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PRELIMINARIES
1.2 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.2
1.3 The validity of a judgment or order of a court or quasi-
judicial tribunal which has become final and executory
may be attacked when the records show that it lacked
jurisdiction to render the judgment - a void judgment
may be assailed or impugned at any time either
directly or collaterally by means of a petition filed in
1
Conlu v. Court of Appeals, 106 Phil 940
2
Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People,
202 SCRA 62
1
the same or separate case, or by resisting such
judgment in any action or proceeding wherein it is
invoked. In fact, even the testimony in a case where
the proceedings had been nullified for lack of
jurisdiction is inadmissible as evidence. 3
2.2 The court actually does not have jurisdiction, but the
law for reasons of equity, steps in to gag the negligent
party and prevents him from raising its voice about
lack of jurisdiction. It does so not because the Court
has acquired jurisdiction but because of fault or
negligence of a party now estops him from raising the
question of lack of jurisdiction. 5
2
power of a court to hear and determine cases of a general class to
which the proceedings in question belong.8
8
Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1
9
De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA
157
10
Bulao v. Court of Appeals, 218 SCRA 321
11
Ratilla v. Tapucar, 75 SCRA 64
12
Mercado v. Ubay, 187 SCRA 719
13
Section 3, Rule 70, 1997 Rules of Civil Procedure
14
Concepcion v. CFI of Bulacan, 119 SCRA 222
3
2.7 Determined by the law in force at the time of the
commencement of the action. Jurisdiction as used in
the Constitution and statutes means jurisdiction over
the subject matter15 unless qualified to mean another
kind of jurisdiction. This jurisdiction refers to the
jurisdiction of a court over a general class of cases or
the power to try and decide the class of litigation to
which the particular case belongs. 16 Jurisdiction is
conferred by law, where there is none; no agreement of
the parties can provide one.17
4
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.
23
Gochan v. Gochan, 372 SCRA 256
24
Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999
25
Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.
5
necessarily docketed if the appropriate fees are not
paid.
2.5 If the 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 otherwise the defendant must
move to dismiss the complaint on the ground of lack of
jurisdiction, if he does not, he may be considered to be
in estoppel.28
2.7 When the docket fees for the main action are paid but
those for related damages alleged but not specified are
not paid, the court is not prevented from proceeding
with the complaint, the 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.30
6
denying a motion to dismiss on the ground of lack of
jurisdiction. All proceedings in said court are null and
void.31
7
serious and important reasons therefor exist.33 Neither
does concurrence of jurisdiction grant any party
seeking any of the extra-ordinary writs the absolute
freedom to file the petition with the court of his
choice.34
8
d) all cases in which only an error or question of law is
involved.
9
a) All civil actions in which the subject of the litigation is
incapable of pecuniary estimation;
10
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 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:
c) 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.
11
The MTCs may however be assigned by the Supreme Court to hear
and determine certain cadastral cases and petitions for habeas
corpus.
37
Section 1, Rule 1, 1997 Rules of Civil Procedure
38
Supra, Section 2, Rule 1
39
Supra, Section 3, Rule 1
40
Domagas v. Jensen, 448 SCRA 663
41
Ching v Court of Appeals, 181 SCRA 9
42
Ramos v. Ramos, 399 SCRA 43
12
between the particular parties to the proceedings
and do not cut off the rights and interests of all
possible claimants. Examples are actions for
partition, attachment or foreclosure of mortgages.
13
3.5 An action in personam is not necessarily a personal
action. Nor is a real action necessarily an action in
rem. An in personam or an in rem action is a
classification of actions according to the object of the
action. A personal and real action is a classification
according to foundation. It is in rem when directed
against the whole world. For instance, an action to
recover, title or possession of real property is a real
action, but it is an action in personam. It is not
brought against the whole world but against the
person upon whom the claim is made.47
47
Republic v Court of Appeals, 315 SCRA 600
48
Supra,,Section 4, Rule 1
49
Nypes v. Court of Appeals, 478 SCRA 115
50
Magaspi v. Ramolete, 115 SCRA 193
14
1.1 An exception is when the plaintiff is authorized to
litigate as a pauper litigant as he is exempt from the
payment of filing fees.
51
Supra, Section 5, Rule 1
52
Cabrera v Tiano,8 SCRA 542
53
Supra,Section 6, Rule 1
54
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
55
Canton v City of Cebu, GR No. 152898, February 12, 2007
56
Vda De Toledo v Toleda, 417 SCRA 260
57
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
15
3. A party litigant should be given the fullest opportunity to
establish the merits of his complaint or his defense. He ought not
to lose life, liberty or honor or property on technicalities.
6. The rules and procedure laid down for the trial court and the
adjudication of cases are matters of public policy.
7. The Supreme Court has the power to suspend or set aside its
rules in the higher interest of justice. 64 Specifically, the reasons
that will warrant the suspension are: (a) the existence of special or
compelling reasons (b) the merits of the case (c) a cause not
entirely attributable to the fault or negligence of the party favored
by the suspension (d) a lack of showing that the review is frivolous
or dilatory, and (e) the other party will not be prejudiced thereby. 65
58
Alberto v Court of Appeals, 334 SCRA 756
59
Fulgencio v NLRC, 411 SCRA 69
60
El Reyno Homes v Ong, 397 SCRA 563
61
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
62
Republic v Hernandez, 253 SCRA 509
63
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
64
Fortica v Corona, GR No. 131457, April 24, 1998
65
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
16
RULE 2 CAUSE OF ACTION
Same Objective Test – if a party has only one objective in filing two
cases, there exists identity of causes of action and reliefs based on
the same objective standard.70
1. A party may not institute more than one suit for a single
cause of action.71
66
Supra, Section 1, Rule 2
67
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
68
Navao v CA, 251 SCRA 545
69
Equitable Bank v CA, 425 SCRA 544
70
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
71
Supra, Section 3, Rule 2
17
3. 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.72 This is also known as Splitting a
Cause of Action.
3.2 Note though that the rule does not confine itself to a
dismissal of the second action. As to which action is to
be dismissed would depend on judicial discretion and
attendant circumstances.
72
Supra, Section 4, Rule 2
73
Mariscal v. Court of Appeals, 311 SCRA 51
74
Joseph v Bautista, 170 SCRA 540
18
the vendee fail to pay two or more installments.
75
19
may be allowed in the RTC provided one of the causes
of action falls within its jurisdiction and venue lies
therein.
EFFECT OF MISJOINDER
80
Supra, Section 6, Rule 2
81
Supra,,Section 1, Rule 3
82
Supra, Section 6, Rule 6
83
Supra, Section 8, Rule 6
84
Supra, Section 11, Rule 6
20
the suit is to resist a claim (d) when there is a failure
to abide with what the law or contract provides.
21
WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE
PARTIES
PARTIES IN INTEREST
94
Balagtas v. Court of Appeals, 317 SCRA 69
95
Supra, Section 2, Rule 3
96
Gan Hock v. Court of Appeals, 197 SCRA 223
97
Lee v. Romillo, 161 SCRA 589
98
Samaniego v. Aguila, 334 SCRA 438
99
Philippine Trust Company v. Court of Appeals, 320 SCRA 719
22
Article 1311, NCC, unless it conveys a benefit to a
person not a party thereto (c) Actions under Articles
1313 and 1381, NCC when the contracts are entered
into in fraud of creditors. (d) Suits by corporations
must be in its name, not that of the stockholders or
members.
23
In other cases, locus standi is a party’s personal and
substantial interest in a case such that he has
sustained or will sustain a direct injury as a result of
the governmental act being challenged. It calls for
more than generalized grievance. The term “interest”
means a material interest, an interest in issue affected
by the decree, as distinguished from a mere interest in
the question involved or a mere incidental interest. 103
Unless a person’s constitutional rights are adversely
affected by the statute or ordinance, he has no legal
standing.
“In not a few cases, the Court has liberalized the locus standi
requirement when a petition raises an issue of transcendental
significance or paramount importance to the people. Recently,
after holding that the IBP had no locus standi to bring the suit, the
Court in IBP v. Zamora nevertheless entertained the Petition
therein. It noted that “the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.” 104
103
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
104
Velarde v. Social Justice Society, supra at note 22, citations omitted.
105
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August
1989, 176 SCRA 240, 251, citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
v. Tan, G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.
106
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing
Kilosbayan, Incorporated v. Guingona, Jr., 232 SCRA 110 (1994)
24
1. Indispensable Party is a party without whom no final
determination can be had of an action. 107 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.108
107
Supra, Section 7, Rule 3
108
Valenzuela v Court of Appeals, 363 SCRA 779
109
Domingo v Scheer, 421 SCRA 468
110
Lucman v Malawi, GR No. 159794, December 19, 2006
111
PNB v. Militar, 467 SCRA 377
112
Supra, Section 8, Rule 3
113
Samaniego v. Aguila, 334 SCRA 438
25
The following may sue in behalf of a real party in interest
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.115
114
Supra, Section 3, Rule 3
115
Article 1883, NCC
116
Supra, Section 4, Rule 3
117
Miranda v Besa, 435 SCRA 532
118
Articles 96 and 124, Family Code
119
Article 145, Family Code
120
Article 111, Family Code
121
Villaranda v Villaranda, 423 SCRA 571
122
Supra, Section 5, Rule 3
26
3.2 Note that the appointment of a guardian ad litem may
occur in the following: for minor heirs when
substituting for a deceased party123, incompetency or
incapacity of a party124, service of summons on a
minor or incompetent125, and when the best interest of
the child require it.126
JOINDER OF PARTIES
27
preservation of the country’s resources, their
generation as well as generations yet unborn to compel
the DENR Secretary to cancel all timber license
agreements and to cease and desist from receiving,
accepting, processing, renewing or approving new
timber license agreements130. The interest must be
common and not independent of each member of the
class and should not conflict with each other. For this
reason, owners of subdivision lots in a subdivision
cannot sue as a class because their interest is only in
their respective lots.131
5.4 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
7.2 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.134
130
Oposa v Factoran, 224 SCRA 792
131
Tuason v. Register of Deeds, 157 SCRA 613
132
Cadalin v POEA Administrator, 238 SCRA 721
133
Newsweek Inc. v. IAC, 142 SCRA 171
134
Supra, Section 2, Rule 17
28
1.1 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. 135
2.1 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.
29
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 admiralty while that against the
operator is based on contract. Another is an action for damages
arising from loss of goods due to a collision.
1.1 Once notice is given, the court shall order the legal
representative to appear and be substituted within 30
days from notice.
30
inform the court does not deprive it of jurisdiction. The
judgment may be enforced not only against the
defendants but also against the members of their
family, their relatives, or privies who derived their right
of possession from the deceased defendant.148
148
Florendo v. Coloma, 129 SCRA 304
149
San Juan v. Cruz, G.R. No. 167321, July 31, 2006
150
Lavina v. Court of Appeals, 171 SCRA 691
151
Lawas v Court of Appeals, 146 SCRA 173
152
Supra, Section 17, Rule 3
31
office or within the time granted by the court, and (d) notice of the
application to the other party.153
2. Hence, in case of the death of the obligor the rules 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 the estate.
If there is a deficiency, a money claim can be filed subsequently.
2. If the claim does not arise from a contract, like claims for
recovery, enforcement of a lien or torts, 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. 155
153
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
154
Supra, Section 20, Rule 3
155
Supra, Section 7, Rule 39
156
UST v Court of Appeals, GR No. 124250, October 18, 2004
157
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
32
5. If it is the plaintiff who dies, the rules are: (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.
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. 158
INDIGENT/PAUPER LITIGANT
158
Supra, Section 3 and 18, Rule 3
159
Supra, Section 19, Rule 3
160
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
161
Jocson v Court of Appeals, GR 88297, March 22, 1990
162
Supra, Section 21
33
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.
163
Section 19, Rule 141, Rules of Court
164
Supra, Section 22, Rule 3
165
NOcum v Tan, 470 SCRA 639
34
3. Venue establishes a relation between the plaintiff and
defendant, while jurisdiction establishes a relation between the
court and subject matter.
RULES ON VENUE
35
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.170
170
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
171
Supra, Section 3, Rule 4
172
Dilweg v Philipps, 12 SCRA 243
36
Supreme Court, Court of Appeals or the Regional Trial
Court of Manila.173
173
Supra, Section 7, Rule 66
174
Article 360, Revised Penal Code
175
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
176
Supra, Section 4, Rule 4
177
Sweet Lines v Teves, 83 SCRA 361
178
Philippine Bank of Communications v Lim, 455 SCRA 714
37
1. Venue may be questioned in (a) in a motion to dismiss 179, or
(b) in an answer by way of an affirmative defense 180. If it is not
questioned, it is deemed waived.
PLEADING DEFINED
2. 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 (b) Defenses of a
party are alleged in the answer to the pleading asserting a claim
against him (c) Reply to the answer184
179
Supra, Section 1 (c) ,Rule 16
180
Supra, Section 6, Rule 16
181
Supra, Section 8, Rule 40
182
Supra, Section 1, Rule 6
183
Santiago v. De Los Santos, 61 SCRA 146
184
Supra, Section 2, Rule 6
38
CONSTRUCTION OF PLEADINGS
2.2 The following are the kinds of defenses 190 that may be
interposed in an answer are:
185
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
186
Santiago v. De Los Santos, 61 SCRA 146
187
Supra, Section 3, Rule 6
188
Supra, Section 4, Rule 6
189
Naga Development Corporation v Court of Appeals, 41 SCRA 105
190
Supra, Section 5, Rule 6
191
Supra, Section 10, Rule 8
39
(b) 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.
2.4 Note that the rule that a defending party who sets up
an affirmative defense hypothetically 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.
40
non-forum shopping, while a permissive
counterclaim is an initiatory pleading.
41
annulment of title on the ground of fraud 199(c)
damages for usurpation of the produce in action to
quiet title200 (d) cost of improvements in an action for
recovery of ownership or possession201
42
party defendant for contribution, indemnity, subrogation or any
other relief in respect of his opponent’s claim.207
PARTS OF A PLEADING
1. The Caption sets forth the (a) Name of the court (b) Title of
the action, this includes an indication of the name of the parties,
who are required to be named in the original complaint/petition. In
subsequent pleadings, the name of the first party on each side is
sufficient with an appropriate indication when there are other
parties. (c) Docket Number , if one has already been assigned.210
207
Supra, Section 11, Rule 6
208
Supra, Section 13, Rule 6
209
Supra, Section 12, Rule 6
210
Supra, Section 1, Rule 7
43
1.1 In an appeal, the rules 211 requires all names to be
indicated in the Notice of Appeal and Record on Appeal
211
Supra, Sections 5 and 6, Rule 41
212
Lorbes v. Court of Appeals, 351 SCRA 716
213
UBS v. Court of Appeals, 332 SCRA 534
214
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241
44
3.2 Only the signature of either party operates to validly
convert a pleading from one that is unsigned to one
that is signed.215
45
Petition for relief from judgment / order 220 (c) Petition
for review221 (d) Appeal by certiorari 222 (e)Petition for
annulment of judgment 223 (f) Injunction224 (g)
Receivership225 (h) Support226 (i) 69) Certiorari,
Prohibition or Mandamus227 (j) Quo Warranto228 (k)
Expropriation229 (l) Forcible Entry / Detainer 230 (m)
Indirect Contempt 231(n) Petition for a writ of habeas
corpus, writ of amparo, writ of habeas data (o) Petition
for cancellation or correction of entries in the Civil
Registry (p) Petition for the constitution of a family
home (q) Petition for Declaration of Absolute Nullity of
Marriage, Annulment of a Voidable Marriage, Legal
Separation (r) Petition for Guardianship (s)
Applications for TRO or Injunction.
46
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
vexation caused the courts and parties-litigants by a
party who asks different courts to rule on the same or
substantially the same reliefs.234
234
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
235
TADI v Solilapsi, 394 SCRA 269
236
BA Savings Bank v Sia, 336 SCRA 484
237
Ruiz v Drilon, 209 SCRA 695
238
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
47
one cause of action or defense 239 (c) the signing by 1
spouse substantially complies as they have a common
interest in the property240 or is signed by husband
alone is substantial compliance as subject of case is
recovery of conjugal property241 (d) 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
certificate242
239
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners
Association, 411 SCRA 504
240
Dar v Alonso Legasto, 339 SCRA 306
241
Docena v Lapesura, 355 SCRA 658
242
Hamilton v Levy, 344 SCRA 821
243
National Steel Corporation v. Court of Appeals, 388 SCRA 85
244
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
245
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219
246
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
247
Robern Development Corporation v Quitain, 315 SCRA 150
248
Sy Chin v Court of Appeals, 345 SCRA 673
249
Mercury Drug Corporation v Libunao, 434 SCRA 404
250
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)
48
absence of the certification in the interest of
substantial justice.251
251
De Guia v. De Guia, 356 SCRA 287
252
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA
696, Sy v. Landbank, 336 SCRA 419, Shipside Incorporated v. Court of Appeals,352 SCRA 334,
Ateneo De Naga v. Manalo, 458 SCRA 325
253
Sevilleja v. Laggui, 362 SCRA 715
254
Roxas v. Court of Appeals,363 SCRA 207
49
b) A verification is required in complaints, initiatory
pleadings and some responsive pleadings, while a
certification is required only in complaints and
initiatory pleadings
255
Supra, Section 1, Rule 8
50
3. Laws may be pleaded only if the pleading is an
Answer.
51
3. Examples of conditions precedent are: (a) tender of payment
is required before consignation 258 (b) exhaustion of administrative
remedies before resort to judicial action (c) that earnest efforts at a
compromise have been exerted, the suit being one between
members of the same family (d) that prior resort to conciliation has
been undertaken to no avail
258
Article 1256, NCC
259
Supra, Section 1(j), Rule 16
260
Supra, Section 4, Rule 8
261
Supra, Section 5, Rule 8
52
1. It is sufficient that a general allegation of the existence of the
judgment is made, without setting forth matter showing
jurisdiction to render it.262
2.2 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.264 (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
53
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED
54
1.5 Exceptions to the rule that matters are admitted by
the failure to make a specific denial are: (a) the
amount of unliquidated damages 269 (b) conclusions
which are not required to be denied as only ultimate
facts must be alleged, and (c) non-material allegations
as only those that are material have to be denied.
269
Supra, Section 11, Rule 8
270
Supra, Section 12, Rule 8
271
Supra, Section 1, Rule 9
272
Supra, Section 2, Rule 9
273
Supra, Section 8, Rule 11
274
Supra, Section 9, Rule 11
275
Supra, Section 10, Rule 11
55
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO
ANSWER WITHIN THE TIME ALLOWED
276
Supra, Section 3, Rule 9
277
Supra, Section 3 (c), Rule 29
278
Supra, Section 5, Rule 29
279
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
280
Section 19 (h), 1991 Rules of Summary Procedure
281
Section 6, II, 1991 Rules of Summary Procedure
282
Monarch Insurance v. Court of Appeals, 333 SCRA 7
56
ONCE DECLARED IN DEFAULT
1. The court has two options, it: (a) can proceed to render
judgment granting the claimant such relief as his pleading may
warrant, unless, (b) 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.
2. The extent of the relief that may be awarded shall not exceed
the amount or be different in kind from that prayed for nor award
unliquidated damages.283
1.2 Motion for New Trial on the ground of FAME if the trial
court has rendered judgment but it has not yet
become final
283
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
284
Supra, Section 3 (a), Rule 9
285
Supra, Section 3 (c), Rule 9
286
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
57
as an error in the appeal. The non- filing of a motion to
set aside or for a new trial does not bar an appeal.
1.1 Regarding items (a) to (c), 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.291
287
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28,
2004
288
Supra, Rule 38
289
Supra, Rule 65
290
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
291
Supra, Section 3,(e), Rule 9
58
RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS
1.2 Note that the filing of a motion to dismiss does not bar
an amendment as it is not a responsive pleading and
does not preclude the right to the plaintiff to amend
his complaint.296
292
Supra, Section 1, Rule 10
293
Supra, Section 4, Rule 10
294
Supra, Section 2, Rule 10
295
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
296
Remington Industrial Sales v. Court of Appeals, 382 SCRA 499
297
Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416
59
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.298
298
Supra, Section 3, Rule 10
299
Supra, Section 2, Rule 8
300
Supra, Section 1, Rule 9
301
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
302
Siasoco v Court of Appeals, 303 SCRA 186
303
Bernardo v Court of Appeals, 263 SCRA 660
304
Supra, Section 5, Rule 10
60
prove that cause of action followed by an amendment
to conform to evidence, or (b) 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.
305
Supra, Section 4, Rule 129
306
Supra, Section 8, Rule 10
307
Supra, Section 7, Rule 10
308
Supra, Section 9, Rule 11 and Section 2, Rule 9
61
2. 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.309
309
Supra, Section 6, Rule 10
310
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
311
APT v Court of Appeals, 324 SCRA 533
312
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41
313
Supra, Section 1, Rule 11
314
Supra, Section 5, Rule 11
62
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.
The same period holds for answers to amended counter-claims,
cross claims, third party complaints and complaints in
intervention.315
REPLY
315
Supra, Section 3, Rule 11
316
Supra, Section 2, Rule 11, Section 128, Corporation Code
317
Supra, Section 7, Rule 11
318
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC
319
Supra, Section 4, Rule 11
320
Supra, Sections 8,9, and 10, Rule 11
63
1. It must be filed within 10 days from service of the pleading
responded to.321
321
Supra, Section 6, Rule 11
322
Supra, Section 10, Rule 6
323
Supra, Section 11, Rule 11
324
Supra, Section 8, Rule 66
325
Rabanal v Tugade, 383 SCRA 484
326
Supra, Section 1, Rule 12
327
Sabangan v Manila Railroad Company, 28 SCRA 772
64
WHEN SHOULD IT BE FILED
328
Supra, Section 2, Rule 12
329
Supra, Section 3, Rule 12
330
Supra, Section 6, Rule 12
331
Supra, Section 4, Rule 6
332
Supra, Section 3, Rule 17
333
Vda. De Quillosa v Salazar, 14 SCRA 656
65
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. 334
MODES OF FILING
334
Supra, Section 5, Rule 12
335
Supra, Section 1, Rule 13
336
Supra, Section 2, Rule 13
337
Supra, Section 3, Rule 13
338
Ansel v Aledo, 420 SCRA 645
339
Supra, Mintu v Court of Appeals, 53 SCRA 114
66
2. The papers that are to be filed or served upon affected
parties are judgments, resolutions, order, pleadings subsequent to
the complaint, written motions, notices, appearances, remand,
offer of judgment or similar papers.340
340
Supra, Section 4, Rule 13
341
Supra, Section 5, Rule 13
342
Supra, Section 6, Rule 13
343
Supra, Section 7, Rule 13
344
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
345
Supra, Section 9, Rule 13
346
Supra, Section 8, Rule 13
67
1. 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 1st notice of the postmaster, whichever date is
earlier, if undertaken by registered mail 347 (d) At the time of
delivery to the clerk of court, if undertaken by substituted service
347
Supra, Section 10, Rule 13
348
Supra, Section 11, Rule 13
349
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
350
Supra, Section 12, Rule 13
68
letter together of the sworn / certified copy of the notice given by
the postmaster to the addressee.351
1. It shall contain (a) the names of the parties (b) object of the
action or defense (c) description of the property.355
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
69
WHEN MAY IT BE CANCELLED
1. 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. 358
RULE 14 – SUMMONS
SUMMONS DEFINED
SIGNIFICANCE OF SUMMONS
70
3. 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. 366
71
prudent and diligent man to do, conveniently, what
the contract or duty requires to be done. One month
from issuance of summons can be considered as
reasonable. Several attempts (at least 3) at personal
service must be made, preferably on separate dates. In
addition the sheriff must cite why efforts were
unsuccessful.
374
Samartino v Raon, 383 SCRA 664
375
Supra, Section 17, Rule 14
376
Supra, Section 14, Rule 14
377
Supra, Section 15, Rule 14
378
Supra, Section 16, Rule 14
379
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
380
Cariaga v Malaya, 143 SCRA 441
72
located in the Philippines (d) When the defendant’s
property has been attached in the Philippines.381
73
he shall return the summons to the clerk of court who issued it
together with proof of service.390
RULE 15 – MOTIONS
DEFINED
74
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.398
4.2 The absence of the notice of hearing will not toll the
running of the reglementary period for appeal. 399 It is
considered a pro-forma motion.400
398
Fajardo v Court of Appeals, 354 SCRA 736
399
Cledera v Sarmiento, 39 SCRA 553
400
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
401
Supra, Section 4, Rule 15
402
Remonte v. Bonto, 16 SCRA 257
403
Supra, Section 6, Rule 15
404
Cruz v Court of Appeals, 388 SCRA 72
405
Sumadchat v Court of Appeals, 111 SCRA 488
406
Supra, Section 7, Rule 15
407
Supra, Section 1, Rule 9
408
Supra, Section 8, Rule 15
75
1.2 The purpose of the Rule is to obviate multiplicity of
motions as well as discourage dilatory pleadings. 409
Litigants should not be allowed to reiterate identical
motions speculating on the possible change of opinion
of the court or judges thereof.410
409
Dacanay v Alvendia, 30 SCRA 31
410
Miranda v Court of Appeals, 71 SCRA 295
411
PH Credit Corporation v Court of Appeals, 370 SCRA 155
412
Supra, Section 9, Rule 15
413
Supra, Section 10, Rule 15
414
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
415
Supra, Section 6, Rule 16
416
Supra, Section 1, Rule 16
76
2. The court has no jurisdiction over the subject matter of the
claims
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.419
417
Fernandez v ICB, 316 SCRA 326
418
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v.
Court of Appeals, 199 SCRA 205
419
Victronics Computer v RTC, 217 SCRA 517
420
Teodoro v Mirasol, 99 Phil 150
421
Roa-Magsaysay v Magsaysay, 98 SCRA 592
77
first action filed to be retained (b) whether the action
sought to be dismissed was filed merely to preempt the
later action or to anticipate its filing and lay the basis
for its dismissal, and (c) whether the action is the
appropriate vehicle for litigating the issues between
the parties.422
78
6.6 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.
10. A condition precedent for filing the claim has not been
complied with
427
Nadela v. City of Cebu, 411 SCRA 315
428
Supra, Rule 33
429
Litonjua v Fernandez, 427 SCRA 478
79
not jurisdictional.430 It may be waived if not raised
seasonably in a motion to dismiss.431
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.433
430
Junson v martinez, 405 SCRA 390
431
Banares v Balising, 328 SCRA 36
432
Supra, Section 2, Rule 16
433
Supra, Section 3, Rule 16
434
Supra, Section 4, Rule 16
435
Supra, Section 5, Rule 16
80
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.436 This is
known as the 2 dismissal rule.
436
Supra, Section 1, Rule 17
437
Bar, 1989
438
Supra, Section 2, Rule 17
439
Supra, Section 3, Rule 17
81
3. 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.440
RULE 18 – PRE-TRIAL
WHAT IS PRE-TRIAL
WHEN CONDUCTED
1. 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.443
82
1.4 The judge is also directed to consider assisting the
parties in effecting a settlement given the evidence of
the parties.
1.1 Counsel is charged with the duty to notify the party. 446
83
parte for failure of the defendant to appear before the pre-trial who
did not receive through counsel a notice of pre-trial.
447
Agulto v Tecson, 476 SCRA 395
448
Supra, Section 4, Rule 18
449
Supra, Section 5, Rule 18
450
Paredes v. Verano
451
Young v Court of Appeals, 204 SCRA 584
452
Supra, Section 6, Rule 18
84
1.4 Number of witnesses / names, abstract of testimonies,
approximate number of hours that will be required for
presentation of their respective evidence
2. Note that the failure to file a brief shall have the same effect
as failure to appear.
PRE-TRIAL ORDER
453
Section 6, SC Adm. Circular 3-99, January 15, 1999
454
Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
455
Heirs of Conahap v Regana, 458 SCRA 741
456
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
457
Supra, Section 5, Rule 30
458
Supra, Section 7, Rule 18
459
IBAA vs. IAC, 167 SCRA 450
85
RULE 19 – INTERVENTION
1.1 The court may refuse 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
460
Supra, Section 1, Rule 19
461
Roxas v Dinglasan, 28 SCRA 430
462
Supra, Section 19, Rule 3
463
Supra, Section 2, Rule 19
464
Supra, Section 3, Rule 19
86
4.1 Neither is it allowed in cases covered by the Rules on
Summary Procedure.
ASSIGNMENT OF CASES
RULE 21 – SUBPOENA
WHAT IS A SUBPOENA
KINDS OF SUBPOENA
BY WHOM ISSUED
465
Barangay Matictic v Elbinias, 148 SCRA 83
466
Foster-Gallego v Galang, 435 SCRA 275
467
Supra, Section 1, Rule 20
468
Supra, Section 2, Rule 20
469
Ang v Bello, 163 SCRA 358
470
Supra, Section 1, Rule 21
87
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 Philippines471
471
Supra, Section 2, Rule 21
472
Adorio v Bersamin, 273 SCRA 217
473
Supra, Section 5, Rule 21
474
Collado v Bravo, 356 SCRA 411
475
Supra, Section 10, Rule 21
476
Supra, Section 5, Rule 21
477
Supra, Section 2, Rule 21
88
1. 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.478
478
Supra, Section 3, Rule 21
479
Supra, Section 4, Rule 21
480
Supra, Section 6, Rule 21
481
Supra, Section 7, Rule 21
89
1. 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. 482 (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.483
HOW COMPUTED
1. The day of the act / event from which the designated period
of time begins to run is excluded and date of performance
included.
EFFECT OF INTERUPTIONS
WHAT IS DISCOVERY
PURPOSES OF DISCOVERY
90
1.1 Relevancy is determined by its logical tendency to
prove or disprove a fact or to make the fact more or
less probable.
WHAT IS A DEPOSITION
SCOPE OF A DEPOSITION
486
Supra, Rule 23
487
Supra, Rule 24
488
Supra, Rule 25
489
Supra, Rule 26
490
Supra, Rule 27
491
Supra, Rule 28
492
Supra, Section 1, Rule 23
493
Supra, Section 2, Rule 23
91
2. The taking and scope of a deposition after notice is served for
its taking by oral examination may be limited.
92
Republic of the Philippines, or before such person or officer as may
be appointed by commission or letters rogatory.497
497
Supra, Sections 11, 12, and 14, Rule 23
498
Supra, Section 13, Rule 23
499
Supra, Section 15, Rule 23
93
the officer taking the deposition shall propound to the witness and
record the answers verbatim.500
7. If not signed, the 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) ,
pertaining to errors or irregularities in preparation, the Court
holds that the reason for refusal to sign require rejection of the
deposition in whole or in part.501
500
Supra, Section 17, Rule 23
501
Supra, Section 19, Rule 23
502
Supra, Section 20, Rule 23
503
Supra, Section 21, Rule 23
504
Supra, Section 22, Rule 23
505
Supra, Section 25, Rule 23
94
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.506
EFFECT OF NON-APPEARANCE
95
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.511
96
service thereof as if the action was pending therein,
the motion should state: (a) name and addresses of
persons to be examined and substance of testimony to
be elicited (b) reasons for perpetuating testimony.
USE OF DEPOSITION
97
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.
519
Supra, Section 4, Rule 23
98
objection is one which might have been obviated or
removed if presented at that time
WRITTEN INTERROGATORIES
520
Supra, Section 29, Rule 23
521
Supra, Section 3, Rule 23
522
Supra, Section 9, Rule 23
523
Supra, Section 5, Rule 23
99
1. The purpose of a written interrogatory is to enable 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. 524
524
Supra, Section 1, Rule 25
525
Supra, Section 2, Rule 25
526
Supra, Section 3, Rule 25
527
Supra, Section 4, Rule 25
528
Supra, Section 5, Rule 25
529
Supra, Section 6, Rule 25
100
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.
2. A party may file and serve a request for admission upon any
other party at any time after the issues have been joined. 530
EFFECT OF ADMISSIONS
1. 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 proceeding532
530
Supra, Section 1, Rule 26
531
Supra, Section 2, Rule 26
532
Supra, Section 3, Rule 26
533
Supra, Section 4, Rule 26
101
knowledge, shall not be permitted to present evidence on such
facts.534
HOW AVAILED OF
WHEN AVAILED OF
102
all other parties, specifying the time, place, manner,
condition and scope of the examination and person/s
by whom it is to be made.538
103
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.541
OTHER SANCTIONS
541
Supra, Sections 1 and 2, Rule 29
542
Supra, Section 3, Rule 29
543
Supra, Section 4, Rule 29
544
Supra, Section 5, Rule 29
545
Supra, Section 6, Rule 29
104
RULE 30 – TRIAL
NOTICE OF TRIAL
546
Supra, Section 1, Rule 30
547
Supra, Section 2, Rule 30
548
Supra, Section 3, Rule 30
549
Supra, Section 4, Rule 30
105
1.5 Parties against whom any counterclaim/ cross-claim
has been pleaded shall adduce evidence in support of
their defense, in the order prescribed by the Court.
TRIAL OF ISSUES
550
Supra, Section 5, Rule 30
551
Supra, Section 6, Rule 30
552
Supra, Section 7, Rule 30
106
1. 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 should be 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.553
553
Supra, Section 9, Rule 30
554
Supra, Section 8, Rule 30
555
Civil Code, Article 2030
556
Supra, Section 1, Rule 31
557
Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
558
Section 1, Rule 111 of the Rules on Criminal Procedure
107
3. A petition for the issuance of a writ of possession cannot be
consolidated with an action to annul the foreclosure
notwithstanding the argument that the former case would become
groundless as the latter case is contesting the presumed ownership
on which the petition for a writ of possession is based. Strictly
speaking the petition for the issuance of a writ of possession is not
a judicial process, it is a non-litigious process that is summary in
nature. In contract, the action for annulment of foreclosure is an
ordinary civil action and is adversarial in character. The right of
the petitioner in the writ of possession case will be prejudiced by
the consolidation with the annulment of foreclosure case. 559
WHEN RESORTED TO
559
PNB vs. Gotesco, GR 183211, June 5, 2009
560
Supra, Section 2, Rule 31
561
Supra, Section 1, Rule 32
562
Supra, Section 2, Rule 32
108
3.1 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 evidence 563
PROCEDURE
109
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 commissioner571
EXPENSES / COMPENSATION
1. 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.575
571
Supra, Section 11, Rule 32
572
Supra, Section 12, Rule 32
573
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
574
Supra, Section 13, Rule 32
575
Supra, Section 1, Rule 33
576
Quebral v Court of Appeals, 252 SCRA 353
110
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.577
1. In both civil and criminal actions, the basis for both is the
insufficiency of evidence.
577
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
578
Northwest Airlines v. Court of Appeals, 284 SCRA 408
579
Katigbak v. Sandiganbayan, 405 SCRA 558
580
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
111
4. 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.
112
1.1 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.
584
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
585
Supra, Section 1, Rule 35
586
Supra, Section 2, Rule 35
587
Excelsa Industries v Court of Appeals, 247 SCRA 560
113
6. 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.
6.1 If not, it will deny, set the case for pre-trial, then trial.
588
Supra, Section 5, Rule 35
589
Supra, Section 6, Rule 35
590
Supra, Section 4, Rule 35
114
1. Summary judgment is distinguished from a judgment on the
pleadings as follows:
WHAT IS A JUDGMENT
591
Macahilig v. Magalit, 344 SCRA 838
592
46 Am Jur 2d, Judgments
115
law on which it is based (d) It must be signed by the judge (e) It
must be filed with the clerk of court.593
1.1 Note that a judge who has been reassigned can pen a
decision as long he is still an incumbent judge.594
2. A decision that does not state clearly and distinctly the facts
and law on which it is based leaves the parties in the dark as to
how it was reached and is especially prejudicial to the losing party
who is unable to pinpoint errors for review upon an appeal. A
decision without anything to support it is a patent nullity.597A void
judgment has no legal and binding effect, force or efficacy for any
purpose.598
116
statement of the facts and law. This kind of a decision can only be
rendered by an appellate court.
PARTS OF A JUDGMENT
605
Dizon v Lopez, AM-RTJ-96-1388, 278 SCRA 483
606
Pascua v Simeon, 161 SCRA 1, Cu Unjieng v Mabalacat Sugar Company, 70 Phil 384
607
DBP v. Tanada, 56 SCRA 470
608
LRTA v Court of Appeals, 444 SCRA 125
609
Poland Industrial Limited v. NDC, 467 SCRA 500
610
Article VIII, Section 15, Constitution
117
excuse. Without any extension, a delay in disposition
is tantamount to gross inefficiency.611
611
Arap v Mustafa, A.M. No. SCC-017, March 12, 2002
612
Castro v Malazo, 99 SCRA 164
613
Supra, Section 2, Rule 36
614
Briones v Vasquez, 450 SCRA 482
615
Siy v NLRC, GR No. 158971, January 25, 2006
616
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
617
Magbanua v. Uy, 458 SCRA 185
118
2. Courts, when justice demands can require parties on each
side to file adversary proceedings as between themselves to
determine their ultimate rights / obligations. 618
WHEN FILED
618
Supra, Section 3, Rule 36
619
Supra, Section 4, Rule 36
620
Supra, Section 5, Rule 36
621
Supra, Section 6, Rule 36
622
Supra, Section 1, Rule 37
623
Maestrado v Court of Appeals, 327 SCRA 678
119
fraud or acts of a party at trial that prevents fair
determination. Examples are: perjury, falsification.
624
Jarco Marketing v Court of Appeals, 321 SCRA 375
625
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
626
Mckee v Intermediate Appellate Court, 211 SCRA 517
627
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
120
2. 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.
121
2. If denied, no second motion for reconsideration is allowed of
the judgment or final order.
1. The periods for resolving the motions are: (a) MTC / RTC
within 30 days from the time it is submitted for resolution 636 (b)
Court of Appeals within 60 days after if declares it submitted for
resolution (c) Supreme Cour- no period is prescribed
122
4.1 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.640
PROCEDURE
640
Torno v Intermediate Appellate Court, 166 SCRA 742
641
Alquesa v Cavada, Jr. 3 SCRA 428
642
Valencia v Court of Appeals, 352 SCRA 72
643
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
644
Supra, Section 3, Rule 38
645
Mago v Court of Appeals, 303 SCRA 600
646
Manipor v Ricafort, 407 SCRA 298
647
Bayog v Natino, 258 SCRA 378
648
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
649
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008
123
1. Filing of verified petition accompanied by affidavits showing
the ground and the facts showing the petitioner’s good and
substantial cause of action or defense, as the case may be.
4. Court hears and may grant relief if the allegations are true or
deny if not true.
650
Supra, Section 4, Rule 38
651
Supra, Section 5, Rule 38
652
Supra, Section 6, Rule 38
653
Supra, Section 1(b), Rule 41
654
Supra, Section 7, Rule 38
124
a) a motion for new trial is filed before judgment becomes final,
while a petition for relies if filed after a judgment becomes
final
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
EXECUTION DEFINED
125
1.4. A motion is required as there may be questions /
disputes as to finality or amounts to be stated in the
writ.
658
Supra, Section 2, Rule 39
659
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
660
Jaca v Davao Lumber Company, 113 SCRA 107
661
Lao v Mencias, 21 SCRA 1021
662
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
663
FEBTC v Toh, Sr. 404 SCRA 590
664
Supra, Section 3, Rule 39
126
party allow execution pending appeal nor constitute
good ground.665
665
International School v. Court of Appeals, 309 SCRA 474
666
ITC v PTA, 341 SCRA 90
667
Supra, Section 4, Rule 39
668
Supra, Section 19, Rule 70
669
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
670
Supra, Section 2 (b), Rule 39
671
Supra, Section 5, Rule 39
672
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
127
action, leaving nothing to be done but to enforce by execution that
which has been determined.
673
Denso Philippines, Incorporated v IAC, 148 SCRA 280
674
Supra, Section 5, Rule 61
675
Fideldia v. Songcuan, 465 SCRA 218
676
Cunanan v Court of Appeals, 25 SCRA 263
677
Supra, Section 6, Rule 39
678
Laperal v Ocampo, 410 SCRA 339
679
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)
128
3. Reconciling the actions upon a judgment under Article 1144
of the Civil Code, which prescribes in 10 years, there is no conflict
as the Rules of Court refer to the manner of execution of the
judgment.
680
Camacho v Court of Appeals, 287 SCRA 611
681
Republic v Court of Appeals, 260 SCRA 344
682
Supra, Section 8, Rule 39
129
any form acceptable to him plus lawful fees to be turned over to
the clerk of court of the court that issued the writ.
130
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.
131
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. 688
2.1 The contents of the 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 agreed upon: (a)
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 (b) If
capable of manual delivery, where personal property is
located.
688
Supra, Section 15, Rule 39
689
Supra, Section 17, Rule 39
690
Supra, Section 19, Rule 39
132
3.7 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.691
691
Supra, Section 22, Rule 39
692
Supra, Section 20, Rule 39
693
Supra, Section 21, Rule 39
694
Supra, Section 18, Rule 39
133
and if damages are assessed, it is to be paid out of the
National Treasury. 695
695
Supra, Section 16, Rule 39
696
Supra, Section 25, Rule 39
697
Supra, Section 26, Rule 39
698
Supra, Section 27, Rule 39
134
Deeds / or memorandum thereof and affidavit showing
amount due on the lien.699
699
Supra, Section 30, Rule 39
700
Supra, Section 29, Rule 39
701
Supra, Section 31, Rule 39
702
Supra, Section 32, Rule 39
703
Supra, Section 33, Rule 39
704
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
135
4.12 If the sale is rendered ineffective as when 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 pursuant to a petition for relief,property is
exempt from execution , or that 3rd person has
vindicated his right to the property. He may on motion
in the same action or in a separate action recover from
the judgment obligee the price paid with interest, or so
much thereof as has not been delivered to the
judgment obligor or he may on motion have the
judgment revived in his name, if a redemptioner for
the whole price with interest, or so much thereof as
has been delivered to the judgment obligor. The
judgment revived shall have the same force and effect
as an original judgment would have as of the date of
revived and no more.705
136
1. The officer shall take possession and forthwith deliver it to
party entitled thereto and satisfy any judgment for money as
herein provided. 708
708
Supra, Sections 9 and 10, Rule 39
709
Supra, Section 11, Rule 39
137
fisherman and by the lawful use of which he earns his
livelihood;
i. Lettered gravestones;
710
Supra, Section 13, Rule 39
711
Gomez v Gealone, 203 SCRA 474
712
Supra, Section 7, Rule 39
138
1.1 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.713
2.1 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.
139
3.1 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.718
718
Supra, Section 40, Rule 39
719
Supra, Section 41, Rule 39
720
Supra, Section 42, Rule 39
721
Supra, Section 43, Rule 39
722
Supra, Section 44, Rule 39
723
Supra, Section 45, Rule 39
140
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.724
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.
141
cannot again be raised in any future case between the
same parties involving a different cause of action. 728Once
a case is decided with finality, the controversy is settled
and the matter is laid to rest. The prevailing party is
entitled to enjoy the fruits of victory while the other party
is obliged to respect the court’s verdict and comply with
it.729
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.730 This principle
generally finds application in cases where an appellate
court passes on a question and remands the case to the
lower court for further proceedings. The question thus
settled by the appellate court becomes the law of the case
upon a subsequent appeal. Consequently, the court
reviewing the succeeding appeal will not re-litigate the
case but instead apply the ruling in the previous
appeal.731
APPEALS
PRELIMINARIES
728
Tan v Court of Appeals, 363 SCRA 444
729
Siy v NLRC, GR No. 158971, August 25, 2005
730
Boiser v NTC, 169 SCRA
731
RCPI v Court of Appeals, GR No. 139763, April 26, 2006
732
Supra, Section 48, Rule 39
733
Supra, Section 46, Rule 39
734
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483
142
2. The right to appeal is not part of due process but is a mere
statutory privilege that has to be exercised only in the manner and
in accordance with the provisions of law.735
4. On appeal, a party may not change his theory of the case. 736
Hence, defenses not pleaded in the answer may not for the first
time be raised on appeal.737
735
Cu-Unjieng v Court of Appeals, 479 SCRA 594
736
Supra, Section 15, Rule 44
737
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October
12, 2006
738
Supra, Section 8, Rule 51
739
Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
740
Regalado v Go, GR No. 167988, February 6, 2007
143
RULE 40- APPEALS FROM THE MTC TO THE RTC
144
744
e. If more than 20 pages include a subject index
WHEN PERFECTED
3. In both cases, docket fees and 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. 748
744
Supra, Section 6, Rule 41
745
Supra, Section 7, Rule 41
746
Supra, Section 8, Rule 41
747
Supra, Section 4, Rule 40
748
Supra, Section 5, Rule 40
145
3.1 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.749
3.2 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. 750
749
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
750
Lopez v Court of Appeals, 75 SCRA 401
751
Supra, Section 6, Rule 40
752
Supra, Section 7, Rule 40
753
Supra, Section 8, Rule 40
146
RULE 41 – APPEALS FROM REGIONAL TRIAL COURTS
147
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 758
Note also the application of the “fresh period rule”.
148
1.8 Other procedural requirements and disposition of the
appeal are governed by Rule 44:
1.9 The title of the case shall remain, party appealing shall
be referred to as appellant / adverse party-appellee. 766
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.767
149
1.14 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 the appellee’s brief are: (a) subject
index (b) statement of facts, either a statement of
acceptance or counter-statement of facts (c)
Arguments774
774
Supra, Section 14, Rule 44
775
Supra, Section 9, Rule 44
776
Supra, Section 12, Rule 44
777
Supra, Section 10, Rule 44
778
Supra, Section 15, Rule 44
779
BPI v Leobrera, 416 SCRA 15
780
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
150
2.1 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.
151
2.7 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.785
152
reason may grant an extension of 30 days within
which to file the petition.
153
where penalty is death, reclusion perpetua / life
imprisonment.795
4.3 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
795
Supra, Section 9, Rule 45
796
Martinez v Court of Appeals, 358 SCRA 38
797
A.M. No. 04-9-07-SC, September 14, 2004
798
Supra, Sections 1 and 2, Rule 43
799
Supra, Section 3, Rule 43
154
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.800
800
Supra, Section 4, Rule 43
801
Supra, Section 12, Rule 43
802
Republic v Bernardez-Lorino, 449 SCRA 57
803
Supra, Section 1, Rule 46
804
Supra, Section 2, Rule 46
805
Supra, Section 3, Rule 46
155
2. A certified true copy is one the certification of which is made
by the proper clerk of court or his duly authorized
representative.806
806
Paras v Baldado, 354 SCRA 141
807
Supra, Section 4, Rule 46
808
Supra, Section 5, Rule 46
809
Supra, Section 6, Rule 46
810
Supra, Section 7, Rule 46
811
Supra, Section 1, Rule 48
812
Supra, Section 2, Rule 48
156
there is need for modifications to prevent manifest
injustice813
4.5 Motions are not 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. Upon expiration
of the period, it is submitted for resolution.816
157
3. 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
158
annulment. However, the prescriptive period is or shall
not be suspended where extrinsic fraud is attributable
to the plaintiff is original action.827
SCOPE OF RELIEF
1. 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 the
appellee, it may dismiss the petition on the basis of:
827
Supra, Section 8, Rule 47
828
Supra, Section 9, Rule 47
829
Supra, Section 10, Rule 47
159
1.8 Failure to appear at preliminary conference under Rule
48, or comply with orders, circulars or directives of the
Court without justifiable cause
WITHDRAWAL OF AN APPEAL
RULE 51 - JUDGMENT
1. In Ordinary Appeals:
160
1. 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.834
834
Supra, Section 2, Rule 51
835
Supra, Section 3, Rule 51
836
Supra, Section 6, Rule 51
837
Supra, Section 8, Rule 51
838
People v Teehankee, 269 SCRA 54.
839
Supra, Section 4, Rule 51
840
Supra, Section 5, Rule 51
841
Supra, Section 9, Rule 51
161
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.842
1. 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.848
162
2.1 Motion should be resolved within 90 days from the
date it is declared to be submitted.851
OTHER MATTERS
ORIGINAL CASES
851
Supra, Section 3, Rule 53
852
Supra, Section 1, Rule 54
853
Supra, Section 2, Rule 54
854
Supra, Section 1, Rule 55
855
Supra, Section 2, Rule 55
856
Supra, Section 3, Rule 55
163
Attorneys, Cases affecting Ambassadors, Public Ministers or
Consuls.857
APPEALED CASES
857
Supra, Section 1, Rule 56
858
Supra, Section 2, Rule 56
859
Supra, Section 3, Rule 56
860
Supra, Section 6, Rule 56
861
Supra, Section 4, Rule 56
862
Supra, Section 5, Rule 56
164
1. 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.863
PROVISIONAL REMEDIES
PRELIMINARIES
165
4. attachment bond is insufficient (Section 13, Rule 57);
5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the
excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the
attaching party (Section 19, Rule 57)
When the preliminary attachment is issued upon a
ground which is at the same time the applicant’s
cause of action: ie., an action against a party who has
been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is
brought, the only way it can be dissolved is by a
counter-bond. (FCY Const., Group Inc. vs. CA, 324
SCRA 270)
866
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563
166
1.2 It cannot issue when the amount of money or damages
is not specified.867
167
or at the very least, the defendant should be given the
chance to show that he has not been disposing of his
property in fraud of creditors.870
6. Action against a party who does not reside and is not found
in the Philippines or on whom summons may be served by
publication.871
870
Adlawan v. Torres, 233 SCRA 645
871
Supra, Section 1, Rule 57
872
Supra, Section 3, Rule 57
873
Gruenberg v Court of Appeals, 138 SCRA 471
874
Supra, Section 4, Rule 57
875
Supra, Section 2, Rule 57
168
summons, together with complaint, application for attachment,
affidavit, bond, order and the writ itself.
1.1 Note that Rule 57 does not provide any lifetime for a
writ of preliminary attachment unlike a writ of
execution. 877 What the law provides for are the
enforcement of the writ without delay and making
sheriff’s return thereon without delay.
(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.
876
Mangila v Court of Appeals, 387 SCRA 162
877
Roque v Court of Appeals, 93 SCRA 540
878
Supra, Section 5, Rule 57
879
Supra, Section 12, Rule 57
169
(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.
880
Supra, Section 7, Rule 57
881
Supra, Section 8, Rule 57
882
Supra, Section 9, Rule 57
883
Supra, Section 10, Rule 57
884
Supra, Section 6, Rule 57
170
(b) 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.885
171
(c) 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.
1.1 Upon filing, the sheriff not under obligation to keep the
property, unless attaching party files a bond.
889
Supra, Section 20, Rule 57
890
Supra, Section 12, Rule 57
891
Supra, Section 13, Rule 57
892
Supra, Section 20, Rule 57
893
Supra, Section 14, Rule 57
172
RULE 58 – PRELIMINARY INJUNCTION
894
Supra, Section 1, Rule 58
895
Supra, Section 2, Rule 58
896
Supra, Section 3, Rule 58
173
2. 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.897
HOW OBTAINED
174
included in a complaint / initiatory pleading it shall be raffled only
after notice to and in the presence of the adverse party.
175
10. To transfer possession or control over property when legal
title is still in dispute or when it has not yet been clearly
established or there is a lack of clear and unmistakable right on
the part of the applicant.909
12. When it disposes of the main case without trial as the grant
of injunctive relief assumes the proposition that petitioner must
prove.911
909
Cortez Estrada v Samut, 451 SCRA 275
910
Almeida v Court of Appeals, 448 SCRA 68
911
Levi Strauss v Clinton Apparelle, 470 SCRA 236
912
Andres v Cuevas, 460 SCRA 38
913
Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
914
Supra, Section 6, Rule 58
176
of the party enjoined, the injunction shall be granted or restored.
915
RULE 59 – RECEIVERSHIP
915
Supra, Section 7, Rule 58
916
Supra, Section 9, Rule 58
917
Supra, Section 8, Rule 58
918
A.M. 07-7-12-SC
177
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.
919
Supra, Section 1, Rule 59
920
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
921
Arranza versus B.F. Homes, Inc., 333 SCRA 799
922
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
178
1. Subject to the control of the court, a receiver 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. By verified application.
923
Supra, Section 6, Rule 59
924
Supra, Section 7, Rule 59
925
Supra, Section 2, Rule 59
926
Supra, Section 3, Rule 59
927
Supra, Section 4, Rule 59
179
5. Copies of bonds of the applicant and receiver or the 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.928
WHEN TERMINATED
RULE 60 – REPLEVIN
WHAT IS REPLEVIN
180
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 not the
probable value as declared by the applicant. Should there be a
dispute, it is to be resolved by the Court.
181
2.2 Note that no action on the bond may be enforced
unless filed within 120 days from filing.
2.3 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.
936
Supra, Section 7, Rule 61
937
Supra, Section 8, Rule 61
938
Supra, Sections 9 and 10, Rule 61
939
Supra, Section 1, Rule 61
182
the State in the corresponding criminal case during its
pendency.940
PROCEDURE
HOW ENFORCED
RESTITUTION
940
Supra, Section 6, Rule 61
941
Supra, Section 2, Rule 61
942
Supra, Section 3, Rule 61
943
Supra, Section 4, Rule 61
944
Supra, Section 5, Rule 61
183
1.1 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.945
RULE 62 - INTERPLEADER
WHEN PROPER
PROCEDURE:
945
Supra, Section 7, Rule 61
946
Supra, Section 1, Rule 62
947
Supra, Section 2, Rule 62
948
Supra, Section 3, Rule 62
949
Supra, Sections 4 and 5, Rule 62
184
/ expenses of litigation shall constitute a lien or charge upon the
subject matter, unless the court orders otherwise.950
950
Supra, Sections 6 and 7, Rule 62
951
Supra, Section 1, Rule 63
952
Supra, Section 6, Rule 63
953
Supra, Section 3, Rule 63
185
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.954
186
The exercise of judicial function is to determine what the law is,
and what the legal rights of paties are, with respect to a matter is
controversy; and whenever an officer is clothed with that authority,
and undertakes to determine those questions, he acts judicially.
(The Mun.Council of Lemery, Batangas vs. The Prov. Board of
Batangas, 56 PHIL. 260)
WHAT IS CERTIORARI
958
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)
959
Supra, Section 1, Rule 65
187
2. Certiorari may prosper notwithstanding the presence of an
appeal when: (a) public welfare and the advancement of public
policy dictate it (b) when the broader interest of justice requires it
(c) when the writs issued are null, (d) the questioned order
amounts to an oppressive exercise of judicial authority. 960
960
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric
Cooperative, Inc. vs. Leyteco IV Employees Union, ALU, 537 SCRA 154
188
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR
RECONSIDERATION PRIOR TO FILING A PETITION FOR
CERTIORARI UNDER RULE 65
WHAT IS PROHIBITION
961
Supra, Section 2, Rule 65
189
3. 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 IS MANDAMUS
2 ASPECTS OF MANDAMUS
190
3.1 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.
965
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
191
1. 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
ORDER TO COMMENT
192
RULE 66 -QUO WARRANTO
DEFINED
971
Supra, Section 1, Rule 66
972
Tecson v Comelec, 424 SCRA 277
973
Supra, Section 5, Rule 66
974
Supra, Section 2, Rule 66
975
Supra, Section 3, Rule 66
193
Regional Trial Court in Manila, the Court of Appeals or the
Supreme Court.976
WHEN FILED
CONTENTS OF JUDGMENT
976
Supra, Section 7, Rule 66
977
Supra, Section 6, Rule 66
978
Supra, Section 8, Rule 66
979
Supra, Section 9, Rule 66
980
Supra, Section 12, Rule 66
981
Supra, Section 10, Rule 66
982
Supra, Sections 10 and 11, Rule 66
194
1. In Quo Warranto the issue is the disqualification /
ineligibility of the proclaimed candidate, in a Protest the issue is an
irregularity in the election.
RULE 67 – EXPROPRIATION
WHAT IS EXPROPRIATION
HOW EXERCISED
983
Estate of Salud Jimenez v PEZA, 349 SCRA 240
984
Manosca v Court of Appeals, 252 SCRA 412
985
Reyes v NHA, 395 SCRA 494
195
1. 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.
WHERE FILED
986
Supra, Section 1, Rule 67
987
Local Government Code
988
Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
989
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
990
Supra, Section 3, Rule 67
991
Supra, Section 2, Rule 67
196
the court of fifteen (15%) percent of the Fair Market
Value based on the current tax declaration.
992
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement
Infrastructure Projects and Other Purposes
993
Republic v Gingoyon, GR No. 166429, December 19, 2005
994
Supra, Section 4, Rule 67
995
Supra, Section 11, Rule 67
996
Supra, Sections 5,6,7, and 8, Rule 67
997
City of Manila v Batlle, 25 Phil 566
998
NPC v De La Cruz, GR No. 156093, February 2, 2007
999
Republic v Sarabia, 468 SCRA 142
197
regardless of appreciation or depreciation subsequent
to taking possession or filing of the action.
5.4 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.1001
5.5 Title will pass only upon full payment of the just
compensation.1002
1000
Supra, Section 9, Rule 67
1001
Supra, Section 10, Rule 67
1002
Federated Realty Corporation v Court of Appeals, 477 SCRA 707
1003
Yujuico v Atienza, Jr., 472 SCRA 463
1004
Fery v Municipality of Cabanatuan, 42 Phil 28
1005
Supra, Section 13, Rule 67
1006
Supra, Section 12, Rule 67
198
RULE 68 – FORECLOSURE OF REAL ESTATE
2. 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 the adverse party to the
court or judgment oblige within a period of not less than ninety
(90) days nor more than one hundred twenty (120) days from entry
of judgment, and that in case of default, the property will be sold
at public auction. This period is known as the Mortgagor’s Equity
of Redemption. 1010
1007
El Hogar Filipino v Seva, 57 Phil 573
1008
Russel v Vestil, 304 SCRA 738
1009
Supra, Section 1, Rule 68
1010
Supra, Section 2, Rule 68
199
(b) The former is available before auction
sale, while the latter is available after
auction sale
(c) 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
(d) 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.1011
3. If not paid, 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.
200
3.5 If with right of redemption, the annotation is to await
final deed of sale executed by Sheriff.1013
RULE 69 – PARTITION
OBJECT OF PARTITION
1013
Supra, Section 7, Rule 68
1014
Supra, Section 4, Rule 68
1015
Supra, Section 5, Rule 68
1016
Supra, Section 6, Rule 68
1017
Supra, Section 8, Rule 68
1018
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
1019
Supra, Section 1, Rule 69
201
2. Partition and Accounting under this rule is in the nature of a
quasi in rem action1020.
PROCEDURE
2.1 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.1022
1020
Valmonte v Court of Appeals, 52 SCRA 92
1021
Supra, Section 2, Rule 69
1022
Supra, Section 3, Rule 69
1023
Supra, Section 4, Rule 69
1024
Supra, Section 5, Rule 69
1025
Supra, Sections 6 and 7, Rule 69
202
2.5 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. 1026Judgment may include
recovery from the other of just share of rents and
profits received by the other from the real estate in
question1027 and costs equitably apportioned among
the parties.1028
1026
Supra, Section 11, Rule 69
1027
Supra, Section 8, Rule 69
1028
Supra, Section 10, Rule 69
1029
Supra, Section 1, Rule 70
203
1. 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
PROCEDURE TO BE FOLLOWED
1030
Supra, Section 2, Rule 70
1031
Yap v Cruz, 208 SCRA 692
1032
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
1033
Lanuza v Munoz, 429 SCRA 562
1034
Supra, Section 3, Rule 70
204
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.1035
205
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.
1040
Supra, Section 8, Rule 70, Article II, Section 7, Rules on Summary Procedure
1041
Supra, Section 9, Rule 70, Article II, Section 8, Rules on Summary Procedure
1042
Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure
1043
Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
1044
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1045
Heirs of Olivas v Flor, 161 SCRA 393
206
(c) Motion for new trial, or for reconsideration of a judgment,
or for reopening of trial; A motion for reconsideration can
be filed when the case is already pending before the
appellate court.1046 And a motion for reconsideration of
rulings or pertaining to other incidents, not of the
judgment is allowed1047
(f) Memoranda;
(j) Reply;
(l) Interventions.1048
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.
1046
Jakihaca v Aquino, 181 SCRA 67
1047
Lucas v Fabros, 324 SCRA 1
1048
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1049
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
1050
Supra, Section 20, Rule 70
207
10.3 The court shall not resort to the clarificatory procedure
to gain time for the rendition of the judgment.1051
1051
Supra, Section 11, Rule 70, Article
1052
Supra, Sections 16 and 18, Rule 70
1053
Supra, Section 17, Rule 70
1054
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1055
Supra, Section 18, Rule 70
1056
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
1057
Supra, Section 19, Rule 70
208
upon motion, may correctly order execution of
judgment.1058 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.1059
RULE 71 – CONTEMPT
WHAT IS CONTEMPT
KINDS OF CONTEMPT
1058
Silverio v Court of Appeals, 407 SCRA 240
1059
Chua v Court of Appeals, 286 SCRA 437
1060
Supra, Section 21, Rule 70
1061
Dela Cruz v Roxas, 75 Phil 457
1062
Ariem v Delos Angeles, 49 SCRA 343
209
1.2 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.
1063
1063
Supra, Sections 1 and 2, Rule 71
1064
Ang v Castro, 136 SCRA 453
1065
Supra, Section 3, Rule 71
210
consolidation of the charge and principal action for
joint hearing and decision.1066
OTHERS
1066
Supra, Section 4, Rule 71
1067
Supra, Section 5, Rule 71
1068
Supra, Section 7, Rule 71
1069
Supra, Section 8, Rule 71
1070
Supra, Section 11, Rule 71
1071
In Re, Mison, Jr, 33 SCRA 30
1072
Supra, Sections 6 and 9, Rule 71
1073
Supra, Section 10, Rule 71
211
The RTC of the place where the contempt is committed shall have
jurisdiction.1074
SCOPE OF APPLICATION
2. The exceptions are the following: (a) where one party is the
government or any subdivision or instrumentality thereof (b) where
one party is a public officer or employee, and the dispute relates to
the performance of his official functions (c) offenses punishable by
imprisonment exceeding 1 year or a fine exceeding PHP 5000.00 (d)
offenses where there is no private offended party (e) where the
dispute is brought by or against a corporation, partnership or
juridical entity (f) 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 (g) where dispute involves parties 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 (h) 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). (i) disputes arising
from the implementation of the CARP (j) Employer-Employee
disputes (k) action to annul a judgment upon a compromise.
VENUE
1074
Supra, Section 12, Rule 71
1075
Yasay v Recto, 313 SCRA 739
212
1. The proper venue for conciliation is as follows: (a) if between
persons actually residing in the same barangay-before the lupon of
the said barangay (b) 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 (c) if involving real property or any interest
therein- the barangay lupon where the property or larger portion is
located (d) 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.
(c) 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.
3.1 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.
213
basis for rendition of judgment. (Section 416, PD
1508).
REVISED RULE ON
SUMMARY PROCEDURE
APPLICABILITY
A. Civil Cases:
(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
1076
Chavez v Court of Appeals, GR 159411, March 18, 2005
214
by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this amended took
effect on November 25, 2002)
B. Criminal Cases:
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.
II
CIVIL CASES
SEC. 3. Pleadings. –
1077
A.M. 00-11-01-SC, April 15, 2003
215
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.
216
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:
NOTE: That hearings are not necessary unless for the purpose of
clarifying certain material facts.
III
CRIMINAL CASES
217
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.
218
the affidavit, but the adverse party may utilize the same for any
admissible purpose.
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.
COMMON PROVISIONS
219
(f) Memoranda;
(j) Reply;
(l) Interventions.
220
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)
221
222