the benefit of another party. 827
In fact, it has been declared that the motion for extension of time within which a
party may plead is not a litigated motion where notice to the adverse party is
necessary to afford the latter an opportunity to resist the application, but an ex
parte motion made to the court in behalf of one or the other of the parties to the
action, in the absence and usually without the knowledge of the other party or
parties. (Commercial Union Assurance Company Limited, et. al. vs. Lepanto
Consolidated Mining Company, et. al., L-43342. October 30, 1978, 86 SCRA 79,
95-96; Amante vs. Sunga, et. al., L-40491, May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be extended, a request

for extension of time may be filed ex parte and granted without the usual
formalities applicable to motions in general. (Moya vs. Barton, 76 Phil. 831)
826
827
Yasay v Recto, 313 SCRA 739

Civil Procedure 2005

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Civil Procedure 2005

Transféré par

Droits d'auteur :

Formats disponibles

LECTURE NOTES ON CIVIL PROCEDURE

Revised August 2005

WHAT IS CIVIL PROCEDURE

It is the procedure governing the filing, processing and adjudication of civil

Any discussion of procedural rules should always be preceded by a discussion of

Simply defined JURISDICTION refers to the power and authority of a court or

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

2. It must also have jurisdiction over the subject matter in controversy

2.1 Determined by allegations in the complaint

2.1.d It cannot be made to depend on the defenses interposed in an answer or

DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY

1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION – it is

2. AS TO THE NATURE OF THE CAUSE OR THE ACTION – it is Original,

3. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION – it is

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

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

DOCTRINE OF PRIMARY JURISDICTION

That which vests in an administrative tribunal the jurisdiction to determine a

WHEN CAN THE ABSENCE OF JURISDICTION BE QUESTIONED

The general rule is jurisdiction may be questioned at any stage of the

PROBLEM AREAS AFFECTING JURISDICTION

1. ACTIONS INCAPABLE OF PECUNIARY ESTIMATION

2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE

4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT THOSE FOR

5. IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER FILING –The

LEVELS OF SUBJECT MATTER JURISDICTION

1. JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases of which it cannot be

The appellate jurisdiction in civil cases of the Supreme Court as defined in

2. JURISDICTION OF THE COURT OF APPEALS

The appellate jurisdiction of the Court of Appeals, which is exclusive, is

3. JURISDICTION OF REGIONAL TRIAL COURTS

The appellate jurisdiction of the RTCs is over all cases decided by

The Supreme Court has however designated certain branches of the

4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL

RULE I GENERAL PROVISIONS

1.1 A Civil Actions may be:

1.1.b IN PERSONAM- brought against a person based on personal liability to

1.1.d QUASI IN REM – names a person as a defendant but its object is to

1.2 Distinguishing it from other kinds of actions:

1.2.b SPECIAL PROCEEDING – remedy by which a party seeks to establish a

1.3 DISTINCTIONS BETWEEN A CIVIL ACTION AND SPECIAL

CIVIL ACTION SPECIAL PROCEEDINGS

Adversarial-between plaintiff and not necessarily as it may involve only 1

formal demand of a right by one declaration of a status, right or a parti-

WHEN AN ACTION IS COMMENCED

An action is commenced upon the filing of the original complaint in court. If an

1. Note though that FILING IS DEEMED DONE ONLY UPON PAYMENT OF

EXCEPT – if the plaintiff is authorized to litigate as a pauper litigant – he is

2. Note that the commencement of the action interrupts the period of

HOW SHOULD THE RULES BE CONSTRUED

The rules shall be construed liberally in order to promote their objective of

1. Liberal construction is the controlling principle to effect substantial justice.

2. Liberal construction of the rules should be made by the courts in cases:

RULE 2 CAUSE OF ACTION

WHAT ARE THE REQUISITES OF A CAUSE OF ACTION

DISTINGUISHING IT FROM RIGHT OF ACTION

RIGHT OF ACTION is the right to commence and maintain an action, it is a

HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

2.1 In an action EX DELICTO, the singleness of a cause of action lies in the

2.2 In an action EX CONTRACTU, the rules are as follows:

IF A PARTY HAS SEVERAL CAUSES OF ACTION

Upon motion of a party or on the initiative of the court, a misjoined cause of

RULE 3 PARTIES TO CIVIL ACTIONS