PRELIMINARY CONSIDERATIONS
or modify substantive rights.
Remedial Law: refers to the rules which provide
the system for the protection of rights, the
prevention of the violation of such rights, and the
means for redress for such violations.
 Provides the methods for the enforcement of
obligations and lay out the procedure by
which suits are filed, tried, and decided upon
by the courts.
Remedial Law Substantive Law
Does not create rights Creates, defines, and
or obligations but regulates rights and
lays down the duties concerning
methods by which the life, liberty, or
rights and obligations property.
arising from
substantive law are
protected, enforced
and given effect.
Prospective Effect of the Rules
The rules are not to be given retroactive effect.
The rules shall govern:
1. cases brought after they take effect, and
2. also to pending cases
XPNs:
(a) where the statute itself or by necessary
implication provides that pending
actions are excepted from its operation;
(b) if applying the rule to pending
proceedings would impair vested rights;
(c) when to do so would not be feasible or
would work injustice; or
(d) if doing so would involve intricate
problems of due process or impair the
independence of the courts.
 that it may be made applicable to
actions pending and undetermined at the
time of their passage makes the rules
retroactive only in that sense
Rule-Making Power of the Supreme Court: The
Constitutional authority to promulgate rules is
found on Sec. 5(5), Art. VIII of the Constitution.
 The Supreme Court has the sole prerogative
to promulgate rules concerning pleading,
practice, and procedure.
 Limitations:
(a) The rules shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases;
(b) The rules shall be uniform for courts of
the same grade; and
(c) The rules shall not diminish, increase,
 The Supreme Court also has the power to
amend and suspend rules when compelling
reasons so warrant or when the purpose of
justice requires it.
Cause of Action: The delict or wrongful act or
omission committed by the defendant in
violation of the primary rights of the plaintiff.
Right of Action: The remedial right or right to
relief granted by law to a party to institute an
action against a person who has committed a
delict or wrong against him.
 does not arise until the performance of all
conditions precedent to the action
 may be taken away by: the running of the
statute of limitations, through an estoppel, or
by other circumstances which do not affect
the cause of action
Cause of Action Right of Action
The delict or wrong The right to sue as a
consequence of that
delict
Operative facts Right to presently
which give rise to enforce a cause of
such right of action action
The question as to whether the plaintiff has a
cause of action is determined by the averments
in the pleading regarding the acts committed by
the defendant; whether such acts give him a right
of action is determined by the substantive law.
 There can be no right of action without a
cause of action being first established.
Classifications of Actions: validly try and acquires jurisdiction over the
decide the res.
A. In General case.
As to Effect of Judgment
Ordinary Civil Special Civil Action Judgment is Judgment is Judgment is
Action binding only binding upon binding only
Governed by Also governed by upon the the whole upon the
ordinary rules. ordinary rules but parties and world. parties who
subject to specific their joined the
rules prescribed successors- action.
(Rules 62-71). in-interest
Formal demand of Special features not but not upon
one’s legal rights in a found in ordinary strangers.
court of justice in the civil actions. Examples
manner prescribed by Action for Land Action for
the court or by the declaration of registration partition;
law. nullity of title case; probate action for
and recovery of a will; and accounting
B. As to Object of ownership expropriation attachment;
 The distinctions find significance in or real cases. judicial
determining: property; foreclosure
(1) Whether or not jurisdiction over the reconveyance; of a
person of the defendant is required; action for mortgage;
(2) The type of summons to be ejectment; filiation
employed; and action for with the
(3) Upon whom judgment is binding. specific putative
performance; parents.
Action action for
Action in Action in injunction;
Quasi in
Personam Rem and action for
Rem
As to Nature breach of
An action An action An action contract.
against a against the wherein an
person on the thing itself individual is C. As to Cause or Foundation
basis of his instead of named as (1) Real Action – an action involving title
personal against the defendant to or possession of real property, or any
liability. person. and the interest therein.
purpose of (2) Personal Action – an action not
the involving title to or possession of real
proceeding property, or any interest therein.
is to subject (3) Mixed Action – an action involving a
his interest joinder of both real and personal
therein to actions.
the
obligation The distinction between a real action and a
or lien personal action is important for the purpose of
burdening determining the venue of the action.
the
property. Personal Mixed
Real Action
As to Acquisition of Jurisdiction Action Action
Jurisdiction Jurisdiction over the person As to Purpose
over the of the defendant is not a One brought One which One brought
person of the prerequisite to confer for the is not for the
defendant is jurisdiction on the court protection of founded protection or
necessary for provided that the court real rights, upon the recovery of
the court to
 land, privity of real property the absence of an parties regardless of
tenements or real rights or and also for agreement to the where the cause of
hereditaments, real an award for contrary. action arose.
or one founded property. damages Examples
on privity of sustained. Real actions Personal action
estate only.
As to Venue
Local, i.e., itsTransitory, Governed by
venue depends i.e., its the rules of
upon the venue venue in real
location of the depends action.
property upon the
involved in the residence of
litigation. the plaintiff
or the
defendant.
Examples
Accion Action for a Accion
reivindicatoria sum of publiciana
money with a claim
for damages

The classification of actions into real, personal

or mixed is based on the subject-matter thereof.
With respect to the binding effect of the relief
sought or the judgment therein, actions are
classified into action in rem, quasi in rem or in
personam. Hence, a real action may be in
personam, or a personal action may be in rem.

Examples:
(1) An action to recover title to or possession of
real property is a real action, but it is an
action in personam.
(2) An action for declaration of nullity of a
marriage is a personal action because it is not
founded on real estate. It is also an in rem
action because the issue of the status of a
person is one directed against the whole
world.
(3) An action for damages is both a personal
action and an action in personam.

D. As to Place

Local Action Transitory Action

As to Basis
An action founded on An action founded on
privity of estate only privity of contract
and there is no privity between parties.
of contract.
As to Venue
One which is required One the venue of
by the Rules to be which is dependent
instituted in a generally upon the
particular place in residence of the
 JURISDICTION (1) Jurisdiction over the Subject Matter

Jurisdiction is the power and authority of the
court to resolve a case involving actual
controversies, applying the law to the situation
and carrying its judgment into effect.
 “Actual controversy” means actions
involving rights that are legally enforceable
and demandable.
 Generally, the court which has the authority
to resolve the controversy, is also the court
which has the power to enforce the
judgment.
Test of Jurisdiction: Whether the court has the
power to enter into the inquiry and not whether
the decision is right or wrong.
Jurisdiction over the subject matter is the power
to hear and determine the general class to which
proceedings in question belong.
It is conferred by law, and any judgment, order
or resolution issued without it is void and cannot
be given any effect. A void judgment is no
judgment at all, therefore it can never become
final.
(2) Jurisdiction over the Parties
(3) Jurisdiction over the Issues
(4) Jurisdiction over the Res

How the Court Acquires Jurisdiction:

(1) Jurisdiction over the Subject Matter –
conferred by law and cannot be conferred on
the court by the voluntary act or agreement
of the parties.
(2) Jurisdiction over the Parties – in the case of:
(a) plaintiff or petitioner – upon the filing
of the complaint, petition, or initiatory
pleading; or
(b) respondent – by the voluntary
appearance or submission to the court,
or by coercive process issue by the court
to him, generally by the service of
summons.
(3) Jurisdiction over Issues – determined and
conferred by the pleadings filed by the
parties, or by their agreement in a pre-trial
order or stipulation, or at times, by their
implied consent as by the failure of the party
to object to evidence on an issue not covered
by the pleadings.
(4) Jurisdiction over the Res – acquired by the
actual or constructive seizure by the court of
the thing in question, and placing it in
custodia legis as in attachment or
garnishment; or by provision of law which
recognizes in the court the power to deal
with the property or subject matter within its
jurisdiction, as in land registration
proceedings or suits involving civil status or
real property in the Philippines of a non-
resident defendant.

Four Concepts of Jurisdiction in Civil Cases

(1) Jurisdiction over the Subject Matter;
(2) Jurisdiction over the Parties;
(3) Jurisdiction over Issues; and
(4) Jurisdiction over the Res
 Supreme Court
Article VIII, Sec. 5
Considering the provisions of B.P. 129, all
appeals in civil cases to the Supreme Court can
now be brought only on petition for review on
certiorari.
The Judiciary Reorganization Act of 1980
(B.P. 129)
B.P. 129 took effect upon its approval on August
14, 1981 (Sec. 48). However, the transitory
provision (Sec. 44) declared that its provisions
declared that its provisions “shall immediately be
carried out in accordance with an Executive
Order to be issued by the President. The Court of
Appeals, the Courts of First Instance, the Circuit
Criminal Courts, the Juvenile and Domestic
Relations Courts, the Courts of Agrarian
Relations, the City Courts, the Municipal Courts
and the Municipal Circuit Courts shall continue
to function as presently constituted and
organized until the completion of the
reorganization provided in this Act as declared
by the President. Upon such declaration, the said
courts shall be deemed automatically abolished
and the incumbents thereof shall cease to hold
office. The cases pending in the old Courts shall
be transferred to the appropriate Courts
constituted pursuant to this Act, together with the
pertinent functions, records, equipment, property
and the necessary personnel.”
As to the Court of Appeals:
 consisting of a Presiding Justice and 68
Associate Justices
 23 divisions each composing of 3
members each
 a majority of actual members shall
constitute a quorum for its session en
banc; 3 members for each division
 unanimous vote of 3 members of a
division shall be necessary for the
pronouncement of the decision
o if unanimity cannot be reached, the
Presiding Justice shall designate two
additional justices to sit temporarily
with the, forming a special decision,
and the concurrence of a majority of
such division shall be necessary for
the pronouncement of a decision
As to the Supreme Court and Sandiganbayan:
 these are excepted from the coverage of
the Act but have been affected by the
jurisdictional changes introduced herein
Court of Appeals
B.P. 129, Sec. 9
 CA is now vested with original
jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus, and
all other auxiliary writs and processes
whether or not in aid of its appellate
jurisdiction and added the special civil
action of quo warranto to such original
jurisdiction
 exclusive original jurisdiction over
actions for the annulment of judgments of
RTC
 appellate jurisdiction over administrative
tribunals was extended to the SEC and the
different boards which took the place of
the Public Service Commission
 cases involving petitions for
naturalization and denaturalization are
now exclusively appealable to CA
 exclusive appellate jurisdiction over the
decisions of the two constitutional
commissions (COMELEC and COA) was
retained with the SC; appeals from the
CSC should be taken to the CA
 specifically excluded likewise were
decisions and interlocutory orders under
the Labor Code, those of the Central
Board of Assessment Appeals, and the 5
types of cases which fall within the
exclusive appellate jurisdiction of the SC
 despite the present formulation of Sec.
9(3) of B.P. 129, it is believed that the CA
still has appellate jurisdiction in the
aforestated cases whenever a factual issue
is involved
 with the amendments introduced by R.A.
7902, the dispositions of the Civil Service
Commission and the Central Board of
Assessment Appeals are now within the
exclusive appellate jurisdiction of the CA
 while the CA was authorized to receive
evidence on factual issues on appeal, this
evidentiary hearing contemplates
"incidental facts" which were not touched
upon or fully heard by the trial court, and
not an original and full trial of the main
factual issue which properly pertains to
the trial court
 o this power is not obligatory on the
appellate court and it may remand the
case to the trial court for that purpose
 the exclusive appellate jurisdiction of the
CA provided for in Sec. 9(3) over final
orders or rulings of quasi-judicial
instrumentalities refers to those which
resulted from proceedings wherein the
administrative body involved exercised
quasi-judicial functions
o involves the investigation of facts,
holding of hearings, drawing
conclusions therefrom as a basis for
official action, and exercising
discretion of a judicial nature
o purely administrative policies and
functions, or those which are merely
incidents of its inherent administrative
functions, are not included in the
appealable orders contemplated in
said provision
 all references in the amended Sec. 9 of
B.P. 129 to supposed appeals from the
NLRC to SC are interpreted and declared
to mean and refer to petitions under Rule
65; all petitions should be initially filed in
the CA in strict observance of the rule on
hierarchy of courts (St. Martin Funeral
Home v. NLRC)
Regional Trial Court
B.P. 129, Secs. 19, 21, 22, and 23
 The exclusion of the term “damages of
whatever kind” in determining the
jurisdictional amount under Sec. 19(8)
and Sec. 33(1) of B.P. 129, as amended,
applies to cases where the damages are
merely incidental to or a consequence of
the main cause of action (Ouano v.
PGTT)
o in cases where the claim for damages
is the main cause of action, or one of
the causes of action, the amount of
such claim shall be considered in
determining the jurisdiction of the
court
 RTC now exercises exclusive original
jurisdiction in guardianship and adoption
cases
 the decisions of inferior courts in all cases
are now appealable to the RTC, except
cadastral and land registration cases
decided by the inferior courts in the
exercise of delegated jurisdiction
 Sec. 19 (3): “admiralty jurisdiction”
regulates maritime matters and cases,
such as contracts relating to the trade and
business of the sea and essentially fully
maritime in character, like maritime
services, transactions or casualties
Family Courts
R.A. 8369, Sec. 5
 R.A. 8369 established a Family Court in
every province and city, and in case the
city is the provincial capital, the Family
Court shall be established in the
municipality with the highest population
 exclusive original jurisdiction provided in
Sec. 5 of R.A. 8369:
1. Petitions for guardianship, custody
of children, habeas corpus in
relation to the latter;
2. Petitions for adoption of children
and the revocation thereof;
3. Complaints for annulment of
marriage, declaration of nullity of
marriage and those relating to
marital status and property
relations of husband and wife or
those living together under
different status and agreements,
and petitions for dissolution of
conjugal partnership of gains;
4. Petitions for support and/or
acknowledgment;
5. Summary judicial proceedings
brought under the provisions of
Family Code;
6. Petitions for declaration of status
of children as abandoned,
dependent or neglected children,
petitions for voluntary or
involuntary commitment of
children; the suspension,
termination, or restoration of
parental authority and other cases
cognizable under P.D. 603, E.O.
56, (Series of 1986), and other
related laws;
7. Petitions for the constitution of the
family home;
8. Cases of domestic violence
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts
B.P. 129, Secs. 33, 34, 35
 the jurisdictional amount within the
exclusive original jurisdiction of the
inferior courts has been increased,
exclusive of interest, damages, attorney’s
fees, litigation expenses and costs, but
with the proviso that the amount thereof
must be specifically alleged
 the totality of all the claims alleged in all
the causes of action shall furnish the
jurisdictional test whether the same
pertains to the same or different parties
and irrespective of whether the causes of
action arose out of the same or different
transactions
 RULES OF COURT
RULE 1
GENERAL PROVISIONS
SECTION 1: Titles of the Rules.
The Rules have the force and effect of law.
It cannot be given retroactive effect, generally,
but it is ruled that statutes regulating the
procedure of the courts may be made applicable
to cases pending at the time of their passage and
are retroactive only in that sense.
In the interest of just and expeditious
proceedings, the Court may suspend the
application of the Rules and except a case from
their operation because such was precisely
adopted with the primary objective of enhancing
fair trial and expeditious justice.
2. land registration cases
3. cadastral proceedings
4. naturalization cases
5. insolvency proceedings
6. other cases not herein provided for
The Rules can only apply through analogy or in
a suppletory character and whenever practicable
and convenient.
Rules of procedure imposed in judicial
proceedings are unavailing in cases before
administrative bodies. They are not bound by the
technical niceties of law and procedure and the
rules obtaining in the courts of law.
SECTION 5: Commencement of action.
This is significant especially where prescription
is raised as a defense against the claim of the
plaintiff in the complaint.

SECTION 2: In what courts applicable. As long as the complaint which commences the
Supreme Court promulgated the Rules by the action is filed within the prescriptive period, the
power vested to it by the Constitution; such is claim alleged therein is not barred even if
legislative in nature. summons was served on the defendant after the
prescriptive period.
Applicable to all courts, however, not applicable
to all cases (Sec. 4) If the requisite docket fee was actually paid
subsequently to the filing of the complaint, the
SECTION 3: Cases governed. date of such payment therefore shall be
considered as the date of the filing of the
Criminal Special complaint.
Civil Action
Action Proceeding
The Court acquires jurisdiction over the case
One by which One by A remedy by
only upon full payment of the prescribed docket
a party sues which the which a party
fee. However, the rule in Manchester has been
another for State seeks to
the prosecutes a establish a modified in the case of Sun Insurance Office v.
enforcement person for status, a Asuncion as follows:
1. When the filing of the initiatory pleading is
or protection an act or right, or a
not accompanied by payment of the docket
of a right, or omission particular
fee, the court may allow payment of the fee
the punishable fact.
prevention or by law. within a reasonable time but not beyond the
redress of a applicable prescriptive or reglementary
period;
wrong.
2. The same rule applies to permissive
interpleader,
counterclaims, third-party claims and
declaratory
similar pleadings; and
relief,
3. When the trial court acquires jurisdiction
certiorari,
over a claim by the filing of the appropriate
prohibition,
pleading and payment of the prescribed
mandamus,
filing fee but, subsequently, the judgment
foreclosure of
awards a claim not specified in the pleading,
mortgage
or if specified the same has been left for
determination by the court, the additional
SECTION 4: In what cases not applicable.
filing fee therefor shall constitute a lien on
The Rules shall not apply to the following cases:
the judgment which shall be enforced and
1. election cases
 the additional fee assessed and collected by
the Clerk of Court.

The amount claimed need not be initially stated

with mathematical precision. Sec. 5(a), Rule 141
allows an appraisal “more or less” that is, a final
determination is still to be made and the fees
ultimately found to be payable will either be
additionally paid by or refunded to the party
concerned, as the case may be.

The amount of docket fees to be paid should be

computed on the basis of the amount of the
damages stated in the complaint. Where,
subsequently, the judgment awards a claim not
specified in the pleading or, if specified, the same
has been left for the determination of the court,
the additional filing fee therefor shall constitute
a lien on the judgment.
o GR: the amount of any claim for damages
arising on or before the filing of the
complaint or any pleading should be
specified.
XPN: the exception contemplated as to
claims not specified or to claims which
although specified are left to the
determination of the court is limited only to
damages that may arise after the filing of the
complaint or similar pleading since it will
not be possible for the claimant to specify or
speculate on the amount thereof.

SECTION 6: Construction.
While the Rules are liberally construed, the
provisions on reglementary periods are strictly
applied as they are “deemed indispensable to the
prevention of needless delays and necessary to
the orderly and speedy discharge of judicial
business” and strict compliance therewith is
mandatory and imperative.

The Rules exist for a purpose, and to disregard

such Rules in the guise of liberal construction
would be to defeat such purpose.
 RULE 2 which the by the directly
CAUSE OF ACTION plaintiff plaintiff as involved in
prays the the means to the action,
SECTION 1: Ordinary civil actions, basis of. court to obtain the concerning
Every ordinary civil action must be based on a render in his relief which the
cause of action. favor as a desired. wrong has
consequence been done
SECTION 2: Cause of action, defined. of the delict and with
A cause of action is the delict or wrongful act or committed respect to
omission committed by the defendant in by the which the
violation of the primary right of the plaintiff. defendant. controversy
has arisen.
Elements:
1. right pertaining to the plaintiff It is the allegations of the complaint and not the
2. correlative obligation of the defendant designation given by the parties which
3. act or omission committed by the defendant determines the nature of the case.
in violation of plaintiff’s rights
SECTION 3: One suit for a single cause of
A single act or omission can be violative of action.
various rights at the same time but where there is Test for determining whether or not a cause of
only one delict or wrong, there is but a single action is single: it is the delict or the wrong
cause of action regardless of the number of rights which violates the right of the action
violated belonging to one person. Nevertheless, o When there is one delict or wrong, there is
if only one injury resulted from several wrongful but a single cause of action regardless of the
acts, only one cause of action arises. The number of rights violated;
singleness of a cause of action lies in the o Must arise from the same contract or
singleness of the delict or wrong violating the transaction;
rights of one person. o All the rights violated must be prayed for in
the complaint.
Cause of Action Right of Action
Definition GR: A contract embraces only one cause of
A formal statement of A remedial right or action; it may only be violated once
the operative facts relief granted by law XPN: A contract which provides a stipulation to
that give rise to such to some persons – the be performed at different times, gives rise to as
remedial right. plaintiff whose rights many causes of actions as violations
have been violated by o e.g. debt payable in installments
the defendant. o all violations which were committed when
As to Nature the suit was filed must be included; those
The reason for the The right to which are not included are barred
action or the delict or commence and
wrong committed by maintain an action or SECTION 4: Splitting a single cause of action;
the defendant in the remedy or means effect of.
violation of the right afforded or the Splitting a cause of action: the act of dividing a
of the plaintiff. consequent relief. single cause of action, claim or demand into two
As to Governing Law or more parts, and bringing suit for one of such
A matter of statement A matter of right and parts only, intending to reserve the rest for
and is governed by depends on another separate action.
law on procedure. substantive law. o The purposes of Sec. 4 are to avoid
harassment and vexation to the defendant,
Subject and to obviate multiplicity of suits.
Relief Remedy
Matter
Where a single cause of action has been split, the
The redress, The The thing,
remedy of the defendant is to move to dismiss the
protection, procedure or wrongful act,
case either because of litis pendentia or res
award or type of action contract or
judicata.
coercive which may property
measure be availed of which is
Where a contract is to be performed periodically,
as by installments, each failure to pay an
installment constitutes a cause of action and can
be the subject of a separate suit as the installment
falls due, or it can be included in the pending suit
by supplemental pleading. However, if at the
time of the bringing of suit, several installments
are already due, all must be included as
integrating a single cause of action, otherwise
those not included will be barred.
SECTION 5: Joinder of causes of action.
Promotes the policy on avoiding multiplicity of
suits.
The rule in Sec. 5 is purely permissive and the
plaintiff can always file separate actions for each
cause of action.
 (a): requires that the joinder of causes of
action shall comply with the rule on
joinder of parties. Thus, in relation to Sec.
6 of Rule 3, it is necessary that the right of
relief from said causes of action should arise
out of the same transaction or series of
transactions, and a question of law and fact
common to all the plaintiffs or defendants
may arise in action.
 (b): only causes of action in ordinary civil
actions may be joined, obviously because
they are subject to the same rules.
Necessarily, therefore, special civil actions
or actions governed by special rules should
not be joined with ordinary civil actions to
avoid con• fusion in the conduct of the
proceedings as well as in the determination
of the presence of the requisite elements of
each particular cause of action.
 (c) and (d): determine which court will have
jurisdiction over the action wherein several
causes of action have been joined.
The rule on permissive joinder causes of action
is subject to the rules regarding jurisdiction,
venue and joinder of parties.
o XPN: one of the causes of action falls within
the jurisdiction of said court and the venue
lies therein. As long it has JD or venue in at
least one cause of action, the RTC can hear
all of them.
This presupposes that the different causes of
action which are joined accrue in favor of the
same plaintiff/s and against the same defendant/s
and that no misjoinder of parties is involved.
Q: How may causes of action be joined?
A: Alternative, not cumulative (i.e., “di nya alam
sinong isu-sue nya”) (ex. paternity and support)
Q: When can there be proper joinder of parties?
A: It is necessary that:
1. the right or relief from said causes of action
should arise out of the same transaction or series
of transactions; and
2. there is a question of law or fact common to all
the plaintiffs and defendants may arise in the
action (Rule 3, Sec. 6)
Q: Must it be based on same transaction?
A: Ordinarily, no because such is a rule only
applicable in the joinder of parties; there can be
joinder of causes of action without joinder of
parties.
Q: Plaintiff had contracts with B, one for sale of
the property on installment, and the other for
lease of a property, both situated in Angeles City.
A filed a case for rescission and for unlawful
detainer. He filed the case with the RTC. Is the
venue proper?
A: No, an action for unlawful detainer is a special
civil action, hence, there can be no joinder of
causes of action.
Always look into the following:
1.“Nag-comply ba sa rules on joinder of parties?”
2. “Special civil action ba or may special rules?”
3. “Ang JD ba or venue san na-i-file? Exception
lang is RTC.”
4. “Money claims lang ba? If yes, then ‘yon
aggregate amount ang test of jurisdiction.”
SECTION 6: Misjoinder of causes of action.
The cause of action erroneously joined need only
be separated and dismissed, without affecting
the action with regard to the other cause or causes
of action. Misjoinder of causes of action, like
misjoinder of parties, is not a ground for
dismissal of an action.
 RULE 3
PARTIES TO CIVIL ACTIONS
SECTION 1: Who may be parties; plaintiff and
defendant.
Only natural or juridical persons, or entities
authorized by law may be parties in a civil action.
Natural personality: from birth to death
o XPN: Estate of the deceased for the
purposes of liquidation
Juridical person: artificial being created by law
having responsibilities and rights specifically
conferred by law.
o The rule on acts which are outside the
purpose of the Corporation being ultra vires
applies only to juridical persons, not to
natural persons.
Q: Can a labor union or a political party be
parties to a civil action?
A: Yes. It can be registered.
Q: The associations not registered, can they be
parties?
A: No. They cannot sue because they do not have
a separate juridical personality. All members
must be impleaded individually.
XPNs:
1. Sec. 12: when the members are so numerous
(class suit)
2. Sec. 15: they cannot sue but the may only be
sued as defendants
3. Art. 487, NCC: co-ownership
SECTION 2: Parties in interest.
Real party in interest – the party who stands to be
benefited or injured by the judgement in the suit,
or the party entitled to the avails of the suit.
If the suit is not brought in the name of or against
the real party in interest, a motion to dismiss may
be filed on the ground that the complaint states
no cause of action.
SECTION 3: Representatives as parties.
Under the present Rules, parties in interest may
be classified and defined as follows:
(a) Indispensable Parties: those without whom
no final determination can be had of an
action (Sec. 7)
(b) Necessary Parties: those who are not
indispensable but ought to be parties if
complete is to be accorded as to those
already parties, or for a complete
determination or settlement of the claim
subject of the action (Sec. 8)
(c) Representative Parties: those referred to in
this section
(d) Pro forma Parties: those who are required to
be joined as co-parties in suits by or against
another party as may be provided by the
applicable substantive law or procedural rule
(Sec. 4)
(e) Quasi Parties: those in whose behalf a class
or representative suit is brought (Sec. 17)
SECTION 4: Spouses as parties.
This section is merely a reproduction of Art. 133
of the Civil Code.
SECTION 5: Minors or incompetent persons.
Under the former Rules, it was necessary that the
incompetent must have been judicially declared
as such. However, in the present Rules, the suit
can be brought by or against him personally but
with the assistance of his parents of his guardian.
It is sufficient that his incompetency be alleged
in the corresponding pleadings and the trial court
may pass upon the truth and effects thereof.
SECTION 6: Permissive joinder of parties.
The Rule is permissive – they can either be joined
in a single complaint or may themselves maintain
or be sued in separate suits.
o also applicable to counterclaims
Permissive joinder of parties requires that:
(a) the right to relief arises out of the same
transaction or series of transactions;
(b) there is a question of law or fact common to
all the plaintiffs or defendants; and
(c) such joinder is not otherwise proscribed by
the provisions of the Rules on jurisdiction
and venue.
“Series of transactions” means separate dealings
with the parties but all of which dealings are
directly connected with the same type of
subject-matter of the suit.
SECTION 7: Compulsory joinder of
indispensable parties.
Joinder is compulsory when the party is
indispensable because the issue cannot be
resolved.
SECTION 8: Necessary party.
Distinctions:
 Indispensable Under the circumstances contemplated in the 1st
Necessary Parties
Parties par., the court shall order the inclusion of the
Those with such an Those whose necessary party, that is, the plaintiff shall be
interest in the presence is ordered to file an amended complaint impleading
controversy that a necessary to the necessary party therein as a co-defendant.
final decree would adjudicate the whole Where the plaintiff unjustifiably fails or refuses
necessarily affect controversy but to do so, the sanction in the 2 nd par. comes into
their rights, so that the whose interests are play and the plaintiff shall be deemed to have
court cannot proceed so far separable that waived his claim against said party. The same
without their presence final decree can be rule applies to any pleading asserting a claim
made in their against a necessary party.
absence without
affecting them It is true that under Sec. 3 of Rule 17, where the
An action cannot An action can plaintiff fails without justifiable cause to comply
proceed unless such proceed even in their with an order of the court, his complaint may be
parties are joined absence dismissed. However, such dismissal shall not be
If not impleaded, any Even if not included, ordered where the plaintiff fails to comply with
judgment would have the case may be the order of the court for the joinder of the
no effectiveness finally determined in necessary party under this Rule. Thus, the rule
court, but the merely declaring the waiver of plaintiff’s claim
judgment therein against the necessary party whose non-inclusion
will not resolve the was unjustified, as provided in the 2nd par. of this
whole controversy section, is in effect an exception to the provision
Test: Sanction: Not on penalties imposed on a disobedient party
dismissal of the case under Sec. 3 of Rule 17 which would have
1. If you don’t join but it shall be entailed the dismissal of the complaint itself.
him, his rights will be deemed a waiver of
prejudiced the claim against SECTION 10: Unwilling co-plaintiff.
2. The issue in the such party.  defendant = unwilling plaintiff
case cannot be
resolved without SECTION 11: Misjoinder and non-joinder of
impleading the party. parties.
e.g. Joint obligations e.g. Solidary Objections to defects in the parties impleaded
obligations should be made at the earliest opportunity, the
moment such defects become apparent, by a
motion to strike the names of the parties
Q: A sold a property to B. Thereafter, X sued B
impleaded.
on the basis of the property. Is A an indispensable
o if there is misjoinder, a separate action
party?
should be brought against the party
A: No. The title can be fully resolved even
misjoined.
without joining. B can file a third-party
o objection to misjoinder cannot be raised for
complaint against A. Necessary party? No. He is
the first time on appeal
not a real party in interest since he has already
parted with the property. He will not be injured
Non-joinder and misjoinder of parties does not
or benefitted by the judgement of the court.
warrant dismissal but the court should order the
inclusion of the necessary party.
SECTION 9: Non-joinder of necessary parties o but if the case is erroneously dismissed on
to be pleaded. this ground without stating that it is without
Reiterates the need for impleading all necessary prejudice, and plaintiff did not appeal, such
parties in order that the claims involved may be dismissal bars the filing of another action on
completely determined and thereby avoiding the same cause
multiplicity of suits. o the process is not to dismiss, but to drop or
add the parties in the case of non-joinder,
Non-inclusion of such parties may only be and sever and proceed separately in the case
allowed on meritorious grounds. of misjoinder (see Flores v. Mallare-
Philipps)
SECTION 12: Class suit.
Requisites:  GR: only natural or juridical parties
(a) the subject-matter of the controversy is one  (case of Borlasa v. Polistico)
of common or general interest to many
persons; SECTION 13: Alternative defendants.
(b) the parties affected are so numerous that it  “although a right of relief against one may
is impracticable to bring them all before the be inconsistent with the right of relief
court; and against the other”
(c) the parties bringing the class suit are
sufficiently numerous and representative of Illustration: “Binangga yung sinasakyan mong
the class and can fully protect the interests of jeep, di mo kilala sino may kasalanan, e di
all concerned. implead mo dalawa.” insurance company
subrogated to the rights blah blah
The complaint must specifically state that the Q: Is there a proper joinder?
same is being brought in behalf of others with A: Yes… series of transactions
whom the parties share a common interest.
o the party bringing the class suit must have
SECTION 14: Unknown identity or name of
the legal capacity to do so
defendant.
This presupposes that the plaintiff really does not
If there is a conflict of interest between those
know the identity and/or address of the defendant
sought to be represented and those who filed the
or is not in a position to ascertain such identity or
action, the class suit will not prosper.
whereabouts.
The parties who brought the class suit have
SECTION 15: Entity without juridical
control over the case with the right to
personality as defendant.
compromise or even discontinue the same. But a
Includes non-profit or charitable associations
class suit cannot be compromised or dismissed
since they can also commit and be held liable for
without the approval of the court.
actionable wrongs.
A member of the class is bound by the judgment
Applicable only when these people are the
in the class suit, hence this section gives him the
defendant and not plaintiffs.
right to intervene if he desires to protect his own
individual interests. In the interest of justice, the
SECTION 16: Death of a party; duty of counsel.
absent members should be notified of the filing
The death of the client will require his
of the class suit whenever practicable.
substitution by his legal representative to be
ordered by the court wherein the case is pending,
An action does not become a class suit merely
or even the appointment of an executor or
because it is designated as such in the pleadings.
administrator but, this time, by a court of probate
It depends upon the attending facts, and the
jurisdiction.
complaint or other pleading initiating a class
action should allege the existence of a subject-
These provisions apply where the claim survives
matter of common interest, as well as the
and regardless of whether either the plaintiff or
existence of a class and the number of persons in
the defendant dies or whether the case is in the
the alleged class, in order that the court may be
trial or appellate courts.
able to determine whether the members of the
o no summonses are required to be served on
class are so numerous as to make it impracticable
the substitute defendants
to bring them all before the court, to contrast the
o the order of substitution shall be served upon
number appearing on the record with the number
the parties substituted in the action for the
in the class, to ascertain whether the claimants on
court to acquire jurisdiction over the
record adequately represent the class, and to
substituted party
verify that the subject-matter is of general or
Proceedings conducted by the court after the
common interest.
death of the defendant, and without such
substitution, are null and void.
The parties bringing the suit have the burden of
proving the sufficiency of the representative
character which they claim.
The court should not order the amendment of the
complaint but the appearance of the of the
decedent’s legal representatives.
o an order for the amendment of the complaint
before the substitution of the deceased is
void
Upon the death of the party, he attorney has no
further authority to appear, save to inform the
court of his client's death and to take steps to
safeguard the decedent' s interest, unless his
services are further retained by the substitute
parties.
The question as to whether an action survives or
not depends on the nature of the action and the
damage prayed for.
o survives: the wrong complained of affects
primarily and principally property and
property rights, the injuries to the person
being merely incidental
 actions to recover real and personal
property against the estate
 actions to enforce liens thereon
 actions to recover for an injury to person
or property by reason of tort or delict
committed by the deceased
o does not survive: the injury complained of is
to the person, the property and property
rights affected only incidental
Where a right is transferred before the institution
of the action, the suit should be brought in the
name of the assignee; where the transfer is made
pendente lite, the assignee should be substituted
for the original plaintiff.
 If the party dies, will the case be dismissed?
A: It depends whether the action can survive
the death of the person. (e.g. annulment,
legal separation, support)
 How will the case continue? What is the
procedure?
A: notify the court of the fact of death, and
to give the name and address of his legal
representative; if no legal representative, the
court may order the opposing party to
procure the appointment of an executor or
administrator for the estate
 Who will answer for the adjudged amount?
A: Estate. If the estate is not enough, “sorry
nalang”.
 When does the death need to occur in order
for this to be applicable?
A: During the pendency of the case and if the
court has acquired jurisdiction over the
person of the deceased.
 The ratio is that the heirs are just stepping
into the shoes of the deceased. Otherwise,
what is there to substitute.
 Effect of civil liability on the death of an
accused
A: Rule 111, Sec. 4. The civil liability of the
offense charged is dependent upon the
determination of the guilt of the accused.
SECTION 17: Death or separation of a party
who is a public officer.
 An “officer of the Philippines” does not
include a judge who is sued in connection
with the exercise of his judicial functions as
any action impugning it is not abated by his
cessation from office.
 It is not required that what the successor in
office is continuing or threatens to adopt and
continue is an action of his predecessor “in
enforcing a law alleged to be in violation of
the Constitution of the Philippines.”
 Must be sued in the official capacity and not
in his personal capacity.
SECTION 18: Incompetency or incapacity.
 In case of supervening incapacity or
incompetency of a party, the action shall
continue to be prosecuted by or against him
personally and not through his
representatives, in line with the amendments
in Secs. 3 and 5 of this Rule, since he
continues to be the real party in interest
although assisted by the corresponding
guardian.
 Who is an incompetent? Rule 92, Sec. 2.
 No judicial declaration needed that one is an
incompetent; it is sufficient that it is alleged.
SECTION 19: Transfer of interest.
 The substitution contemplated herein is not
mandatory, it being permissible to continue
the action by or against the original party in
case of transfer of interest pendente lite.
 As the original party is bound by the final
outcome of the case, his substitution by the
transferee is not necessary unless the
substitution by or the joinder of the latter is
required by the court; otherwise, failure to
do so does not warrant the dismissal of the
case.
o A transferee pendente lite is a proper,
and not an indispensable, party in the
case.
 However, where the transfer was effected
before the commencement of the suit, the
transferee must necessarily be the defendant
or the plaintiff, but he may file a third-party
complaint against and implead the transferor
in the action whenever the same is necessary
and proper for a complete determination of
all the rights of the parties.
 If the transfer was before the action
executed, must the transferor be included?
A: No. He is no longer a real party in
interest.
 A transferee pendente lite is also bound by
the judgment rendered by the court because
it is conclusive not only between the parties
but also to successors-in-interest by title
subsequent to the action. (Rule 39, Sec. 47)
 Atty. Escolin: A buyer in good faith and for
value does not come within the ambit of the
relevant provisions.
o A title can become a perfect title when
it is purchased by someone who is in
good faith.
o The LRA being a substantive law
prevails over procedural law.
o He is likened to a “holder in due course”
who is free from personal defenses.
o implied constructive trust concept
SECTION 20: Action on contractual money
claims.
 Two important aspects thereof must
inceptively be taken note of:
(1) the action must primarily be for
recovery of money, debt or interest
thereon, and not where the subject
matter is primarily for some other relief
and the collection of an amount of
money sought therein is merely
incidental thereto, such as by way of
damages; and
(2) the claim subject of the action arose
form a contract, express or implied,
entered into by the decedent in his
lifetime or the liability for which had
been assumed by or is imputable to him.
 Because of the rule mandating compliance
with the rule for prosecuting claims against
the estate, the prevailing plaintiff is not
supposed to file a motion for the issuance of
an order and writ of execution of judgement.
 The action must:
(1) be to recover money
(2) the defendant dies and not the plaintiff
(3) plaintiff obtains a favorable judgement
 Being a money claim, judgment for money
favorable to the plaintiff shall be filed as
money claim against the estate of the
decedent
 The term, “implied” accordingly, may mean
a claim arising from law or quasi-contract.
 Where an action is for the revival of a
judgement for a sum of money which has
become stale for non-execution after the
lapse of 5 years, and the defendant dies
during the pendency of said action, Sec. 20
of this Rule is not involved since the action
is merely to keep alive the judgment so that
the sums awarded in the action for revival
thereof may be presented as claims against
the estate of the deceased.
SECTION 21: Indigent party.
 The term indigent party has been substituted
for what used to be called a “pauper
litigant”.
o a person who has no money or property
sufficient for his support, aside from his
labor, even if he is self-supporting when
able to work and in employment
 Indigent = persons who have no property or
source of income sufficient for their support
aside from their own labor, though self-
supporting when able to work and in
employment. (Acar v. Rosal)
SECTION 22: Notice to the Solicitor General.
 Only the OSG can bring and defend actions
on behalf of the Republic of the Philippines,
and that actions filed in the name of the
Republic and its agencies and
instrumentalities, if not initiated by the
Solicitor General will be summarily
dismissed.
 In any action involving the validity of any
treaty, law, ordinance, executive order,
presidential decree, rules or regulations, the
Court, in its discretion, may require the
appearance of the SolGen who may be heard
in person or through a representative duly
designated by him.
 The government is not the defendant itself
for otherwise, it shall be mandatory.
 RULE 4
VENUE OF ACTIONS
Venue – where the action is commenced,
instituted and tried.
SECTION 1: Venue of real actions.
SECTION 2: Venue of personal actions.
 The present revised Rule has adopted
uniform rules of venue for all trial courts, the
venue for real actions being determined by
the place where the real property or a portion
thereof is situated and, for personal actions,
by the residence of the principal parties,
with special provisions for non-resident
defendants.
Real Action Personal Action
The place where the At the election of the
real property or a plaintiff:
portion thereof is a. where the
situated. plaintiff or any of
the principal
plaintiff resides;
b. where the
defendant or the
principal
defendant
resides; or
c. in the case of a
non-resident
defendant:
i. where the
plaintiff or
any of the
principal
plaintiffs
reside; or
ii. where the
non-resident
may be found
1. Where the plaintiff or
any of the principal
Defendant is a plaintiffs resides; or
resident 2. Where the defendant
or any of the principal
defendants resides
1. Where the plaintiff or
any of the principal
Defendant is non-
plaintiffs reside; or
resident
2. Where the non-
resident may be found
 Test in determining venue: What is the
primary purpose of the action?
 The venue contemplated shall be “in the
proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof, is situated”.
 Where the subject-matter of the action
involves various parcels of land situated in
different provinces, the venue is determined
by the singularity or plurality of the
transactions involving said parcels of land.
o where the parcels of land are the objects
of one and of the same transaction –
venue is in the court of any of the
provinces where a parcel of land is
situated 

o if the subject of separate and distinct
transactions – there is no common
venue and separate actions should be
laid in the court of the province wherein
each parcel of land is situated 

 The “residence” referred to is the place
where the party actually resides at the time
the action is instituted, not his permanent
home or domicile.
o his personal, actual, or physical
habitation or his actual residence or
place of abode, whether permanent or
temporary as long as he resides with
continuity and consistency therein
 Q: An action of recovery of deficiency after
foreclosure of the REM
A: Personal action. It is mainly for the
recovery of the sum of money.
 Q: An action seeking to return the portion of
the property subject to co-ownership or its
amount.
A: Real action. The alternative claim is one
affecting title to or possession.
 Q: An action to annul a REM.
A: Personal action. No claim for ownership
yet because the ownership still vests on the
mortgagor.
 Q: An action to annul extrajudicial
foreclosure sale
A: Real action. Since there was already a
transfer of ownership, the annulment of the
extrajudicial foreclosure sale would effect to
reverting the ownership to the mortgagor.
SECTION 3: Venue of actions against
nonresidents.
 The defendant here does not reside and is
not found in the Philippines.
1. any of the defendants does not reside
and is not found in the Philippines; and
 2. the action affects:
a. the personal status of the plaintiff; or
b. any property of said defendant
located in the Philippines
a. For personal actions
Defendant is a – where the plaintiff
non-resident resides
found in the 
 b. For real actions –
Philippines where the property is
located
a. Personal status of
plaintiff – where
plaintiff resides 
 1. not found in the Philippines – yes. if the
Defendant is a
b. Any property of said
non-resident not
defendant located in the
found in the
Philippines – where the
Philippines
property or any

 portion thereof is
situated or found 
 option of the plaintiff
 Where a personal action is against a resident
defendant and a nonresident defendant but
who is in the Philippines, both of whom are
principal defendants, the venue may be laid
either where the resident defendant resides
or where the nonresident defendant may be
found, as authorized by Sec. 2 of this Rule,
but with an additional alternative venue, i.e.,
the residence of any of the principal
plaintiffs, pursuant to Secs. 2 and 3.
o the alternative venue granted to
plaintiffs is not available to corporation
 When there are more than one defendant or
plaintiff in the case, the residences of the
principal parties should be the basis for
determining the proper venue.
 Where, on the other hand, it is the defendant
who is a nonresident and is not found in the
Philippines, civil actions are proper only
when the action affects the personal status of
the plaintiff or property of the defendant, in
which case Sec. 2 determines the venue.
 The ground of improper venue is placed on
the same footing as the other grounds for a
motion to dismiss enumerated in Sec. 1 of
Rule 16 and is entitled to the same
considerations in that, if it is not raised in a
motion to dismiss, it may likewise be alleged
as an affirmative defense in the answer for a
preliminary hearing thereon. At all events, it
is likewise subject to the same sanction
provided in Sec. 1, Rule 9 that if it is not
pleaded as an objection either in a motion to
dismiss or in the answer, it is deemed
waived.
 Why the need for this rule? Because he
cannot be served summons.
o the action will be converted; liability
will be imposed on the property
o impossibility of acquiring jurisdiction
over the person, but when the
jurisdiction over the person is not
essential (in rem and quasi-in rem) then
the action can prosper
o extra-territorial service of summons
 May a defendant who is not a non-resident
be sued? If yes, where?
action affects the personal status of the
plaintiff, or any property of said
defendant located in the Philippines
2. found in the Philippines – yes, where
the defendant may be found or at the
 The property need not be real property.
SECTION 4: When Rule not applicable.
 GR: The rule on venue depends on what the
law states.
XPN: Rule 4, Sec. 4
 4(a):
o e.g. libel (where the complainant resides
or where it was first published, if public
official, where he holds office, resides,
or where it was first published)
 4(b): requires a valid written agreement
executed by the parties before the filing of
the action.
o to be binding, the parties must have
agreed on the exclusive nature of the
venue of any prospective action
between them
o the agreement of the parties must be
restrictive and not permissive
o if it is not exclusive, you can still follow
the general rules on venue; otherwise,
still apply the Rules
 4(b) requisites:
1. it must be in writing;
2. provides an exclusive venue; and
3. made before the filing of the action
 The situs is fixed to attain the greatest
convenience possible to the litigants by
taking into consideration the maximum
accessibility to them of the courts of justice.
 The court may declare agreements on venue
as contrary to public policy if such
stipulation unjustly denies a party a fair
opportunity to file suit in the place
 designated by the Rules. The court shall take  The foregoing considerations
into consideration the economic conditions notwithstanding, the Supreme Court, to
of the parties, the practical need to avoid avoid a miscarriage of justice, has the power
numerous suits filed against the defendant in to order a change of venue or place of trial in
various parts of the country and the peculiar civil or criminal cases or other judicial
circumstances of the case. proceeding.
 As to contracts of adhesion: the rule is that
ambiguities therein are to be construed
against the party who caused it. If the RULE 5
stipulations are not obscure and leave no UNIFORM PROCEDURE IN TRIAL
doubt on the intention of the parties, the COURTS
literal meaning of the stipulations must be
held controlling. SECTION 1: Uniform procedure.
o WHY? Because it negates the primary  The procedure in the MTC shall be the same
objective of the stipulation on as in the RTC, except:
agreement which is supposedly for the 1. where a particular provision expressly
convenience of the plaintiffs as well as or impliedly applies only to either of
the witnesses, and for promoting the said courts; or
ends of justice. 2. in civil cases governed by the Rule on
o contracts of adhesion are not prohibited, Summary Procedure.
but the factual circumstances of each
case must be carefully scrutinized to SECTION 2: Meaning of terms.
determine the respective claims of the  Includes all MTCs.
parties as to their efficacy
 A stipulation as to the venue of a prospective
action does not preclude the filing of the suit
in the residence of the plaintiff or that of the
defendant under Sec. 2 of this Rule, in the
absence of qualifying or restrictive words in
the agreement that would indicate that the
venue cannot be any place other than that
agreed upon by the parties, especially where
the venue stipulation was imposed by the
plaintiff for its own benefit and convenience.
 In actions involving domestic corporations,
for purposes of venue, what is controlling is
the location of its principal place of business
stated in its articles of incorporation, not the
branch office or place of business thereof.
 Since a third-party complaint is but ancillary
to a main action, the rules on jurisdiction and
venue do not apply to it.
o a third-party complaint yields to the
jurisdiction and venue of the main
action even if said third-party complaint
is based on a separate agreement which
specifies a different venue for suits
arising from said agreement
 Where only one of the two defendants, both
being indispensable parties, filed a motion to
dismiss for improper venue, while the other
filed his answer without raising such
objection, the hearing should not proceed
against the latter until the objection raised by
the former shall have been resolved.
 RULE 6 4. Third (fourth, assertion of the
KINDS OF PLEADINGS etc.) -party defendant
complaint
SECTION 1: Pleadings defined. 5. Complaint-in-
 Pleadings are the written statements of the intervention
respective claims and defenses of the
parties submitted to the court for SECTION 3: Complaint.
appropriate judgment.
  The pleading alleging the plaintiff’s
o cannot be oral because they are cause or causes of action.
clearly written statements.  The names and residences of the plaintiff
 Purpose: and defendant must be stated in the
1. To apprise the court of the rival complaint.
claims in a judicial controversy  The complaint should contain a concise
submitted for trial and decision 
 statement of ultimate facts constituting
2. To define the issues and form the the plaintiff’s 
 cause of action, not
foundation of proof to be evidentiary facts or legal conclusions. It
submitted during trial as well as should also contain the relief prayed for.
advice a party to what his  The jurisdiction of the court and the
adversary would rely on as a cause nature of the action are determined by the
of action or as defense so that he averments in the complaint. The payer for
would be properly prepared at the relief is not controlling on the court and is
trial to meet the issues raised 
 merely advisory as to the nature of the
 Construction of Pleadings: It should be action, as it is the averments in the
liberally construed depending on the complaint which control.
intention of the pleader and its substance.  Significance of filing of complaint:

 1. commencement of the civil action
o In case of ambiguity, the pleading 2. court also acquires jurisdiction
will be interpreted strongly over the person of the plaintiff
against the pleader. No Note: the payment of the docket
presumptions in his favor are to be fees is what clothes the trial court
indulged in. 
 o WHY? It is the with jurisdiction over the subject
pleader who chooses the own matter or nature of the action
 .
words of the pleading. 
 The non-payment of docket fees
 A motion to dismiss is not a pleading. 
 A over the supplemental complaint
motion is an application for relief other does not divest the RTC of the
than by pleading
 . However, there are jurisdiction it already had over the
motions that actually seek judgment like a case.
motion for judgment on the pleadings and
motion for summary judgement. SECTION 4: Answer.
 An answer in pleading in which a
Pleading Motion defending party sets forth his defenses.
Always relates to a Does not always
course of action relate to a course of SECTION 5: Defenses.
either to deny or action  Negative defense – a specific denial of
admit material fact or facts alleged in the
More of an pleading of the claimant essential to his
application for an cause or causes of action.
order o always allege material facts: right,
duty/obligation, injury
SECTION 2: Pleadings allowed. o Atty. Escolin: a fact is material
when without it the cause of action
Pleading which is not complete. It is essential.
Assert a Claim
Responds Cause of action cannot do without
1. Complaint 1. Answer it.
2. Counterclaim 2. Reply - o a denial is not specific just because
3. Crossclaim responding to an it is so qualified, and this is
 especially true where a blanket  Affirmative defense – an allegation of a
denial is made of all the averments new matter which, while hypothetically
of the complaint instead of dealing admitting the material allegations in the
particularly with each pleading of the claimant, would
nevertheless prevent or bar recovery by
(a) Specific Denial him.
 Effect of failure to make a o allegation made by a defending
specific denial: party
GR: material averments o new matter because it was not
not denied are deemed raised in the complaint
admitted (Rule 8, Sec. 11) o if the court considers the new
XPNs: matter, meaning you are
(1) the amount of hypothetically admitting the
unliquidated damages material allegations of the case, it
(Rule 8, Sec. 11) would prevent or bar the
(2) conclusions in a complainant from recovering or
pleading which do not being entitled to the relief granted
have to be denied at o not a denial of an ingredient in the
all because only plaintiff’s cause of action
ultimate facts need be  defense by way of
alleged in a pleading confession and avoidance
(Rule 8, Sec. 1) o 5(b): list of defenses is not
(3) Non-material exclusive
averments or
allegations are not  Q: Effect of a general denial?
deemed admitted A: He is deemed to admit the material
because only material averments of the plaintiff’s cause of
allegations have to be action. (Rule 8, Sec. 11)
denied (Rule 8, Sec.
11) 
 SECTION 6: Counterclaim.
 Any claim which a defending party may
 Kinds of Specific Denial have against an opposing party.
(Rule 8, Sec. 10):  Nature: It partakes of a complaint filed by
(1) Absolute Denial – the defendant against the plaintiff.
specify each material o not intrinsically part of the answer
allegation of fact the because it is a separate pleading,
truth of which he does but it may be included in the
not admit and state the answer
basis for your denial  A counterclaim need not diminish or
(2) Partial Denial – even defeat the recovery sought by the
if denying only the opposing party but may claim relief
remainder, state the exceeding in amount or different in kind
basis for the denial from that sought by the opposing party
(3) Denial by Disavowal
of Knowledge – Compulsory Permissive
where a defendant is Counterclaim Counterclaim
without knowledge or
One which arises out Does not arise out of
information sufficient
of or is necessarily nor is it necessarily
to form a belief as to
connected with the connected with the
the truth of a material
transaction or subject matter of the
averment made in the
occurrence that is the opposing party’s
complaint
subject matter of the claim
opposing party’s
(b) General Denial
claim
 It is barred if not set Not barred even if not If there is a general denial – deemed
up in the action (Set set up in the action admitted
off) (see Rule 9, Sec. (Recoupment)
2)  Atty. Escolin: “Tutal doon na nag-hear ng
Not considered an Considered an case, doon na rin dapat i-file ang
initiatory pleading initiatory pleading counterclaim to avoid multiplicity of suits.”
Does not require a Should be
certificate to file an accompanied with a An after-acquired counterclaim is not barred,
action issued by the certificate against even if the same arises out of or is necessarily
Lupong forum shopping and connected with the claim alleged in the complaint
Tagapamayapa whenever required by in the previous case but was not set up therein,
because it is not law, a certificate to since Sec. 8 of Rule 11 provides that a
initiatory file an action issued compulsory counterclaim “that a defending party
by the Lupong has at the time he files his answer shall be
Tagapamayapa contained therein”.
Failure to answer is Must be answered by
not a cause for default the party against Where the counterclaim, and the same is true
declaration whom it is with a cross-claim, was already in existence at
interposed, the time the defendant filed his answer but was
otherwise, he may be not set up therein through oversight,
declared in default as inadvertence, or excusable neglect, or when
to the counterclaim justice so requires, the same may be set up by
filing an amended answer (Sec. 10, Rule 11).
SECTION 7: Compulsory counterclaim. Where said counterclaim or cross-claim matured
Concurrence of all elements: after the filing of the answer, the defending party
1. The claim must arise out of, or is necessarily can set it up by filing a supplemental answer or
connected with the transaction or occurrence pleading (Sec. 9, Rule 11). In either case, leave
which is the subject matter of the opposing of court is required and such pleadings must be
party’s claim. filed before the rendition of the judgment.
 e.g. P sues D based on a promissory
note which is due and demandable. D A counterclaim or cross-claim need not be
says he also has a claim against P. Is it answered if it is based on and inseparable from
compulsory? No. Not out of the same the very defense raised by the opposing party as
transaction. it will merely result in said opposing party
2. The claim does not require for its pleading the same facts already raised in his
adjudication the presence of third parties of former pleading or where the counterclaim
whom the court cannot acquire jurisdiction. merely alleges the opposite of the facts in the
3. The claim must be cognizable by the regular complaint.
courts of justice and the court has o e.g. where the counterclaims are only for
jurisdiction to entertain the counterclaim damages and attorney's fees arising from the
both as to the amount and nature. filing of the complaint, the same shall be
XPN: in an original action before the RTC, considered as special defenses and need not
the counterclaim may be considered be answered
compulsory regardless of the amount
 does not apply to MTC A party who desires to plead a compulsory
4. The counterclaim must be due and counterclaim should not file a motion to dismiss.
demandable. 

 otherwise, it is premature o if he files a motion to dismiss and the
 while there might be a right there is no complaint is dismissed, there will be no
corresponding obligation on the part of chance to invoke the counterclaim
defendant to respect plaintiff’s right
GR: Counterclaim should be answered. Effect of Failure to Set-up Compulsory
Otherwise, he is deemed to have admitted the Counterclaim:
material averments. GR: A compulsory counterclaim not set up in the
o If there is no answer – in default answer is deemed barred.
XPNs: 

1. If it is a counterclaim which either matured Purpose: To settle in a single proceeding all the
or was acquired by a party after serving his claims of the different parties against each other
answer in the case in order to avoid multiplicity of
 It may be pleaded by filing a suits
 .
supplemental answer or pleading before
judgment, with the permission of the Effect of Failure to Set-up a Cross-claim:
court GR: A cross-claim which is not set up in the
2. When a pleader fails to set up a counterclaim action is barred.
through oversight, inadvertence, excusable XPNs:
negligence or when justice requires, he may, 1. when it is outside the jurisdiction of the
by leave of court, set up the counterclaim by court; or
amendment of the pleadings before 2. if the court cannot acquire jurisdiction over
judgment third parties whose presence is necessary for
the adjudication of said cross-claim
Q: What is the connection of a defendant’s duty? 3. if through oversight or inadvertence it is not
A: It must be due and demandable. Otherwise, asserted – it may still be set up with leave
there is no duty on the part of the defendant to 
 of court by amendment of the pleading 

respect the right of plaintiff. Ergo, there is no 4. cross-claim that may mature or may be
cause of action. To sustain a counterclaim, there acquired after service of answer – it may,
must be a cause of action.
by
 permission of the court, be presented by
Q: A believing that he has a better title to the supplemental pleadings before judgment 

property sues B. B raises the counterclaim that it
is a malicious suit, and that he is a BPS in good The dismissal of the complaint carries with it the
faith. He is entitled to reimbursement of the dismissal of a cross-claim which is purely
necessary expenses and to the expenses of defensive, but not a cross-claim seeking
building, and planting. Is the expenses affirmative relief.
compulsory counterclaim?
A: Yes. It arises from or is necessarily connected
Third-
in an opposing party’s claim. The subject matter
Cross-claim Counterclaim party
is the same land.
Complaint
A claim A claim A claim
SECTION 8: Cross-claim. against a co- against an against a
Any claim by one party against a co-party party opposing person not a
arising out of the transaction or occurrence that
party party to the
is the subject matter either of the original action action
or of a counterclaim therein.
Must arise May or may Similar to
o cannot be set-up for the first time on appeal
from the arise not out of cross-claim
transaction or the subject in that the
May include a claim that the party against whom
occurrence matter of the third-party
it is asserted is or may be liable to the cross-
that is the complaint. plaintiff
claimant for all or part of a claim asserted in the
subject seeks to
action against the cross-claimant.

matter of the It may be recover
o there is no permissive cross-claim
original compulsory or from
o e.g. Creditor sues Principal D including
complaint or permissive. another
Surety 1, 2, and 3. If Surety 1 will be made
counterclaim. person
to pay, he can make a claim against his co-
some relief
defendants.
in respect to
the
Limitations:
opposing
1. must arise out of the subject matter of the
party’s
original complaint or a counterclaim
claim.
2. can be filed only against a co-party
Leave of Leave of court Leave of
3. proper only where cross-claimant stands to
court is not is not required court is
be prejudiced by the filing of the action
required required
against him

 the answer is based on an actionable document
in which case a verified reply is necessary,
SECTION 9: Counter-counterclaims and otherwise the genuineness and due execution of
counter-cross-claims. said actionable document are generally deemed
 A counterclaim may be asserted against admitted (Rule 8, Sec. 8)
an original counterclaimant.
 A cross-claim may be filed against an Answer to
Reply
original cross-claimant. Counterclaim
 GR: Counterclaims must be answered A response to the A response to a cause
because it is not within the original defenses interposed of action by the
answer. by the defendant in defendant against the
XPN: Compulsory counterclaims his answer 
 plaintiff 

Filing of reply is Filing of answer to a
 Q: Does a counter-counterclaim need to generally optional counterclaim is
be arising from the same transaction? generally mandatory
A: No thing as a permissive counter- as failure to file an
counterclaim answer to the
P files an action against D for a PN but D counterclaim shall
counterclaim for the car accident but P render the plaintiff in
says that D is the one negligent in that default on the
accident. counterclaim 


SECTION 10: Reply. Q: May plaintiff, in his reply, set-up claims

A pleading, the office or function of which is to
deny, or allege facts in denial or avoidance of
new matters alleged by way of defense in the
answer and thereby join or make issue as to such
new matters.
o The responsive pleading to an answer.
Filing of a reply is optional, but where the party
desires to file a reply, he must nevertheless do so
within 10 days from service of the pleading
responded to (Rule 11, Sec. 6)
o Gist: the material allegations in the
complaint must be specifically denied, but
the allegation of new matters or material
allegations in the answer need not be denied
because they are deemed denied by the Rules
for the plaintiff.
Purpose: to join issues with new matters raised
in the answer and thereby authorize the pleader
of the reply to introduce evidence on said new
issues.
A party, cannot, in his reply, amend his cause of
action nor introduce therein new or additional
causes of action.
Effect of Failure to File a Reply:
GR: The filing of a reply is optional as the new
matters raised in the answer are deemed
controverted even without a reply
 .
XPN: The filing of a reply is compulsory and
must be filed within the said 10-day period where
arising from the new matters alleged in the
answer?
A: You cannot but you can amend the complaint
or file a supplemental complaint.
A reply to a counterclaim or cross-claim is
improper. An answer thereto must be filed
instead within 10 days from the receipt thereof.
SECTION 11: Third, (fourth, etc.) -party
complaint.
A claim that a defending party may, with leave
of court, file against a person not yet a party to
the action, called the third (fourth, etc.) -party
defendant for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.
o It is an initiatory pleading and as such is
subject to the requirements on the payment
of docket fees and certification against
forum shopping.
A third-party complaint need not arise out of or
be entirely dependent on the main action as it
suffices that the former be only “in respect of the
claim of the third-party plaintiff’s opponent.”
Consequently, the judgment on a third-party
complaint may become final and executory
without waiting for the final determination of the
main case.
Leave of court is required, hence its admission is
subject to judicial discretion. Permission of the
court is not required in filing a counterclaim or the third-party complaint regardless of
cross-claim because the parties involved are the amount involved as a third-party
already parties to the action. complaint is merely auxiliary to and is a
continuation of the main action.
Third-party Cross-claim o what is determinative of venue are
Complaint the operative facts in the main
It seeks to recover from another person some case, and not those alleged in the
relief in respect to the opposing party’s claim. third-party complaint
Third-party is not yet Third-party is  An order disallowing a third-party
impleaded in the already impleaded in complaint is appealable since it would
action the action finally dispose of defendant’s right to
implead the third party.
Third-party Complaint-in-  Where the trial court dismissed the
Complaint Intervention complaint and the defendants' third-party
Both result in bringing into the action a third complaint and only the plaintiff appealed,
person who was not originally a party the Court of Appeals, in reversing the
The initiative is with The initiative is with a judgment dismissing plaintiff’s
the person already a non-party who seeks complaint, cannot make a finding of
party to the action. to join the action. liability on the part of the third-party
P sues S only; the PD defendants since the defendants, as third-
can intervene party plaintiffs, did not appeal from the
dismissal of their third-party complaint
Answer: Answer-in-
and the third party defendants were not
Intervention
parties in the case on appeal.
Bringing New Third-party
Parties Complaint  Q: Should this complaint be answered?
(Sec. 12) (Sec. 11) A: Yes. In the same vein that a complaint
Proper if one or Proper when not one be answered
more of the of the third-party  Q: The counterclaim or cross-claim?
defendants in a defendants is a party A: It also has a cause of action since it is
counterclaim or to the main action. 
 a claim.
cross-claim is
already a party to SECTION 12: Bringing new parties.
the action. The  When the presence of parties other than
other necessary those to the original action is required for
parties may be the granting of complete relief in the
brought in under determination of a counterclaim or cross-
this section. claim, the court shall order them to be
brought in as defendants, if jurisdiction
Tests to determine whether the third party over them can be obtained. 

complaint is in respect of plaintiff’s claim: o forced amendment because the
1. Whether it arises out of the same transaction judgment is not considered valid
on which the plaintiff’s claim is based, or as an indispensable party is one
although arising out of another or different who no final judgement can be had
transaction, is connected with the plaintiff’s o e.g. In an action to recover
claim; possession by co-owner, the
2. Whether the third-party defendant would be defendant files a counterclaim to
liable to the plaintiff or to the defendant for recover title to the same property.
all or part of the plaintiff’s claim against the The other co-owners may be
original defendant; and brought in under this section as
3. Whether the third party defendant may defendants to the counterclaim for
assert any defenses which the third party complete relief.
plaintiff has or may have to the plaintiff’s
claim SECTION 13: Answer to third (fourth, etc.) -
 Where the trial court has jurisdiction over party complaint.
the main case, it also has jurisdiction over
 A third (fourth, etc.) -party defendant may
allege in his answer his defenses,
counterclaims or cross-claims, including
such defenses that the third (fourth, etc.) -
party plaintiff may have against the
original plaintiff's claim. 

o e.g. Only S was sued by the C. S
files a third-party complaint
against the PD; S is now the third-
party plaintiff and PD is the third-
party defendant. In the answer of
PD, he may raise all defenses that
S may have forgotten against the
original P, who is C.
 He may also assert a counterclaim against
the original plaintiff in respect of the
latter's claim.
o e.g. PD may also raise a
counterclaim against C.
 RULE 7
PARTS OF A PLEADING
SECTION 1: Caption.
 Caption contains:
1. Name of the court
2. Title of the action
 contains the name of the
parties and their
participation in the action –
either as plaintiff or
defendant
 they shall all be named in
the original complaint or
petition; but in subsequent
pleadings, it shall be
sufficient if the name of the
first party on each side be
stated with an appropriate
indication when there are
other parties (et al., or et
chetera, or etc., or and
others)
3. Docket number, if assigned
 It is not the caption of the pleading, but
the allegations therein, that determine the
nature of the action, and the court shall
grant the relief warranted by the
allegations and the proof even if no such
relief is prayed for.
SECTION 2: The body.
 Sets forth:
1. Its designation
 complaint, reply, answer,
answer to counterclaim,
cross-claim, petition,
comment
2. Allegations of the party’s claims
or defenses
 Sec. 2(a): divided into
paragraphs so numbered as
to be readily identified
 Sec. 2(b):
3. Relief prayed for
4. Date of the pleading
 Sec. 2(c) -- As to relief prayed for:
o The prayer in a pleading does not
constitute an essential part of the
allegations determinative of the
jurisdiction of a court.
o The question of jurisdiction
depends largely upon the
determination of the true nature of
the action filed by a party which,
in turn, involves the consideration
of the ultimate facts alleged a
constitutive of the cause of action
therein.
o The prayer for relief, although part
of the complaint, cannot create a
cause of action; hence, it cannot be
considered as a part of the
allegations on the nature of the
cause of action.
o GR: The relief not prayed for in
the pleadings or is in excess of
what is being sought cannot be
granted by the Court.
 WHY? Because Sec. 2(c)
provides that the pleading
shall specify the relief
sought.
XPN: General prayer
 The Court may grant
remedies different from
that which was sought for if
such was proven by the
allegations and proof
presented before the court.
 A court can grant the relief
warranted by the allegation
and the proof even if it is
not specifically sought by
the injured party, the
inclusion of a general
prayer may justify the grant
of a remedy different from
or together with the specific
remedy sought, if the facts
alleged in the complaint
and the evidence
introduced so warrant.
SECTION 3: Signature and address.
 Every pleading must be signed by the
party or counsel representing him, stating
in either case his address which must not
be a post office box.
 The council should indicate his current
Professional Tax Receipt (PTR), IBP
official receipt or Lifetime Member
Number, and his Roll of Attorneys
Number.
o without these, all pleadings,
motions and papers filed in court
may not be acted upon
 Signature of counsel constitutes a
certificate by him that:
1. He has read the pleading
 2. To the best of his knowledge,
information, and belief there is
good ground to support it
3. It is not interposed for delay
 A signed pleading is one that is signed
either by the party himself or his counsel.
o only the presence of the signatures
of these two parties can constitute
signed pleading
 A counsel is subject to disciplinary action
in the following cases:
1. Deliberately files an unsigned
pleading 

2. Signs a pleading in violation of the
Rules 
 A pleading required to be verified which contains
3. Alleges in the pleading scandalous
or indecent matter 
 
 belief”, or upon “knowledge, information and
4. Fails to promptly report to the
court a change of his address 

 Effect of an unsigned pleading:
GR: An unsigned pleading produces no
legal effect. 
 only hearsay that’s why you verify it.
o the court may, in its discretion,
allow such deficiency to be
remedied if it shall appear that the
same was due to inadvertence and
not intended for delay
 When a party is represented to a counsel,
a service to party is not service in law.
Section 4 and 5 requirements are not always
present.
SECTION 4: Verification. 
 warrant the relaxation or dispensing of the rule in
Purpose: To secure an assurance that the
allegations of the petition have been made in
good faith or are true and correct, not merely
speculative.
Need for Verification:
GR: Pleadings need not be under oath, verified,
or accompanied by affidavit.
XPN: When otherwise specifically provided by
law or Rules.
o e.g. Petitions for certiorari, prohibition,
mandamus, quo warranto, indirect contempt,
appointment of a general guardian, habeas
corpus
How do you verify? A pleading is verified by an
affidavit that:
1. The affiant has read the pleading; and
2. The allegations therein are true and correct
of his personal knowledge or based on
authentic records.
 knowledge acquired through the five
senses
 you are the one who experienced it
 personal knowledge and not on personal
belief
Verification may be made by:
1. the party;
2. his representative;
3. his lawyer; or
4. any person who personally knows the truth
of the facts alleged in the pleading
Lack of Verification:
a verification based on “information and
belief”, or lacks a proper verification, shall be
treated as an unsigned pleading. 

 “Knowledge, information and belief” are
It does not make a pleading invalid but can be
corrected by amendment if it shall appear that the
same was due to inadvertence and not intended
for delay.
Non-compliance or defect therein does not
necessarily render the pleading fatally
defective. 

Even if such verification is lacking or is
insufficient or defective, if the circumstances
the interest of justice the court may give due
course to the pleading.
 The court may simply order the correction of
the unverified pleading or act on it and waive
strict compliance with the rules.
Verification of a pleading is a formal, not a
jurisdictional, requisite.
SECTION 5: Certification against forum
shopping.
 Certificate is either in the pleading itself
or in a sworn certification annexed
thereto.
 It is a sworn statement where the plaintiff
or principal party certifies under oath in
the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
certification annexed thereto and
simultaneously filed therewith:
 o that he has not theretofore
commenced any action or filed any
claim involving the same issues in
any court, tribunal or quasi-
judicial agency and, to the best of
his knowledge, no such other
action or claim is pending therein;
o if there is such other pending
action or claim, a complete
statement of the present status
thereof; and
o if he should thereafter learn that
the same or similar action or claim
has been filed or is pending, he
shall report that fact within five (5)
days therefrom to the court
wherein his aforesaid complaint or
initiatory pleading has been filed.


 Purpose: Serves as an assurance that there
are no other pending cases involving the
same parties, issues, and causes of action.
 Initiatory pleading – commences an
action
o e.g. complaint, permissive
counterclaim, third-party
complaint
 Forum Shopping: consists of filing of
multiple suits involving the same parties
for the same cause of action, either
simultaneously or successively, for the
purpose of obtaining a favorable
judgment.
 justifiable reasons, the party
o filing the same case involving the
same parties in different tribunals
to obtain favorable judgment
 Reason for Prohibition: Forum shopping
is condemned because it duly burdens
courts with heavy caseloads, unduly taxes
the manpower and financial resources of
the judiciary, and trifles with and mocks
judicial processes. The primary evil
sought to be prescribed by the prohibition
against forum shopping, however, is the
possibility of conflicting decisions being
rendered by the different courts upon the
same issues.
 Ways of Committing Forum Shopping:
1. Filing of multiple cases based on
the same cause of action and with
the same prayer, the previous not
having been resolved yet. (Litis
Pendentia)
2. Filing of multiple cases based on
the same cause of action and with
the same prayer, the previous
having been resolved with finality.
(Res Judicata)
3. Filing multiple cases based on
same causes of action but with
different prayers (Splitting
of causes of action where the
ground for dismissal is also litis
pendentia or res judicata)
 Forum shopping is also applicable in suits
filed in courts in connection with
litigations commenced in courts while an
administrative proceeding is pending in
order to defeat administrative processes
and in anticipation of an unfavorable
administrative ruling.
 Who Executes the Certification:
1. Natural Person
GR: Must be executed by the
plaintiff or the principal party
(party pleader) and not his
counsel.
 it is the party, and not his
counsel, who is in the best
position to know whether
or not he actually filed or
caused the filing of another
or previous petition
involving the same case or
substantially the same
issues
XPN: If for reasonable or
pleader is unable to sign, he must
execute an SPA.
 a certification signed by the
counsel is defective
certification and a valid
cause for dismissal if no
SPA was granted to him.
2. Juridical Person: by properly
authorized person
 an officer or a member of
the board
 those who are in a position
to verify the truthfulness
and correctness of the
allegations in the petition
 Who Must Sign:
GR: All of the petitioners must sign,
otherwise, the petitioner who did not sign
is dropped
XPN: When they share a common cause
or invoke a common interest, the
 signature of one of the petitioners be appealable (Rule 41, Sec. 1: remedy is
complies with the requirement. to avail of the special civil action under
Rule 65).
 Pleadings which Require Certification  The dismissal of failure to submit
Against Forum Shopping: Applies to the certification against forum shopping is
complaint and other initiatory pleadings separate and distinct from forum
asserting a claim for relief. shopping.
o there is no need for certification in
a cross-claim since one of the Dismissal under Dismissal under
requisites for a cross-claim is that Rule 7, Sec. 5 Rule 17, Sec. 3
the claim must arise from the same Presupposes the Presupposes the
transaction initiation of the case pendency of the case
 it cannot be subject to an
independent proceeding  Effect of submission of false certification
or non-compliance with any of the
Required Not Required undertakings: Indirect contempt without
1. Original 1. Comment prejudice to the corresponding
complaint 2. Compulsory administrative and criminal actions.
2. Permissive counterclaim o administrative: disbarment
counterclaim (?: because it is o criminal: perjury
3. Cross-claim not considered
4. Third (fourth, as an initiatory  Effect of willful and deliberate forum
etc.) -party pleading; shopping:
complaint it cannot be 1. ground for summary dismissal
5. Complaint-in- subject to a with prejudice
intervention separate and 2. constitute direct contempt
6. Petition or independent 3. cause for administrative sanctions
application adjudication)
wherein the party Forum Shopping is Forum Shopping is
asserts his claim Willful and Not Willful and
for relief Deliberate Deliberate
Both or all actions The subsequent
 Effect of non-compliance: shall be dismissed action may be
GR: Shall not be curable by mere with 
 prejudice. dismissed 
 either by
amendment of the complaint or any other litis pendentia or by
initiatory pleading but shall be cause for res judicata.
the dismissal of the case without
prejudice upon motion and after hearing.  When to raise the violation of the rule:
o but you are not yet guilty of forum Should be raised at the earliest
shopping in this case opportunity such as in a motion to dismiss
o without prejudice to it being or a similar pleading.
refiled o Sec. 1, Rule 9: defenses and
XPN: Dismissal is with prejudice if so objections not pleaded in a motion
provided to dismiss or in an answer are
o “meron nga bang forum shopping deemed waived.
talaga?” o Sec. 8, Rule 15: subject to the
o there must be a hearing and upon provisions of said Sec. 1, Rule 9, a
motion motion attacking a pleading, order,
o there must be declaration that you judgment or proceeding shall
are guilty include all objections then
 The certification is a special requirement available, and all objections not so
for admission of the initiatory pleading included are deemed waived.
for filing in court, hence the absence is not  Belatedly raising an objection due to
curable by mere amendment. forum shopping at the appellate stage will
 The dismissal of the case for failure to not cause the dismissal of the appeal,
certify against forum shopping shall not
except where the court has no jurisdiction
over the subject matter, or where litis
pendentia, res judicata or bar by statute of
limitations are present.
 RULE 8
MANNER OF MAKING ALLEGATIONS IN SECTION 2: Alternative causes of action or
PLEADINGS defenses.
 A party may set forth two or more statements
SECTION 1: In general. of a claim or defense alternatively or
hypothetically, either in one cause of action
Ultimate Facts Evidentiary Facts
or defense or in separate causes of action or
The important and Those which are defenses. 

substantial facts necessary to prove o a party may state as many claims or
which either directly the ultimate fact or defenses as he has regardless of
form the basis of the which furnish consistency but each must be consistent
plaintiff’s primary evidence of the in itself
right and duty or existence of some
 When two or more statements are made in
directly make up the other facts.
the alternative and one of them if made
wrongful acts or
independently would be sufficient, the
omissions of the Not proper as
pleading is not made insufficient by the
defendant. allegations in the
insufficiency of one or more of the
pleadings as they
alternative statements. 

A fact is essential if it may only result in
o this means that the rule does not require
cannot be stricken out confusing the
that all of the alternative causes of
without leaving the statement of the
action be sufficient for the plaintiff to be
statement of the cause cause of action or
entitled to relief
of action or defense defense.
o it is enough that one of them if made
insufficient.
independently would be sufficient to
Their exposition is
support a cause of action; one is
e.g. statements of law, actually premature
consistent in itself
facts presumed by as such facts must be
o e.g. Reconveyance of a parcel of land.
law, arguments, found and drawn
The right of action may be based on a
conclusions of facts or from testimonial and
sale (contract), or succession (law).
inferences, conclusion other evidence.
Although inconsistent, the law allows it
of law, evidentiary
 A defendant can make use of both negative
matters
and affirmative defense.
o the Rules encourage a defendant to
How to allege in a pleading:
incorporate in his responsive pleading
o 1st par: In a methodical and logical form,
all defenses 
 available to him although
state the ultimate facts on which the party
these defenses may be inconsistent with
pleading relies for his claim or defense in a
one another 

plain, concise and direct manner.
o failure of defendant to submit all his
 omit evidentiary evidence
defenses in his answer is deemed a
 ultimate: the very essence on which a
waiver if
 not pleaded 

party relies on his pleading or defense
o 2nd par: If a defense is based on law –
 in re: Joinder of causes of action (Rule 2,
 allege the pertinent provisions thereof;
Sec. 5) and Alternative defendants (Rule
and
3, Sec. 13)
 state clearly and concisely their
applicability to him
SECTION 3: Conditions precedent.
SECTION 4: Capacity.
Test of sufficiency of facts:
SECTION 5: Fraud, mistake, condition of the
o WON based on the facts alleged, a valid
mind.
judgment may be rendered.
SECTION 6: Judgment.
o WON the recital of facts states a cause of
action.
Facts that may be alleged generally:
1. Conditions precedent (Sec. 3)
Annexes to pleadings are considered part of the
 e.g. Controversy regarding copyright
pleadings but the said pleadings must contain a
must be adjudicated by the proper
summary statement of the matters contained in
admin body. Doctrine of Exhaustion of
the annex and cannot just refer to the same.
 Administrative Remedies can only be
applicable in the exercise of quasi-
judicial function of an admin body.
2. Malice, intent, knowledge or other condition
of the mind of a person (Sec. 5, 2nd sentence)
 permitted to be averred generally as it
would be difficult to do so with
particularity
 e.g. bad faith
3. Judgments or decision of a domestic or
foreign court, judicial or quasi-judicial
tribunal, or of board or officer
 (Sec. 6)
 it is sufficient to aver the judgment or
decision without setting forth matter
showing jurisdiction to render it
 this provision is a necessary
consequence of the disputable
presumption that a court, or judge acting
as such, whether in the Philippine s or
elsewhere, was acting in the lawful
exercise of his jurisdiction
4. Official document or act (Sec. 9)
 it is sufficient to aver that the document
was issued or the act was done in
compliance with the law
Facts that must be averred particularly:
1. Capacity of a party (Sec. 4)
a) facts showing the capacity of a party to
sue or be sued
b) the authority to sue or be sued in a
representative capacity
c) the legal existence of an organized
association of persons that is made a
party
 a party desiring to raise an issue as
to the legal existence or capacity of
any party to sue 
 or be sued in
representative capacity shall do so
by specific denial which shall
include 
 supporting particulars
within the pleader’s knowledge 
 Effect of failure to specifically deny under oath:
 where the plaintiff is a foreign
corporation, the specific
circumstance that it is duly licensed
to 
 do business in the Philippines
or that the transaction is isolated, is
an essential part of the 
 element of
the plaintiff’s capacity to sue and
must be affirmatively pleaded 
 2. When an order for the inspection of the
2. In all averments of fraud or mistake, the
circumstances constituting fraud or mistake
must be stated with particularity
 (Sec. 5, 1st
sentence)
 in order to enable the opposing party to
controvert the particular facts allegedly
constituting the same
 must specify the fraudulent acts of the
adverse party which will help apprise
the judge of the kind of fraud involved
in the complaint
SECTION 7: Action or defense based on a
document.
Actionable document – when an action or
defense is grounded upon such written
instrument or document
o the very basis of the action or defense
o “kaya nagkaron ka ng right dahil sa
document”
Two permissible ways of pleading an actionable
document
 :
1. By setting forth the substance of such
document in the pleading and attaching said
document as an annex

2. By setting forth said document verbatim in
the pleading
Unless alleged in any of the two modes, the rule
on implied admission in Sec. 8 will not apply.
A variance in the substance of the document set
forth in the pleading and the document annexed
thereto does not warrant the dismissal of the
action.
o however, the contents of the document
annexed are controlling
SECTION 8: How to contest such documents.
Manner in which an adverse party can contest
actionable documents:
1. under oath, specifically denying them; and
2. setting forth what he claims to be the facts
GR: The genuineness and due execution of the
document shall be deemed admitted.
o it need not be formally offered in evidence
o the reply here is mandatory
XPNs:
1. Where the adverse party was not a party to
the instrument; or
document was not complied with.
 e.g. what was attached is not the original
copy
Genuineness Due Execution
 Means that the Means that the that 
 alleged in ambiguity in
document is: document was: the pleading writing
1. Not spurious, 1. Signed setting it out 

counterfeit, or voluntarily and 5. That it was
different knowingly by the never delivered
import on its party whose 

face from the signature 6. That the
one executed appears thereon; document was
by the party; 2. That if signed by not in the
2. That the party somebody else words
 and
whose such figures as set
signature it representative out in the
bears has had the authority pleadings
signed it; and to do so;

 3. It was duly Where the case had been tried in disregard of the
3. That at the time delivered; and rule on actionable documents and plaintiff
it was signed, it 4. Formalities were presented oral evidence to prove authenticity and
was in words complied with. due execution, and failed to object to defendant's
and figures as evidence in refutation, the rule is deemed waived,
set out in the especially where both parties acted in disregard
pleadings. of or overlooked the rule at the trial. (CSIC v.
Hodges)
only those defenses that are inconsistent with the
4 are cut-off not within the meaning of due SECTION 9: Official document or act.
execution, then you can raise that defense In pleading an official document or official act, it
is sufficient to aver that the document was issued
e.g. “You admit, oo, that the DOS is genuine. or the act done in compliance with law.
Pero the consideration is illegal, sugal, or
criminal case. This is not inconsistent with the SECTION 10: Specific denial.
document’s due execution.” Kinds:
(1) Absolute Denial – specifies each material
Defenses Cut Off Defenses Not Cut allegation of fact the truth of which he does
Off not 
 admit and whenever practicable, sets
1. That the 1. Payment forth the substance of the matters upon
signature was a 2. Statute of which he relies to 
 support his denial.
forgery limitations (2) Partial Denial – specifies that part the truth
2. That it was 3. Want of of which he admits and denies only the
unauthorized in consideration remainder.
the case of an 4. Illegality of (3) Disavowal of Knowledge – alleges that he
agent signing in consideration is without knowledge or information
behalf of a 5. Fraud sufficient to 
 form a belief as to the truth of
partnership or 6. Mistake material averment made in the complaint.

 of a 7. Compromise  Where the averments in the opposing
corporation 
 8. Estoppel party's pleading are based on documents
3. That the 9. Duress which are in the possession of the
corporation was 10. Minority and defendant, or are presumed to be known
not authorized imbecility by him, or are readily ascertainable by
under
 its 11. Imperfection in him, a general allegation of lack of
charter to sign the writing knowledge or information thereof on his
the instrument 12. Does not part will not be considered a specific
(ultra vires) express the true denial but an admission. The defendant
4. That the party agreement of the must aver or state positively how it is
charged signed parties that he is ignorant of the facts alleged.
the instrument 13. There is an  This can only be used if the fact to
in some other intrinsic which want of knowledge is asserted is
capacity than
 not expected to be within the
defendant’s knowledge.
 e.g. In a vehicular accident, yung
nabangga mo was hospitalized tapos
finilean ka ng kaso: “He was
hospitalized and underwent an
operation and he spent blah blah blah”
Defendant: 3rd mode of denial because
he was not there when he paid the
hospital, he does not know how much
the plaintiff earns… blah blah
Where the answer merely reproduces the recitals
in the complaint and denies such recitals without
setting forth the matters relied upon in support of
such denials although it is practicable to do so,
such answer contains only general denials and
judgment on the pleadings is proper.
What must be specifically denied: the material
facts constituting the opposing party’s cause of
action.
Negative pregnant – that form of denial which
at the same time involved an affirmative
implication favorable to the opposing party. Such
a “negative pregnant” is in effect an admission of
the averment to which it is directed.
o said to be a denial pregnant with an
admission of the substantial facts in the
pleading responded to
o the answer is a mere repetition of the
allegations made in the complaint
o e.g. Where the suit is brought upon the
contractual obligation under the contract of
carriage contained in bills of lading, such
bills of lading can be categorized as
actionable documents which under this Rule
must be pleaded either as causes of action or
defenses, and the genuineness and execution
of which are deemed admitted unless
specifically denied under oath by the adverse
party. Even assuming that the party against
whom said provisions in the bills of lading
are alleged made an averment in its
responsive pleading which amounts to a
denial, such denial is nonetheless pregnant
with the admission of the substantial facts in
the pleading responded to which are not
squarely denied. Thus, while the responding
party objected to the validity of the
agreement contained in the bills of lading for
being contrary to public policy, the existence
of the bills of lading and the stipulations
therein are impliedly admitted. The denial
made by the responding party is what is
known in the law on pleadings as a negative
pregnant and is in effect an admission of the
averment it is directed to.
SECTION 11: Allegation not specifically denied
deemed admitted.
GR: Material allegations in the complaint not
specifically denied are deemed admitted.
XPNs:
1. Allegations as to the amount of unliquidated
damages
2. Allegations immaterial to the cause of
action, which includes conclusion of fact
and law, inferences, etc.
3. All allegations in the complaint where no
answer has been filed by the defendant 

The following averments in the complaint are
deemed admitted even if specifically denied:
1. Allegations as to usury
 it should be in a complaint to recover
usurious interest
2. The authenticity and due execution of
actionable documents properly pleaded
where the opposing party was a party
thereto.
 mere specific denial is insufficient as
the Rules require that such denial must
be under oath
Where the defendant relied solely on his defense
of res judicata and submitted the case for
decision on that issue, he is deemed to have
admitted all the material allegations in the
complaint and judgment can be rendered
accordingly.
SECTION 12: Striking out of pleading or matter
contained therein.
The court may order any pleading to be stricken
out or that any sham or false, redundant,
immaterial, impertinent, or scandalous matter be
stricken out:
1. Upon motion made by a party before
responding to a pleading;

2. Upon motion made by a party within 20 days
after the service of the pleading upon him, if
no responsive pleading is permitted by these
Rules; or 

3. Upon the court’s own initiative at any time


A counsel who alleges scandalous or indecent
matter in a pleading shall be subject to
appropriate disciplinary action.
 RULE 9  The court cannot motu proprio declare a
EFFECT OF FAILURE TO PLEAD defendant in default. The must be a motion
to that effect by the plaintiff with proof of
SECTION 1: Defenses and objections not failure by the defendant to file his responsive
pleaded. pleading despite due notice.
GR: Defenses and objection not pleaded either in  If the defendant was declared in default upon
a motion to dismiss or in the answer are deemed an original complaint, the filing of the
waived. (Omnibus Motion Rule) amended complaint resulted in the
XPNs: These defenses are not waived even if not withdrawal of the original complaint.
raised: Defendant was entitled to file answer to the
1. court has no jurisdiction over the subject- amended complaint as to which he was not
matter (lack of jurisdiction) in
2. there is another action pending between the default.
same parties for the same cause (litis  The failure to answer on may be due to any
pendentia) of the two reasons:
3. the action is barred by prior judgment (res 1. to his resolution, he does not intend to
judicata) impose plaintiff’s allegations and reliefs
4. the action is barred by statute of limitations granted
(prescription)  “that is a legitimate claim pero di
na ko sasagot since ang mahal ng
The presence of any of these four grounds abugado”
authorizes the court to motu proprio dismiss the 2. due to FAME without which he would
claim. have filed an answer on time since he
o in order that it may do so, it is necessary that has a good defense
the constitutive facts of such grounds, if not
in the answer with evidence duly adduced Stages of Default:
therefor, should appear in the other 1. Declaration of order of default
pleadings filed or in the evidence of record 2. Rendition of judgment by default
in the case
o these can also be filed belatedly Judgment by
Order of Default
Default
SECTION 2: Compulsory counterclaim, or Issued by the court, It is only after the
cross-claim, not set-up barred. on plaintiffs motion order of default,
The bar refers to a compulsory counterclaim or and at the start of the when the evidence
cross-claim that a defending party has at the time proceedings, for for the plaintiff has
he files the answer. failure of the been received ex
o it is a claim already existing at the time the defendant to file his parte, that the court
answer is filed responsive pleading renders a judgment
seasonably. by default on the
A permissive counterclaim will not be barred. basis of such
 Reason: To avoid multiplicity of suits. evidence.
Interlocutory – not Final – appealable
SECTION 3: Default; declaration of. appealable
Default is the procedural concept when the
defending party fails to file his answer within the GR: A default order and a default judgment are
reglementary period. triggered by the failure of the defending party to
o extent of relief that may be awarded in the file the required answer.
judgment by default: only so much as has XPN: Judgment by default for refusal to comply
been alleged and proved with the modes of discovery.
o failure to file a responsive pleading with
the reglementary period, and not failure to Consequence if the plaintiff fails to file a motion
appear at the hearing, is the sole ground for to declare defendant in default after a long period
an order of default of time
 : The court may dismiss the case for
XPN: failure to appear at a pre-trial conference failure to prosecute.

wherein the effects of a default on the part of the o the dismissal is with prejudice and will bar
defendant are followed (Rule 18, Sec. 5) the plaintiff from filing a subsequent
 complaint based on the same cause against also suffer the consequences of the latter' s
the same defendant procedural omission
SEC. 3(b): Relief from order of default.
Requisites before a defending party may be Any time after notice of default and before
declared in default: judgment, he may file a motion under oath
1. The court has validly acquired jurisdiction showing: 

over the person of the defending party either 1. That his failure to answer is due to:
by service of summons or voluntary a. fraud – the kind that would have
appearance 
 prevented the party from answering
2. The defending party fails to file an answer (extrinsic fraud) committed by the
within the time allowed 
 claimant himself
3. A motion to declare the defending party in o e.g. “Sabi nya nagkamali sya may
default has been filed by the claiming party usapan nga pala kayo na may
with 
 notice to the defending party 
 extension tapos ipapadismiss nya
so wag ka na daw sumagot.”
Action of the court after declaration of default: b. accident
GR: Proceed to render judgment granting the c. mistake
claimant such relief as his pleading may warrant d. excusable negligence
XPN: The court, in its discretion, requires the 2. 
 That he has a meritorious defense

claimant to submit evidence.
o the court need not personally receive the Remedy: Motion to Set Aside/Lift the Order of
evidence if it decides to hear the evidence of Default
the plaintiff
o the reception of evidence may be delegated The order of default may be set aside on such
to the Clerk of Court terms and conditions as the judge may impose in
the interest of justice.
SEC. 3(a): Effect of order of default.
1. The party declared in default loses his Where a motion to lift an order of default is
standing in court and prevents him from denied and a motion for the reconsideration of
taking part in 
 the trial 
 said denial order is filed based on substantially
2. While defendant can no longer take part in the same grounds, said motion for
the trial, he is nevertheless entitled to notices reconsideration is not pro forma as it is directed
of 
 subsequent proceedings 
 against an interlocutory, and not a final, order
and the reiteration of the same grounds seeks a
3. A declaration of default is not an admission
second look by the court on the merits of said
of the truth or validity of the plaintiff’s
grounds.
claims 

If the court sets aside the order of default, the
Being declared in default and losing one standing defendant is restored to his standing and rights in
do not constitute a waiver of all rights; what is the action.
waived only is the right to be heard and to present o proceedings already taken are not to be
evidence during the trial while default prevails. disturbed, although it is within the discretion

 of the court to reopen the evidence submitted
by the plaintiff and enable the defendant to
A party in default is still entitled to notice of final challenge the same
judgments and orders and proceedings
subsequent thereto and may be cited and testify The lifting of an order of default does not revert
as witness. 
 the case to its pre-trial stage, much less render a
second pre-trial mandatory.
A party in default may be cited as a witness by
his co-defendants who have the standing and the Alternative and successive remedies of a party
right to present evidence which the former may properly declared in default:
provide. 1. He may file a verified motion to set aside
o there is no reason why the non-defaulting the order of default at any time after
defendants should be deprived of the discovery thereof and before judgment;
testimony of the party in default and thereby 2. If he did not file one or the same was denied,
 he could file a motion for new trial at any
time after service of judgment, but before
finality, by default and within 30 days
therefrom; (Rule 37)
3. If the defendant discovered the default after
the judgment has become final and
executory, he may file a petition for
relief
 .
4. He may also appeal from the judgment
rendered as contrary to evidence or law even
if no petition to set aside the order of default
has been presented to him
 .
 WHY is he allowed? The only effect of
the order of default is that the party in
default cannot take part in the trial.
5. A petition for certiorari to declare the
nullity of a judgment by default if the trial
court improperly declared a party in default
if GAD attended such declaration
 .
 It would provide a speedier and
adequate remedy since the aggrieved
party in default judgment had no
opportunity to adduce evidence in trial
court; hence, on appeal, only the self-
serving evidence presented by the
plaintiff in the ex parte reception would
be considered.
SEC. 3(c):
 Effect of partial default.
When is there a partial default:
1. The pleading asserting claim states a
common cause of action against several
defending parties
 Sec. 3(c) does not apply where the
defending parties are jointly sued or
impleaded under separate causes of
action
2. Some of the defending parties answer and
the others fail to do so

3. The answer interposes a common defense
Effect of partial default:
GR: The court shall try the case against all
defendants upon the answer of some.
o the defaulting defendant, in effect, submits
to whatever decision may be rendered on the
basis of the answer and evidence adduced by
the answering co-defendant
XPNs:
1. Where the defense is personal to the one who
answered, in which case, it will not benefit
those who did not answer; and
2. Where a co-defendant who filed his answer
died and the case was dismissed as to him,
the answer he filed does no inure to the
benefit of the defendant who did not file his
own answer.
Q: Can plaintiff move to dismiss the cases as
regards the defendant and retain the defaulted
judgment in order to secure an immediate
judgment?

A: No, since the singleness of the cause of action
implies that the defendants are indispensable
parties, the court’s power to act is integral and
cannot be split such that it cannot relieve any of
them and at the same time render judgment
against the rest.
SEC. 3(d)
 : Extent of relief to be awarded.
A judgement rendered against a party in default
shall not:
1. exceed the amount prayed for;
2. be different in kind from that prayed for;
nor

3. award unliquidated damages
SEC. 3(e)
 : Where no defaults allowed.
1. Action for annulment
2. Declaration of nullity of marriage
3. Legal separation 

4. Summary procedure 

5. Small claims cases 

In cases of an action for annulment, declaration
for nullity of marriage and legal separation, the
court shall order the prosecuting attorney to
investigate whether a collusion between the
parties exists.
o If there is no collusion, the prosecuting
attorney shall intervene for the state to see to
it that the evidence submitted is not
fabricated.
 REPUBLIC ACT 7160
KATARUNGANG PAMBARANGAY
Section 399. Lupong Tagapamayapa. -
(a) There is hereby created in each barangay
a lupong tagapamayapa, hereinafter referred
to as the lupon, composed of the punong
barangay, as chairman and ten (10) to twenty
(20) members. The lupon shall be constituted
every three (3) years in the manner provided
herein.
(b) Any person actually residing or working,
in the barangay, not otherwise expressly
disqualified by law, and possessing integrity,
impartiality, independence of mind, sense of
fairness, and reputation for probity, may be
appointed a member of the lupon.
(c) A notice to constitute the lupon, which
shall include the names of proposed members
who have expressed their willingness to
serve, shall be prepared by the punong
barangay within the first fifteen (15) days
from the start of his term of office. Such
notice shall be posted in three (3)
conspicuous places in the barangay
continuously for a period of not less than
three (3) weeks;
(d) The punong barangay, taking into
consideration any opposition to the proposed
appointment or any recommendations for
appointment as may have been made within
the period of posting, shall within ten (10)
days thereafter, appoint as members those
whom he determines to be suitable therefor.
Appointments shall be in writing, signed by
the punong barangay, and attested to by the
barangay secretary.
(e) The list of appointed members shall be
posted in three (3) conspicuous places in the
barangay for the entire duration of their term
of office; and
(f) In barangays where majority of the
inhabitants are members of indigenous
cultural communities, local systems of
settling disputes through their councils of
datus or elders shall be recognized without
prejudice to the applicable provisions of this
Code.
Section 400. Oath and Term of Office. - Upon
appointment, each lupon member shall take an
oath of office before the punong barangay. He
shall hold office until a new lupon is constituted
on the third year following his appointment
unless sooner terminated by resignation, transfer
of residence or place of work, or withdrawal of
appointment by the punong barangay with the
concurrence of the majority of all the members
of the lupon.
Section 401. Vacancies. - Should a vacancy
occur in the lupon for any cause, the punong
barangay shall immediately appoint a qualified
person who shall hold office only for the
unexpired portion of the term.
Section 402. Functions of the Lupon. - The lupon
shall:
(a) Exercise administrative supervision over
the conciliation panels provided herein;
(b) Meet regularly once a month to provide a
forum for exchange of ideas among its
members and the public on matters relevant
to the amicable settlement of disputes, and to
enable various conciliation panel members to
share with one another their observations and
experiences in effecting speedy resolution of
disputes; and
(c) Exercise such other powers and perform
such other duties and functions as may be
prescribed by law or ordinance.
Section 403. Secretary of the Lupon. - The
barangay secretary shall concurrently serve as
the secretary of the lupon. He shall record the
results of mediation proceedings before the
punong barangay and shall submit a report
thereon to the proper city or municipal courts. He
shall also receive and keep the records of
proceedings submitted to him by the various
conciliation panels.
Section 404. Pangkat ng Tagapagkasundo. -
(a) There shall be constituted for each dispute
brought before the lupon a conciliation panel
to be known as the pangkat ng
tagapagkasundo, hereinafter referred to as the
pangkat, consisting of three (3) members who
shall be chosen by the parties to the dispute
from the list of members of the lupon.
Should the parties fail to agree on the pangkat
membership, the same shall be determined by
lots drawn by the lupon chairman.
(b) The three (3) members constituting the
pangkat shall elect from among themselves
the chairman and the secretary. The secretary
shall prepare the minutes of the pangkat
proceedings and submit a copy duly attested
to by the chairman to the lupon secretary and
to the proper city or municipal court. He shall
issue and cause to be served notices to the
parties concerned.
 The lupon secretary shall issue certified true
copies of any public record in his custody that
is not by law otherwise declared
confidential.
Section 405. Vacancies in the Pangkat. - Any
vacancy in the pangkat shall be chosen by the
parties to the dispute from among the other lupon
members. Should the parties fail to agree on a
common choice, the vacancy shall be filled by lot
to be drawn by the lupon chairman.
Section 406. Character of Office and Service of
Lupon Members. -
(a) The lupon members, while in the
performance of their official duties or on the
occasion thereof, shall be deemed as persons
in authority, as defined in the Revised Penal
Code.
(b) The lupon or pangkat members shall serve
without compensation, except as provided for
in Section 393 and without prejudice to
incentives as provided for in this Section and
in Book IV of this Code. The Department of
the Interior and Local Government shall
provide for a system of granting economic or
other incentives to the lupon or pangkat
members who adequately demonstrate the
ability to judiciously and expeditiously
resolve cases referred to them. While in the
performance of their duties, the lupon or
pangkat members, whether in public or
private employment, shall be deemed to be on
official time, and shall not suffer from any
diminution in compensation or allowance
from said employment by reason thereof.
Section 407. Legal Advice on Matters Involving
Questions of Law. - The provincial, city legal
officer or prosecutor or the municipal legal
officer shall render legal advice on matters
involving questions of law to the punong
barangay or any lupon or pangkat member
whenever necessary in the exercise of his
functions in the administration of the
katarungang pambarangay.
Section 408. Subject Matter for Amicable
Settlement; Exception Thereto. - The lupon of
each barangay shall have authority to bring
together the parties actually residing in the same
city or municipality for amicable settlement of all
disputes except:
(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 one (1) year or a fine exceeding
Five thousand pesos (P5,000.00);
(d) Offenses where there is no private
offended party;
(e) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon;
(f) Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such barangay
units adjoin each other and the parties thereto
agree to submit their differences to amicable
settlement by an appropriate lupon;
(g) Such other classes of disputes which the
President may determine in the interest of
Justice or upon the recommendation of the
Secretary of Justice.
The court in which non-criminal cases not
falling within the authority of the lupon under
this Code are filed may, at any time before
trial motu propio refer the case to the lupon
concerned for amicable settlement.
Section 409. Venue. -
(a) Disputes between persons actually
residing in the same barangay shall be
brought for amicable settlement before the
lupon of said barangay.
(b) Those involving actual residents of
different barangays within the same city or
municipality shall be brought in the barangay
where the respondent or any of the
respondents actually resides, at the election of
the complaint.
(c) All disputes involving real property or any
interest therein shall be brought in the
barangay where the real property or the larger
portion thereof is situated.
(d) Those arising at the workplace where the
contending parties are employed or at the
institution where such parties are enrolled for
study, shall be brought in the barangay where
such workplace or institution is located.
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise, the same shall be
deemed waived. Any legal question which
may confront the punong barangay in
resolving objections to venue herein referred
to may be submitted to the Secretary of
Justice, or his duly designated representative,
whose ruling thereon shall be binding.
Section 410. Procedure for Amicable
Settlement. -
(a) Who may initiate proceeding - Upon
payment of the appropriate filing fee, any
individual who has a cause of action against
another individual involving any matter
within the authority of the lupon may
complain, orally or in writing, to the lupon
chairman of the barangay.
(b) Mediation by lupon chairman - Upon
receipt of the complaint, the lupon chairman
shall within the next working day summon
the respondent(s), with notice to the
complainant(s) for them and their witnesses
to appear before him for a mediation of their
conflicting interests. If he fails in his
mediation effort within fifteen (15) days from
the first meeting of the parties before him, he
shall forthwith set a date for the constitution
of the pangkat in accordance with the
provisions of this Chapter.
(c) Suspension of prescriptive period of
offenses - While the dispute is under
mediation, conciliation, or arbitration, the
prescriptive periods for offenses and cause of
action under existing laws shall be
interrupted upon filing the complaint with the
punong barangay. The prescriptive periods
shall resume upon receipt by the complainant
of the complainant or the certificate of
repudiation or of the certification to file
action issued by the lupon or pangkat
secretary: Provided, however, That such
interruption shall not exceed sixty (60) days
from the filing of the complaint with the
punong barangay.
(d) Issuance of summons; hearing; grounds
for disqualification - The pangkat shall
convene not later than three (3) days from its
constitution, on the day and hour set by the
lupon chairman, to hear both parties and their
witnesses, simplify issues, and explore all
possibilities for amicable settlement. For this
purpose, the pangkat may issue summons for
the personal appearance of parties and
witnesses before it. In the event that a party
moves to disqualify any member of the
pangkat by reason of relationship, bias,
interest, or any other similar grounds
discovered after the constitution of the
pangkat, the matter shall be resolved by the
affirmative vote of the majority of the
pangkat whose decision shall be final. Should
disqualification be decided upon, the
resulting vacancy shall be filled as herein
provided for.
(e) Period to arrive at a settlement - The
pangkat shall arrive at a settlement or
resolution of the dispute within fifteen (15)
days from the day it convenes in accordance
with this section. This period shall, at the
discretion of the pangkat, be extendible for
another period which shall not exceed fifteen
(15) days, except in clearly meritorious
cases.
Section 411. Form of settlement. - All amicable
settlements shall be in writing, in a language or
dialect known to the parties, signed by them, and
attested to by the lupon chairman or the pangkat
chairman, as the case may be. When the parties
to the dispute do not use the same language or
dialect, the settlement shall be written in the
language known to them.
Section 412. Conciliation. -
(a) Pre-condition to Filing of Complaint in
Court. - No complaint, petition, action, or
proceeding involving any matter within the
authority of the lupon shall be filed or
instituted directly in court or any other
government office for adjudication, unless
there has been a confrontation between the
parties before the lupon chairman or the
pangkat, and that no conciliation or
settlement has been reached as certified by
the lupon secretary or pangkat secretary as
attested to by the lupon or pangkat chairman
or unless the settlement has been repudiated
by the parties thereto.
(b) Where Parties May Go Directly to Court.
- The parties may go directly to court in the
following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings;
(3) Where actions are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of
personal property and support pendente
lite; and
(4) Where the action may otherwise be
barred by the statute of limitations.
(c) Conciliation among members of
indigenous cultural communities. - The
customs and traditions of indigenous cultural
communities shall be applied in settling
disputes between members of the cultural
communities.
Section 413. Arbitration. -
(a) The parties may, at any stage of the
proceedings, agree in writing that they shall
abide by the arbitration award of the lupon
chairman or the pangkat. Such agreement to
arbitrate may be repudiated within five (5)
 days from the date thereof for the same
grounds and in accordance with the
procedure hereinafter prescribed. The
arbitration award shall be made after the lapse
of the period for repudiation and within ten
(10) days thereafter.
(b) The arbitration award shall be in writing
in a language or dialect known to the parties.
When the parties to the dispute do not use the
same language or dialect, the award shall be
written in the language or dialect known to
them.
Section 414. Proceedings Open to the Public;
Exception. - All proceedings for settlement shall
be public and informal: Provided, however, That
the lupon chairman or the pangkat chairman, as
the case may be, may motu proprio or upon
request of a party, exclude the public from the
proceedings in the interest of privacy, decency,
or public morals.
Section 415. Appearance of Parties in Person. -
In all katarungang pambarangay proceedings, the
parties must appear in person without the
assistance of counsel or representative, except for
minors and incompetents who may be assisted by
their next-of-kin who are not lawyers.
Section 416. Effect of Amicable Settlement and
Arbitration Award. - The amicable settlement
and arbitration award shall have the force and
effect of a final judgment of a court upon the
expiration of ten (10) days from the date thereof,
unless repudiation of the settlement has been
made or a petition to nullify the award has been
filed before the proper city or municipal court.
However, this provision shall not apply to court
cases settled by the lupon under the last
paragraph of Section 408 of this Code, in which
case the compromise or the pangkat chairman
shall be submitted to the court and upon approval
thereof, have the force and effect of a judgment
of said court.
Section 417. Execution. - The amicable
settlement or arbitration award may be enforced
by execution by the lupon within six (6) months
from the date of the settlement. After the lapse of
such time, the settlement may be enforced by
action in the appropriate city or municipal court.
Section 418. Repudiation. - Any party to the
dispute may, within ten (10) days from the date
of the settlement, repudiate the same by filing
with the lupon chairman a statement to that effect
sworn to before him, where the consent is vitiated
by fraud, violence, or intimidation. Such
repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint
as hereinabove provided.
Section 419. Transmittal of Settlement and
Arbitration. - Award to the Court. - The secretary
of the lupon shall transmit the settlement or the
arbitration award to the appropriate city or
municipal court within five (5) days from the
date of the award or from the lapse of the ten-day
period repudiating the settlement and shall
furnish copies thereof to each of the parties to the
settlement and the lupon chairman.
Section 420. Power to Administer Oaths. - The
punong barangay, as chairman of the lupong
tagapamayapa, and the members of the pangkat
are hereby authorized to administer oaths in
connection with any matter relating to all
proceedings in the implementation of the
katarungang pambarangay.
Section 421. Administration; Rules and
Regulations. - The city or municipal mayor, as
the case may be, shall see to the efficient and
effective implementation and administration of
the katarungang pambarangay. The Secretary of
Justice shall promulgate the rules and regulations
necessary to implement this Chapter.
Section 422. Appropriations. - Such amount as
may be necessary for the effective
implementation of the katarungang pambarangay
shall be provided for in the annual budget of the
city or municipality concerned.
Procedure in KP – Sec. 4, P.D. 1508, Sec. 410
R.A. 7160
Exceptions under Sec. 408: substantial
Exceptions under Sec. 412: procedural
Mediate – if there is a settlement, it is a product
of the agreement of the parties; out of mutual
consent
- the parties can agree in writing to make the
Lupon
- mutuality is not on the settlement of the
dispute but on submitting their case to
arbitration
- 5 days
Chairman or the Pangkat, an arbitrator
Conciliation
*see notes*
Sec. 417: count the obligation from the date the
amicable settlement was entered into

Q: The parties agree

Sec. 419: WHY to the proper court? because if it

is not enforced in the barangay, it will be
enforced in the appropriate court

Sec. 420: The brgy captain will have no authority

to determine the factual bases of vitiation of
consent

*intrinsic fraud*
*extrinsic fraud*
 RULE 10 b. in the case of a reply, within 10 days after it
AMENDED AND SUPPLEMENTAL was served.
PLEADINGS
Q: What do you mean by “as a matter of right”?
Purpose: To correct an error in the statement of A: You file a manifestation that you are filing an
ultimate facts constituting the cause of action amended complaint and you want it entered into
the records of case. There is no need to ask for an
Supplemental admission precisely because it is a right.
Amended Pleading
Pleading
Refer to facts Amendment for the second or subsequent time
Refer to facts arising
existing at the time of must always be with leave of court even before
after the filing of the
the commencement a responsive pleading is filed or before the case
original pleading
of the action is set in the calendar of the court.
Merely in addition
Results in the to, but does not Where some but not all defendants have
withdrawal of the result in the answered, the plaintiff may amend his complaint,
original pleading withdrawal of, the once as a matter of right, in respect to claims
original pleading asserted only against the non-answering
Can be made as of defendants, but not as to claims asserted against
right, as when no the other defendants who have answered.
Always with leave of
responsive pleading
court
has not yet been Even after a motion to dismiss has been filed by
filed such defendant or such motion has been
submitted for decision, the plaintiff can still
EFFECT: amend his complaint as a matter of right, since a
Amended – original pleading regarded as motion to dismiss is not a responsive pleading
abandoned; ceases to perform any function as a within this rule.
pleading; ceases to be part of the records; loses o amendment of the complaint may be allowed
its character as a judicial admission even if an order for its dismissal has been
- Continuity of JD? Regalado, yes. Atty. issued as long as the motion to amend is filed
Escolin thinks no since the allegations determine before the dismissal order became final
the jurisdiction. The original complaint ceases to o an error of the court in refusing such
exist; it is the amended complaint that should be amendment is controllable by mandamus
controlling.
 in re: with Rule 13: Filing is the manner of
Supplemental – the original remains part of the presenting a pleading in the court and
records and is not abrogated service is the act of providing the opponent
a copy of your pleading.
SECTION 1: Amendments in general.
Pleadings may be amended by: Q: Why is the requirement before a responsive
a. adding or striking out: pleading?
1. an allegation; or A: Because after a responsive pleading, the
2. the name of any party issues are already joined.
b. correcting a:
1. mistake in the name of the party SECTION 3: Amendments by leave of court.
2. mistaken or inadequate allegation or Leave of court is required:
description in any other respect a. if the amendment is substantial; and
b. a responsive pleading as already been
Construction: The rule is that amendments served
should be liberally allowed.
o “allege” – add an alternative cause of action The admission of the amendment is a matter of
discretion; it requires use of judgment.
SECTION 2: Amendments as a matter of right.
Amendment for the first time is a matter of right When is an amendment substantial: If a party is
before (whether formal or substantial): made to answer for a liability entirely different
a. a responsive pleading is served; or
or more than what was alleged in the original
pleading.
o Evidentiary Test: That the evidence
available to a party will not be sufficient to
meet the allegation in the amended pleading.
Requisites:
1. There must be a motion filed in court
2. Notice to the adverse party
3. Opportunity to be heard by the adverse party
When amendment by leave of court may not be
allowed:
1. Amendment is intended to confer
jurisdiction to the court
 an amendment cannot be done to cure
the defect because for an amendment to
be allowed, the court first must have
jurisdiction
2. Amendment to cure a premature or non-
existing cause of action 
 admitting the supplemental pleading
 non-existing: “wala pang delict o
wrong”
 imperfect: “nagkamali lang ng
allegation”
 a complaint whose cause of action has
not yet accrued cannot be cured or
remedied by an amended or
supplemental pleading alleging the
existence or accrual of a cause of action
while the case is pending
3. Amendment for purposes of delay 
 Complaint if no new answer or Supplemental
SECTION 4: Formal amendments.
A defect in the designation of the parties and
other clerical errors may be summarily corrected
by the court at any stage of the action at its
initiative or on motion, provided no prejudice is
caused to the adverse party.
SECTION 5: Amendment to conform or
authorize presentation of evidence.
This rule is premised on the fact that evidence
had been introduced on an issue not raised by the
pleadings without any objection by the adverse
party.
When issues not raised by the pleadings are tried
with the express or implied consent of the parties
-- effects:
1. They shall be treated in all respects as if they
had been raised in the pleadings;
2. Upon motion of any party at any time, even
after judgment, such amendment of the
pleadings as may be necessary to cause them
to conform to the evidence and to raise these
issues;
3. Failure to amend does not affect the result of
the trial of these issues.
If evidence is objected to at the trial on the
ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to
be amended and shall do so with liberality if the
presentation of the merits of the action and the
ends of substantial justice will be subserved
thereby.
SECTION 6: Supplemental pleadings.
A supplemental pleading sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented.
o the adverse party may plead thereto within
ten (10) days from notice of the order
When the cause of action in the supplemental
complaint is different from the cause of action
mentioned in the original complaint, the court
should not admit the supplemental complaint
 •
A supplemental pleading may raise a new cause
of action as long as it has some relation to the
original cause of action set forth in the original
complaint
 • The answer to the complaint shall
serve as the answer in the Supplemental
Answer is filed.
SECTION 7: Filing of amended pleadings.
New copy of the entire pleading, incorporating
the amendments, which shall be indicated by
appropriate marks.
SECTION 8: Effect of amended pleadings.
An amended pleading supersedes the pleading it
amends.
 RULE 11 - always with leave of court
WHEN TO FILE RESPONSIVE PLEADING
SECTION 4:
When the law speaks of period, start counting on
the first day. Exclude the first; include the last. SECTION 5: Answer to third (fourth, etc.)-party
complaint.
SECTION 1: Answer to the complaint.
GR: defendant shall file an answer to the SECTION 6:
complaint within 15 days after service of
summons SECTION 7:
XPN: a different period is fixed by the court
SECTION 8: Existing counterclaim or cross-
SECTION 2: Answer of a defendant foreign claim.
private juridical entity.  A compulsory counterclaim blah blah
 existing counterclaim = “due and
If summons is served on: demandable”
The period to
Its resident agent
answer shall be SECTION 9: Counterclaim or cross-claim
designated in
within 15 days after arising after answer.
accordance
with law
service of summons  became due and demandable after service
(Rule 11, Sec. 1) of pleading
The period to  how? by supplemental pleading before
Any of its officers or answer shall be judgment
agents within the within 15 days after  when? 10 days from the order of the court
Philippines service of summons admitting the counterclaim
(Rule 14, Sec. 12) o since a supplemental pleading is
Government official ALWAYS by leave of court
designated by law to The period to
receive the summons answer shall be SECTION 10: Omitted counterclaim or cross-
within 30 days after claim.
(Note: Said official has receipt of summons  how? by leave of court setting up the
the duty to send a copy by such entity counterclaim or cross-claim by amended
of the summons to the (Rule 11, Sec. 2) before judgment
home office of the  when? 10 days from the receipt or notice
defendant) of the order of court
The period to
Non-resident
answer must be at SECTION 11: Extension of time to plead.
defendant
least 60 days after
(extraterritorial service
notice
of summons)
(Rule 14, Sec. 15)

SECTION 3: Answer to amended complaint.

The period to
Where its filing of an answer shall be
amended complaint is within 15 days after
a matter of right being served with a
copy thereof
The period to
Where its filing of an answer shall be
amended complaint is within 10 days from
not a matter of right notice of the order
admitting the same

15 days from notice of the order admitting the

order of a complaint-in-intervention. Rule 19
 RULE 12 SECTION 7:
BILL OF PARTICULARS
SECTION 8:
SECTION 1:
 there is ambiguity in the allegations in SECTION 9:
the pleading that’s why you are asking
 a complaint may not be dismissed SECTION 10:
although the allegations are ambiguity,
indefiniteness, uncertainty
o the remedy is to file a Motion
for Bill of Particulars
 when? Before responding to a pleading
 what shall it contain of:

SECTION 2:
 deny or grant it outright
 allow the parties the opportunity to be
heard

 when must it be denied:

o specified with particularity
o irrelevant to the allegations of
the complaint
o parties are of sufficient
knowledge
o can properly be ascertained by
the modes of discovery

SECTION 3:
 10 days

SECTION 4:
 striking out
 other orders as it deems just

SECTION 5:
 If the motion is granted, the movant can
wait until the BoP is served on him by
the opposing party and then he will have
the balance of the reglementary period
within which to file his responsive
pleading 

o from his receipt of the BoP
 If his motion is denied, he will still have
such balance of the reglementary period
to file his responsive pleading, counted
from service of the order denying his
motion
o
N.B In either case, he will have at least 5 days
to file his responsive pleading
SECTION 6:
 becomes part of the pleading for which
it is intended
 RULE 13 SECTION 6:
FILING AND SERVICE OF PLEADINGS, 
JUDGMENTS AND OTHER PAPERS
SECTION 7:
Proof of Filing  depositing a copy in the post office
Proof of Service  by ordinary mail but only if no registry
Completeness of Service service is available in the locality of
either the sender or the addressee
SECTION 1:
 GR: all SECTION 8:
XPN: different mode is prescribed  by delivering the copy to the CoC, with
 mandatory in character because these proof of failure of both personal service
cannot be changed by the parties and service by mail
 no address in the body of the pleading
SECTION 2:  complete: “tatakbo na ang period.. e
 Filing: delivery of the pleading or paper hindi ka nagbigay ng address e”
to the Clerk of Court
 Service: delivery of a copy to the SECTION 9:
adverse party  summoned by publication but no
 2nd sentence: appearance = judgment shall also be by
o when a party is represented by publication
a counsel, what constitutes
service in law is service to SECTION 10:
counsel and not to party  WHY? That is the time when the period
 WHY? *Alimpoos will start to run or when compliance is
case* deemed complete
o when a party is not represented  Personal service – complete upon actual
by a counsel, service must be delivery 

made upon the parties  Service by registered mail – complete
themselves upon:
o Actual receipt by the addressee
SECTION 3: OR 

 Personally to the Clerk of Court o After 5 days from the date he
o the CoC shall endorse on the received the first notice of the
pleading the date and hour of post master 

filing o whichever is earlier
o “see to it na tatatakan yung  Service by ordinary mail – complete
copy mo kasi yun yung upon the expiration of 10 days after
proof of filing mo” mailing UNLESS the court otherwise
 By sending them by registered mail provides 

o the mailing date is already the  Substituted service – completed at the
filing date time of delivery 

 By sending them through ordinary mail  N.B The rule on completeness of
o deemed filed: the actual service by registered mail only provides
receipt of the Court for a disputable
o PhilPost is deemed as an agent  presumption and may be rebutted
of the Court
SECTION 11:
SECTION 4:
 GR: Personal service
 Even judgment shall be filed with the XPN: other modes but must be
CoC accompanied by written explanation
SECTION 5: SECTION 12:
 Personally  proved by its existence in the records of
 Service by mail the case
  *codal*

SECTION 13:
 personal service:
o a written admission…
o the official return of the
server…
o the affidavit of the party….
 ordinary mail:
o an affidavit of the person…..
 requisites under Sec.
7
 registered mail:
o affidavit
o registry receipt
o registry return card

SECTION 14:
 RULE 14
SUMMONS
Summons: a writ by which the defendant is
notified of the action brought against him. It is a
mandatory requirement.
 knowledge by the defendant or by its
agents of an action filed against it does not
dispense 
 with the need for summons
Purpose:
1. to acquire jurisdiction over the person of
defendant; and
2. to secure his attendance to defend himself
Effect of absence of summons: Any judgment
rendered against such defendant is null and void
for without it, the court does not acquire
jurisdiction over the person of the defending
party.
• Ordinary service of the pleading upon him
would be sufficient and no new summons need
be served upon him
What if an additional defendant is joined in
the action?
• GR: Summons must be served upon
him 

• EXC:
1. Where it is sought to bring in
the administrator of a deceased
party defendant in substitution
of the deceased 

2. Where upon the decease of the
original defendant his infant
heirs are made parties 

3. In cases of substitution of the
deceased under Rule 3 Sec 16


N.B In these instances, the service if the order of
substitution is sufficient

Q: When the defendant merely substitutes a SEC 1:

deceased defendant, is summons needed?  Who issues summons?
A: NO. Because the heir merely steps into the  When? Upon the filing of the complaint
shoes of the deceased defendant. The court and payment of
already acquired JD over the deceased defendant.  To whom: defendants
Succession comes in.
(The provisions of Sec. 16 is applicable only if SEC 2:
the court had acquired JD over the person of the  (a) the name of the oucrt…
deceased defending party during his lifetime.)  (b) a direction…
 (c) a notice that unless
Default + Amend and there is another cause of
action Additional defendant: summons must be served
- resurrected yan… ibang usapan yan upon him for the court to acquire jurisdiction
over his person
Is there a need for new summons if a
complaint is amended before defendant’s SEC. 3:
appearance in court?  sheriff
• If the defendant had not yet appeared, a
 his deputy
new summons must be served upon him
 other proper court officer (court
as regards the 
 amended complaint,
process server)
otherwise the court would have no
 any suitable person authorized by the
power to try the new causes of action
court

 alleged, UNLESS he had lodged an
answer 

SECTION 4:
• But if the defendant was declared in
default on the orig complaint and  Return = report
plaintiff subsequently 
 filed an  bakit P’s counsel lang? Baka
amended complaint, new summons defective ang service. Tignan mo kung
must be served on the amended tama ang pag serve ng summons,
complaint, as the original complaint otherwise, walang jurisdiction.
was deemed withdrawn upon such
amendment 
 What if defendant has SEC. 5:
already appeared in court? 
  Alias summons = another summons
 Para alam mo ano yung remedy
  2nd sentence: in what instances may
alias summons be issued
o where any or some of the
defendants was not served
with summons
o if summons has been lost
Modes of Service: Personal (6), Substituted (7),
By Publication (14, 15, and 16)
SEC. 6:
 handing a copy thereof to the defendant
in person
 refusal, tendering it to him
SECTION 7: Substituted service.
 Modes of effecting substituted service:
a. by leaving copies of the summons
at the defendant’s residence with
some person of suitable age and
discretion then residing therein;
b. by leaving copies at the
defendant’s office or regular place
of business with some competent
person in charge thereof
 May be effected only if, for justifiable
causes, the defendant cannot be served
within a reasonable time provided in the
preceding sections.
 The sheriff must state the efforts exerted
to serve the summons personally to the
defendant, otherwise: *case of Ang Pin*
 All that is needed is that a person is in-
charge of the office
SECTION 8:
 In connection with Sec. 15 of Rule 3
 GR: madaming defendants, madaming
summonses
XPN: entity without juridical
personality
SECTION 9:
 two kinds of prisoners: by final
judgment and awaiting final judgment
or on appeal or on trial
 No problem with those prisoners
awaiting final judgment
 Problem is with regard accessory
penalties like civil interdiction because
the prisoner is regarded as incompetent
SECTION 10:
 guardian ad litem: for the litigation
 if minor: mother or father only, if no
parents, dun ka sa first sentence:
personally and his legal guardian or
guardian ad litem
SECTION 11:
 *memorize* E.B. Villarosa v. Benito
 Doctrine of Bring Home: not applicable
anymore
 A strict compliance with the mode of
service is necessary to confer
jurisdiction of the court over a
corporation. The officer upon whom
service is made must be one who is
named in the statute; otherwise the
service is insufficient
 exclusion unios alterius
SECTION 12:
 effected “out”
 Q: is it possible that the action be in
personam?
A: Yes “which has transacted business
in the Philippines” the only requirement
 (a) Letters Rugatory - the foreign court
shall take the deposition… blah blah
o requesting that they be the one
to serve summons to the
private juridical entity
(b) 1. publication itself
2. serving a copy of the summons and
the court order by registered mail at the
last known address of the defendant
(c)
(d) DHL, FedEx, or by registered mail
SECTION 13:
 Republic
 Province, City, or Municipality
SECTION 14:
 action is in personam
 defendant is unknown or whereabouts
 process converting it to quasi in rem
SECTION 15:
 not residing, not found
 very strict that quasi in rem (property)
and in rem (status)
 purely in personam? No. There is no
way for the court to acquire jurisdiction
over the person of the defendant, only if
he has a property (res)
 How?
o by personal service
 o by publication in a newspaper
of general circulation
(compare with Sec. 12)
o in any other manner

SECTION 16:
 Personal, Substituted, Publication,
Extraterritorial service
 In rem or quasi-in rem
 You can never acquire jurisdiction over
the person of the defendant if the action
is one in personam
o the court acquires jurisdiction
over the property who stands
now in lieu of the estate
o
 Only to comply with the due process
requirement

SECTION 17:
 *codal*

SECTION 18:
 important because you have to prove to
the court that summons was properly
served
 cannot ask for default without this
 proof: sheriff, return… private person,
must be sworn to (under oath)

SECTION 19:
 *codal*
 publication: 1. affidavit 2. attach the
publication itself 2. affidavit that the
copy of the summons was sent to the
last known address of the defendant


SECTION 20:
 RULE 15 XPN: Those motions made in open court or in
MOTIONS the course of a hearing or trial.

SECTION 1: Motion defined. SECTION 3: Contents.

A motion is an application for relief other than A motion shall state:
by a pleading. 1. The relief sought to be obtained;
o A motion is NOT a pleading. 2. The grounds upon which it is based;
3. Supporting affidavits and other papers, if
Ordinarily, in acting upon a motion, the court required by the Rules or necessary to prove
issues an order which may be final or facts alleged therein
interlocutory.
SECTION 4: Hearing of motion.
Motion Pleading GR: Every written motion shall be set for hearing
To apply for an order To submit a claim of by the applicant
not included in the defense for o Why? To afford him due process, otherwise
judgment appropriate judgment his rights might be prejudiced.
Cannot be initiatory XPN: Motions which the court may act upon
as they are always without prejudicing the rights of the adverse
May be initiatory party (non-litigious motion)
made in a case
already filed in court
May be filed even Always filed before The motion and the notice of the hearing shall be
after judgment
 judgment served in such a manner as to ensure its receipt
Any application for by the other party at least 3 days before the date
relief not by a Only 9 kinds of of hearing, unless the good court sets the hearing
pleading is a pleading are allowed on shorter notice.
motion
 o XPNs to the 3-day notice rule:
May be oral when (a) ex parte motions
made in open court (b) urgent motions
Must be written (c) motions agreed upon by the parties to be
or in the course of
hearing or trial hears on shorter notice or jointly
submitted by the parties, and
There are motions which pray for judgment on (d) motions for summary judgment which
the merits which are normally prayed 
 for in a must be served at least 10 days before
pleading such as: its hearing
1. Motion for Judgment on Demurrer to o Excepted from such requirement are the so-
Evidence (Rule 33) called non-litigable or non-litigated motions
2. Motion for Judgment on the Pleadings (Rule
34) Effect of Lack of 3-day Notice: The Court may
3. Motion for Summary Judgment 
 (Rule 35) refuse to take notice of the motion, but it is a
matter of discretion and the Court can decide to
Kinds of Motions: 
 reset the hearing.
1. Ex parte motion – does not require that the
parties be heard, and which the court may act Q: Why the need for a 3-day notice?
upon without prejudicing the rights of the A: To prevent surprises and to give the other
other party
 party ample time to study the motion
 not covered by the hearing requirement
 e.g.: Motion for Extension of Time to While a motion may be allowed to be filed ex
File Pleadings parte and is an exception to the 3-day notice rule,
2. Litigated motion – one which requires that it does not necessarily mean that the hearing
the parties be heard before a ruling on the thereof shall be dispensed with.
motion is made by the court
 e.g.: Motion to Dismiss SECTION 5: Notice of hearing.
 Notice of hearing shall:
SECTION 2: Motions must be in writing. 1. Be addressed to all parties
GR: All motions shall be in writing. concerned; and
 2. Specify the time and date of the
hearing
 which must not be later
than 10 days after the filing
of the motion
 Q: Why?
A: So that he knows when
he should appear.
 “All parties”: Address it to the other party
and not to the Clerk of Court.
 Effect of a motion which does not contain
a notice of time and place of hearing: it is
a useless piece of paper and produces no
legal effect
o it is a mere scrap of paper and
should not be accepted for filing,
and if filed, is not entitled to
judicial cognizance and does not
affect any reglementary period
involved for the filing of the
requisite pleading
o subsequent action of the court does
not cure the flaw, for a motion with
a notice fatally defective is a
useless piece of paper
SECTION 6: Proof of service necessary.
 GR: No written motion set for hearing
shall be acted upon by the court without
proof of service thereof.
XPNs:
1. non-litigious motion
2. courts are satisfied that the rights
are not affected by the motion
 Proof as provided in Rule 13, Sec. 13.
Summary of Requisites for a Valid Motion:
1. Must be in writing 
 (Sec. 2)
2. Stating the relief sought to be obtained
and the grounds upon which it is based
(Sec. 3)
3. Accompanied by supporting affidavits
and other papers (Sec. 3)
4. Set for hearing by the applicant (Sec.
4)
5. Notice of hearing (Sec. 5)
6. Every written motion required to be
heard and notice of hearing shall be
served in such a 
 manner as to insure
its receipt at least 3 days before the date
of hearing, unless the court for good
cause sets the hearing in shorter notice
7. Proof of service
SECTION 7: Motion day.
 GR: All motions shall be scheduled for
hearing on Friday afternoons, or if Friday
is a non-working day, in the afternoon of
the next working day
XPN: Motions requiring immediate
action
 No motion day in Supreme Court.
SECTION 8: Omnibus motion.
 Omnibus Motion Rule – procedural
principle which requires that every
motion that attacks a 
 pleading,
judgment, order or proceeding shall
include all objections then available, and
all 
 objections not so included shall be
deemed waived.
 The rule is subject to the provisions of
Rule 9, Sec. 1. The following defenses
and objections, even when not pleaded
shall not be deemed waived:
1. lack of jurisdiction over the
subject matter
2. litis pendentia
3. res judicata
4. prescription
SECTION 9: Motion for leave.
 A motion for leave to file a pleading or
motion shall be accompanied by the
motion or pleading sought to be admitted.
 Purpose: to provide the court with basis
for determining the merits of the motion
for leave or court to file the desired
pleading or motion
SECTION 10: Form.
 The rules applicable to pleadings shall
apply to written motions so far as it
concerns:
1. Caption

2. Designation

3. Signature; and
4. Other matters of form
 RULE 16
MOTION TO DISMISS
A Motion to Dismiss is not a pleading; it is only
a motion.
 Generally, partakes the nature of a
demurrer.
 It hypothetically admits the truth of the
facts alleged in the complaint, however,
such admission is limited only to material
and relevant facts which are pleaded in the
complaint.
o it does not extend to inferences or
conclusions drawn from such
facts, conclusions from facts not
stated, nor to matters of evidence
 GR: An action cannot be dismissed on a
ground not alleged in the motion even if
said ground is provided for in Rule 16
XPNs:
1. Those cases where the court may
dismiss a case motu proprio
2. The ground appears in the
allegations of the complaint or in
plaintiff’s evidence
 A motion to dismiss is covered by the
“omnibus motion rule” because by its
nature, it attacks a pleading by praying for
its dismissal.
SECTION 1: Grounds.
 When to file a MTD: Within the time for
but before filing the answer to the
complaint or pleading asserting a claim.
 Who may file:
1. original defendant
2. third-party defendant
3. plaintiff in the counterclaim
4. co-party in a cross-claim
 GR: The court cannot dismiss an action
motu proprio.
XPN: When the Court has no jurisdiction
over the subject-matter of the action.
 Grounds:
(a) no jurisdiction over the person of
the defending party
(b) no jurisdiction over the subject-
matter of the complaint
(c) venue is improperly laid
(d) plaintiff has no legal capacity to
sue
(e) there is another action pending
between the same parties for the
same cause (litis pendentia)
(f) the cause of action is barred by a
prior judgment (res judicata) or by
the statute of limitations
(prescription)
(g) the pleading asserting a claim
states no cause of action
(h) the claim or demand has been paid,
waived, abandoned, or otherwise
extinguished
(i) the claim on which the cause of
action is founded is unenforceable
under the provisions of the statute
of frauds
(j) condition precedent has not been
complied with
(a) No Jurisdiction over the Defending Party
 This ground becomes available when
there is absence or improper service of
summons.
 When must the defense be raised:
 It may be cured by:
(a) waiver or estoppel
(b) the court allowing the correction
of improperly served summons
through issuance 
 of alias
summons or re-service by the
sheriff 

(c) subsequent filing of a Motion for
Reconsideration by the defendant
(d) submission of a compromise
agreement for approval of the RTC
(e) voluntary appearance
 According to the La Naval case, in the
defendant’s MTD, he may include other
grounds for dismissal without it being
tantamount to a voluntary appearance.
(b) No Jurisdiction over the Subject-matter
 Non-waivable defense or objection which
may be raised at any stage of the
proceedings even after a MTD based on
other grounds has been denied by the
court
 GR: Lack of jurisdiction over the subject
matter may be raised at any stage of the
proceedings even for the first time on
appeal
XPN: Estoppel by Laches
 (Tijam case)
 The Court is justified in dismissing the
case even if there is no evidence to that
effect.
(c) Venue is Improperly Laid
 When considered as waived:
 (a) where the plaintiffs filed the action
in a court of improper venue and
thereafter submitted to its
jurisdiction
(b) where the party enters into trial,
cross-examines the witness of the
adverse party, and adduces
evidence
(d) Lack of Legal Capacity
 The plaintiff is either not in the exercise
of his civil rights or does not have the
character or representation that he claims.
 When considered lacking in capacity:
When he does not possess the necessary
qualifications to appear in a trial; not in
the full exercise of his civil rights
o when he lacks the representative
capacity that he claims to have
Lack of Legal Lack of Legal
Capacity Personality
Refers to the fact that
Disability of the
the plaintiff is not the
plaintiff to sue
real party in interest
e.g.: plaintiff is not
e.g.: minor, the real party in
incompetent, interest (recourse:
imbecile, under civil MTD for failure to
interdiction state a cause of
action)
(e) Pendency of Another Action (Litis Pendentia)
 Requisites:
1. Identity of parties or at least
representing the same interests in
both actions;
2. Identity of rights asserted and
relief prayed for (Identity of cause
of action);
3. 
 Relief is founded on the same
facts; and
4. 
 Identity of the cases such that
judgment in one, regardless of
which party is successful, would
amount to res judicata in the
other
 MTD may be filed in either suit, not
necessarily in the one instituted first.
o however, the Supreme Court held
that when the elements of litis
pendentia exist, the action filed
later should be abated especially
where in the action first filed, the
court has already commenced
proceedings
 Q: Illusorio v. Bildner case example
A: Do it through a counterclaim so that it
would not amount to litis pendentia.
 Q: Legal separation wife filed a
counterclaim support. W made an
independent action for support
A: Litis pendentia
 Q: X files action for damages against Y.
Defendant was the driver. Driver was
convicted. Order to pay civil damages.
Victim filed an action for damages against
the Er based on subsidiary liability.
Another action was filed against the
employer on the ground of culpa
aquiliana. May the second action be
dismissed?
A: No. It is not based on the same rights.
The first one is based on ex delicto the
other one is culpa aquiliana. (Look into
the 5 sources of rights/obligations)
o vicarious liability: liability is
imposed on him because up to a
certain extent he is at fault
 There can only be one action for a single
cause of action. You might have plenty of
remedies but you can only pursue one
civil action.
o there is singleness of cause of
action when there is only one act
or omission committed by the
defendant in violation of the
plaintiff rights
(f1) Cause of Action is Barred by a Prior
Judgment (Res Judicata)
 Requisites:
1. Previous judgment or order must
be final;
2. There must be identity of parties,
subject-matter and cause of action
in both actions;
3. Court which rendered it had
jurisdiction over the subject-
matter; and
4. The judgment must be on the
merits
 It does not require absolute identity of
parties but merely substantial interest.

o there is substantial identity of
parties when there is community
of interest, or privity of interest
between a party in the first and a
party in the second case, if the first
case did not implead the latter

 Generally, a judgment or order on the
 merits is rendered after a consideration of other, and the court cannot consider other
evidence or stipulations submitted by the matters aliunde.
parties at the trial of the case
 . However,  Test: Whether assuming the allegations of
there could be res judicata without a trial fact in the complaint to be true, a valid
such as in a judgment on the pleadings, a judgment could be rendered in
summary judgment or an order of accordance with the prayer stated therein.
dismissal under Rule 17, Sec. 3. o where the allegations are sufficient
but the veracity of the facts are
(f2) Cause of Action is Barred by the Statute of assailed, the MTD should be
Limitations (Prescription) denied
 The defense of prescription is waived and  GR: Any apparent contradiction in any of
cannot be considered on appeal if not the….
raised in the trial court.  Where the facts alleged to make out the
 However, if the allegations in the principal cause of action and relief are
complaint, or the evidence presented, insufficient, the case should be dismissed
Failure to State a Lack of Cause of and plaintiff cannot rely on ancillary
Cause of Action Action matters in the complaint to make out a
Raised in a MTD Raised in a Demurrer cause of action.
under Rule 16 before to Evidence under  Where a complaint does not contain all
a responsive Rule 33 after the the facts constituting the plaintiffs cause
pleading has been plaintiff has rested of action, it is subject to a motion to
filed the case dismiss. However, if the defendant
Can be determined Can be resolved only permits evidence to be introduced,
only from allegations on the basis of without objection, which supplies the
in the initiatory evidence he has necessary allegation in such defective
pleading and not presented complaint, this evidence cures the defects
from evidentiary or of such complaint.
other matters aliunde  It is not the lack or absence of cause of
Imports a action that is a ground for the dismissal of
hypothetical the complaint but the fact that the
admission by the complaint does not state a cause of action.
defendant of the facts  e.g.: When the complaint is premature,
alleged in the the ground for the MTD is failure to state
complaint a cause of action
clearly indicate that the action has
prescribed, or where there is no issue in
fact as to prescription, the defense of (h) Claim or demand has been extinguished
prescription is not deemed waived by Extinctive prescription (1117-1138)
defendant’s failure to allege the same. Prescription 1139-1155
 A MTD on this ground will be given due
(j) Condition Precedent Has Not Been Complied
course only if the complaint shows on its
With
face that the action has already prescribed.
 Where the plaintiff has not exhausted all
administrative remedies, the complaint
Prescription Laches
not having alleged the fact of such
Concerned with the Concerned with the exhaustion, the same may be dismissed
fact of delay effect of delay for lack of cause of action.
Principally a
A matter of time
question of inequity SECTION 2: Hearing of motion.
Based on a fixed time
Not based on a fixed  A MTD is a litigious motion; it is to be
time heard.
 At the hearing of the motion, the parties
(g) Pleading Asserts No Cause of Action shall submit their:
 Such fact can be determined only from the 1. arguments on the questions of law;
facts alleged in the complaint and from no and
 2. their evidence on the questions of The movant shall file
fact involved except those not his answer within the
available at that time balance period
 Should the case go to trial, the evidence prescribed by Rule 11
presented during the hearing shall to which he is entitled
automatically be part of the evidence of at the time of serving
If the MTD is denied
the party presenting the same. his motion, but not
less than 5 days in any
SECTION 3: Resolution of motion. event, computed
 After the hearing, the court may: from his receipt of
(a) dismiss the action or claim; the notice of the
(b) deny the motion; or denial. 

(c) order the amendment of the He shall file his
pleading answer within the
 In view of the provisions of the next period prescribed by
preceding section requiring presentation If the pleading is Rule 11 counted from
of all available arguments and evidence, ordered to be service of the
there would be no need for the trial court amended amended pleading,
to defer action until the trial. unless the court
 The resolution shall state clearly and provides for a longer
distinctly the reasons thereof. period.
 When the order of dismissal is not an
adjudication on the merits, such dismissal SECTION 5: Effect of dismissal.
is not a bar to another action when the  GR: If the MTD is granted, the action or
circumstances change and warrant the claim may be refiled. (Without prejudice
refiling and prosecution of the same. to it without being refiled)
XPNs: Subject to the right of appeal, an
Effect of Action order granting a MTD based on these
Remedy grounds shall bar the refiling of the same
on the Motion
File an answer and action or claim:
proceed with trial. (a) res judicata;
 If judgment has (b) prescription;
been rendered and (c) extinguishment of the claim or
the decision is demand; and
An order denying the 
 adverse to you, (d) unenforceability under the Statute
MTD is appeal and raise of Frauds
interlocutory and as error the denial
not appealable of the 
 MTD. SECTION 6: Pleading grounds as affirmative
 If the denial is defenses.
tainted with GAD,  1st par.: If no MTD has been filed, any of
certiorari or the grounds for dismissal provided for in
prohibition may this Rule may be pleaded as an affirmative
lie. 
 defense in the answer and in the discretion
Depending on the of the court, a preliminary hearing may be
dismissal: had thereon as if a MTD had been filed.

o the preliminary hearing permitted
 If without
An order granting the is not mandatory even when the
prejudice, (not an
MTD is final and same is prayed for 

adjudication on
appealable
the merits): Refile  2nd par.: The filing of a MTD and
simultaneously setting up of a
 If with prejudice:
compulsory counterclaim are
Appeal
incompatible remedies.
o in the event that a defending party
SECTION 4: Time to plead.
has a ground for dismissal and
counterclaim at the same time, he

 must choose only one remedy:
 MTD: he losses the
counterclaim
 counterclaim: he may still
plead his ground for
dismissal as an affirmative
defense 
 in his answer 

 RULE 17
DISMISSAL OF ACTIONS
Types of Dismissal of Actions Made by the
Plaintiff:
1. Dismissal upon notice by plaintiff (Sec. 1)
[By Notice]
2. Dismissal upon motion of plaintiff (Sec.
2) [By Leave of Court]
3. Dismissal due to fault of plaintiff (Sec. 3)
SECTION 1: Dismissal upon notice by plaintiff.
 How effected:
1. By filing a notice of dismissal at
any time before service of the
answer or of a motion for summary
judgment
2. Upon such notice being filed, the
court shall issue an order
confirming the dismissal.
 The order of dismissal merely confirms a
dismissal already effected by the filing of
the notice of dismissal.
 Before an answer or a motion for
summary judgment has been served upon
the plaintiff, 
 the dismissal by the
plaintiff by the filing of a notice is a
matter of right. Thus, dismissal 
 is not
within the court’s discretion. 
 defendant prior to the service upon him of
 Dismissal should occur as of the date the
notice is filed by the plaintiff and not as of
the 
 date the court issues the order
confirming the dismissal. 
 o law makes no distinction as to
 Effect of dismissal under this section:
GR: The dismissal is without prejudice.
XPNs:
1. Where the notice of dismissal so
provides that the dismissal is with
prejudice.
2. Two-dismissal Rule
 when filed by a plaintiff
who has once dismissed in
a competent court an action
based on or including the
same claim the second
notice of dismissal will bar
the refiling of the action
because it will 
 operate as
an adjudication of the claim
upon the merits
SECTION 2: Dismissal upon motion of plaintiff.
 Secs. 1 and 2 of this Rule refer to the
dismissal of the entire case at the instance
of the plaintiff, provided that under:
o Sec. 1: there has been no service of
an answer of a motion for
summary judgment; and
o Sec. 2: the defendant has not yet
filed a counterclaim and the court
deems the dismissal proper.
Absent such contingent considerations,
the plaintiff has the virtual freedom to
desist from further prosecuting any
defendant by causing the dismissal of the
complaint.
 Requisites:
1. There must be an approval of the
court
2. Upon such terms and conditions as
the court deems proper
 Once either an answer or a motion for
summary judgment has been served on
the plaintiff, the dismissal is no longer a
matter of right and will require the filing
of a motion to dismiss, not a mere notice
of dismissal. 

o the dismissal has now become a
matter of juridical discretion
which requires the approval of the
court in order to be dismissed
 If a counterclaim has been pleaded by a
the plaintiff’s motion for dismissal, the
dismissal shall be limited to the
complaint only.
compulsory or permissive
counterclaim so it applies to both
 Alternative remedies of the defendant as
to the counterclaim:
(a) Prosecute the counterclaim in a
separate action: the court should
render the corresponding order
granting and reserving his right to
prosecute his claim in a separate
complaint.
(b) Have the counterclaim resolved in
the same action: he must manifest
such preference to the trial court
within 15 days from notice to him
of plaintiff’s motion to dismiss.
 A class suit shall not be dismissed or
compromised without the approval of the
court.
o Atty. Escolin believes that this
applies also to Sec. 1 (Dismissal
by Notice)
 Dismissal under Sec. Dismissal under
 Effect of dismissal: 3 Sec. 2
GR: A dismissal under this paragraph A matter of evidence A matter of
shall be without prejudice. procedure
XPN: Unless otherwise specified in the Dismissal not Dismissal is at the
order. procured by plaintiff instance of the
 A dismissal under this section carries with plaintiff
it the non-revival of actions. Thus, a new Dismissal is evidently
Dismissal is for
action 
 must be filed again. 
 a confirmation of the
whatever reason he is
failure of evidence to
SECTION 3: Dismissal due to fault of plaintiff. minded to move for
prove his cause of
such dismissal,
 If for no justifiable cause, the plaintiff action, hence an
hence is without
fails: adjudication on the
prejudice
(a) to appear on the date of merits
presentation of his evidence in
chief of the complaint; SECTION 4: Dismissal of counterclaim, cross-
(b) to prosecute his action for an claim, or third-party complaint.
unreasonable length of time;  The provisions of this Rule shall apply to
(c) to comply with these Rules; or the dismissal of any counterclaim, cross-
(d) to comply with any order of the claim, or third-party complaint.
court  A voluntary dismissal by the claimant by
the complaint may be dismissed upon notice as in Sec. 1 of this Rule, shall be
motion of the defendant or upon the made:
court’s own motion, without prejudice to (a) before a responsive pleading or
the right of the defendant to prosecute his 
 a motion for summary judgment
counterclaim in the same or in a separate is served; or, 

action. (b) if there is none, before the
introduction of evidence at the
Rule 17, Sec. 3 and trial or hearing
Rule 17, Sec. 2
Rule 16, Sec. 6
Granted the choice to prosecute the
counterclaim in either the same or a separate
action.
Defendant is not Defendant is required
required to manifest to manifest his
his preference within preference within a
a 15-day period. 15-day period.
MTD is filed by the The dismissal is at
defendant who the instance of the
perforce has already plaintiff, hence the
deliberated upon the defendant is granted
course of action he the time and also the
intends to take on his duty to thus manifest
counterclaim and his preference within
which he may even 15 days from notice,
manifest right in his after an opportunity
motion to dismiss the to study the situation.
complaint.

 Effect of dismissal:
GR: The dismissal shall have the effect of
an adjudication upon the merits.
XPN: Unless otherwise declared by the
court.
 RULE 18
PRE-TRIAL
SECTION 1: When conducted.
 When: After the last pleading has been
served and filed
o after the issues had been joined
o after a reply has been served and
filed
 It shall be the duty of the plaintiff to
promptly move ex parte that the case be
set for pre-trial.
o the responsibility of the plaintiff is
based on the presumption that he is
the one interested in the speedy
disposition thereof
o Q: Effect if the plaintiff failed to
move ex parte that the case be set
for pre-trial
A: It shall be a cause for dismissal
under Rule 17, Sec. 3 (failure to
prosecute for an unreasonable
length of time)
SECTION 2: Nature and purpose.
 The pre-trial is mandatory.
o failure to conduct a pre-trial,
which is a basic rule in court
procedure, amounts to gross
ignorance and warrants a  specifically, the motion is
corresponding penalty on the part
of the judge
 The court shall consider:
(a) The possibility of an amicable
settlement or a submission to
alternative modes of dispute
resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of
amendments to the pleadings;
(d) The possibility of obtaining
stipulations or admissions of facts
and of documents to avoid
unnecessary proof;
(e) The limitation of the number of
witnesses;
(f) The advisability of a preliminary
reference of issues to a
commissioner;
(g) The propriety of rendering
judgment on the pleadings, or
summary judgment, or of
dismissing the action should a
valid ground therefore be found to
exist;
 the court’s authority is
confined to a mere
determination of the
propriety of rendering a
judgment on the pleadings
or a summary judgment
 it is submitted that the
requisite motion should be
filed and heard pursuant to
Rule 34 (Judgment on the
Pleadings) and Rule 35
(Summary Judgments),
before either judgment is to
be rendered
(h) The advisability or necessity of
suspending the proceedings; and
(i) Such other matters as may aid in
the prompt disposition of the
action
 How pre-trial is initiated:
o Plaintiff promptly files a motion to
set the case for pre-trial.
o This motion is an ex parte motion,
which means that the motion need
not be the subject of a hearing.
o Plaintiff should file the motion to
set the case for ex parte after the
last pleading has been served and
filed.
to be filed within five (5)
days after the last pleading
joining the issues has been
served and filed
 if the plaintiff fails to file
said motion within the
given period, the branch
clerk of court shall issue a
notice of pre-trial
o Q: What is the meaning of “last
pleading”?
A: It is a reply, which is to be filed
within ten (10) days from the
service of the pleading responded
to
o As a rule, the last pleading must
first be served and filed. However,
for purposes of the pre-trial, the
expiration of the period for filing
the last pleading without it having
been served and filed is sufficient.
SECTION 3: Notice of pre-trial.
 The notice of pre-trial must be served on
counsel, or on the party who has no
counsel.
  The counsel served with such notice is
charged with the duty of notifying the
party represented by him.
SECTION 4: Appearance of parties.
 It shall be the duty of the parties and
their counsel to appear at the pre-trial.
 The non-appearance of a party may be
excused only if:
(a) a valid cause is shown therefor; or
(b) a representative shall appear in his
behalf fully authorized in writing:
1. to enter into an amicable
settlement;
2. to submit to alternative
modes of dispute
resolution; and
3. to enter into stipulations or
admissions of facts and of
documents
All three requisites must be present.
Otherwise, it would be considered as
incomplete, thus, equivalent to having no
authority at all.
 Although Sec. 4 uses the disjunctive “or”,
the logical meaning of the Rule dictates
that the written authority given to the
representative be coupled with an
explanation showing a valid cause for a
party’s non-appearance. For if not, it
would run contrary to the spirit of the
Rules.
o written authority must be in the
form of SPA (Art. 1878 [3], Civil
Code is explicit: Special powers of
attorney are necessary x x x To
compromise, to submit questions
to arbitration)
 Where nobody appeared at the pre-trial
except the counsel for the plaintiff but
said counsel had no special authority to
represent the plaintiff therein, the plaintiff
may properly be declared non-suited.
SECTION 5: Effect of failure to appear.
Plaintiff Defendant
Cause to allow the
plaintiff to present
his evidence ex parte
Cause for dismissal and the court to
of the action render judgment on
the basis thereof
“as in default”
GR: The dismissal is
The dismissal is
with prejudice
merely interlocutory,
XPN: Unless
hence not
otherwise ordered by
appealable.
the Court
Remedy: To file a Remedy: To file a
motion for motion to lift the
reconsideration order of default
 For that matter, where a pre-trial has
already been held, the fact that an
amended complaint was later filed, with
leave of court, does not necessitate
another pre-trial.
SECTION 6: Pre-trial brief.
 The parties shall file their pre-trial brief
with the court and serve on the adverse
party, in such manner as shall ensure their
receipt thereof at least three (3) days
before the date of the pre-trial.
 It shall contain, among others:
(a) A statement of their willingness to
enter into amicable settlement or
alternative modes of dispute
resolution, indicating the desired
terms thereof;
(b) A summary of admitted facts and
proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be
presented, stating the purpose
thereof;
(e) A manifestation of their having
availed or their intention to avail
themselves of discovery
procedures or referral to
commissioners; and
(f) The number and names of the
witnesses, and the substance of
their respective testimonies.
 Failure to file the pre-trial brief shall have
the same effect as failure to appear at the
pre-trial.
 It is vital to have documents and exhibits
identified and marked during the pre-trial.
GR: If not presented, it shall not be
allowed to be presented and offered
during trial
XPN: good cause shown
 Parties are bound by the representations
and statements in their respective pre-trial
briefs (A.M. 03-1-09- SC, July 13, 2004).
o such representations and
statements are in the nature of
 judicial admissions in relation to
Rule 129, Sec. 4 of the Rules
SECTION 7: Record of pre-trial.
 Issued by the court within 10 days after
the termination of the pre-trial.
 It includes:
1. The matters taken up in the
conference;
2. The action taken thereon;
3. The amendments allowed to the
pleadings; and
4. The agreements or admissions
made by the parties as to any of the
matters considered
5. Should the action proceed to trial,
explicitly define and limit the
issues to be tried.
 GR: The contents of the order shall
control the subsequent course of the
action
XPN: Unless modified before trial to
prevent manifest injustice
A.M. No. 03-1-09 SC
Pre-Trial Guidelines
I. Pre-Trial
A. Civil Cases
1. Within one day from receipt of the
complaint:
1.1 Summons shall be prepared and shall
contain a reminder to defendant to observe
restraint in filing a motion to dismiss and
instead allege the grounds thereof as
defenses in the Answer, in conformity with
IBP - OCA Memorandum on Policy
Guidelines dated March 12, 2002. A copy
of the summons is hereto attached as
Annex "A;" and
1.2 The court shall issue an order requiring
the parties to avail of interrogatories to
parties under Rule 25 and request for
admission by adverse party under Rule 26
or at their discretion make use of
depositions under Rule 23 or other
measures under Rules 27 and 28 within
five days from the filing of the answer. A
copy of the order shall be served upon the
defendant together with the summons and
upon the plaintiff.
Within five (5) days from date of filing of the
reply, the plaintiff must promptly move ex
parte that the case be set for pre-trial
conference. If the plaintiff f ails to file said
motion within the given period, the Branch
COC shall issue a notice of pre-trial.
2. The parties shall submit, at least three (3)
days before the pre-trial, pre-trial briefs
containing the following:
a. A statement of their willingness to enter
into an amicable settlement indicating the
desired terms thereof or to submit the case
to any of the alternative modes of dispute
resolution;
b. A summary of admitted facts and
proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be
presented, stating the purpose thereof. (No
evidence shall be allowed to be presented
and offered during the trial in support of a
party's evidence-in-chief other than those
that had been earlier identified and pre -
marked during the pre-trial, except if
allowed by the court for good cause
shown);
e. A manifestation of their having availed
or their intention to avail themselves of
discovery procedures or referral to
commissioners; and
f. The number and names of the witnesses,
the substance of their testimonies, and the
approximate number of hours that will be
required by the parties for the presentation
of their respective witnesses.
A copy of the Notice of Pre-trial Conference
is hereto attached as Annex "B."
The rule on the contents of the pre-trial brief
must strictly be complied with.
The parties are bound by the representations
and statements in their respective pre-trial
briefs. (Judicial confession)
3. At the start of the pre-trial conference, the
judge shall immediately refer the parties
and/or their counsel if authorized by their
clients to the PMC mediation unit for purposes
of mediation if available. If mediation fails,
the judge will schedule the continuance of the
pre-trial conference. Before the continuance,
the Judge may refer the case to the Branch
COC for a preliminary conference to assist the
parties in reaching a settlement, to mark the
documents or exhibits to be presented by the
parties and copies thereof to be attached to the
records after comparison and to consider such
other matters as may aid in its prompt
disposition.
During the preliminary conference, the
Branch COC shall also ascertain from the
parties the undisputed facts and admissions on
the genuineness and due execution of the
documents marked as exhibits. The
proceedings during the preliminary
conference shall be recorded in the "Minutes
of Preliminary Conference" to be signed by
both parties and/or counsel, the form of which
is hereto attached as Annex. "C".
The minutes of preliminary conference and
the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.
4. Before the continuation of the pre-trial
conference, the judge must study all the
pleadings of the case, and determine the issues
thereof and the respective positions of the
parties thereon to enable him to intelligently
steer the parties toward a possible amicable
settlement of the case, or, at the very least, to
help reduce and limit the issues. The judge
should not allow the termination of pre-trial
simply because of the manifestation of the
parties that they cannot settle the case. He
should expose the parties to the advantages of
pre-trial. He must also be mindful that there
are other important aspects of the pre-trial that
ought to be taken up to expedite the
disposition of the case.
The Judge with all tact, patience, impartiality
and with due regard to the rights of the parties
shall endeavor to persuade them to arrive at a
settlement of the dispute. The court shall
initially ask the parties and their lawyers if an
amicable settlement of the case is possible. If
not, the judge may confer with the parties with
the opposing counsel to consider the
following:
a. Given the evidence of the plaintiff
presented in his pre-trial brief to support
his claim, what manner of compromise is
considered acceptable to the defendant at
the present stage?
b. Given the evidence of the defendant
described in his pre-trial brief to support
his defense, what manner of compromise
is considered acceptable to the plaintiff at
the present stage?
If not successful, the court shall confer with
the party and his counsel separately.
If the manner of compromise is not
acceptable, the judge shall confer with the
parties without their counsel for the same
purpose of settlement.
5. If all efforts to settle fail, the trial judge
shall:
a. Adopt the minutes of preliminary
conference as part of the pre-trial
proceedings and confirm markings of
exhibits or substituted photocopies and
admissions on the genuineness and due
execution of documents;
b. Inquire if there are cases arising out of
the same facts pending before other courts
and order its consolidation if warranted;
c. Inquire if the pleadings are in order. If
not, order the amendments if necessary;
d. Inquire if interlocutory issues are
involved and resolve the same;
e. Consider the adding or dropping of
parties; (joinder, misjoinder, proper
parties)
f. Scrutinize every single allegation of the
complaint, answer and other pleadings and
attachments thereto and the contents of
documents and all other evidence
identified and pre-marked during pre-trial
in determining further admissions of facts
and documents. To obtain admissions, the
Court shall ask the parties to submit the
depositions taken under Rule 23, the
answers to written interrogatories under
Rule 25 and the answers to request for
admissions by the adverse party under
Rule 26. It may also require the production
of documents or things requested by a
party under Rule 27 and the results of the
physical and mental examination of
persons under Rule 28;
g. Define and simplify the factual and legal
issues arising from the pleadings.
Uncontroverted issues and frivolous
claims or defenses should be eliminated.
For each factual issue, the parties/counsel
shall state all the evidence to support their
positions thereon. For each legal issue,
parties/counsel shall state the applicable
law and jurisprudence supporting their
respective positions thereon. If only legal
issues are presented, the judge shall
require the parties to submit their
respective memoranda and the court can
proceed to render judgment;
h. Determine the propriety of rendering a
summary judgment dismissing the case
based on the disclosures made at the pre-
trial or a judgment based on the pleadings,
evidence identified and admissions made
during pre-trial;
i. Ask parties to agree on the specific trial
dates for continuous trial in accordance
with Circular No. 1-89 dated January 19,
1989; adhere to the case flow chart
determined by the court, which shall
contain the different stages of the
proceedings up to the promulgation of the
decision and use the time frame for each
stage in setting the trial dates. The One-
Day Examination of Witness Rule, that
is, a witness has to be fully examined in
one (1) day only, shall be strictly adhered
to subject to the courts' discretion during
trial on whether or not to extend the direct
and/or cross-examination for justifiable
reasons. On the last hearing day allotted
for each party, he is required to make his
formal offer of evidence after the
presentation of his last witness and the
opposing party is required to immediately
interpose his objection thereto. Thereafter,
the Judge shall make the ruling on the offer
of evidence in open court. However the
judge has the discretion to allow the offer
of evidence in writing in conformity with
Section 35, Rule 132;
j. Determine the most important witnesses
to be heard and limit the number of
witnesses (Most Important Witness
Rule). The facts to be proven by each
witness and the approximate number of
hours per witness shall be fixed; (Civil
cases: look into the right, obligation,
act/omission)
k. At his discretion, order the parties to use
the affidavits of witnesses as direct
testimonies subject to the right to object to
inadmissible portions thereof and to the
right of cross - examination by the other
party. The affidavits shall be based on
personal knowledge, shall set forth facts as
would be admissible in evidence, and shall
show affirmatively that the affiant is
competent to testify to the matters stated
therein. The affidavits shall be in question
and answer form, and shall comply with
the rules on admissibility of evidence;
(amended by the Judicial Affidavit Rule)
l. Require the parties and/or counsel to
submit to the Branch COC the names,
addresses and contact numbers of the
witnesses to be summoned by subpoena;
m. Order the delegation of the reception of
evidence to the Branch COC under Rule
30; and
n. Refer the case to a trial by commissioner
under Rule 32.
During the pre-trial, the judge shall be the one
to ask questions on issues raised therein and
all questions or comments by counsel or
parties must be directed to the judge to avoid
hostilities between the parties.
6. The trial judge shall schedule the pre-trial
in the afternoon sessions and set as many pre-
trial conferences as may be necessary.
7. All proceedings during the pre-trial shall be
recorded. The minutes of each pre-trial
conference shall contain matters taken up
therein more particularly admissions of facts
and exhibits and shall be signed by the parties
and their counsel.
8. The judge shall issue the required Pre-trial
Order within ten (10) days after the
termination of the pre-trial. Said Order shall
bind the parties, limit the trial to matters not
disposed of and control the course of the
action during the trial. A sample Pre-trial
Order is hereto attached as Annex "D."

However, the Court may opt to dictate the Pre-

trial Order in open court in the presence of the
parties and their counsel and with the use of a
computer, shall have the same immediately
finalized and printed. Once finished, the
parties and/or their counsel shall sign the same
to manifest their conformity thereto.

9. The court shall endeavor to make the parties

agree to an equitable compromise or
settlement at any stage of the proceedings
before rendition of judgment.
 RULE 19 further action on the and was allowed to
INTERVENTION intervention proceed despite the
dismissal of the main
Intervention is ancillary and supplemental to an action
existing litigation and in subordination to the
main proceeding. It will never be an independent
proceeding.
 the right to intervene is not an absolute While, as a rule, intervention is optional and
right whether the failure to intervene may be deemed
 the allowance or disallowance of a motion as waiver or estoppel depends on each case, it is
to intervene is addressed to the sound believed that where the intervener’s rights are
discretion of the court interwoven in the pending case and he had due
 intervention is not intended to change the notice of the proceedings, he will thereafter be
nature and character of the action itself estopped from questioning the decision rendered
 intervention will not be allowed where it therein through another action.
would enlarge the issues in the action and Remedy if denial of motion for intervention is
expand the scope of the remedies improper: Appeal, but if there is GAD,
mandamus will lie.
Intervention (Rule Interpleader (Rule
19) 62) Remedy if grant of motion for intervention is
An ancillary action An original action improper: Certiorari and prohibition.
Presupposes that the
plaintiff has no SECTION 1: Who may intervene.
interest in the  Requisites to file an intervention:
Proper in any of the subject-matter of the 1. There must be a motion for
four situations action or has an intervention filed before
mentioned in this interest therein rendition of judgment by the trial
Rule which, in whole or in court. A motion is necessary
part, is not disputed because leave of court is required
by the other parties to before a person may be allowed to
the action. intervene.
The defendants are 2. The movant must show in his
The defendants are motion that he has a legal interest:
already original
being sued precisely (a) in the matter in litigation;
parties to the pending
to implead them (Heirs-administrator)
suit
(b) in the success of either of
Third-party Complaint-in- the parties; or (surety)
Complaint Intervention (c) against both parties
(d) that the movant is so
Both result in bringing into the action a third
situated as to be adversely
person who was not originally a party
affected by a distribution or
The initiative is with The initiative is with a other disposition of
the person already a non-party who seeks property in the custody of
party to the action. to join the action. the court or of an officer
P sues S only; the PD thereof (writ of attachment)
can intervene
Answer: Answer-in-  Limitation/Cause for disallowance: That
Intervention the intervention must not unduly delay or
prejudice the adjudication of the rights of
Effect upon a complaint-in-intervention by the the original parties and that the
dismissal of the principal action wherein such intervenor’s rights may not be fully
intervention was sought: protected in a separate proceeding.
Matictic Case Metropolitan Case  Legal interest: One which is actual,
The dismissal of the The complaint-in- material, direct, and of an immediate
main case barred intervention survived character so that the intervenor will either
 gain or lose by the direct legal operation
and effect of the judgement.

 GR: Allowance of motion of intervention

is discretionary.
XPN: If the intervenor is an indispensable
party, the motion must be accepted.

SECTION 2: Time to intervene.

 The motion to intervene may be filed at
any time before rendition of judgment
by the trial court.
 A copy of the pleading-in-intervention
shall be attached to the motion and served
on the original parties.
 Since no judgment has yet been rendered,
the matter subject of the intervention may
still be readily resolved and integrated in
the judgment disposing of all claims in the
case, and would not require an overall
reassessment of said claims as would be
the case if the judgment had already been
rendered.

SECTION 3: Pleadings-in-intervention.
 The intervenor shall file a:
(a) complaint-in-intervention: if he
asserts a claim against either or all
of the original parties; or
(b) answer-in-intervention: if he
unites with the defending party in
resisting a claim against the latter

SECTION 4: Answer to complaint-in-

intervention.
 GR: The answer to the complaint-in-
intervention shall be filed within 15 days
from notice of the order admitting the
same RULE 20
XPN: Unless a different period is fixed by CALENDAR OF CASES
the court.
SECTION 1: Calendar of cases.
 The clerk of court, under the direct
supervision of the judge, shall keep a
calendar of cases for pre-trial, those
whose trials were adjourned or postponed,
and those with motions to set for hearing.
 Preference shall be given to habeas
corpus cases, election cases, special civil
actions, and those so required by law.

SECTION 2: Assignment of cases.

 The assignment of cases to the different
branches of a court shall be done
exclusively by raffle.
  The assignment shall be done in open
session of which adequate notice shall be
given so as to afford interested parties
opportunity to be present.
RULE 21
SUBPOENA
Sub – under
Poena – penalty
“Under pain of penalty”
SECTION 1: Subpoena and subpoena duces
tecum.
 Subpoena ad testificandum: a process
directed to a person requiring him to
attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority, or for
the taking of his deposition.
 Subpoena duces tecum: a process
requiring him to bring with him any
books, documents, or other things under
his control.
 Once you are under the pain of subpoena,
every lie can be with perjury.
 Purpose:
1. to attend trial / bring documents
2. to appear to an investigation by a
competent authority
SECTION 2: By whom issued.
 The subpoena may be issued by:
(a) the court before whom the witness
is required to attend;
(b) the court of the place where the
deposition is to be taken;
(c) the officer or body authorized by
law to do so in connection with
investigations conducted by said
officer or body; or
(d) any Justice of the Supreme Court
or of the Court of Appeals in any
case or investigation pending
within the Philippines.
 If subpoena is made to a prisoner: The
judge or officer shall examine and study
carefully such application to determine
whether the same is made for a valid
purpose.
 If the prisoner is sentenced to death,
reclusion perpetua or life imprisonment
and who is confined in any penal
institution: Such subpoena must be
authorized by the Supreme Court,
otherwise he may not be brought outside
the penal institution for appearance or
attendance in any court.
 Q: If a request of subpoena is made, must
the judge personally act on it?
A: As a rule, apply only to the Clerk if
Court. Otherwise, hen the one to whom
subpoena will be served is a prisoner.
SECTION 3: Form and contents.
 Requisites for a valid subpoena ad
testificandum:
 1. It shall state the name of the court
and the title of the action or
investigation; and
2. It shall be directed to the person
whose attendance is required.
 Requisites for a valid subpoena duces
tecum:
1. It shall state the name of the court
and the title of the action or
investigation; and
2. It shall contain a reasonable
description of the books,
documents or things demanded
which must appear to the court
prima facie relevant.
DT: It must call for the production of specific
documents with reasonable description of the
documents.
Show that the documents called for are prima
facie, sufficiently relevant to the issue of the case
- when it tends to establish the truth or falsity of
a fact in issue (Rule 128, Sec. 4)
SECTION 4: Quashing a subpoena.
 The court may quash a subpoena duces
tecum upon motion promptly made and,
in any event, at or before the time
specified therein if:
(a) it is unreasonable and oppressive;
(b) the relevancy of the books,
documents or things does not
appear; or
(c) the person in whose behalf the
subpoena is issued fails to advance
the reasonable cost of the
production thereof.
 The court may quash a subpoena ad
testificandum on the ground that:
(a) the witness is not bound thereby
(Rule 21, Sec. 10); or
(b) the witness fees and kilometrage
allowed by these Rules were not
tendered when the subpoena was
served.
SECTION 5: Subpoena for depositions.
 Secure such subpoena on the court where
deposition is to be taken, not on the court
where the case is pending.
 What to show to the clerk of court:
1. Court order; and
2. Proof of service of a notice to take
a deposition, as provided in
sections 15 and 25 of Rule 23,
 it shall constitute sufficient
authorization for the
issuance of subpoenas for
the persons named in said
notice by the clerk of the
court of the place in which
the deposition is to be taken
 GR: Ad tisjdkfjd judge need not act on it
dapat may order of the court
XPN: The clerk shall not, however, issue
a subpoena duces tecum to any such
person without an order of the court.
SECTION 6: Service.
 How effected: Service of a subpoena shall
be made in the same manner as personal
or substituted service of summons.
o sheriff, deputy sheriff, court
officer, any suitable person
authorized by the person issuing
the summons
 GR: The original shall be exhibited and a
copy thereof delivered to the person on
whom it is served, tendering to him the
fees for one day’s attendance and the
kilometrage allowed by these Rules
XPN: When a subpoena is issued by or on
behalf of the Republic of the Philippines
or an officer or agency thereof, the tender
need not be made
 Purpose of service: The service must be
made to allow the witness a reasonable
time for preparation and travel to the place
of attendance.
 If subpoena is duces tecum, the
reasonable cost of producing the books,
documents or things demanded shall also
be tendered.
SECTION 7: Personal appearance in court.
 A person present in court before a judicial
officer may be required to testify as if he
were in attendance upon a subpoena
issued by such court or officer.
SECTION 8: Compelling attendance.
 In case of failure of a witness to attend,
the court or judge issuing the subpoena,
upon proof of the service thereof and the
failure of the witness, may issue a warrant
to the sheriff of the province, or his
deputy, to arrest the witness and bring him
 before the court or officer where his
attendance is required.
 The cost of such warrant and seizure of
such witness shall be paid by the witness
if the court issuing it shall determine that
his failure to answer the subpoena was
willful and without just excuse.
SECTION 9: Contempt.
 Failure by any person without adequate
cause to obey a subpoena served upon him
shall be deemed a contempt of the court
from which the subpoena is issued.
 If the subpoena was not issued by a court,
the disobedience thereto shall be punished
in accordance with the applicable law or
Rule.
SECTION 10: Exceptions.
 The provisions of Sections 8 and 9 of this
Rule (Compelling attendance and
Contempt) shall not apply to:
1. a witness who resides more than
100 kilometers from his residence
to the place where he is to testify
by the ordinary course of travel; or
2. a detention prisoner if no
permission of the court in which
the case is pending was obtained.
RULE 22
COMPUTATION OF TIME
SECTION 1: How to compute time.
 How: The day of the act or event from
which the designated period of time
begins to run is to be excluded and the
date of performance included.
 GR: If the last day of the period, as thus
computed, falls on a Saturday, a Sunday,
or a legal holiday in the place where the
court sits, the time shall not run until the
next working day.
XPN: Motion for Extension
 This Rule refers to the computation of a
period of time and not to a specific date
fixed for the performance of an act.
 It applies only when the period of time is
prescribed by these Rules, by order of the
court or by any applicable statute.
o the method of computation under
this Rule does not generally apply
to:
1. those provided in a contract
2. a specific date set for a
court hearing or foreclosure
sale
3. prescriptive (not
reglementary) periods
specifically provided by the
RPC for felonies therein
 As to extension:
GR: Extension should be tacked to the
original period and commence
immediately after the expiration of such
period.
XPN: In Moskowsky v. CA and Vda. de
Capulong v. Workmen's Insurance Co.,
Inc., et al., the Supreme Court allowed the
extended period to commence from the
specific time prayed for in the motion for
extension.
SECTION 2: Effect of interruption.
 Should an act be done which effectively
interrupts the running of the period, the
allowable period after such interruption
shall start to run on the day after notice
of the cessation of the cause thereof.
o the day of the act that caused the
interruption shall be excluded in
the computation of the period
For the purposes of filing an extension, you must
file before the expiration of the period
 RULE 30
TRIAL Trial Hearing
Not confined to trial
Nature of Trial: Refers to the but embraces the
It is the judicial process of investigating and reception of evidence several stages of
determining the legal controversies between or and other processes litigation, including
among the parties. the pre-trial stage
 during the trial, the parties present their It embraces the
respective evidence of their claims and period for the Does not necessarily
defenses introduction of mean presentation of
 such claims and defenses shall constitute evidence by both evidence
the bases for the judgment of the court parties
Jurisprudence holds that the period of the trial
terminates when judgment begins. SECTION 2: Adjournments and postponements.
 GR: A court may adjourn a trial from day
When trial is unnecessary: to day, and to any stated time, as the
(a) Where the pleadings of the parties tender expeditious and convenient transaction of
no issue at all, a judgment on the business may require, but shall have no
pleadings may be directed by the court power to adjourn a trial for a longer period
(Rule 34) than one month for each adjournment, nor
(b) Where from the pleadings, affidavits, more than three months in all
depositions and other papers, there is XPN: When authorized in writing by the
actually no genuine issue, the court may Court Administrator of the Supreme
render a summary judgment (Rule 35) Court
(c) Where the parties have entered into a
compromise or an amicable settlement  Postponements are addressed to the sound
either during the pre-trial or while the trial discretion of the court, and in the absence
is in progress (Rule 18 and Art. 2028, of GAD, cannot be controlled by
NCC) mandamus.
(d) Where the complaint has been dismissed
with prejudice or when the dismissal has SECTION 3: Requisites of motion to postpone
the effect of an adjudication on the merits trial for absence of evidence.
(Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5,  GR: A motion to postpone a trial on the
last par., Rule 7) ground of absence of evidence can be
(e) Where the case falls under the operation granted only when:
of the Rules on Summary Procedure. 1. A motion for postponement is be
(f) Where the parties agree in writing, upon filed; and
the facts involved in the litigation, and 2. Upon affidavit showing:
submit the case for judgment on the facts i. the materiality or relevancy
agreed upon, without the introduction of of the evidence; and
evidence. If, however, there is no ii. that due diligence has been
agreement as to all the facts in the case, used to procure it
trial may be held only as to the disputed XPN: If the adverse party admits the facts
facts (Sec. 6, Rule 30). to be given in evidence, even if he objects
or reserves the right to their admissibility,
SECTION 1: Notice of trial. the trial shall not be postponed.
 Upon entry of a case in the trial calendar,
the clerk shall notify the parties of the date SECTION 4: Requisites of motion to postpone
of its trial in such manner as shall ensure trial for illness of party or counsel.
his receipt of that notice at least five (5)  A motion to postpone a trial on the ground
days before such date. of illness of either party or counsel can be
o this is intended to avoid the usual granted only when:
misunderstandings and failure of 1. A motion for postponement is be
the parties to appear for trial as the filed; and
previous rule did not spell out
these mechanics of service
 2. The motion is supported by an
affidavit or sworn certification
showing that:
i. the presence of the party or
counsel at the trial is
indispensable; and
ii. that the character of his
illness is such as to render
his non-attendance
excusable
 A mere medical certificate is generally
insufficient. It must be under oath or in the
form of an affidavit. However, it has been
held that even if the motion to postpone
on account of illness was not
accompanied by a medical certificate,
since not every ailment is attended to by a
physician and the required medical
certificate under oath could not be
obtained within a limited time, such
requirement may be dispensed with in the
interest of justice.
SECTION 5: Order of trial.
 GR: The trial shall be limited to the issues
stated in the pre-trial order and shall
proceed in accordance with the order
stated in Sec. 5
XPNs:
(a) Subject to the provisions of Sec. 2
of Rule 31; or
(b) Unless the court for special
reasons otherwise directs
A. EVIDENCE IN CHIEf – dismissal Rule 17,
Sec. 3
g. When is the case deemed submitted for
decision?
Reverse order of trial
 Additional evidence may be offered at the
rebuttal stage if it was newly discovered,
or omitted through mistake or
inadvertence, or where the purpose is to
correct evidence previously offered,
subject to the discretion of the court.
 Q: May the parties be permitted by the
court to adduce evidence on their original
case even after the presentation of their
original evidence?
A: As a rule, no, however, the court may
allow if:
(a) there are good reasons; and
(b) such reasons are in furtherance of
justice [Sec. 5(f), Rule 30]
SECTION 6: Agreed statement of facts.
 The parties to any action may:
1. agree, in writing, upon the facts
involved in the litigation; and
2. submit the case for judgment on
the facts agreed upon, without the
introduction of evidence
 If the parties agree only on some of the
facts in issue, the trial shall be held as to
the disputed facts in such order as the
court shall prescribe.
 Such stipulations are binding unless relief
therefrom is permitted by the court on
good cause shown, such as error or fraud.
 Counsel cannot stipulate on what their
respective evidence consists of and ask
that judgment be rendered on the basis of
such stipulation.
 Stipulations of facts are not permitted in:
1. actions for annulment of marriage;
and
2. legal separation
SECTION 7: Statement of judge.
 During the hearing or trial of a case any
statement made by the judge with
reference to the case, or to any of the
parties, witnesses or counsel, shall be
made of record in the stenographic notes.
SECTION 8: Suspension of actions.
 The suspension of action shall be
governed by the provisions of the Civil
Code.
 Art. 2030. Every civil action or
proceeding shall be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or
both parties; or
2. If it appears that one of the parties,
before the commencement of the
action or proceeding, offered to
discuss a possible compromise but
the other party refused the offer.
The duration and terms of the suspension
of the civil action or proceeding and
similar matters shall be governed by such
provisions of the rules of court as the
Supreme Court shall promulgate. Said
rules of court shall likewise provide for
the appointment and duties of amicable
compounders.
SECTION 9: Judge to receive evidence;
delegation to clerk of court.
 GR: The judge of the court where the case
is pending shall personally receive the
evidence to be adduced by the parties.
o WHY? Because the judge has to
observe the demeanor of the
witnesses
XPN: The reception of such evidence
may be delegated under the following
conditions, viz.:
(a) The delegation may be made only
in default or ex parte hearings, or
on agreement in writing by the
parties;
(b) The reception of evidence shall be
made only by the clerk of that
court who is a member of the bar;
(c) Said clerk shall have no power to
rule on objections to any question
or to the admission of evidence or
exhibits; and
(d) He shall submit his report and
transcripts of the proceedings,
together with the objections to be
resolved by the court, within 10
days from the termination of the
hearing.
RULE 31
CONSOLIDATION OR SEVERANCE
SECTION 1: Consolidation.
 When actions involving a common
question of law or fact are pending before
the court:
1. it may order a joint hearing or trial
of any or all the matters in issue in
the actions;
2. it may order all the actions
consolidated; and
3. it may make such orders
concerning proceedings therein as
may tend to avoid unnecessary
costs or delay.
 Consolidation is a procedural device
granted to the court as an aid in deciding
how cases in its docket are to be tried so
that the business of the court can be
dispatched expeditiously while providing
justice to the parties.
o the cases consolidated must
involve common question of law
or fact
o GR: The rule on consolidation of
cases generally applies only to
cases pending before the same
judge, not to cases pending in
different branches of the same
court or in different courts, and
also applies to special
proceedings.
XPN: Whenever appropriate, and
in the interest of justice,
consolidation of cases in different
branches of the same court or in
different courts can be effected.
 Consolidation of cases on appeal and
assigned to different divisions of the
Supreme Court or the Court of Appeals is
also authorized, and generally the cause
 which was appealed later and bearing the
higher docket number is consolidated
with the case having the lower docket
number.
 The usage of “may” indicates that the
consolidation is within the sound
discretion of court.
 Ratio of consolidation:
(a) to avoid multiplicity of suits;
(b) guard against oppression and
abuse;
(c) prevent delays;
(d) clear congested dockets;
(e) simplify the work of the trial court;
and
(f) save unnecessary costs and
expenses.

 Ways of consolidating cases:

1. by recasting the cases already
instituted, conducting only one
hearing and rendering only one
decision;
2. by consolidating the existing cases
and holding only one hearing and
rendering only one decision; and
3. by hearing only the principal case
and suspending the hearing on the
others until judgment has been
rendered in the principal case.

SECTION 2: Separate trials.

 The court, in furtherance of convenience
or to avoid prejudice, may order a
separate trial of any claim.
 When separate trial of claims is conducted
by the court under this section, it may
render separate judgments on each claim.
 This provision permitting separate trials
presupposes that the claims involved are
within the jurisdiction of the court.
o when one of the claims is not
within its jurisdiction, the same
should be dismissed, so that it may
be filed in the proper court
 RULE 32
TRIAL BY COMMISSIONER
SECTION 1. Reference by consent.
By written consent of both parties, the court
may order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by
the parties or to be appointed by the court. As
used in these Rules, the word “commissioner”
includes a referee, an auditor and an examiner.
SECTION 2. Reference ordered on motion.
When the parties do not consent, the court may,
upon the application of either or of its own
motion, direct a reference to a commissioner in
the following cases:
(a) When the trial of an issue of fact requires the
examination of a long account on either side, in
which case the commissioner may be directed to
hear and report upon the whole issue or any
specific question involved therein;
(b) When the taking of an account is necessary:
i. for the information of the court
before judgment, or
ii. for carrying a judgment or order
into effect.
(c) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in
any stage of a case, or for carrying a judgment or
order into effect.
SECTION 3. Order of reference; powers of the
commissioner.
When a reference is made, the clerk shall
forthwith furnish the commissioner with a copy
of the order of reference. The order may specify
or limit the powers of the commissioner, and:
(1) may direct him:
i. to report only upon particular
issues, or
ii. to do or perform particular acts, or
iii. to receive and report evidence
only, and
(2) may fix the date for beginning and closing
the hearings and for the filing of his
report.
Subject to other specifications and limitations
stated in the order, the commissioner has and
shall exercise the power:
(1) to regulate the proceedings in every
hearing before him and
(2) to do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order
(3) he may issue subpoenas and
subpoenas duces tecum, swear witnesses,
and
(4) unless otherwise provided in the order of
reference, he may rule upon the
admissibility of evidence.
The trial or hearing before him shall proceed in
all respects as it would if held before the court.
Notes:
 What Sec. 3 authorizes to be limited is the
scope of the proceedings before the
commissioner, not the modality thereof.
The order of reference may direct the
commissioner to perform different acts in
and for purposes of the proceedings but,
whatever may be the case, the
requirement for him to hold a hearing
cannot be dispensed with as this is the
essence of due process.
SECTION 4. Oath of commissioner.
Before entering upon his duties the
commissioner shall be sworn to a faithful and
honest performance thereof.
SECTION 5. Proceedings before commissioner.
Upon receipt of the order of reference and unless
otherwise provided therein, the commissioner
shall forthwith set a time and place for the first
meeting of the parties or their counsel to be held
within ten (10) days after the date of the order
of reference and shall notify the parties or their
counsel.
SECTION 6. Failure of parties to appear before
commissioner.
If a party fails to appear at the time and place
appointed, the commissioner may:
(a) proceed ex parte or,
(b) in his discretion, adjourn the proceedings
to a future day, giving notice to the absent
party or his counsel of the adjournment.
SECTION 7. Refusal of witness.
The refusal of a witness to obey a subpoena
issued by the commissioner or to give evidence
before him, shall be deemed a contempt of the
court which appointed the commissioner.
SECTION 8. Commissioner shall avoid delays.
It is the duty of the commissioner to proceed with
all reasonable diligence. Either party, on notice
to the parties and commissioner, may apply to the
court for an order requiring the commissioner to
expedite the proceedings and to make his report.

SECTION 9. Report of commissioner.

Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file
with the court his report in writing upon the
matters submitted to him by the order of
reference. When his powers are not specified or
limited, he shall set forth his findings of fact and
conclusions of law in his report. He shall attach
thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the
testimonial evidence presented before him.

SECTION 10. Notice to parties of the filing of

report.
Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed
ten (10) days within which to signify grounds
of objections to the findings of the report, if
they so desire.

GR: Objections to the report based upon grounds

which were available to the parties during the
proceedings before the commissioner, other than
objections to the findings and conclusions
therein, set forth, shall not be considered by the
court
XPN: Unless they were made before the
commissioner

SECTION 11. Hearing upon report.

Upon the expiration of the period of ten (10)
days referred to in the preceding section, the
report shall be set for hearing, after which the
court shall issue an order:
(a) adopting, modifying, or rejecting the
report in whole or in part, or
(b) recommitting it with instructions, or
(c) requiring the parties to present further
evidence before the commissioner or RULE 33
the court. DEMURRER TO EVIDENCE

SECTION 12. Stipulations as to findings.

When the parties stipulate that a commissioner’s
findings of fact shall be final, only questions of
law shall thereafter be considered.

SECTION 13. Compensation of commissioner.

The court shall allow the commissioner such
reasonable compensation as the circumstances of
the case warrant, to be taxed as costs against the
defeated party, or apportioned, as justice
requires.
 Motion to Dismiss Motion to Dismiss
SECTION 1. Demurrer to evidence. (Rule 16) (Rule 33)
After the plaintiff has completed the presentation Grounded on Based on
of his evidence, the defendant may move for preliminary insufficiency of
dismissal on the ground that upon the facts and objections evidence

the law the plaintiff has shown no right to May be filed by any May be filed only by
relief. defending party the defendant against
(a) If his motion is denied: he shall have the against whom a the complaint of the
right to present evidence. claim is asserted in plaintiff

o Such denial order is not the action

controllable by certiorari, absent
Should be filed
an oppressive exercise of judicial
within the time for May be filed for the
authority.
but prior to the filing dismissal of the case
(b) If the motion is granted but on appeal the
of the answer of the only after the plaintiff
order of dismissal is reversed: he shall be
defending party to has completed the
deemed to have waived the right to
the pleading presentation of his
present evidence.
asserting the claim evidence

against him

Notes:
If denied, defendant If denied, defendant
 Where the plaintiff’s evidence together must file an answer may present evidence
with such inferences and conclusions as or else he may be
may reasonably be drawn therefrom does declared in default
not warrant recovery against the If granted, plaintiff
defendant, a demurrer to evidence should If granted, plaintiff appeals and the order
be sustained. A demurrer to evidence is may appeal or if the of the dismissal is
likewise sustainable when, admitting subsequent case is reversed, the
every proven fact favorable to the plaintiff not barred, he may defendant loses his
and indulging in his favor all conclusions refile the case right to present
fairly and reasonably inferable therefrom, evidence
the plaintiff has failed to make out one or
on the evidence
more of the material elements of his case,
submitted by the
or when there is no evidence to support an
plaintiff as the
allegation necessary to his claim.
defendant loses his
 It should be sustained where the
right to have the case
plaintiff’s evidence is prima facie
remanded for
insufficient for a recovery.
reception of his
 evidence.
Granted Denied Such order is an Denial is an
If the motion is If his motion is adjudication upon the interlocutory in
granted but on appeal denied, he shall have merits, hence the nature, hence Sec. 1
the order of dismissal the right to present requirement in Sec. 1 of Rule 36 has no
is reversed, he shall evidence. of Rule 36 that said application.
be deemed to have judgment should
waived the right to state clearly and
present evidence. distinctly the facts
The appellate court, Where a court denies and the law on which
by reversing the a demurrer to it is based, should be
order granting the evidence, it should complied with.
demurrer, cannot set the date for
remand the case to reception of the
the trial court. defendant’s evidence
Instead, it should in chief. It should not
resolve the case and proceed to grant the
render judgment on relief demanded by
the merits based only the plaintiff.

RULE 34
JUDGMENT ON THE PLEADINGS
SECTION 1. Judgment on the pleadings.
Where an answer:
(a) fails to tender an issue, or
o It does not comply with the
requirements of a specific denial
set out in Secs. 8 and 10 of Rule 8,
thus resulting in general denial,
which ultimately leads to the
admission of the material
allegations of the adverse party’s
pleadings.
(b) otherwise admits the material
allegations of the adverse party’s
pleading,
the court may; on motion of that party, direct
judgment on such pleading.
However, in actions for:
(1) declaration of nullity of marriage or
(2) annulment of marriage or
(3) for legal separation,
the material facts alleged in the complaint shall
always be proved.
Notes:
 Judgment on the pleadings presupposes
that there is no controverted issue
whatsoever between the parties.
 The judgment is, therefore, exclusively
upon the allegations appearing in the
pleadings of the parties and the annexes
thereto, if any, without consideration of
any evidence aliunde.
 The plaintiff, by moving for judgment on
the pleadings, is not deemed to have
admitted:
(a) irrelevant allegations in the
defendant’s answer, or
(b) allegations of damages in the
complaint
 hence there can be no
award of damages in said
judgment in the absence of
proof
o Under this Rule, a judgment on the
pleadings must be on motion of the
claimant. However, if at the pre-trial, the
court finds that a judgment on the
pleadings is proper, it may render such
judgment motu proprio (Sec. 2[g], Rule
18)
CAPITOL MOTORS v. YABUT
F: Respondent only stated that he had no
knowledge sufficient to form a belief as to the
truth of a material averment.
I: W/N a judgment on the pleading was proper
R: Yes. A mere allegation of ignorance of the
facts alleged in the complaint, is insufficient
to raise an issue; the defendant must aver
positively or state how it is that he is ignorant
of the facts so alleged.
The rule authorizing an answer to the effect
that the defendant has no knowledge or
information sufficient to form a belief as to the
truth of an averment and giving such answer
the effect of a denial, does not apply where the
fact as to which want of knowledge is
asserted, is so plainly and necessarily within
the defendant's knowledge that his averment
of ignorance must be palpably untrue. The
court may render judgment upon the pleadings
if material averments in the complaint are
admitted.
FALCASANTOS v. HOW SUY CHING
F: An action for legal redemption is filed.
Respondent averred that such right had
already prescribed. Both parties submitted the
case on the pleadings without adducing any
evidence.
I: W/N the material allegations in the
defendant’s answer are also deemed admitted
R: Yes. It is already a rule in this jurisdiction
that one who prays for judgment on the
pleadings without offering proof as to the truth
of his own allegations, and without giving the
opposing party an opportunity to introduce
evidence, must be understood to admit the
truth of all the material and relevant
allegations of the opposing party, and to rest
his motion for judgment on those allegations
taken together with such of his own as are
admitted in the pleadings. As the parties had
submitted the case at bar on the pleadings
without introducing any evidence, the plaintiff
must be considered as having admitted the
material allegation in the answer that he had
known of the sale in question long before nine
days prior to the filing of the complaint.
APELARIO v. CHAVEZ
F: In the answer of respondent it pleaded that:
defendants could not pay the plaintiff, because
they have so many accounts receivable which
have not yet been paid to them, of which fact
the defendant was duly informed by the
plaintiff and thereby requested to wait a while.
I: W/N the court erred in rendering judgment
on the pleadings
R: No. As pointed out in the judgment
complained of, the defendants-appellants had
admitted all the material allegations of the
complaint concerning the existence of the debt
and its non-payment. The pleaded excuse, that
they had requested plaintiff to, wait because
appellants' many accounts receivable had not
yet been collected, is clearly no defense, for a
debtor cannot delay payment due just to suit
its convenience, and the creditor is not an
underwriter of his debtor's business unless so
stipulated.
RULE 35
SUMMARY JUDGMENTS
Summary Judgment is a method of promptly
disposing an action where there is no genuine
issue as to any material fact.
o A “genuine issue” is an issue of fact
which requires the presentation of
evidence as distinguished from a sham,
fictitious, contrived or false claim. When
the facts as pleaded appear uncontested or
undisputed, then there is no real or
genuine issue or question as to the facts,
and summary judgment is called for.
o In an action for foreclosure of
mortgage for example, the
material issues are the existence of
the debt and its demandability.
When the defendant admits the
existence of the debt and raises an
issue as to the demandability of the
debt or the interest rate involved
because of an alleged
contemporaneous agreement
between the parties, the issue
tendered is sham, fictitious, or
patently unsubstantial. A summary
judgment would be proper because
there is no genuine issue.
o Where only the genuineness and
the due execution of the
promissory note are the matters
deemed admitted for the failure of
the defendant to deny the same
under oath, a summary judgment is
not proper.
o In an action for a sum of money,
where the debt and the fact of its
nonpayment is admitted and the
only issue raised is the rate of
interest or the damages payable,
there is no genuine motion.
o The trial court cannot motu proprio decide
that summary judgment on an action is in
order.
o The adverse party must be notified
of the motion for summary
judgment and furnished with
supporting affidavits, depositions
or admissions before hearing is
conducted.
 Summary Judgment on the summary judgment in his favor as to all or any
Judgment Pleadings part thereof.
Proper even if there Proper when it appears
is an issue as to the that there is no Section 1 Section 2
damages genuine issue between Claimant Defendant
recoverable. the parties. At any time after the At any time
There is an issue but There is an absence of pleading in answer
the issue is not a factual issue in the thereto has been
genuine. There is case because the served
not issue as regards answer tenders no
any material fact. issue at all. SECTION 3. Motion and proceedings thereon.
Based not only on Based exclusively (1) The motion shall be served at least ten
the pleadings but upon the pleadings (10) days before the time specified for
also upon the without introduction the hearing.
affidavits, of evidence. o GR: Service is 3 days
depositions and XPN: Summary judgment
admissions of the o Reason: to prepare affidavits,
parties showing that, admission, and depositions
except for the (2) The adverse party may serve opposing
amount of damages, affidavits, depositions, or admissions at
there is no genuine least three (3) days before the hearing.
issue. (3) After the hearing, the judgment sought
Available only in Available in any shall be rendered forthwith if the
actions to recover action, except pleadings, supporting affidavits,
debt, or for a declaration of nullity depositions, and admissions on file, show
liquidated sum of or annulment of that, except as to the amount of damages:
money, or for marriage and legal i. there is no genuine issue as to any
declaratory relief. separation. material fact and
Filed by either the Filed by a claiming ii. that the moving party is entitled to
claiming or party only. (e.g. a judgment as a matter of law.
defending party. plaintiff or
counterclaimant) Notes:
Requires prior 10- Subject to the 3-day  There must be a motion for summary
day notice. notice rule and where judgment and a hearing of said motion,
all the material the non-observance of which procedural
averments of the requirements warrants the setting aside of
complaint are deemed the summary judgment.
admitted, such motion  The test for the propriety of a motion for
may even be made ex summary judgment is whether the
parte. pleadings, affidavits and exhibits in
support of the motion are sufficient to
SECTION 1. Summary judgment for claimant. overcome the opposing papers and to
A party seeking to recover upon a claim, justify the finding that, as a matter of law,
counterclaim, or cross-claim or to obtain a there is no defense to the action or the
declaratory relief may, at any time after the claim is clearly meritorious.
pleading in answer thereto has been served,  Summary judgment may not be rendered
move with supporting affidavits, depositions or on the amount of damages, although such
admissions for a summary judgment in his favor judgment may be entered on the issue of
upon all or any part thereof. the right to damages. Thereafter, the court
may proceed to assess the amount
SECTION 2. Summary judgment for defending recoverable. Also, the court cannot
party. impose attorney’s fees in a summary
A party against whom a claim, counterclaim, or judgment in the absence of proof as to the
cross-claim is asserted or a declaratory relief is amount thereof.
sought may, at any time, move with supporting  In case of doubt as to the propriety of a
affidavits, depositions or admissions for a summary judgment, the doubt shall be
 resolved against the moving party. The
court should take that view of evidence
most favorable to the party against whom
it is directed and give that party the
benefit of all favorable inferences.
 Where all the facts are within the judicial
knowledge of the court, summary
judgment may be granted as a matter of
right.
SECTION 4. Case not fully adjudicated on
motion.
If on motion under this Rule,
(1) judgment is not rendered upon the whole
case or for all the reliefs sought and
(2) a trial is necessary,
the court at the hearing of the motion, by
examining the pleadings and the evidence before
it and by interrogating counsel shall ascertain
what material facts exist without substantial
controversy and what are actually and in good
faith controverted. It shall thereupon make an
order:
(a) specifying the facts that appear without
substantial controversy,
(b) including the extent to which the amount
of damages or other relief is not in
controversy, and
(c) directing such further proceedings in the
action as are just.
The facts so specified shall be deemed
established, and the trial shall be conducted on
the controverted facts accordingly.
Notes:
 While Sec. 4 of this Rule authorizes the
rendition of a partial summary judgment,
such judgment is interlocutory in nature
and is not a final and appealable
judgment. The appeal from the partial and
appealable judgment should be taken
together with the judgment in the entire
case after the trial shall have been
conducted on the material facts on which
a substantial controversy exists.
SECTION 5. Form of affidavits and supporting
papers.
Supporting and opposing affidavits:
(1) shall be made on personal knowledge,
o must be acquired through the
senses
(2) shall set forth such facts as would be
admissible in evidence, and
o admissible: relevant and
competent
(3) shall show affirmatively that the affiant is
competent to testify to the matters stated
therein.
Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached
thereto or served therewith.
SECTION 6. Affidavits in bad faith.
Should it appear to its satisfaction at any time that
any of the affidavits presented pursuant to this
Rule are presented in bad faith, or solely for the
purpose of delay, the court:
(1) shall forthwith order the offending party
or counsel to pay to the other party the
amount of the reasonable expenses which
the filing of the affidavits caused him to
incur including attorney's fees,
(2) it may, after hearing further adjudge the
offending party or counsel guilty of
contempt.
PNB v. PHILIPPINE LEATHER CO
F: Defendant admitted all the averments
except the correctness of the amount due.
I: W/N the issue of undetermined correctness
of the amount due is a proper case for
summary judgement
R: Yes. The case does not tender a genuine
issue because defendants admit that they are
indebted to the plaintiff. As the affidavit
subscribed and sworn to by the Manager of the
Special Assets Department of the plaintiff, in
charge of all outstanding accounts of its
debtors, attached to the motion for summary
judgment, furnishes the Court with the
payments made by the defendants on their
account and the amount due from them, which
they failed to oppose by counter affidavits, the
plaintiff is entitled to summary judgment.
Atty. Escolin: The issue of fact here is the
accuracy of the amount. It is not genuine
because it is not a material fact – it is not an
issue concerning the plaintiff’s cause of
action.
URMANETA v. MANZANO
F: Plaintiff filed a complaint for the recovery
of a parcel of land covered by the Santiago
Cadastre. The defendant in his answer states
that he has no interest over the land except as
a tenant.
I: W/N a case which presents an issue for
recovery but defendant claims that his interest
is only as a tenant proper for summary
judgement
R: Yes. There was really no genuine issue of
fact. If there is, the same was easily
determinable from the pleadings and
documents attached thereto. In an action
where plaintiff claims ownership over a land,
there is no genuine issue where the defendant
does not claim to be the owner and admitted
that he is a tenant.
GALICIA v. POLO
I: W/N a summary judgment is proper when
the defendant, instead of filing an answer,
filed a Motion for Summary Judgement
R: Yes. Summary judgment is one of the
methods sanctioned in the present Rules of
Court for a prompt disposition of civil actions
wherein there exists no serious controversy.
The procedure may be availed of not only by
claimants, but also by defending parties who
may be the object of unfounded claims. A
motion for summary judgment assumes that
scrutinizing the facts will disclose that the
issues presented by the pleadings need not be
tried because they are so patently
unsubstantial as not to be genuine issues, or
that there is no genuine issue as to any material
facts or where the facts appear undisputed and
certain from the pleadings, depositions,
admissions and affidavits.
Examining petitioners’ complaint, the Court
finds that the disputed property is the same
parcel of land, which adjoins private
respondent’ lot which was the subject of the
forcible entry case and from which petitioners
were ordered to vacate. There is thus no
question that issue of ownership of the
disputed land subject of the present petition
has long been foreclosed in the forcible entry
case which culminated in the public auction
sale of the parcel of land now sought to be
recovered. Having failed to redeem the
property sold at the public auction sale within
the reglementary period, petitioners cannot
now claim that they still own said property.
Petitioners’ complaint for Ownership and
Damages is but a belated and disguised
attempt to revive a judgment debtors’ right of
redemption which has long expired. There
being no issue as to any material fact raised in
the pleadings, summary judgment may be
rendered.
VERGARA v. SUELTO
I: W/N the appropriateness of a summary
judgment may ever be so self-evident in a case
as to make it well-nigh a duty on the part of
the Trial Judge to grant the plaintiff's motion
therefor
R: The fundamental issue in summary
proceeding is not whether the answer does
tender valid issues as by setting forth specific
denials and/or affirmative defenses but
whether the issues thus tendered are genuine,
or fictitious, sham, characterized by bad faith.
But even if the answer does tender issues and
therefore a judgment on the pleadings is not
proper - a summary judgment may still be
rendered on the plaintiff's motion if he can
show to the Court's satisfaction that “except as
to the amount of damages, there is no genuine
issue as to any material fact,” that is to say, the
issues thus tendered are not genuine, are in
other words sham, fictitious, contrived, set up
in bad faith, patently unsubstantial. The
determination may be made by the Court on
the basis of the pleadings, and the depositions,
admissions and affidavits that the movant may
submit, as well as those which the defendant
may present in his turn. In this case, the
defendants’ answer appears on its face to
tender issues. It purports to deal with each of
the material allegations of the complaint, and
either specifically denies, or professes lack of
knowledge or information to form a belief as
to them. It also sets up affirmative defenses.
But the issues thus tendered are sham, not
genuine, as the slightest reflection and
analysis win readily demonstrate.
 RULE 36
JUDGMENTS, FINAL ORDERS AND
ENTRY THEREOF
Judgment is the final disposition of the case or
final determination of the rights of the parties
upon the matter submitted in the action or
proceeding.
Essential Requisites:
(1) The court rendering judgment must have
jurisdiction over the subject-matter;
(2) The court must have jurisdiction over the
parties or the res if defendant is a non-
resident not found in Philippines;
(3) The court must have jurisdiction over the
issues;
o judgment shall only be rendered
over those issues presented by the
parties in their pleadings
(4) The court must be a validly constituted
court;
(5) The judge must have authority (de jure) or
at least a colorable title (de facto) to
render judgment;
(6) The judgement must be rendered after a
lawful hearing
o due process must have been
observed
o no due process amounts to grave
abuse of discretion
SECTION 1. Rendition of judgments and final
orders.
A judgment or final order determining the merits
of the case shall be:
(1) in writing
(2) personally and directly prepared by the
judge,
(3) stating clearly and distinctly the facts and
the law on which it is based,
(4) signed by him, and
(5) filed with the clerk of the court.
o the Clerk will then promulgate the
judgment: “to make known”
Notes:
 It is the filing of the signed decision with
the clerk of court, and not its
pronouncement in open court, that
constitutes rendition of judgment.
 A judgment must conform to the
The final order of the
pleadings and the theory of the action
court which is found
under which the case was tried. A
in the dispositive.
judgment going outside the issues and
purporting to adjudicate something on
which the parties were not heard is
invalid.
 A rendition of judgment in an open court
does not constitute judgment. It must
conform with the formal requisites in Sec.
1.
 A decision of a court with absolutely
nothing to support it is a nullity and open
to direct attack.
 A judgment contrary to the express
provisions of law is erroneous but it is
not void. Once it becomes final and
executory, it is as binding and effective as
any judgment and, though erroneous, will
be enforced as a valid judgment in
accordance with its dispositions.

 The decision of the court is the entire
document prepared and promulgated by
it, adjudicating and determining the rights
of the parties to the case.
 A reservation or statement in the court’s
order that is without prejudice on the
rights of the parties to litigate again is a
surplusage. The court cannot alter the
decision once it has been rendered unless
they are permitted otherwise.
 The dispositive or decretal portion or the
fallo is what actually constitutes the
judgment or resolution of the court and
which can be the subject of execution,
although the other parts of the decision
may be resorted to in order to determine
the ratio decidendi for such judgment or
resolution.
 GR: Where there is a conflict between the
dispositive portion of the decision and the
body thereof, the dispositive portion
controls irrespective of what appears in
the body of the decision.
XPNs:
(a) Where the inevitable conclusion
from the findings of fact in the
opinion is so indubitable and clear
as to show that there was a mistake
in the dispositive portion, or
(b) Where explicit discussion and
settlement of the issue is found in
the body of the decision.
Judgment Opinion
Found in the findings
of facts and law and
the conclusion of the
law made by the
 court (ratio
decidendi).
 Special forms of judgments:
(a) Judgment by default (Sec. 3, Rule
9);
(b) Judgment on the pleadings (Rule
34);
(c) Summary judgment (Rule 35);
(d) Several judgment (Sec. 4, Rule
36);
(e) Separate judgment (Sec. 5, Rule
36);
(f) Judgment for specific acts (Sec.
10, Rule 39);
(g) Special judgment (Sec. 11, Rule
39);
(h) Judgment upon confession;
(i) Judgment upon compromise, or on
consent or agreement;
(j) “Clarificatory” judgment; and
(k) Judgment nunc pro tunc.
Conditional Judgment
 One which is subject to a precedent and is
not yet final until the happening of the
said condition.
 It contains no dispositive portion and is a
mere anticipation of what the court will
do.
 GR: Judgement conditioned upon a
contingency is null and void
o Decisions can only be rendered on
actual controversies.
o In truth this does not contain a
disposition of the issues at all.
Judgment nunc pro tunc (Judgement “now for
then”)
 Its only function is to record some act of
the court which was done at a former time,
but which was not then recorded, in order
to make the record speak the truth,
without any changes in substance or in
any material respect.
 The object of a judgment nunc pro tunc is
not the rendition of a new judgment and
the ascertainment and determination of
new rights, but is one placing in proper
form on the record the judgment that has
been previously rendered, to make it
speak the truth and thereby show what the
judicial action really was.
 It may not be availed of to correct judicial
errors, such as to render a judgment which
the court ought to have rendered in place
of the one it did erroneously render or to
supply non-action by the court however
erroneous the judgment may have been.
Compromise Judgment
 One which is rendered through the mutual
agreement of the parties for the purpose of
providing a settlement to a controversy.
 This cannot be entered into by the counsel
without the knowledge and special
authority of the client.
 It is immediately executory and not
appealable because it is a product of
mutual agreement.
 GR: It cannot be annulled.
XPN: When consent is vitiated by error,
violence, or forgery of document
 Remedy: Petition for Certiorari
 Once approved by court, has the force of
res judicata between the parties.
 To be entitled to appeal from a judgment
on compromise, a party must not only
move to set aside the judgment but must
also move to set aside or annul the
compromise agreement itself.
 Where a judgment based on a
compromise is sought to be enforced
against a person who was not a party
thereto, he may file an original petition for
certiorari to quash the writ of execution.
He could not move to have the
compromise set aside and then appeal
from the order denying his motion since
he is not a party to the compromise or the
judgment therein. A petition for relief
would be an inadequate remedy as the
execution was already being carried out.
 The court is not required to make findings
of fact and conclusion of law. The Court
is deemed to have adopted the question of
fact and conclusions of law made by the
parties themselves in the agreement. Their
consent made it unnecessary for the
preliminary adjudication by the court.
Judgment Upon Confession
 Entered against a person upon his
admission or confession of liability
without formality, time and expense
involved in an ordinary proceeding.
 This also cannot be entered into by the
counsel without the knowledge and
special authority of the client.
 Compromise Confession
Liability depends Liability depends on
upon the agreement the admission of the
of the parties. party.
GRINEN v. CONSOLACION
F: Case is about stopping of a preliminary
investigation on the prosecutor’s level.
I: W/N the trial court erred in not stating
clearly and distinctly the facts and the law on
which the decision is based.
R: No. The trial judge need only make a brief,
definite and pertinent findings and
conclusions upon controverted matters. The
ultimate test as to the sufficiency of trial
courts’ findings of facts is whether they are
comprehensive enough and pertinent to the
issue raised to provide a basis for decision.
When the issue involved is simple, as the one
presented in the court below, the trial court is
not required to make a finding upon all the
evidence adduced. It must state only such
findings of facts as are within the issue
presented and necessary to justify the
conclusions.
SECTION 2. Entry of judgments and final
orders.
If no appeal or motion for new trial or
reconsideration is filed within the time provided
in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be
the date of its entry. The record shall:
(1) contain the dispositive part of the
judgment or final order and
(2) shall be signed by the clerk,
(3) with a certificate that such judgment or
final order has become final and
executory.
Notes:
 The entry, even though later made,
retroacts when the judgment became final
and executory.
 A decision that has acquired finality
becomes immutable and unalterable.
 Q: Effect of entering judgment in the
book of entries?
A:
(1) The prevailing parties can enforce
execution as a matter of right (Rule
39). Issuance of writ of execution
is ministerial and, as a rule, can be
compelled by the use of writ of
mandamus.
(2) The court rendering the judgment
loses jurisdiction so that it can no
longer correct the judgement in
substance.
XPNs:
i. If it would correct clerical
errors, mistakes or
omissions plainly due to
inadvertence.
ii. Judgment of support
since it depends on the
needs of child.
iii. If execution would render
it inequitable.
(3) Res judicata
 The matters raised or could
have been raised are
conclusive even if the
judgment is erroneous.
FABULAR v. CA
R: When judgment has become final, no
additions can be made thereto, and nothing
can be done therewith except its execution;
otherwise, there would be no end to
litigations, thus setting at naught the main role
of courts of justice, which is to assist in the
enforcement of the rule of law and the
maintenance of peace and order, by setting
justiciable controversies with finality. In the
present case, it is beyond the power of the
lower court or this Court for that matter, to
modify the former's judgment which had long
become final and had in fact been executed.
It is settled that the only portion of a decision
that becomes the subject of execution is that
ordained or decreed in the dispositive part.
Whatever may be found in the body of the
decision can only be considered as part of the
reasons or conclusions of the court and while
they may serve at guide or enlightenment to
determine the ratio decidendi, what is
controlling is what appears in the dispositive
part of the decision.
PAJARITO v. SENERIS
F: The driver of the bus was convicted for
double homicide through reckless
imprudence. When the judgment was
executed, the driver did not have the means to
pay. Petitioner filed a motion to issue an alias
 writ of execution against the employer under
the subsidiary liability of the Revised Penal
Code.
I: W/N employer’s liability may be enforced
even if he is not an original party to the case
R: Yes. Considering that the judgment of
conviction, sentencing a defendant employee
to pay an indemnity under Articles 102 and
103 of the Revised Penal Code, is conclusive
upon the employer not only with regard to the
latter’s civil liability but also with regard to its
amount. To require petitioner to file a separate
and independent action against the employer
for the enforcement of the latter’s subsidiary
civil liability would not only prolong the
litigation but would require the heirs of the
deceased victim to incur unnecessary
expenses. The contention that the defendant is
not anymore an employee should be raised
and ventilated in the motion for alias writ of
execution.
Indeed, the enforcement of the employer's
subsidiary liability may be litigated within the
same proceeding because the execution of the
judgment is a logical and integral part of the
case itself. This would facilitate the
application of justice to the rival claims of the
contending parties.
SECTION 3. Judgment for or against one or
more of several parties.
Judgment may be given:
(a) for or against one or more of several
plaintiffs and
(b) for or against one or more of several
defendants.
When justice so demands, the court may require
the parties on each side to file adversary
pleadings as between themselves and determine
their ultimate rights and obligations.
SECTION 4. Several judgments.
In an action against several defendants, the court
may, when a several judgment is proper, render
judgment against one or more of them, leaving
the action to proceed against the others.
Notes:
 A several judgment is proper where the
liability of each party is clearly separable
and distinct from that of his co-parties
such that the claims against each of them
could have been the subject of separate
suits, and judgment for or against one of
them will not necessarily affect the others.
 In actions against solidary debtors, a
several judgment is not proper. The
proper procedure is Sec. 3(c) of Rule 9.
SECTION 5. Separate judgments.
When more than one claim for relief is
presented in an action, the court, at any stage,
upon a determination of the issues material to a
particular claim and all counterclaims arising out
of the transaction or occurrence which is the
subject matter of the claim, may render a separate
judgment disposing of such claim. The judgment
shall terminate the action with respect to the
claim so disposed of and the action shall proceed
as to the remaining claims. In case a separate
judgment is rendered the court:
(a) by order may stay its enforcement until
the rendition of a subsequent judgment or
judgments and
(b) may prescribe such conditions as may be
necessary to secure the benefit thereof to
the party in whose favor the judgment is
rendered.
Notes:
 E.g. joinder of causes of action, action for
partition and accounting, action for
expropriation (proceedings in itself are
multi-tiered)
SECTION 6. Judgment against entity without
juridical personality.
When judgment is rendered against two or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual or proper names, if known.
Notes:
 Depending on the nature of their action,
their liability will be solidary or joint.
 RULE 37
NEW TRIAL OR RECONSIDERATION
SECTION 1. Grounds of and period for filing
motion for new trial or reconsideration.
Within the period for taking an appeal, the
aggrieved party may move the trial court to set
aside the judgment or final order and grant a new
trial for one or more of the following causes
materially affecting the substantial rights of said
party:
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could not
have guarded against and by reason of which
such aggrieved party has probably been impaired
in his rights; or
i. Fraud: must be extrinsic or
collateral, that is, it is the kind of
fraud which prevented the
aggrieved party from having a trial
or presenting his case to the court
fully and properly, or was used to
procure the judgment without fair
submission of the controversy.
 same fraud in Rules 9, 38
and 47
 Q: Is a fraud committed by
a co-defendant a sufficient
ground for new trial?
A: Generally, no as it
cannot affect the plaintiff’s
right. However, if such co-
defendant connived with
the plaintiff to exercise
fraud, then it may be a
sufficient ground.
ii. Accident: e.g. failure to attend
hearing due to sickness, notice was
received out of time.
iii. Mistake: generally, refers to
mistakes of fact but may also
include mistakes of law where, in
good faith, the defendant was
misled in the case.
iv. Negligence: must be excusable
and generally imputable to the
party but the negligence of counsel
is binding on the client just as the
latter is bound by the mistakes of
his lawyer.
 standard: ordinary
diligence only
(b) Newly discovered evidence, which he could
not, with reasonable diligence, have discovered
and produced at the trial, and which if presented
would probably alter the result.
(1) must have been discovered after trial;
(2) could not have been discovered and
produced at the trial despite reasonable
diligence, and
(3) if presented, would probably alter the
result of the action.
Within the same period, the aggrieved party may
also move for reconsideration upon the grounds
that:
(1) the damages awarded are excessive,
(2) that the evidence is insufficient to justify
the decision or final order, or
(3) that the decision or final order is contrary
to law.
Notes:
 An appeal is “taken”:
(a) notice of appeal: by the filing of
notice of appeal within 15 days
from notice of judgment
(b) record on appeal: by the filing of
notice of appeal and record on
appeal within 30 days from notice
of judgment
 It suspends the running of the period to
appeal, but does not extend the time
within which an appeal, must be perfected
(taken), hence, if denied, the movant has
only the balance of the reglementary
period within which to perfect (take) his
appeal.
o However, if a motion for new trial
does not satisfy the requirements
of this Rule, it is pro forma and
does not suspend the period to
appeal.
o Furthermore, said motion must
comply with the provisions of
Rule 15, otherwise it will not be
accepted for filing and/or will not
suspend the running of the
reglementary period.
 Under Sec. 4 of the Interim Rules, no
party shall be allowed to file a second
motion for reconsideration of a final order
or judgment of trial courts. However, a
second motion for new trial would still be
available under the circumstances set out
in Sec. 5.
 A motion for reconsideration, if based on
the same grounds as that for a new trial, is
considered a motion for new trial and has
the same effect. However, where the
 motion for new trial is based on the last
paragraph of Sec. 1, it is properly a
motion for reconsideration as the movant
merely asks the court to reevaluate its
decision without a trial being conducted
again on the issues involved.
 Proper remedy:
Default in case of
FAME when the
Motion for New
decision is already
Trial (Rule 37)
rendered, but not yet
final and executory
Default in case of Motion to Lift the
FAME when the Order of Default by
decision is already reason of FAME
final and executory (Rule 9)
Default in case of
Petition for Relief
FAME when the
from Judgment
decision is already
(Rule 38)
final and executory,
Annulment of
but it is within 6
Judgment (Rule 47)
months/60 days
ASIAN SURETY v. ISLAND STEEL
[Fraud]
R: It is quite elementary that an action to annul
a final judgment on ground of fraud will lie
only if the fraud be extrinsic or collateral in
character. In Almeda vs. Cruz, this Court ruled
that “fraud to be a ground for nullity of a
judgment must be extrinsic to the litigation.
Were this not the rule there would be no end
to litigation, perjury being such common
occurrence in the trial. In fact, under the
opposite rule, the losing party could attack the
judgment at any time by attributing imaginary
false hood to his adversary's proof.” Fraud is
regarded as extrinsic or collateral where it has
prevented a party from having a trial or from
presenting all of his case to the court. Tested
against the above criterion, the fraud ascribed
by Asian Surety to the appellee is clearly
intrinsic rather than extrinsic in character. The
issue of the alleged fraud had been raised by
Asian Surety in Civil Case No. 51586 when it
adduced evidence to prove its allegation of
non-delivery of the goods by Island Steel to
Villanueva; and the trial court, after
considering such evidence, came to the
conclusion that the GI sheets in question had
in fact been delivered by appellee to
Villanueva.
DEMETRIOU v. CA [Fraud]
R: The use of the alleged false affidavit of loss
by private respondent is similar to the use
during trial or forged instruments or perjured
testimony. In the leading case of Palanca v.
Republic, it was held that the use of a forged
instrument constituted only intrinsic fraud for
while perhaps it prevented a fair and just
determination of a case, the use of such
instrument or testimony did not prevent the
adverse party from presenting his case fully
and fairly.
BELAMIDE v. CA [Newly discovered
evidence]
R: There can be no grave abuse of discretion
by the Court of Appeals in denying
petitioners’ Motion for New Trial. The
document alleged to be falsified was presented
in the trial in the lower court. Petitioners
should have attacked the same as falsified
with competent evidence, which could have
been presented, if they had exercised due
diligence in obtaining said evidence, which is
annxed to the Motion for New Trial.
It is, therefore, not a newly discovered
evidence that could justify a new trial. The
new evidence would neither change the result
as found by the decision. Likewise, in the
opposition of private respondents, it is there
alleged that the land originally belonged to the
spouses Martin Montoya and Vicente
Montoya. This allegation was never
contradicted.
TUMANG v. CA [Newly discovered
evidence]
R: Newly discovered evidence, under
prevailing jurisprudence, need not be newly
created evidence; newly discovered evidence
in other words, may and does commonly refer
to evidence already in existence prior or
during the trial but which could not have been
secured and presented during the trial despite
reasonable diligence on the part of the litigant
offering it or his counsel.
Newly discovered evidence, again, is not
limited to evidence which, though already in
existence before or during trial was not known
to the offering litigant. So - called "forgotten"
evidence may, upon the other hand, be seen to
refer to evidence already in existence or
available before or during trial, which was
known to and obtainable by the party offering
it and, which could have been presented and
offered in a seasonable manner were it not for
the oversight or forgetfulness of such party or
his counsel.
In order that a particular piece of evidence
may be properly regarded as "newly
discovered" for purposes of a grant of new
trial, what is essential is not so much the time
when the evidence offered first sprang into
existence nor the time when it first came to the
knowledge of the party now submitting it;
what it essential is, rather, that the offering
party had exercised reasonable diligence in
seeking to locate such evidence before or
during trial but had nonetheless failed to
secure it. Thus, a party who, prior to the trial
had, no means of knowing that a specific piece
of evidence existed and was in fact obtain
able, can scarcely be charged with lack of
diligence. It is commonplace to observe that
the term "diligence" is a relative and variable
one, not capable of exact definition and the
contents of which must depend entirely on the
particular configuration off acts obtaining in
each case.
HABALUYAS ENTERPRISES v.
JAPSON [Extension to file a motion]
I: W/N the 15-day period within which a party
may file a motion for reconsideration of a final
order or ruling of the Regional Trial Court
may be extended.
R: No. The rule shall be strictly enforced
that no motion for extension of time to file a
motion for new trial or reconsideration may be
filed with the Metropolitan or Municipal Trial
Courts, the Regional Trial Courts, and the
Intermediate Appellate Court. Such a motion
may be filed only in cases pending with the
Supreme Court as the court of last resort,
which may in its sound discretion either grant
or deny the extension requested.
In appeals in special proceedings under Rule
109 and in other cases wherein multiple
appeals are allowed, a motion for extension of
time to file the record on appeal may be filed
within the reglementary period of 30 days. If
the court denies the motion for extension, the
appeal must be taken within the original
period, inasmuch as such a motion does not
suspend the period for appeal. The trial court
may grant said motion after the expiration of
the period for appeal provided it was filed
within the original period.
All appeals heretofore timely taken, after
extensions of time were granted for the filing
of a motion for new trial or reconsideration,
shall be allowed and determined on the merits.
SECTION 2. Contents of motion for new trial or
reconsideration and notice thereof.
The motion shall be:
(1) made in writing
(2) stating the ground or grounds therefor,
(3) a written notice of which shall be served
by the movant on the adverse party.
A motion for new trial shall be proved in the
manner provided for proof of motion.
(a) A motion for the cause mentioned in
paragraph (a) of the preceding section
[FAME] shall be supported by affidavits
of merits which may be rebutted by
affidavits.
(b) A motion for the cause mentioned in
paragraph (b) [newly discovered
evidence] shall be supported:
i. by affidavits of the witnesses by
whom such evidence is expected
to be given, or
ii. by duly authenticated
documents which are proposed to
be introduced in evidence.
A motion for reconsideration shall point out
specifically the findings or conclusions of the
judgment or final order:
(a) which are not supported by the evidence
or
(b) which are contrary to law making express
reference to the testimonial or
documentary evidence or to the
provisions of law alleged to be contrary to
such findings or conclusions.
A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal.
Notes:
 A motion is considered pro forma where:
(a) It is based on the same ground as
that raised in a preceding motion
for new trial or reconsideration
which has already been denied;
 (b) It contains the same arguments and
manner of discussion appearing in
the prior opposition to the motion
to dismiss and which motion was
granted;
(c) The new ground alleged in the
second motion for new trial
already existed, was available and
could have been alleged in the first
motion for new trial which was
denied;
(d) It is based on the ground of
insufficiency of evidence or that
the judgment is contrary to law but
does not specify the supposed
defects in the judgment;
(e) It is based on the ground of fraud,
accident, mistake or excusable
negligence but does not specify the
facts constituting these grounds
and/or is not accompanied by an
affidavit of merits. Note that fraud
and mistake must be alleged with
particularity.
 The concept of pro forma motions for
reconsideration is properly directed
against a final judgment or order, and
not those against an interlocutory
order. In the former, a repetition of the
ground already disposed of may be
categorized as merely for purposes of
delay, hence such motion is pro forma;
but such rule does not apply to motions
directed against interlocutory orders.
o This is the logical deduction that
can be drawn from a motion which
merely reiterates and repleads, and
adds nothing more to, the
arguments which had previously
been submitted to the same court
and which arguments it had duly
considered and resolved.
 Affidavit of merits is one which states:
(a) the nature or character of the fraud,
accident, mistake or excusable
negligence on which the motion
for new trial is based,
(b) the facts constituting the movant’s
good and substantial defenses or
valid causes of action, and
(c) the evidence which he intends to
present if his motion is granted.
An affidavit of merits should state facts
and not mere opinions or conclusions of
law.
 Where the motion for new trial on these
grounds is not accompanied by an
affidavit of merits, it should properly be
denied. But in Ganaban vs. Bayle, the
Supreme Court held that verification and
affidavits of merits are required only if the
grounds relied upon are FAME.
 GR: Failure to attach an affidavit of
merits is fatally defective.
XPN: When the judgment is null and void
(1) defendant was unreasonably
deprived of his day in court
(2) court has no jurisdiction over the
defendant
(3) court has no jurisdiction over the
subject-matter
 Affidavit of merits is not required in
motion for reconsideration.
 Q: What is the remedy when a defendant
failed to appear in pre-trial?
A: Motion for reconsideration. It need not
be under oath.
VALDEZ v. HUGO [Pro forma motion]
F: Petitioner filed a petition for new trial/
reconsideration on the ground that the findings
on the conclusion of the court are contrary to
the record. However, the motion did not point
out specifically the findings on the conclusion
to which are not supported by evidence.
R: Petitioner’s motion for new trial did not and
could not interrupt the period for appeal, it
having failed to state in detail as required by
the rules, the reasons in support of the grounds
alleged therein. Under Rule 37, section 2, third
paragraph, it is now required to “point out
specifically the findings or conclusions of the
judgment which are not supported by the
evidence or which are contrary to law, making
express reference to the testimonial or
documentary evidence or to the provisions of
law alleged to be contrary to such findings or
conclusions.” And when, as in the instant be
treated as a motion pro-forma intended merely
to delay the proceedings, and as such, it shall
be stricken out as offensive to the new rules.
SECTION 3. Action upon motion for new trial
or reconsideration.
The trial court may:
(a) grant a new trial, upon such terms as may
be just, and set aside the judgment or final
order,
(b) may deny the motion, or
 (c) it may amend such judgment or final
order accordingly if it finds:
i. that excessive damages have been
awarded or
ii. that the judgment or final order is
contrary to the evidence or law.
SECTION 4. Resolution of motion.
A motion for new trial or reconsideration shall be
resolved within thirty (30) days from the time it
is submitted for resolution.
Notes:
 Effect if motion is granted:
(a) New trial: court will conduct a new
trial (trial de novo) [Sec. 6]
(b) Reconsideration: court will render
an amended decision and the
original decision will be vacated
SECTION 5. Second motion for new trial.
A motion for new trial shall include all grounds
then available and those not so included shall be
deemed waived. A second motion for new trial,
based on a ground not existing nor available
when the first motion was made, may be filed
within the time herein provided excluding the
time during which the first motion had been
pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
Notes:
 Thus, if the first motion was based on
fraud and was denied, a second motion on
the ground of newly discovered evidence
can still be entertained if such evidence
was discovered and became available
only after the first motion had been filed.
Section 6. Effect of granting of motion for new
trial.
If a new trial is granted in accordance with the
provisions of this Rules:
(1) the original judgment or final order shall
be vacated, and
(2) the action shall stand for trial de novo;
but the recorded evidence taken upon the former
trial, insofar as the same is material and
competent to establish the issues, shall be used at
the new trial without retaking the same.
SECTION 7. Partial new trial or
reconsideration.
If the grounds for a motion under this Rule
appear to the court to affect the issues as to:
(a) only a part, or less than all of the matter in
controversy, or
(b) only one, or less than all, of the parties to
it,
the court may order a new trial or grant
reconsideration as to such issues if severable
without interfering with the judgment or final
order upon the rest.
Notes:
 Secs. 7 and 8 are permissible where either
a separate or several judgment is proper.
(Secs. 4 and 5 of Rule 36)
 Where one party files a motion for new
trial or reconsideration and the other party
seeks to perfect an appeal from the said
decision, the court should withhold action
on the appeal until after the motion for
new trial or reconsideration shall have
been resolved.
SECTION 8. Effect of order for partial new
trial.
When less than all of the issues are ordered
retried, the court may either:
(a) enter a judgment or final order as to the
rest, or
(b) stay the enforcement of such judgment or
final order until after the new trial.
SECTION 9. Remedy against order denying a
motion for new trial or reconsideration.
An order denying a motion for new trial or
reconsideration is not appealed, the remedy
being an appeal from the judgment or final
order.
Notes:
 In a motion for new trial, generally there
are 2 steps:
(1) check the presence of FAME
(vacate judgment)
(2) conduct trial de novo
 If the court finds that there is no FAME,
the motion is denied. It cannot be
appealed. You can only appeal the
judgment itself.
 RULE 38
RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS
A petition for relief is an equitable remedy and
is allowed only in exceptional cases from final
judgments or orders where no other remedy is
available.
 It cannot be filed as an independent action
because the Rule says it must be filed in
the same case.
o Otherwise, the judgment in the
first would constitute res judicata
in the other.
 Equitable: Only allowed in exceptional
cases
o Not regarded with favor since the
judgment is already final and
executory.
o New Trial is a remedy in law.
Motion for New Petition for Relief
Trial (Rule 38)
(Rule 37)
Before decision has After judgment has
become final and become final and
executory executory provided it
is within the 60 days
– 6 months rule
provided in Rule 38,
Sec. 3
FRANCISCO v. PUNO [Nature of petition]
F: Defendant was declared in default for
failure to attend pre-trial, as a result an ex
parte presentation of evidence was had, and
judgment was rendered in favor of the
petitioner. When defendant found out about
the judgment he filed a motion for new trial on
the ground of FAME, which was denied by the
trial court. Defendant, however did not appeal
such decision, instead he allowed the period to
appeal to lapse. After which he filed a petition
for relief from judgment, alleging practically
the same ground as that in his motion for new
trial.
I: W/N Petition for Relief can be availed of
when Motion for New Trial has already been
availed of
R: No. In other words, where, as in this case,
another remedy is available, as, in fact, private
respondent had filed a motion for new trial
and/or reconsideration alleging practically the
same main ground of the petition for relief
under discussion, which was denied, what
respondent should have done was to take to a
higher court such denial. A party who has filed
a timely motion for new trial cannot file a
petition for relief after his motion has been
denied. These two remedies are exclusive of
each other. It is only in appropriate cases
where a party aggrieved by a judgment has not
been able to file a motion for new trial that a
petition for relief can be filed.
FAJARDO v. BAYONA [Nature of petition]
F: A judgment was rendered by the trial court
dismissing plaintiff’s complaint. Plaintiff
appealed but was denied by the TC. Plaintiff
questioned it by petition for certiorari, Rule
65. Supreme Court said that the TC correctly
disapproved. Plaintiff then filed a petition for
relief under Rule 38.
R: He cannot avail of the remedy under Rule
38. The remedy first pursued by petitioner
when he tried to have his appeal admitted was
a remedy at law. That which he subsequently
pursued when he sought relief was a remedy
in equity. It has been held a vicious practice
indeed for a party first to pursue a legal
remedy and later abandon it and prosecute that
in equity. There will be no end to litigation
were parties allowed to avail of all remedies
one after another. As we said the remedy
under Rule 38 is to be availed of only in
exceptional cases, and where there is other
remedy at law, it should not be allowed to be
used.
In the case at bar, aside from petitioner's
fatally defective affidavits of merits, the
presentation of the petition for relief for the
purpose of securing an appeal from the
judgment should not be allowed petitioner
because he already had the opportunity to
prosecute or compel the allowance of his
appeal from the judgment, when he instituted
the action of certiorari and mandamus against
the judge who had refused to approve his
record on appeal. In this case, Plaintiff can no
longer avail 38.
SECTION 1: Petition for relief from
judgment, order, or other proceedings.
When a judgment or final order is entered, or
any other proceeding is thereafter taken against a
party in any court through fraud, accident,
mistake, or excusable negligence, he may file a
petition in such court and in the same case
praying that the judgment, order or proceeding be
set aside.
Notes:
 Where: The court where the original
judgment is rendered.
 “Other proceeding” includes an order or
writ of execution, or an order dismissing
an appeal
 A petition for relief is, in effect, a second
opportunity for an aggrieved party to ask
for a new trial.
 FAME have the same concepts that they
have in motions for new trial.
 A petition for relief under this section has
been held to be applicable to all kinds of
special proceedings.
 This Rule is not applicable to
interlocutory orders.
SECTION 2. Petition for relief from denial of
appeal. When a judgment or final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or excusable
negligence, has been prevented from taking an
appeal, he may file a petition in such court and
in the same case praying that the appeal be given
due course.
MESINA v. MEER
I: W/N Petition for Relief from Judgment
applies in decisions made in Court of Appeals
R: No. Petitioners argue that apart from this
change, the present Rule extends the remedy
of relief to include judgments or orders of the
Court of Appeals since the Rule uses the
phrase “any court”. We disagree. The
procedural change in Rule 38 is in line with
Rule 5, prescribing uniform procedure for
municipal and regional trial courts and
designation of municipal/metropolitan trial
courts as courts of record. While Rule 38 uses
the phrase “any court”, it refers only to
municipal/metropolitan and regional trial
courts. The procedure in the Court of Appeals
and the Supreme Court are governed by
separate provisions of the Rules of Court and
may, from time to time, be supplemented by
additional rules promulgated by the Supreme
Court through resolutions or circulars. As it
stands, neither the Rules of Court nor the
Revised Internal Rules of the Court of
Appeals allow the remedy of petition for relief
in the Court of Appeals.
SECTION 3. Time for filing petition; contents
and verification.
A petition provided for in either of the preceding
sections of this Rule must be:
1. verified,
2. filed within sixty (60) days after the
petitioner learns of the judgment, final
order, or other proceeding to be set aside,
and not more than six (6) months after
such judgment or final order was entered,
or such proceeding was taken; and
3. accompanied with affidavits showing:
(a) the fraud, accident, mistake, or
excusable negligence relied upon,
and
(b) the facts constituting the
petitioner's good and substantial
cause of action or defense, as the
case may be.
Notes:
 The two periods for the filing of a petition
for relief are not extendible and never
interrupted. These periods cannot be
subject to a condition or a contingency as
they are, in itself, devised to meet a
condition or a contingency.
o The remedy is merely an act of
grace or benevolence. Considering
such nature, the period is fixed.
 The 60-day period is reckoned from the
time the party acquired knowledge of the
order, judgment or proceedings and not
from the date he actually read the same.
 The 6-months period is computed from
the date of entry of the order or
judgement. As amended, the date of the
finality of the judgment or final order is
deemed to be the date of its entry.
 GR: The absence of an affidavit of merits
is a fatal defect and warrants denial of
the petition
XPN: Unless the facts required to be set
out in the affidavit of merits also appear
in the verified petition.
o Such affidavits are not required
when the judgment or order is void
for want of jurisdiction, or was
obtained by fraud or mistake, or
with denial of due process.
o It serves as a jurisdictional basis
for the court to take cognizance of
the petition.

ANG LAM v. ROSILLOSA
F: The assailed judgment is null and void for
lack of jurisdiction over the person of the
defendant since when the action was
commenced the defendant had already died.
The trial court judge, however, ruled that the
decision of the court was handed down on
April 2, 1949, whereas the petition to set it
aside was presented only on Sept 26, 1949,
after the lapse of the periods mentioned in Sec.
3 of Rule 38.
R: With regard to the other reason adduced by
the respondent judge, that the petition to set
aside the judgment was presented after the
lapse of the six months, period provided in
Rule 38, we think said rule is not applicable.
That rule provides for relief from a judgment,
order or other proceeding taken against a party
to the case, who “by fraud, accident, mistake,
or excusable negligence, has been unjustly
deprived of a hearing therein, or has been
prevented from taking an appeal.” The
petitioner herein was not a party to the original
case, and he did not seek relief from the
judgment upon any of the grounds mentioned
in section 1 of Rule 38, but sought the
annulment of said judgment for lack of
jurisdiction over the person of the defendant,
who had long been deceased before the action
was commenced. A judgment rendered by a
court which had not acquired jurisdiction
either over the subject matter or over the
person of the defendant, is void. A void
judgment may be assailed or impugned at any
time either directly or collaterally, by means
of a petition filed in the same case or by means
of a separate action, or by resisting such
judgment in any action or proceeding wherein
it is invoked.
SECTION 4. Order to file an answer.
If the petition is sufficient in form and substance
to justify relief, the court in which it is filed, shall
issue an order requiring the adverse parties to
answer the same within fifteen (15) days from the
receipt thereof. The order shall be served in such
manner as the court may direct, together with
copies of the petition and the accompanying
affidavits.
SECTION 5. Preliminary injunction pending
proceedings.
The court in which the petition is filed may grant
such preliminary injunction as may be necessary
for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in
favor of the adverse party, conditioned that if the
petition is dismissed or the petitioner fails on the
trial of the case upon its merits, he will pay the
adverse party all damages and costs that may be
awarded to him by reason of the issuance of such
injunction or the other proceedings following the
petition, but such injunction shall not operate to
discharge or extinguish any lien which the
adverse party may have acquired upon, the
property, of the petitioner.
Notes:
 If the petition is granted, the court shall
then proceed to hear and determine the
case as if a timely motion for a new trial
or reconsideration had been granted by it.
 Availed of pending the grant or denial of
the motion.
SECTION 6. Proceedings after answer is filed.
After the filing of the answer or the expiration of
the period therefor, the court shall hear the
petition:
(a) if after such hearing, it finds that the
allegations thereof are not true, the
petition shall be dismissed;
(b) but if it finds said allegations to be true, it
shall set aside the judgment or final order
or other proceeding complained of upon
such terms as may be just. Thereafter the
case shall stand as if such judgment, final
order or other proceeding had never been
rendered, issued or taken.
o The court shall then proceed to
hear and determine the case as if a
timely motion for a new trial or
reconsideration had been granted
by it.
o Trial de Novo is not always the
consequence. When the petition is
directed at the order or proceeding
of the court, here the consequence
is only as to perfection of appeal.
Notes:
 Two steps or hearings in a petition for
relief:
1. a hearing to determine whether the
judgment, order, or proceeding
should be set aside; and
2. in the affirmative, a hearing on the
merits of the case.
 Failure to file an answer to the petition for
relief does not constitute default as, even
 without an answer, the court will still have
to hear the petition and determine its
merits.
 An order granting a petition for relief is
interlocutory and non-appealable.
 Other grounds for attacking the final
order: Rule 47 (direct attack), MTD must
appear on the face of the judgment or the
order (collateral attack)
 Collateral attack: Ching v. CA

SECTION 7. Procedure where the denial of an

appeal is set aside.
Where the denial of an appeal is set aside, the
lower court shall be required:
1. to give due course to the appeal; and
2. to elevate the record of the appealed case
as if a timely and proper appeal had been
made.
 SUMMARY RULES OF 1991
RULES ON SUMMARY PROCEDURE
Pursuant to Section 36 of the Judiciary
Reorganization Act of 1980 (B.P Blg. 129) and
to achieve an expeditious and inexpensive
determination of the cases referred to herein, the
Court Resolved to promulgate the following
Revised Rule on Summary Procedure:
I.
Applicability
Section 1. Scope. – This rule shall govern the
summary procedure in the Metropolitan Trial
Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling
within their jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful
detainer, irrespective of the amount of damages
or unpaid rentals sought to be recovered. Where
attorney's fees are awarded, the same shall not
exceed twenty thousand pesos (P20,000.00).
 ejectment cases
(2) All other civil cases, except probate
proceedings, where the total amount of the
plaintiff's claim does not exceed ten thousand
pesos (P10,000.00), exclusive of interest and
costs.
 amended: 100 or 200 MM
 for purposes of jurisdiction exclusive of
costs, interests, blah blah *check*
 “claim” pera-pera lang but can be based
on law, contract, quasi-delict…
B. Criminal Cases:
(1) Violations of traffic laws, rules and
regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine
not exceeding (P1,000.00), or both, irrespective
of other imposable penalties, accessory or
otherwise, or of the civil liability arising
therefrom: Provided, however, that in offenses
involving damage to property through criminal
negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand
pesos (P10,000.00).
 imprisonment of 6 months or a fine not
exceeding P1,000 or both
 in re: to KP *check*
 GR: 1k XPN: 10k
 09-94: GR you only look at the
imprisonment XPN: penalty is only fine
 AM 00-11-01-SC BP 22
This Rule shall not apply to a civil case where the
plaintiffs 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 the ordinary
procedure.
 crim: complex crim
 civil: same complaint with another cause
of action subject to the ordinary procedure
(XPN to the XPN)
Q: Collection of money with the RTC can be
joined with ejectment?
A: No, ejectment case is with the MTC.
Q: Will you apply the Rules if the penalty will
not exceed 6 months? Malicious mischief with a
minor.
A: No, Sec. 1 applicability.
Q: If the case provides that the plaintiff is a
minor?
A: Family Court.
Sec. 2. Determination of applicability. – Upon
the filing of a civil or criminal action, the court
shall issue an order declaring whether or not the
case shall be governed by this Rule A patently
erroneous determination to avoid the application
of the Rule on Summary Procedure is a ground
for disciplinary action.
II.
Civil Cases
Sec. 3. Pleadings.
A. Pleadings allowed. – The only pleadings
allowed to be filed are the complaints,
compulsory counterclaims and cross-claims'
pleaded in the answer, and the answers thereto.
 excluded: permissive counterclaim, third-
party complaint, complaint-in-
intervention, and reply
B. Verifications. – All pleadings shall be
verified.
Sec. 4. Duty of court. – After the court
determines that the case falls under summary
procedure, it may, from an examination of the
allegations therein and such evidence as may be
attached thereto, dismiss the case outright on any
of the grounds apparent therefrom for the
dismissal of a civil action. If no ground for
dismissal is found it shall forthwith issue
summons which shall state that the summary
procedure under this Rule shall apply.
Sec. 5. Answer. – Within ten (10) days from
service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof
on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed
waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims
or cross-claims shall be filed and served within
ten (10) days from service of the answer in which
they are pleaded.
Sec. 6. Effect of failure to answer. – Should the
defendant fail to answer the complaint within the
period above provided, the court, motu proprio,
or on motion of the plaintiff, shall render
judgment as may be warranted by the facts
alleged in the complaint and limited to what is
prayed for therein: Provided, however, that the
court may in its discretion reduce the amount of
damages and attorney's fees claimed for being
excessive or otherwise unconscionable. This is
without prejudice to the applicability of Section
4, Rule 18 of the Rules of Court, if there are two
or more defendants.
 GR: OCA, order of default SR, render
judgment
 Rule 18, Sec. 4 in re to: Rule 9, Sec. 3(c)
Sec. 7. Preliminary conference; appearance of
parties. – Not later than thirty (30) days after the
last answer is filed, a preliminary conference
shall be held. The rules on pre-trial in ordinary
cases shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
 equivalent to pre-trial order
 preliminary conference in OCA: personal
appearance for the purpose of marking
evidence
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in
accordance with Section 6 hereof. All cross-
claims shall be dismissed.
 dismissal – counterclaim
 parang failure to answer
If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Section 6 hereof. This Rule shall
not apply where one of two or more defendants
sued under a common cause of action who had
pleaded a common defense shall appear at the
preliminary conference.
 cannot be dismissed because they raised a
common defense
Sec. 8. Record of preliminary conference. –
Within five (5) days after the termination of the
preliminary conference, the court shall issue an
order stating the matters taken up therein,
including but not limited to:
(a) Whether the parties have arrived at an
amicable settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into
by the parties;
(c) Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of
further proceedings, in which event the judgment
shall be rendered within thirty (30) days from
issuance of the order;
(d) A clear specification of material facts which
remain controverted; and
(e) Such other matters intended to expedite the
disposition of the case.
 equivalent to a preliminary conference
order
Sec. 9. Submission of affidavits and position
papers. – Within ten (10) days from receipt of the
order mentioned in the next preceding section,
the parties shall submit the affidavits of their
witnesses and other evidence on the factual
issues defined in the order, together with their
position papers setting forth the law and the facts
relied upon by them.
 affidavit stands at the evidence
 crucial because this will usher the next
stage of the proceedings
 position paper: memorandum, brief,
argument of the parties
Sec. 10. Rendition of judgment. – Within thirty
(30) days after receipt of the last affidavits and
position papers, or the expiration of the period for
filing the same, the court shall render judgment.
However should the court find it necessary to
clarify certain material facts, it may, during the
said period, issue an order specifying the matters
to be clarified, and require the parties to submit
affidavits or other evidence on the said matters
within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15)
days after the receipt of the last clarificatory
affidavits, or the expiration of the period for
filing the same.
The court shall not resort to the clarificatory
procedure to gain time for the rendition of the
judgment.
III.
Criminal Cases
Sec. 11. How commenced. – The filing of
criminal cases falling within the scope of this
Rule shall be either by complaint or by
information: Provided, however, that in
Metropolitan Manila and in Chartered Cities.
such cases shall be commenced only by
information, except when the offense cannot be
prosecuted de oficio.
 complaint or information
The complaint or information shall be
accompanied by the affidavits of the compliant
and of his witnesses in such number of copies as
there are accused plus two (2) copies for the
court's files. If this requirement is not complied
with within five (5) days from date of filing, the
care may be dismissed.
Sec. 12. Duty of court. —
(a) If commenced by compliant. – On the basis
of the compliant and the affidavits and other
evidence accompanying the same, the court may
dismiss the case outright for being patently
without basis or merit and order the release of the
amused if in custody.
(b) If commenced by information. – When the
case is commenced by information, or is not
dismissed pursuant to the next preceding
paragraph, the court shall issue an order which,
together with copies of the affidavits and other
evidence submitted by the prosecution, shall
require the accused to submit his counter-
affidavit and the affidavits of his witnesses as
well as any evidence in his behalf, serving copies
thereof on the complainant or prosecutor not later
than ten (10) days from receipt of said order. The
prosecution may file reply affidavits within ten
(10) days after receipt of the counter-affidavits of
the defense.
Sec. 13. Arraignment and trial. – Should the
court, upon a consideration of the complaint or
information and the affidavits submitted by both
parties, find no cause or ground to hold the
accused for trial, it shall order the dismissal of the
case; otherwise, the court shall set the case for
arraignment and trial.
If the accused is in custody for the crime charged,
he shall be immediately arraigned and if he enters
a plea of guilty, he shall forthwith be sentenced.
Sec. 14. Preliminary conference. – Before
conducting the trial, the court shall call the
parties to a preliminary conference during which
a stipulation of facts may be entered into, or the
propriety of allowing the accused to enter a plea
of guilty to a lesser offense may be considered,
or such other matters may be taken up to clarify
the issues and to ensure a speedy disposition of
the case. However, no admission by the accused
shall be used against him unless reduced to
writing and signed by the accused and his
counsel. A refusal or failure to stipulate shall not
prejudice the accused.
Sec. 15. Procedure of trial. – At the trial, the
affidavits submitted by the parties shall
constitute the direct testimonies of the witnesses
who executed the same. Witnesses who testified
may be subjected to cross-examination, redirect
or re-cross examination. Should the affiant fail to
testify, his affidavit shall not be considered as
competent evidence for the party presenting the
affidavit, but the adverse party may utilize the
same for any admissible purpose.
 partially amended by the Judicial
Affidavit Rule (Q and A)
 cross-examination basis: due process
Except in rebuttal or sur rebuttal, no witness shall
be allowed to testify unless his affidavit was
previously submitted to the court in accordance
with Section 12 hereof.
 GR: No person can be allowed to testify
in court unless he has previously
submitted his affidavit
 XPN: presentation of rebuttal or
surrebuttal
However, should a party desire to present
additional affidavits or counter-affidavits as part
of his direct evidence, he shall so manifest during
the preliminary conference, stating the purpose
thereof. If allowed by the court, the additional
affidavits of the prosecution or the counter-
affidavits of the defense shall be submitted to the
court and served on the adverse party not later
than three (3) days after the termination of the
preliminary conference. If the additional
affidavits are presented by the prosecution, the
accused may file his counter-affidavits and serve
the same on the prosecution within three (3) days
from such service.
Sec. 16. Arrest of accused. – The court shall not
order the arrest of the accused except for failure
to appear whenever required. Release of the
person arrested shall either be on bail or on
recognizance by a responsible citizen acceptable
to the court.
Sec. 17. Judgment. – Where a trial has been
conducted, the court shall promulgate the
judgment not later than thirty (30) days after the
termination of trial.
Q: Pano pag hindi sumagot, anong gagawin ng
Judge?
IV.
COMMON PROVISIONS
Sec. 18. Referral to Lupon. – Cases requiring
referral to the Lupon for conciliation under the
provisions of Presidential Decree No. 1508
where there is no showing of compliance with
such requirement, shall be dismissed without
prejudice and may be revived only after such
requirement shall have been complied with. This
provision shall not apply to criminal cases where
the accused was arrested without a warrant.
Sec. 19. Prohibited pleadings and motions. – The
following pleadings, motions or petitions shall
not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding
section;
 XPN: lack of JD, non-compliance with
the KP
(b) Motion for a bill of particulars;
 can be threshed out in the preliminary
conference
(c) Motion for new trial, or for reconsideration of
a judgment, or for opening of trial;
 for judgment only but interlocutory order
is allowed
(d) Petition for relief from judgment;
 Rule 38
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
 10 days 10 days 10 days 3 days
(f) Memoranda;
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order issued
by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l) Interventions.
Sec. 20. Affidavits. – The affidavits required to
be submitted under this Rule shall state only facts
of direct personal knowledge of the affiants
which are admissible in evidence, and shall show
their competence to testify to the matters stated
therein.
A violation of this requirement may subject the
party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge
the inadmissible affidavit or portion thereof from
the record.
Sec. 21. Appeal. – The judgment or final order
shall be appealable to the appropriate regional
trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa
Blg. 129. The decision of the regional trial court
in civil cases governed by this Rule, including
forcible entry and unlawful detainer, shall be
immediately executory, without prejudice to a
further appeal that may be taken
therefrom. Section 10 of Rule 70 shall be
deemed repealed.
Sec. 22. Applicability of the regular rules. – The
regular procedure prescribed in the Rules of
Court shall apply to the special cases herein
provided for in a suppletory capacity insofar as
they are not inconsistent herewith.
Sec. 23. Effectivity. – This revised Rule on
Summary Procedure shall be effective on
November 15, 1991.
COMBANTE v. SAN JOSE
The Rule on Summary Procedure in Special
Cases applies only to criminal cases where the
penalty prescribed by law for the offense charged
does not exceed six (6) months imprisonment or
a fine of one thousand pesos (P1,000.00), or both.
The crime of Theft as charged herein is penalized
with arresto mayor in its medium period to
prision correccional in its minimum period, or,
from two (2) months and one (1) day to two (2)
years and four (4) months. Clearly, the Rule on
Summary Procedure is inapplicable. But even
assuming that the case falls under the coverage
of said Rule, the same does not dispense with
trial. On the contrary, it specifically provides:
"Section 11. When case set for arraignment and
trial. — Should the court, upon a consideration
of the complaint or information and the affidavits
submitted by both parties, find no cause or
ground to hold the defendant for trial, it shall
order the dismissal of the case; otherwise, the
court shall set the case for arraignment and trial.
"Section 14. Procedure of Trial. — Upon a plea
of not guilty being entered, the trial shall
immediately proceed.

HEIRS OF OLIVAS v. FLOR

(Prohibited Pleadings)

LESACA v. CA

BAYUBAY v. CA
 RULE 39
EXECUTION, SATISFACTION AND
EFFECTS OF JUDGMENTS
Execution is the procedure or remedy afforded
for the satisfaction of a judgment.
 Object: To obtain satisfaction of the
judgment on which the writ is issued.
 Part of the judgment to be executed:
Fallo
1. invests rights upon the parties,
2. sets conditions for the exercise of
those rights; and
3. imposes the corresponding duties
and obligations.
 If there is a conflict between the
dispositive portion of the decision and the
body thereof, the dispositive portion
controls irrespective of what appears in
the body.
 Two kinds: As a matter of right or
discretionary
 Mode of enforcement: by motion or by an
independent action
 You derive you right to possess from the
judgment obligor *Pajarito v. Seneris*
 Q: Can you execute if the decision is not
yet final?
A: Sec. 2 EPA
 Q: It is only the court of origin that may
order the execution of judgment (final
and executory judgments)
A: The appellate court may issue if
execution is issued pending appeal
(records are with the appellate court)
SECTION 1. Execution upon judgments or final
orders.
Execution shall issue as a matter of right, on
motion, upon a judgment or order that disposes
of the action or proceeding upon the expiration
of the period to appeal therefrom if no appeal
has been duly perfected.
 On this instance, the execution becomes
compellable by mandamus. This right is
in accord with the Doctrine of
Immutability of Final Judgements.
o “Once a judgment becomes final
and executor, it becomes
immutable and unalterable, and
may no longer be modified by any
person.”
 The Rule provides that there is a need to
file a motion before the issuance of the
writ of execution.
Hence, a judge may not order execution
of the judgment in the decision itself.
o Even in judgments which are
immediately executory, there must
be a motion to that effect and a
hearing called for the purpose.
o GR: Under Supreme Court
Circular No. 24-94, a motion for
the issuance of a writ of execution
must contain a notice to the
adverse party.
XPN: Where execution is a matter
of right, the judgment debtor need
not be given an advanced notice of
the application for execution nor
be afforded a prior hearing
thereon, must necessarily be
deemed superseded.
 Execution is a matter of right when:
(a) When the judgment has become
final and executory;
XPN: Sec. 4
(b) When the judgment debtor has
renounced or waived his right of
appeal;
(c) When the period for appeal has
lapsed without an appeal having
been filed; or
(d) When, having been filed, the
appeal has been resolved and the
records of the case have been
returned to the court of origin.
 GR: The parties are not allowed to object
the execution of final judgment.
XPN: When the final order is vague and
there is still room left for interpretation,
the adverse party may seek stay of
execution or quashal of the writ of
execution.
 An order is “final” or executory after the
lapse of the reglementary period to appeal
and no appeal has been perfected.
 GR: Where the judgment or order has
become executory, the court cannot refuse
to issue a writ of execution because the
issuance of the writ is a ministerial duty.
XPNs:
(a) When subsequent facts and
circumstances transpire which
render such execution unjust or
impossible, such as a supervening
cause like the act of the
Commissioner of Civil Service
finding the plaintiff
 administratively guilty and which
constituted a bar to his
reinstatement as ordered by the
trial court in a civil case or where
the defendant bank was placed
under receivership;
(b) On equitable grounds, as when
there has been a change in the
situation of the parties which
makes execution inequitable;
 e.g. you have subsequently
acquired title to the
property
(c) Where the judgment has been
novated by the parties;
(d) When a petition for relief or an
action to enjoin the judgment is
filed and a preliminary injunction
is prayed for and granted;
 Rule 38, Sec. 5
(e) When he judgment has become
dormant;
(f) Where the judgment turns out to be
incomplete or is conditional since,
as a matter of law, such judgment
cannot become final.
Q: No matter how erroneous the judgment may
be, the lower court is bound by the judgment of
the higher court.
If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied
for in the court of origin, on motion of the
judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final
order or orders sought to be enforced and of the
entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same
case, when the interest of justice so requires,
direct the court of origin to issue the writ of
execution.
 The appellate court can direct the issuance
of the writ since such act is merely in the
enforcement of its judgment and which it
has the power to require.
SECTION 2. Discretionary execution.
(a) Execution of a judgment or final order
pending appeal. Requisites:
1. On motion of the prevailing party
2. With notice to the adverse party filed in
the trial court
i. while it has jurisdiction over the
case and
ii. while it is in possession of either
the original record or the record on
appeal, as the case may be,
at the time of the filing of such motion,
said court may, in its discretion, order
execution of a judgment or final order
even before the expiration of the period to
appeal.
3. After the trial court has lost jurisdiction
the motion for execution pending appeal
may be filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special
order after due hearing.
 “Good reasons”: It is the
attendance of the compelling
circumstances warranting
immediate execution for fear that
favorable judgment may yield to
an empty victory.
Engineering Construction v. NAPOCOR
While the rule gives the court the discretionary
power to allow immediate execution, the
following requisites must be satisfied for its valid
exercise:
(a) There must be a motion by the prevailing
party with notice to the adverse party;
(b) There must be good reasons for issuing the
execution; and
(c) The good reasons must be stated in a special
order.
With respect to the consequential and exemplary
damages as well as attorney's fees, however, we
concur with the Appellate Court in holding that
the lower court had exceeded the limits of its
discretion. Execution should have been
postponed until such time a s the merits of the
case have been finally determined in the regular
appeal.
The execution of any award for moral and
exemplary damages is dependent on the outcome
of the main case.
Unlike actual damages for which the petitioners
may clearly be held liable if they breach a
specific contract and the amounts of which are
fixed and certain, liabilities with respect to moral
and exemplary damages as well as the exact
amounts remain uncertain and indefinite pending
resolution by the Intermediate Appellate Court
and eventually the Supreme Court. The existence
of the factual bases of these types of damages and
their causal relation to petitioners' act will have
to be determined in the light of the assignments
or errors on appeal. It is possible that the
petitioner s, after all, while liable for actual
damages may not be liable for moral and
exemplary damages. Or as in some cases
elevated to the Supreme Court, the awards may
be reduced."
Actual and compensatory damages - only one
subject to execution pending appeal
Moral – unliquidated because of the possibility
of reduction or deletion of the appellate court
ASSOCIATED BANK v. GONONG
The filing of an appeal by a losing party does not
automatically divest the party favored by a
decision of the right to move for a more favorable
decision or to ask for execution pending appeal.
It is only after all the parties' respective periods
to appeal have lapsed that the court loses its
jurisdiction over the case. For the court to lose
jurisdiction: (Rule 41, Sec. 9)
1. Appeal was perfected
2. Period to appeal has already lapsed.
ONG v. CA
1. The mere filing of appellant's notice of appeal
does not divest the trial court of its jurisdiction
over the case. The court may still take cognizance
of the other party's motion for new trial under
Rule 37, if he should opt to file one, or, as in the
instant case, a motion for execution pending
appeal, provided of course, such motions are
filed within 15 days from said party's notice of
the decision. What is crucial to determine is the
timeliness of the filing of the motion for
execution pending appeal.
2. Mere statement that the decision is frivolous
and dilatory not a good reason to issue motion for
execution pending appeal. Where the reason
given is that an appeal is frivolous and dilatory,
execution pending appeal cannot be justified. It
is not proper for the trial court to find that an
appeal is frivolous and consequently to
disapprove it since the disallowance of an appeal
by said court constitutes a deprivation of the right
to appeal. The authority to disapprove an appeal
rightfully pertains to the appellate court. (A court
cannot grant EPA based on the very merits of the
case itself upon which the appeal is made. Your
good reason must be other than the merits of the
case.)
3. Mere posting of a bond also not a good reason
for issuing motion for execution pending appeal
because it would may execution pending appeal
the general rule instead of the exception.
DEE v. CA
May it be issued blah blah
DIRECTOR OF LANDS v. REYES
Remedy of EPA is not available to LRC
VALENCIA v. CA
Bond not anymore a good reason. Awards of
moral and blah blah
JOHNSON v. CA
Is the party declared in default entitled to receive
a notice of motion for execution?
YES. *see full case*
GARCIA v. CA
This court in the …. categorically stated
*default*
(b) Execution of several, separate or partial
judgments.
A several, separate or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending
appeal.
 Q: When does the trial court lose its
jurisdiction when appeal has been
perfected
A: Rule 41, Sec. 9, par. 2: upon the
approval on the record of appeal filed
 Q: If an appeal is perfected does it mean
that the court has already lost its
jurisdiction?
A: Not necessarily. (Rule 41, sec. 9., par.
3)
i. the court loses jurisdiction only
over the subject matter thereof
upon the approval of the records
on appeal filed in due time and
ii. the expiration of the time to appeal
of the other parties.
appeal by mere notice and appeal by mere record
 Q: What does it mean when the court
loses jurisdiction?
A: It means court cannot anymore alter
substantially the judgment which has
already been rendered for it has already
lost its jurisdiction. In either case, prior to
the transmittal of the original record or the
record on appeal, the court may issue
orders for:
(a) the protection and preservation of
the rights of the parties which do
not involve any matter litigated by
the appeal,
 (b) approve compromises,
(c) permit appeals of indigent
litigants,
(d) order execution pending appeal in
accordance with Sec. 2 of Rule 39,
and
(e) allow withdrawal of the appeal.
 Q: May the court still issue the order
granting the execution pending appeal
even when it has already lost jurisdiction
over the case?
A: Yes, because jurisdiction is necessary
only upon the filing of the motion, not at
the time of the issuance of the order.
Cannot entertain but can issue an order.
(If the records are still with the trial court,
it may, among others order EPA
Q: When does the law require the twin
requirement?
A: Court can only entertain and act upon an EPA
when twin requirements concur. For the purposes
of issuing the order only, Rule 41
Sec. 2 Rule 39: 1. JD 2. records are still with it
Sec. 9 Rule 41: 1. records are still with the trial
court (residual powers)
SECTION 3. Stay of discretionary execution.
Discretionary execution issued under the
preceding section may be stayed upon approval
by the proper court of a sufficient supersedeas
bond filed by the party against whom it is
directed, conditioned upon the performance of
the judgment or order allowed to be executed in
case it shall be finally sustained in whole or in
part. The bond thus given may be proceeded
against on motion with notice to the surety.
 Q: May you stop the enforcement of an
order EPA?
A: Yes, sufficient supersedeas bond
which will be made to answer in the event
that the judgment of the court will be
sustained on appeal.
Section 4. Judgments not stayed by appeal.
GR: Execution as a matter of right is only
available when the judgment is already final and
executory.
- appeal period has already lapsed
- appeal taken it has been resolved
discretionary – EPA
Judgments in actions for:
1. injunction,
2. receivership,
3. accounting and
4. support, and
5. such other judgments as are now or may
hereafter be declared to be immediately
executory,
shall be enforceable after their rendition and
shall not, be stayed by an appeal taken therefrom.
(appeal as a GR stays the execution)
 e.g. unlawful detainer, expropriation,
summary proceedings
XPN: unless otherwise ordered by the trial court.
 special rule > general rule
On appeal therefrom, the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
 the nature of these actions require
immediacy
 e.g.
ROQUE v. DELGADO
The main action is injunction with preliminary
injunction.
Under section 4, Rule 39 of the Rules of Court,
when an appeal is taken from a judgment
granting, dissolving or denying an injunction, the
trial court, in its discretion, may make an order
suspending, modifying, restoring, or granting
such injunction during the pendency of the
appeal. Although this provision speaks of an
appeal being taken and of the pendency of the
appeal, the court may restore the injunction
before an appeal has actually been taken. As a
matter of fact there is authority to the effect that
the trial court may restore a preliminary
injunction in anticipation of an appeal.
The stay of execution shall be upon such terms as
to bond or otherwise as may be considered proper
for the security or protection of the rights of the
adverse party.
Q: Supersedeas….
Section 5. Effect of reversal of executed
judgment.
Where the executed judgment is reversed totally
or partially, or annulled, on appeal or otherwise,
the trial court may, on motion, issue such orders
of restitution or reparation of damages as equity
and justice may warrant under the circumstances.
ARANDAS v. CA
Conclusive not only to the parties but also as to
transferees

………..
SECTION 6. Execution by motion or by
independent action.
A final and executory judgment or order may be
executed:
(a) on motion within five (5) years from the
date of its entry or after it becomes final
and executory.
(b) After the lapse of such time, and before it
is barred by the statute of limitations, a
judgment may be enforced by action. The
revived judgment may also be enforced
by motion within five (5) years from the
date of its entry and thereafter by action
before it is barred by the statute of
limitations.
e.g. nabubuhay ulit pag nagdedemand ka
more in accord with the Civil Code on
prescription
Naute ot enforcement of a dormant judgment:
1. to revive the dormant judgment
2. to execute the judgment reviving it which if
granted the right of the judgment obligee will
depend on the 2nd action and not on the 1st
an ordinary action. Subject to all claims,
defenses, counterclaim XPN merits of the first
judgment because it has the character of res
judicata
Defenses that do not go into the merits of the first
judgment may be set up by the judgment obligee
because it does not go within the merits of the 1st
action
Q: San ang jurisdiction? Where will you file the
case? Where do you impose a dormant
judgment?
A: RTC because the revival of the action is
incapable of pecuniary estimation. Venue,
depending if personal or real property.
XPN: Judgment for support. It does not become
dormant nor prescribed. Enforceable by motion
at any time. Support is a continuing thing.
Section 7. Execution in case of death of party.
In case of the death of a party, execution may
issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee,
upon the application of his executor or
administrator, or successor in interest;
(b) In case of the death of the judgment obligor,
against his executor or administrator or successor
in interest, if the judgment be for the recovery of
real or personal property, or the enforcement of a
lien thereon;
 real or personal property: specific
property
(c) In case of the death of the judgment obligor,
after execution is actually levied upon any of his
property, the same may be sold for the
satisfaction of the judgment obligation, and the
officer making the sale shall account to the
corresponding executor or administrator for any
surplus in his hands.
 in re to b: either money or indeterminate
thing
Section 8. Issuance, form and contents of a writ
of execution.
The writ of execution shall:
(1) issue in the name of the Republic of the
Philippines from the court which granted the
motion;
- an order requiring the sheriff to enforce the writ
(2) state the name of the court, the case n
umber and title, the dispositive part of the subject
judgment or order; and
(3) require the sheriff or other proper officer to
whom it is directed to enforce the writ according
to its terms, in the manner hereinafter provided:
(a) If the execution be against the property of
the judgment obligor, to satisfy the judgment,
with interest, out of the real or personal
property of such judgment obligor;
(b) If it be against real or personal property in
the hands of personal representatives, heirs,
devisees, legatees, tenants, or trustees of the
judgment obligor, to satisfy the judgment,
with interest, out of such property;
(c) If it be for the sale of real or personal
property to sell such property describing it,
and apply the proceeds in conformity with the
judgment, the material parts of which shall be
recited in the writ of execution;
(d) If it be for the delivery of the possession
of real or personal property, to deliver the
possession of the same, describing it, to the
party entitled thereto, and to satisfy any costs,
damages, rents, or profits covered by the
judgment out of the personal property of the
person against whom it was rendered, and if
sufficient personal property cannot be found,
then out of the real property; and
(e) In all cases, the writ of execution shall
specifically state the amount of the interest,
costs, damages, rents, or profits due as of the
 date of the issuance of the writ, aside from the
principal obligation under the judgment. For
this purpose, the motion for execution shall
specify the amounts of the foregoing reliefs
sought by the movant. (8a)
SECTION 9 – Judgment for Money
10 – Judgment for Specific Act
11 – Special Judgment
Section 9. Execution of judgments for
money, how enforced.
(a) Immediate payment on demand. — The
officer shall enforce an execution of a judgment
for money by demanding from the judgment
obligor the immediate payment of the full
amount stated in the writ of execution and all
lawful fees. The judgment obligor shall pay in
cash, certified bank check payable to the
judgment obligee, or any other form of payment
acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the
judgment obligee or his authorized
representative if present at the time of payment.
The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn
over the said amount within the same day to the
clerk of court of the court that issued the writ.
- 1. demand
If the judgment obligee or his authorized
representative is not present to receive payment,
the judgment obligor shall deliver the aforesaid
payment to the executing sheriff. The latter shall
turn over all the amounts coming into his
possession within the same day to the clerk of
court of the court that issued the writ, or if the
same is not practicable, deposit said amounts to
a fiduciary account in the nearest government
depository bank of the Regional Trial Court of
the locality.
The clerk of said court shall thereafter arrange for
the remittance of the deposit to the account of the
court that issued the writ whose clerk of court
shall then deliver said payment to the judgment
obligee in satisfaction of the judgment. The
excess, if any, shall be delivered to the judgment
obligor while the lawful fees shall be retained by
the clerk of court for disposition as provided by
law. In no case shall the executing sheriff
demand that any payment by check be made
payable to him.
PAL v. CA
ISSUE
WON a check named to the sheriff as payee
constitutes as payment for execution
RATIO
NO. A check named to the sheriff is not a check
issued as payment to the government. In no case
shall the sheriff demand such check to be named
after him. Thus, PAL is still obliged to pay the
money judgment order despite payment already
made to the sheriff.
He who gave occasion for the loss should bear
the loss.
(b) Satisfaction by levy. — If the judgment
obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode of
payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the
judgment obligor of every kind and nature
whatsoever which may be disposed, of for value
and not otherwise exempt from execution giving
the latter the option to immediately choose which
property or part thereof may be levied upon,
sufficient to satisfy the judgment. If the judgment
obligor does not exercise the option, the officer
shall first levy on the personal properties, if any,
and then on the real properties if the personal
properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient portion of
the personal or real property of the judgment
obligor which has been levied upon.
When there is more property of the judgment
obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy
the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either
real or personal property, may be levied upon in
like manner and with like effect as under a writ
of attachment.
(c) Garnishment of debts and credits. — The
officer may levy on debts due the judgment
obligor and other credits, including bank
deposits, financial interests, royalties,
commissions and other personal property not
capable of manual delivery in the possession
or control of third parties. Levy shall be made
by serving notice upon the person owing such
debts or having in his possession or control such
credits to which the judgment obligor is entitled.
The garnishment shall cover only such amount as
will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the
court within five (5) days from service of the
notice of garnishment stating whether or not the
judgment obligor has sufficient funds or credits
to satisfy the amount of the judgment. If not, the
report shall state how much funds or credits the
garnishee holds for the judgment obligor. The
garnished amount in cash, or certified bank check
issued in the name of the judgment obligee, shall
be delivered directly to the judgment obligee
within ten (10) working days from service of
notice on said garnishee requiring such delivery,
except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees
holding deposits or credits sufficient to satisfy
the judgment, the judgment obligor, if available,
shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the
amount due, otherwise, the choice shall be made
by the judgment obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to
delivery of payment to the judgment obligee.
Section 10. Execution of judgments for specific
act.
(a) Conveyance, delivery of deeds, or other
specific acts; vesting title. — If a judgment
directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other
documents, or to perform, any other specific act
in connection therewith, and the party fails to
comply within the time specified, the court may
direct the act to be done at the cost of the
disobedient party by some other person
appointed by the court and the act when so done
shall have like effect as if done by the party. If
real or personal property is situated within the
Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law.
 e.g. Action is for reconveyance and
judgment is in favor of plaintiff. The
judgment was not followed. The Court
will order CoC to issue a deed of
conveyance as if done by the party
himself.
(b) Sale of real or personal property. — If the
judgment be for the sale of real or personal
property, to sell such property, describing it, and
apply the proceeds in conformity with the
judgment.
(c) Delivery or restitution of real property. —
The officer shall demand of the person against
whom the judgment for the delivery or restitution
of real property is rendered and all persons
claiming rights under him to peaceably vacate the
property within three (3) working days, and
restore possession thereof to the judgment
obligee, otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such property.
Any costs, damages, rents or profits awarded by
the judgment shall be satisfied in the same
manner as a judgment for money.
(d) Removal of improvements on property subject
of execution. — When the property subject of the
execution contains improvements constructed or
planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said
improvements except upon special order of the
court, issued upon motion of the judgment
obligee after the hearing and after the former has
failed to remove the same within a reasonable
time fixed by the court.
1. motion
2. hearing
3. after he failed to remove within a reasonable
time fixed
CASANOVA v. LACSAMANA
ISSUE
WON an order to evacuate is valid if it has no
hearing.
RATIO
NO. We agree with private respondents that the
decision in the ejectment case has already
become final and executory, but what is being
questioned in the present petition is the order of
the court ordering the Sheriff of Pasay City or his
deputies and the City Engineer's Office of Pasay
City or his duly authorized representative to
demolish the house/structure of the petitioner
erected on the respondents' property and to
remove the same therefrom. The questioned
order was issued without due hearing of the
motions of private respondent and without
granting petitioner a reasonable time within
which to remove her house from the premises.
In Folloso v. Director of Lands, this Court said:
Under Section 13 (now 14). Rule 39, the officer
called upon to enforce a final judgment involving
delivery or restitution of property may do so by
placing the plaintiff in possession of such
property, but 'the officer shall not destroy,
demolish or remove the improvements made by
the defendant or his agent on the property, except
by special order of the court, which order may
only issue upon pet ition of the plaintiff after due
hearing and upon the defendant's failure to
remove the improvements within a reasonable
time to be fixed by the court.' The safeguard
accorded to the defendant by the above provision
has not been followed. While the motion of the
appellee for the removal of the houses was set for
hearing after due notice given to the appellants,
the court ordered the sheriff to remove said
houses within a period of 30 days but without
giving them a reasonable time within which to do
so as
required by said section 13 (now 14). This
requirement is not an empty gesture. This
safeguard is necessary to give the defendant an
opportunity to protect his interest. The lower
court erred in issuing the order of demolition
without giving a reasonable time to the
appellants.
ARCADIO v. YLLAGAN
ISSUE
WON the break-open order is necessary in an
ejectment case where what was broken by the
sheriff was the padlock of the outer gate
RATIO
NO. The records show th at the writ of execution
issued by Judge Gorospe, Jr. of the Metropolitan
Trial Court on May 10, 1984 partakes of the
nature of a habere facias possessionem. It
commanded the sheriff to cause the defendant
Arcadio to vacate the premises of the plaintiffs
bearing No. 26 situated at the corner of Judge
Juan Luna and Pitimini Streets, Barangay Paltok,
San Francisco del Monte, Quezon City, as well
as all persons claiming rights under her and
restore possession thereof to the plaintiff. Since
it is not disputed that no one was in the apartment
at the time execution was carried into effect and
the doors, windows and outer gate were
padlocked, there was no need for the sheriffs and
the respondent to secure a "break- open" order
inasmuch as the character of the writ in their
hands authorized them to break open the
apartment, if they could not otherwise execute its
command.
Moreover, there is merit in the position taken by
the respondent, manifested in a memorandum of
authorities submitted to supplement his
comment, that there is only one instance in the
Rules of Court which requires a special "break-
open" order that referred to in Section 14, Rule
39 ( now sec. 10(d)). The situation contemplated
under the foregoing section is very much
different from the case at bar since no building or
structure constructed by the tenant was
demolished or required to be demolished. The
charge therefore cannot prosper, in the absence
of any rule which imposes upon the officer the
duty to obtain a break open order.
Cases of forcible entry and detainer are summary
in nature, for they involve perturbation of social
order which must be restored as promptly as
possible, and, accordingly, technicalities or
details of procedure which may cause
unnecessary delays should carefully be avoided.
Hence, when an officer duly qualified to act
under a writ of execution in an ejectment case
should be obstructed by a lock or a latch, he is
not expected to lie in wait around the premises
until such time as the tenants arrive. He has the
right to employ force necessary to enable him to
enter the house and enforce the judgment. If the
rule were otherwise, and as experience has
shown, the prevailing party will be at the mercy
of his adversary who will stop at nothing to
thwart execution.
(e) Delivery of personal property. — In judgment
for the delivery of personal property, the officer
shall take possession of the same and forthwith
deliver it to the party entitled thereto and satisfy
any judgment for money as therein provided.
*check cases*
Section 11. Execution of special judgments.
When a judgment requires the performance of
any act other than those mentioned in the two
preceding sections, a certified copy of the
judgment shall be attached to the writ of
execution and shall be served by the officer upon
the party against whom the same is rendered, or
upon any other person required thereby, or by
law, to obey the same, and such party or person
may be punished for contempt if he disobeys
such judgment.
 not for money or for specific act
 e.g. injunction
 not directed to the sheriff but to the
obligor because the performance can only
be done by him by reason of special
circumstance such that such obligor may
be declared in contempt
Section 12. Effect of levy on execution as to third
person.
The levy on execution shall create a lien in favor
of the judgment obligee over the right, title and
interest of the judgment obligor in such property
at the time of the levy, subject to liens and
encumbrances then existing.
 amounts to a superior lien
SECTION 13. Property exempt from execution.
GR: The following property, and no other, shall
be exempt from execution
XPN: Except as otherwise expressly provided by
law:
(a) The judgment obligor's family home as
provided by law, or the homestead in which he
resides, and land necessarily used in connection
therewith;
 Q: When does a home become a family
home?
A: Family home is deemed constituted on
a house and lot from the time it is
occupied as a family residence and so
long as any of its beneficiaries actually
reside therein.
o When there is a head of the family.
When he is supporting someone,
who by law, he is required to
support.
 The value to be considered is not at the
time of its execution but of its
constitution.
 Can it be executed? Laborer’s Lien.
Mortgage.
(b) Ordinary tools and implements personally
used by him in his trade, employment, or
livelihood;
PENTAGON v. GIMENEZ
The term "tools and implements" refers to
instruments of husbandry or manual labor needed
by an artisan craftsman or laborer to obtain his
living. Here petitioner (Pentagon) is a business
enterprise (security agency). It does not use the
firearms personally, but they are used by its
employees. Not being a natural person, petitioner
cannot claim that the firearms are necessary for
its livelihood. Private respondent invites the
Court to take judicial notice of the fact that there
are security guards rendering service without
firearms.
(c) Three horses, or three cows, or three carabaos,
or other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
 must be used in his occupation
(d) His necessary clothing and articles for
ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary
for housekeeping, and used for that purpose by
the judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
(f) Provisions for individual or family use
sufficient for four months;
(g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
(h) One fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman and by the
lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of
the judgment obligor for his personal services
within the four months preceding the levy as are
necessary for the support of his family;
GAA v. CA
ISSUE
WON a person occupying a position similar to a
managerial or supervisory position is considered
as a ―laborer whose salary is exempt from
execution of attachment
RATIO
YES. In its broadest sense, the word "laborer"
includes everyone who performs any kind of
mental or physical labor, but as commonly and
customarily used and understood, it only applies
to one engaged in some form of manual or
physical labor. That is the sense in which the
courts generally apply the term as applied in
exemption acts, since persons of that class
usually look to the reward of a day's labor for
immediate or present support and so are more in
need of the exemption than are other.
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any life
insurance;
(l) The right to receive legal support, or money
or property obtained as such support, or any
pension or gratuity from the Government;
(m) Properties specially exempted by law.
But no article or species of property mentioned
in this section shall be exempt from execution
issued upon a judgment recovered for its price or
upon a judgment of foreclosure of a mortgage
thereon.
 these exceptions must be claimed,
otherwise they are deemed waived
GOMEZ v. GEALONE
ISSUE: When should the exemption be invoked?
RATIO: Although the Rules of Court does not
prescribe the period within which to claim the
exemption, the rule is, nevertheless, well - settled
that the right of exemption is a personal privilege
granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the
debtor himself at the time of the levy or within a
reasonable period thereafter: In the absence of
express provision it has variously held that claim
[for exemption] must be made at the time of the
levy if the debtor is present, that it must be made
within a reasonable time, or promptly, or before
the creditor has taken any step involving further
costs, or before advertisement of sale, or at any
time before sale, or within a reasonable time
before the sale, or before the sale has
commenced, but as to the last there is contrary
authority. In the light of the facts above
summarized, it is self-evident that appellants did
not assert their claim of exemption within a
reasonable time. Certainly, reasonable time, for
purposes of the law on exemption, does not mean
a time after the expiration of the one - year period
provided for in Section 30 of Rule 39 of the Rules
of Court for judgment debtors to redeem the
property sold on execution, otherwise it would
render nugatory final bills of sale on execution
and defeat the very purpose of execution — to
put an end to litigation. We said before, and We
repeat it now, that litigation must end and
terminate sometime and somewhere, and it is
essential to an effective administration of justice
that, once a judgment has become final, the
winning party be not, through a mere subterfuge,
deprived of the fruits of the verdict. We now rule
that claims for exemption from execution of
properties under Section 12 of Rule 39 of the
Rules of Court must be presented before its sale
on execution by the sheriff.
Section 14. Return of writ of execution. — The
writ of execution shall be returnable to the court
issuing it immediately after the judgment has
been satisfied in part or in full. If the judgment
cannot be satisfied in full within thirty (30) days
after his receipt of the writ, the officer shall
report to the court and state the reason therefor.
Such writ shall continue in effect during the
period within which the judgment may be
enforced by motion. The officer shall make a
report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is
satisfied in full, or its effectivity expires. The
returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed
with the court and copies thereof promptly
furnished the parties.
Section 15. Notice of sale of property on
execution. — Before the sale of property on
execution, notice thereof must be given as
follows:
(a) In case of perishable property, by posting
written notice of the time and place of the sale in
three (3) public places, preferably in conspicuous
areas of the municipal or city hall, post office and
public market in the municipality or city where
the sale is to take place, for such time as may be
reasonable, considering the character and
condition of the property;
(b) In case of other personal property, by posting
a similar notice in the three (3) public places
above-mentioned for not less than five (5) days;
(c) In case of real property, by posting for twenty
(20) days in the three (3) public places
abovementioned a similar notice particularly
describing the property and stating where the
property is to be sold, and if the assessed value of
the property exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the notice once a
week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in English,
Filipino, or any major regional language
published, edited and circulated or, in the
absence thereof, having general circulation in the
province or city;
(d) In all cases, written notice of the sale shall be
given to the judgment obligor, at least three (3)
days before the sale, except as provided in
paragraph (a) hereof where notice shall be given
the same manner as personal service of pleadings
and other papers as provided by section 6 of Rule
13.
The notice shall specify the place, date and exact
time of the sale which should not be earlier than
nine o'clock in the morning and not later than two
o'clock in the afternoon. The place of the sale
may be agreed upon by the parties. In the absence
of such agreement, the sale of the property or
personal property not capable of manual delivery
shall be held in the office of the clerk of court of
the Regional Trial Court or the Municipal Trial
Court which issued the writ of or which was
designated by the appellate court. In the case of
personal property capable of manual delivery, the
sale shall be held in the place where the property
is located. (18a)
 mandatory in nature
 void as passes no title
Section 16. Proceedings where property claimed
by third person. — If the property levied on is
claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy and copy thereof, stating the
grounds of such right or tittle, and a serves the
same upon the officer making the levy and a copy
thereof upon the judgment obligee, the officer
shall not be bound to keep the property, unless
such judgment obligee, on demand of the officer,
files a bond approved by the court to indemnity
the third-party claimant in a sum not less than the
value of the property levied on. In case of
disagreement as to such value, the same shall be
determined by the court issuing the writ of
execution. No claim for damages for the taking
or keeping of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages for the
taking or keeping of the property, to any third-
party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or
any third person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim.
When the writ of execution is issued in favor of
the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall
not be required, and in case the sheriff or levying
officer is sued for damages as a result of the levy,
he shall be represented by the Solicitor General
and if held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of such funds as may be
appropriated for the purpose. (17a)
ARABAY INC. v. SALVADOR
1. Is a separate action a proper remedy by a third-
complainant?
2. May Court of equal standing issue an
injunction to the decision of a different court?
RATIO
YES. The issue is whether at the instance of a
third - party claimant the Caloocan court can
enjoin the sheriff from selling the properties
which he has levied upon to satisfy the judgment
of the Court of First Instance of Manila. We hold
that the Caloocan court can stop the execution of
the Manila court's judgment against properties
not belonging to the judgment debtor. The
injunction in that case would not constitute an
interference with the process of a court of
coordinate and co-equal jurisdiction. As a third-
party claimant, Pascual has the right to vindicate
his claim to the properties levied upon by means
of a proper action. That right is recognized in
Section 17, Rule 39 of the Rules of Court.
The third-party claimant is to obligated to file an
action for damages against the sheriff in case an
indemnity bond was filed by the judgment
creditor. The third - party claimant may file a
separate and independent action to establish
ownership to the property levied upon by the
sheriff. In that action, he may secure an
injunction to restrain the sale of the attached
property. When the sheriff, acting beyond the
bound of his authority, seizes a stranger's
property, the writ of injunction, which is issued
to stop the auction sale of that property, is not an
interference with the writ of execution issued by
another court because the writ of execution
issued by another court because the writ of
execution was improperly implemented by the
sheriff. Under that writ, he could attach the
property of the judgment debtor. He is not
authorized to levy upon the property of the third-
party claimant
It is noteworthy that, generally, the rule, that no
court has authority to interfere by injunction with
the judgments or decrees of a concurrent or
coordinate jurisdiction having e qual power to
grant the injunctive relief, is applied in cases,
where no third - party claimant is involved, in
order to prevent one court from nullifying the
judgment or process of another court of the same
rank or category, a power which devolves upon
the proper appellate court. The raison d'etre for
that rule is that an effective ordering of legal
relationships in civil society is possible only
when each court is granted exclusive jurisdiction
over the property brought to it. To allow
coordinate courts to interfere with each other's
judgments or decrees by injunctions would
obviously lead to confusion and might seriously
hinder the proper administration of justice,
especially if they are branches of the same court
(It is an exception to interference. When the
sheriff levies belonging to 3rd persons, he is
exceeding his power. Therefore, it can be
enjoined.)
ESCORVILLA v. CA
BAYER v. AGANA
ISSUE
WON a third party claimant’s right over a levied
property should be decided in a separate action
RATIO
YES. The rights of third-party claimants over
certain properties levied upon by the sheriff to
satisfy the judgment should not be decided in the
action where the third-party claims have been
presented, but in the separate action instituted by
the claimants. This is evident from the very
nature of the proceedings. In Herald Publishing,
supra, We intimated that the levy by the sheriff
of a property by virtue of a writ of attachment
may be considered as made under authority of the
court only when the property levied upon
unquestionably belongs to the defendant. If he
attach properties other than those of the
defendant, he acts beyond the limits of his
authority. Otherwise stated, the court issuing a
writ of execution is supposed to enforce its
authority only over properties of the judgment
debtor, and should a third party appear to claim
the property levied upon by the sheriff, the
procedure laid down by the Rules is that such
claim should be the subject of a separate and
independent action. As We explained in the
Quebral case,
since the third - party claimant is not one of the
parties to the action, she could not, strictly
speaking, appeal from the order denying her
claim, but should file a separate reivindicatory
action against the execution creditor or the
purchaser of her property after the sale at public
auction, or a complaint for damages against the
bond filed by the judgment creditor in favor of
the sheriff.
SY v. HABAKON something
Section 17. Penalty for selling without notice, or
removing or defacing notice. — An officer
selling without the notice prescribed by section
15 of this Rule shall be liable to pay punitive
damages in the amount of five thousand
(P5,000.00) pesos to any person injured thereby,
in addition to his actual damages, both to be
recovered by motion in the same action; and a
person willfully removing or defacing the notice
posted, if done before the sale, or before the
satisfaction of the judgment if it be satisfied
before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person injured
by reason thereof, in addition to his actual
damages, to be recovered by x
Section 18. No sale if judgment and costs paid.
— At any time before the sale of property on
execution, the judgment obligΩΩor may prevent
the sale by paying the amount required by the
execution and the costs that have been incurred
therein. (20a)
Section 19. How property sold on
execution; who may direct manner and order of
sale. — All sales of property under execution
must be made at public auction, to the highest
bidder, to start at the exact time fixed in the
notice. After sufficient property has been sold to
satisfy the execution, no more shall be sold and
any excess property or proceeds of the sale shall
be promptly delivered to the judgment obligor or
his authorized representative, unless otherwise
directed by the judgment or order of the court.
When the sale is of real property, consisting of
several known lots, they must be sold separately;
or, when a portion of such real property is
claimed by a third person, he may require it to be
sold separately. When the sale is of personal
property capable of manual delivery, it must be
sold within view of those attending the same and
in such parcels as are likely to bring the highest
price. The judgment obligor, if present at the sale,
may direct the order in which property, real or
personal shall be sold, when such property
consists of several known lots or parcels which
can be sold to advantage separately. Neither the
officer conducting the execution sale, nor his
deputies, can become a purchaser, nor be
interested directly or indirectly in any purchase
at such sale. (21a)

Section 20. Refusal of purchaser to pay. — If a
purchaser refuses to pay the amount bid by him
for property struck off to him at a sale under
execution, the officer may again sell the property
to the highest bidder and shall not be responsible
for any loss occasioned thereby; but the court
may order the refusing purchaser to pay into the
court the amount of such loss, with costs, and
may punish him for contempt if he disobeys the
order. The amount of such payment shall be for
the benefit of the person entitled to the proceeds
of the execution, unless the execution has been
fully satisfied, in which event such proceeds shall
be for the benefit of the judgment obligor. The
officer may thereafter reject any subsequent bid
of such purchaser who refuses to pay. (22a)
Section 21. Judgment obligee as purchaser. —
When the purchaser is the judgment obligee, and
no third-party claim has been filed, he need not
pay the amount of the bid if it does not exceed
the amount of his judgment. If it does, he shall
pay only the excess. (23a)
Section 22. Adjournment of sale. — By written
consent of the judgment obligor and obligee, or
their duly authorized representatives, the officer
may adjourn the sale to any date and time agreed
upon by them. Without such agreement, he may
adjourn the sale from day to day if it becomes
necessary to do so for lack of time to complete
the sale on the day fixed in the notice or the day
to which it was adjourned. (24a)
Section 23. Conveyance to purchaser of
personal property capable of manual delivery.
— When the purchaser of any personal property,
capable of manual delivery, pays the purchase
price, the officer making the sale must deliver the
property to the purchaser and, if desired, execute
and deliver to him a certificate of sale. The sale
conveys to the purchaser all the rights which the
judgment obligor had in such property as of the
date of the levy on execution or preliminary
attachment. (25a)
Section 24. Conveyance to purchaser of
personal property not capable of manual
delivery. — When the purchaser of any personal
property, not capable of manual delivery, pays
the purchase price, the officer making the sale
must execute and deliver to the purchaser a
certificate of sale. Such certificate conveys to the
purchaser all the rights which the judgment
obligor had in such property as of the date of the
levy on execution or preliminary attachment.
(26a)
Section 36. Examination of judgment obligor
when judgment unsatisfied. — When the return
of a writ of execution issued against property of
a judgment obligor, or any one of several
obligors in the same judgment, shows that the
judgment remains unsatisfied, in whole or in
part, the judgment obligee, at any time after such
return is made, shall be entitled to an order from
the court which rendered the said judgment,
requiring such judgment obligor to appear and be
examined concerning his property and income
before such court or before a commissioner
appointed by it at a specified time and place; and
proceedings may thereupon be had for the
application of the property and income of the
judgment obligor towards the satisfaction of the
judgment. But no judgment obligor shall be so
required to appear before a court or
commissioner outside the province or city in
which such obligor resides or is found. (38a)
Section 37. Examination of obligor of judgment
obligor. — When the return of a writ of
execution against the property of a judgment
obligor shows that the judgment remain
unsatisfied, in whole or in part, and upon proof
to the satisfaction of the court which issued the
writ, that a person, corporation, or other juridical
entity has property of such judgment obligor or
is indebted to him, the court may, by an order,
require such person, corporation, or other
juridical entity, or any officer, or member
thereof, to appear before the court or a
commissioner appointed by it, at a time and place
within the province or city where such debtor
resides or is found, and be examined concerning
the same. The service of the order shall bind all
credits due the judgment obligor and all money
and property of the judgment obligor in the
possession or in the control of such person
corporation, or juridical entity from the time of
service; and the court may also require notice of
such proceedings to be given to any party to the
action in such manner as it may deem proper.
(39a)
Section 38. Enforcement of attendance and
conduct of examination. — A party or other
person may be compelled, by an order or
subpoena, to attend before the court or
commissioner to testify as provided in the two
preceding sections, and upon failure to obey such
order or subpoena or to be sworn, or to answer as
a witness or to subscribe his deposition, may be  you must allege and prove it as a fact
punished for contempt as in other cases. (Mejares v. Ranyada HR victim)
Examinations shall not be unduly prolonged, but  nature of enforcement: you do not
the proceedings may be adjourned from time to anymore litigate the amount of the
time, until they are completed. If the examination claim
is before a commissioner, he must take it in  “is there such a judgment by a foreign
writing and certify it to the court. All court?”
examinations and answers before a court
commissioner must be under oath, and when a
corporation or other juridical entity answers, it
must be on the oath of an authorized officer or
agent thereof. (40a)

Section 39. Obligor may pay execution against

obligee. — After a writ of execution against
property has been issued, a person indebted to the
judgment obligor may pay to the sheriff holding
the writ of execution the amount of his debt or so
much thereof as may be necessary to satisfy the
judgment, in the manner prescribed in section 9
of this Rule, and the sheriff's receipt shall be a
sufficient discharge for the amount so paid or
directed to be credited by the judgment obligee
on the execution. (41a)

Sec. 48

Section 48. Effect of foreign judgments or final

orders. — The effect of a judgment or final order
of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order
is as follows:

(a) In case of a judgment or final order

upon a specific thing, the judgment or
final order, is conclusive upon the title
to the thing, and

(b) In case of a judgment or final order

against a person, the judgment or final
order is presumptive evidence of a right
as between the parties and their
successors in interest by a subsequent
title.

In either case, the judgment or final order may be

repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or
clear mistake of law or fact. (50a)

In order that it will have effect in the PH, you

have to file an action to enforce that judgment
because you cannot take judicial notice of that
judgment.
 APPEALS
IMPORTANT CONCEPTS
1. Appellate Jurisdiction of Courts:
Supreme Court – Sec. 5(2), Art. VIII, 1987
Constitution
Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality
or validity of any treaty, international
or executive agreement, law,
presidential decree, proclamation,
order, instruction, ordinance, or
regulation is in question.
b. All cases involving the legality of any
tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
c. All cases in which the jurisdiction of
any lower court is in issue.
d. All criminal cases in which the penalty
imposed is reclusion perpetua or
higher.
 XPN to the GR that only
questions of law may be
appealed to the SC
e. All cases in which only an error or
question of law is involved.
Court of Appeals – Sec. 9(3), B.P. 129
Exclusive appellate jurisdiction over all final
judgements, resolutions, orders or awards of:
1. Regional Trial Courts; and
2. Quasi-judicial agencies,
instrumentalities, boards or
commission, including the Securities
and Exchange Commission, the Social
Security Commission, the Employees
Compensation Commission and the
Civil Service Commission
Except those falling within the appellate
jurisdiction of:
1. The Supreme Court in accordance with
the Constitution,
2. The Labor Code of the Philippines
under Presidential Decree No. 442, as
amended,
o No appeal because the Labor
Code already provides a system
for appeal.
o In these cases, you do not go to
the court and file an appeal,
rather you file an original
petition for certiorari under
Rule 65.
3. The provisions of this Act, and
4. Of subparagraph (1) of the third
paragraph and subparagraph 4 of the
fourth paragraph of Section 17 of the
Judiciary Act of 1948.
 Q: XPNs does the CA have JD over it?
A: GR: CA does not have JD XPN: There
is a mix question of fact and law XPN to
the XPN: RTC in the exercise of its
original JD
RTC to CA (AJD) you may raise a pure
question of law because it is so granted by
BP 129 (Sec. 22)
When the RTC renders judgment in the
exercise of its AJD it has the power to
review the decisions of the RTC as an
appellate court when the issue is a
question of fact or law
 Q: What is a question of fact? of law?
A: When the doubt/issue is to the truth or
falsity of the allegations of the parties’
pleading then it is an issue of fact.
Appellate court must consider the
evidence presented.
There is a question of law when the
doubt is what is the applicable law in a
certain set of facts. There is no dispute
as to the facts.
1. When you appeal a case from the RTC in the
exercise of original jurisdiction to the CA, you
may only do so under Rule 41 if you are raising
a
a. Question of Fact or
b. Mixed question of fact and law
Reason: B.P. 129, Sec. 9(3),‖ except those
falling within the appellate jurisdiction of the SC
Art. VIII, sec. 5 (2) , 1987 Consti ‖ c) All cases in
which the jurisdiction of any lower court is in
issue. e) All cases in which only an error or
question of law is involved.
2. When you appeal a case rendered by the RTC
in the exercise of its appellate jurisdiction, you
may only do via petition for review under Rule
42 if you are raising
a. Pure Question of Fact or
b. Mixed question of fact and la w
c. Pure Question of Law
Q: Why pure question can be raised? Sec. 22,
B.P. 129, ―The decision of the RTC in such
cases shall be appealable by petition for review
to the CA which may give it due course only
when the petition shows prima facie that the
lower court has committed an error of or law that
will warrant a reversal or modification of the
decision or judgment sought to be reviewed.
3. In misdirected appeals, meaning if you
committed a mistake in your mode of appeal,
a. Rule 50, Sec. 2. Dismissal of imprope r appeal
to the Court of Appeals.
An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals
raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a Regional Trial Court
shall be dismissed .
o Reason: You should do so via petition for
review under Rule 42 since the RTC exercised
the rendering of the decision in its appellate jur
isdiction
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed outright.
b. Rule 56, sec. 6.
Except as provided in Section 3, Rule 122
regarding appeals in criminal cases where the
penal ty imposed is death, reclusion perpetua or
life imprisonment, an appeal taken to the
Supreme Court by notice of appeal shall be
dismissed .
o Reason: G.R. – appeal to the SC shall be only
by petition for certiorari under Rule 45
o EXC - Rule 56, sec. 6, ― in Sect ion 3, Rule
122 regarding appeals in criminal cases where
the penalty imposed is death, reclusion perpetua
or life imprisonment ― appeal may be made by
notice of appeal
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court submi tting
issues of fact may be referred to the Court of
Appeals for decision or appropriate action. The
determination of the Supreme Court on whether
or not issues of fact are involved shall be final.
o Reason: G.R. - Using rule 45 to appeal to SC
raising only a question of fact is a misdirected
appeal, thus can be dismissed outright.
o EXC - The court in the exercise of its discretion
may take up the case even if it raises only a
question of fact
4. A trial court whose judgment is the subject of
an appeal, may dismis s a n appeal only when the
appeal was not perfected within the reglamentary
period. A trial court cannot dismiss a case on the
ground that a wrong mode of appeal was availed
of. (Kho v. Camacho)
a. Basis: Rule 41, sec. 13
5. Question of Fact v. Question of Law
Q: Is the issue of res judicata a QoF or a QoL?
A: QoL because what you determine is whether
the requisites of res judicata is present. It does not
require any evidence at all.
- generally where all requisites would not require
presentation of evidence all that is required is
whether the 1st judgment and the action all the
requirements for res judicata concur in which
case all requisites are p resent
Q: Prescription?
A: It depends. Can be a QoF or QoL. If it is based
on the documents. All the matters of the
existence of the documents, the date of
possession… present a QoF. If there are no facts
involve then it is a QoL
Q: Paid, waived, abandoned, or extinguished
A: Can there be presentation of evidence
sometimes? Yes, if payment is being denied…
QoF. Waived, denied authenticity…. If you are
only raising ……
Extinguishment: What does the law say kelan sya
mag-umpisa? Legal matter.
Q: Unenforceability under SoF
A: Meron bang written document e yun lang
naman ang issue. Kung meron,
SOUTHERN NEGROS DEVELOPMENT
BANK v. CA (Rule 45)
Petitioner is correct that the proper mode of
appeal from judgments of the Regional Trial
Court on pure questions of law is a petition for
review on certiorari to the Supreme Court in the
form and manner provided for in Rule 45 of the
Revised Rules of Court.
The Court, in Atlas Consolidated Mining and
Development Corporation v. Court of Appeals,
201 SCRA 51 (1991) had occasion to pass upon
the issue at hand, as follows:
Under Section 5, subparagraph (2) (e), Article
VII of the 1987 Constitution, the Supreme Cou rt
is vested with the power to review, revise,
reverse, modify, or affirm on appeal or certiorari
as the law or the Rules of Court may provide,
final judgments and orders of lower courts in all
cases in which only an error or question of law is
involved. A similar provision is contained in
Section 17, fourth paragraph, subparagraph (4) of
the Judiciary Act of 1948, as amended by
Republic Act No. 5440. And, in such cases where
only questions of law are involved, Section 25 of
the Interim Rules and Guidelines implementing
Batas Pambansa Blg. 129, in conjunction with
Section 3 of Republic Act No. 5440, provides
that the appeal to the Supreme Court shall be
taken by petition for certiorari which shall be
governed by Rule 45 of the Rules of Court.
The rule, therefore, is that direct appeals to this
Court from the trial court on questions of law
have to be through the filing of a petition for
review on certiorari .
xxx xxx xxx
By way of implementation of the aforestated
provisions of law, this Court issued on March 9,
1990, Circular No. 2 - 90, paragraph 2 of which
provides:
2. Appeals from Regional Trial Courts to the
Supreme Court. — Except in criminal cases
where the penalty imposed is life imprisonment
or reclusion perpetua, judgments of regional trial
courts may be appealed to the Supreme Court
only by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court in
relation to Section 17 of the Judiciary Act of
1948, as amended, this being the clear
intendment of the provision of the Interim R ules
that "(a)ppeals to the Supreme Court shall be
taken by petition for certiorari which shall be
governed by Rule 45 of the Rules of Court."
Private respondents, in their Appellants' Brief
filed with the appellate court, raised the
following issues : (1) Did the trial court err in
dismissing the complaint for improper venue?;
(2) Did the trial court err in not admitting the
Amended Complaint?; and (3) Did the trial court
disregard the rule that in filing a motion to
dismiss, petitioner was deemed to have admitted
all the allegations in the complaint? The issue of
whether the trial court erred in holding that the
venue of an action was improperly laid is a
question of law . The second issue likewise
involves a question of law. What is called for in
the r esolution of such issue is the application or
interpretation of a provision of law. Petitioner
contends that the trial court erred in not allowing
him to amend his complaint as a matter of right
pursuant to Section 2, Rule 10 of the Revised
Rules of Court. Anent the third issue raised in
their Appellants' Brief, private respondents argue
that "the trial court clearly violated the cardinal
rule on hypothetical admissions in basing its
order of dismissal on estoppel and assuming that
the agreement was valid a nd/or freely,
knowingly and voluntarily executed by the
plaintiffs - appellants" (At p. 8). Clearly, private
respondents were assailing the legal conclusions
made by the trial court. A resolution of the issue
would not require an examination of the
probative value of the evidence of the parties, as
in fact none were presented.
CAINA v. PEOPLE
VICTORIAS v. IAC
ISSUE
1) WON the dismissal is a QOL
2) WON this case may be appealed?
RATIO
1) The appeal interposed by Onstott stems from
the Order of the trial court dated 23 June 1983 dis
missing the complaint "for lack of jurisdiction
over the subject matter of the action pursuant to
the provisions of the Labor Code, as amended by
Presidential Decree No. 1691." Whether or not
such dismissal is correct is neither a question of
fact nor of f act and law; it involves a pure
question of law because what is to be resolved is
whether, admitting the facts alleged in the
complaint to be true, the trial court has
jurisdiction over it in the light of the laws
governing jurisdiction. Settled is the rule that
what determines the nature of the action and
correspondingly, the court which has jurisdiction
over it, are the allegations in the information or
complaint. In cases of motions to dismiss on
ground of lack of jurisdiction, the allegations in
the complaint are deemed admitted.
The hypothetical admission of the facts alleged
renders them beyond dispute and forecloses any
issue of fact for purposes of the motion. The
court is not called upon to rule on their probative
value. However, whether the conclusion drawn
therefrom for purposes of applying the law on
jurisdiction is accurate or correct is a question of
law.
Otherwise stated, there is a question of law in a
given case when the doubt or difference arises as
to what the law is on a certain state of facts.
2) NO. under Rule 41, sec. 1 (g), a final order
without prejudice is not appealable. Thus, the
remedy would be to file a petition for certiorari
under rule 65.
RCAM v. CA
SESBRENO v. CA
Criminal case for estafa (money market
placement)
Did the CA have the JD to entertain a pure
question of law? Is it a question of law or not?
SC: When you file a motion for judgment on the
pleadings, the movant hypothetically admits the
evidence presented by the prosecution ergo there
is no factual issue raised as to the truth or falsity
blah blah
- Escolin: Wrong because it is not an appeal but
an original action under Rule 65. The CA is only
devoid of JD if it is raised before it in an appeal
from the judgment.
- QoL or QoF correct but on the issue of appeal
it is wrong.

CA - Exclusive appellate jurisdiction over all

final judgements, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards or
commission, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission and the Civil Service Commission,
Except those falling within the appellate
jurisdiction of the Supreme Court in accordance
with the Constitution, the Labor Code of the
Philippines under Presidential Decree No. 442,
as amended, the provisions of this Act, and of
subparagraph (1) of the third paragraph and
subparagraph 4 of the fourth paragraph of
Section 17 of the Judiciary Act of 1948.
 In other cases where AJ is vested in
other Courts (e.g. Sandiganbayan,
CTA)

RTC - Section 22. Appellate jurisdiction. –

Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by
Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts in
their respective territorial jurisdictions. Such
cases shall be decided on the basis of the entire
record of the proceedings had in the court of
origin and such memoranda and/or briefs as may
be submitted by the parties or required by the
Regional Trial Courts. The decision of the
Regional Trial Courts in such cases shall be
appealable by petition for review to the Court of
Appeals which may give it due course only when
the petition shows prima facie that the lower
court has committed an error of fact or law that
will warrant a reversal or modification of the
decision or judgment sought to be reviewed.

QoF QoL
 RULE 41
APPEAL FROM THE REGIONAL TRIAL
COURTS
Section 1. Subject of appeal. — An appeal may
be taken from a:
1. judgment or
2. final order that completely disposes of the
case, or
o opposite: interlocutory order (one
which does not completely dispose
of the case)
3. of a particular matter therein when
declared by these Rules to be appealable.
o when the court renders separate
judgments (Rule 36, Secs. 4 and 5
-- severable)
o e.g. joinder of causes of action,
when the proceedings is multi-
tiered
MIRANDA v. CA
In an action for partition there are two steps….
blah blah
Order of Expropriation
No appeal may be taken from:
(a) An order denying a petition for relief or any
similar motion seeking relief from judgment
(Rule 38);
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
 a judgment upon a compromise is
immediately executory; confession you
are actually admitting liability
(e) An order of execution;
(f) A judgment or final order for or against one
or more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
 (contrary to the ruling in Miranda v. CA)
 “unless the court allows” -- Esco: just
perfect the appeal… kung dinisallow nya
e di okay lang.
(g) An order dismissing an action without
prejudice.
 (Victorias v. CA)
 Rule 17: If the action is dismissed on
prescription you can appeal it. (See Sec.
5)
 Rule 18, Sec. 5
In all the above instances where the judgment or
final order is not appealable, the aggrieved party
may file an appropriate special civil action
under Rule 65.
Section 2. Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court
of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with
the court which rendered the judgment or final
order appealed from and serving a copy thereof
upon the adverse party. No record on appeal shall
be required except in special proceedings and
other cases of multiple or separate appeals where
law on these Rules so require. In such cases, the
record on appeal shall be filed and served in like
manner.
i. notice of appeal
ii. record on appeal – special
proceedings, and in other cases
where the law allows multiple or
separate appeals (Municipality of
Biñan v. ____)
(b) Petition for review. — The appeal to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
 Rule 41 – original
 Rule 42 – appellate
(c) Appeal by certiorari. — In all cases where
only questions of law are raised or involved, the
appeal shall be to the Supreme Court by petition
for review on certiorari in accordance with the
Rule 45.
Section 3. Period of ordinary appeal. — The
appeal shall be taken within fifteen (15) days
from notice of the judgment or final order
appealed from. Where a record on appeal is
required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30)
days from notice of the judgment or final order.
 WHY 30 days? Because you are
preparing a record on appeal, there is a
procedure to be followed. It must be
approved.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed.
 Neypes v. CA – Fresh Period Rule,
applies to MTC as well
 Jabaluyez v. Jabson – no motion for
extension shall be allowed
 Lacsamana v. 2nd Division of IAC – in an
appeal by a record of appeal you can file
a motion for extension
Section 4. Appellate court docket and other
lawful fees. — Within the period for taking an
appeal, the appellant shall pay to the clerk of the
court which rendered the judgment or final order
appealed from, the full amount of the appellate
court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the
appellate court together with the original record
or the record on appeal. (n)
Section 5. Notice of appeal. — The notice of
appeal shall:
(1) indicate the parties to the appeal,
(2) specify the judgment or final order or part
thereof appealed from,
(3) specify the court to which the appeal is
being taken, and
(4) state the material dates showing the
timeliness of the appeal.
o state that the defendant received
the final order on this date and
that on this date he filed a MR
and that on this date he received
an order denying his MR hence
his appeal is seasonably filed
Section 6. Record on appeal; form and contents
thereof. —
(1) The full names of all the parties to the
proceedings shall be stated in the caption
of the record on appeal and it shall include
the judgment or final order from which
the appeal is taken and,
(2) in chronological order, copies of only
such pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue
involved, together with such data as will
show that the appeal was perfected on
time. If an issue of fact is to be raised on
appeal, the record on appeal shall include
by reference all the evidence, testimonial
and documentary, taken upon the issue
involved. The reference shall specify the
documentary evidence by the exhibit
numbers or letters by which it was
identified when admitted or offered at the
hearing, and the testimonial evidence by
the names of the corresponding witnesses.
If the whole testimonial and documentary
evidence in the case is to be included, a
statement to that effect will be sufficient
without mentioning the names of the
witnesses or the numbers or letters of
exhibits. Every record on appeal
exceeding twenty (20) pages must contain
a subject index.
Section 7. Approval of record on appeal. —
(a) Upon the filing of the record on appeal for
approval and if no objection is filed by the
appellee within five (5) days from
receipt of a copy thereof, the trial court
may approve it as presented or upon its
own motion or at the instance of the
appellee, may direct its amendment by the
inclusion of any omitted matters which
are deemed essential to the determination
of the issue of law or fact involved in the
appeal.
(b) If the trial court orders the amendment of
the record, the appellant:
i. within the time limited in the
order, or
ii. such extension thereof as may be
granted, or
iii. if no time is fixed by the order
within ten (10) days from receipt
thereof,
shall redraft the record by including
therein, in their proper chronological
sequence, such additional matters as the
court may have directed him to
incorporate, and shall thereupon submit
the redrafted record for approval, upon
notice to the appellee, in like manner as
the original draft.
SECTION 8. Joint record on appeal.
Where both parties are appellants, they may file
a joint record on appeal within the time fixed by
section 3 of this Rule, or that fixed by the court.
SECTION 9. Perfection of appeal; effect
thereof.
A party's appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice
of appeal in due time.
A party's appeal by record on appeal is deemed
perfected as to him with respect to the subject
matter thereof upon the approval of the record
on appeal filed in due time.
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of
the appeals filed in due time and the expiration
of the time to appeal of the other parties.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed
in due time and the expiration of the appeal of
the other parties.
(Relate to Sec. 2 of Rule 39 – act/entertain)
In either case, prior to the transmittal of the
original record or the record on appeal, the court
may issue orders for the protection and
preservation of the rights of the parties:
1. which do not involve any matter litigated
by the appeal,
2. approve compromises,
3. permit appeals of indigent litigants,
4. order execution pending appeal in
accordance with 2 of Rule 39, and
5. allow withdrawal of the appeal.
Q: It is already in the ISSUANCE. However,
under Rule 39, the court is just ACTING upon it.
SECTION 10. Duty of clerk of court of the lower
court upon perfection of appeal.
Within thirty (30) days after perfection of all
the appeals in accordance with the preceding
section, it shall be the duty of the clerk of court
of the lower court:
(a) To verify the correctness of the original
record or the record on appeal, as the case may
be aid to make certification of its correctness;
(b) To verify the completeness of the records that
will be, transmitted to the appellate court;
(c) If found to be incomplete, to take such
measures as may be required to complete the
records, availing of the authority that he or the
court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being
transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with
copies of his letter of transmittal of the records to
the appellate court.
SECTION 11. Transcript.
Upon the perfection of the appeal, the clerk shall
immediately direct the stenographers concerned
to attach to the record of the case five (5) copies
of the transcripts of the testimonial evidence
referred to in the record on appeal. The
stenographers concerned shall transcribe such
testimonial evidence and shall prepare and affix
to their transcripts an index containing the names
of the witnesses and the pages wherein their
testimonies are found, and a list of the exhibits
and the pages wherein each of them appears to
have been offered and admitted or rejected by the
trial court. The transcripts shall be transmitted to
the clerk of the trial court who shall thereupon
arrange the same in the order in which the
witnesses testified at the trial, and shall cause the
pages to be numbered consecutively.
SECTION 12. Transmittal.
The clerk of the trial court shall transmit to the
appellate court the original record or the
approved record on appeal within thirty (30)
days from the perfection of the appeal, together
with the proof of payment of the appellate court
docket and other lawful fees, a certified true copy
of the minutes of the proceedings, the order of
approval, the certificate of correctness, the
original documentary evidence referred to
therein, and the original and three (3) copies of
the transcripts. Copies of the transcripts and
certified true copies of the documentary evidence
shall remain in the lower court for the
examination of the parties.
SECTION 13. Dismissal of appeal.
Prior to the transmittal of the original record or
the record on appeal to the appellate court, the
trial court may:
(a) motu propio or
(b) on motion
dismiss the appeal for having been taken out of
time.
 TC can only dismiss or disallow an
appeal if the appellant failed to file an
appeal on time
 Only ground: failure to perfect appeal
within the period fixed by the Rules
KHO v. CAMACHO
It is not for the trial court to determine. The trial
court cannot disallow an appeal on the ground
that involves purely question of law.
RULE 40
Appeal From Municipal Trial Courts to the
Regional Trial Courts
Section 1. Where to appeal. — An appeal from a
judgment or final order of a Municipal Trial
Court may be taken to the Regional Trial Court
exercising jurisdiction over the area to which the
former pertains. The title of the case shall remain
as it was in the court of origin, but the party
appealing the case shall be further referred to as
the appellant and the adverse party as the
appellee. (a)
Section 2. When to appeal. — An appeal may be
taken within fifteen (15) days after notice to the
appellant of the judgment or final order appealed
from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record
on appeal within thirty (30) days after notice of
the judgment or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed.
(n)
Section 3. How to appeal. — The appeal is taken
by filing a notice of appeal with the court that
rendered the judgment or final order appealed
from. The notice of appeal shall indicate the
parties to the appeal, the judgment or final order
or part thereof appealed from, and state the
material dates showing the timeliness of the
appeal.
A record on appeal shall be required only in
special proceedings and in other cases of multiple
or separate appeals.
The form and contents of the record on appeal
shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on
appeal where required, shall be served on the
adverse party. (n)
Section 4. Perfection of appeal; effect
thereof. — The perfection of the appeal and the
effect thereof shall be governed by the provisions
of section 9, Rule 41. (n)
Section 5. Appellate court docket and other
lawful fees. — Within the period for taking an
appeal, the appellant shall pay to the clerk of the
court which rendered the judgment or final order
appealed from the full amount of the appellate
court docket and other lawful fees. Proof of
payment thereof shall be transmitted to the
appellate court together with the original record
or the record on appeal, as the case may be.
Section 6. Duty of the clerk of court. — Within
fifteen (15) days from the perfection of the
appeal, the clerk of court or the branch clerk of
court of the lower court shall transmit the original
record or the record on appeal, together with the
transcripts and exhibits, which he shall certify as
complete, to the proper Regional Trial Court. A
copy of his letter of transmittal of the records to
the appellate court shall be furnished the parties.
Section 7. Procedure in the Regional Trial
Court. —
(a) Upon receipt of the complete record or the
record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of
such fact.
 This will usher in the filing of the
memorandum.
(b) Within fifteen (15) days from such notice, it
shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the
errors imputed to the lower court, a copy of
which shall be furnished by him to the adverse
party. Within fifteen (15) days from receipt of the
appellant's memorandum, the appellee may file
his memorandum. Failure of the appellant to file
a memorandum shall be a ground for dismissal of
the appeal.
(c) Upon the filing of the memorandum of the
appellee, or the expiration of the period to do so,
the case shall be considered submitted for
decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the
proceedings had in the court of original and such
memoranda as are filed. (n)
Section 8. Appeal from orders dismissing case
without trial; lack of jurisdiction. — If an appeal
is taken from an order of the lower court
dismissing the case without a trial on the merits,
the Regional Trial Court may affirm or reverse it,
as the case may be.
 In case of affirmance and the ground of
dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court,
if it has jurisdiction thereover, shall try
the case on the merits as if the case was
originally filed with it.
  In case of reversal, the case shall be
remanded for further proceedings.

If the case was tried on the merits by the lower

court without jurisdiction over the subject matter,
the Regional Trial Court on appeal shall not
dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance
with the preceding section, without prejudice to
the admission of amended pleadings and
additional evidence in the interest of justice. (n)

 With respect to the MTC, even if the order

is a final order, you can appeal it.
 (Sec. 22, B.P. 129)

Section 9. Applicability of Rule 41. — The other

provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to supplement the
provisions of this Rule.
 Secs. 6, 7 and 8 are the only different ones
RULE 42
Petition for Review From the Regional Trial
Courts to the Court of Appeals
SECTION 1. How appeal taken; time for filing.
A party desiring to appeal from a decision of the
Regional Trial Court rendered in the exercise of
its appellate jurisdiction may file a verified
petition for review with the Court of Appeals,
paying at the same time to the clerk of said court
the corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs, and
furnishing the Regional Trial Court and the
adverse party with a copy of the petition. The
petition shall be filed and served within fifteen
(15) days from notice of the decision sought to
be reviewed or of the denial of petitioner's
motion for new trial or reconsideration filed in
due time after judgment. Upon proper motion
and the payment of the full amount of the docket
and other lawful fees and the deposit for costs
before the expiration of the reglementary period,
the Court of Appeals may grant an additional
period of fifteen (15) days only within which to
file the petition for review. No further extension
shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days.
 Unlike under Rule 40 and 41 wherein no
motion for extension in which to perfect
an appeal is allowed, Rule 42 allows
extension. (atsaka ka pa magfile ng
memorandum or brief)
 MTC to RTC and RTC to CA – as a
matter of right
MTC to CA – mas mahirap ng mag-
appeal
SECTION 2. Form and contents.
The petition shall be filed in seven (7) legible
copies, with the original copy intended for the
court being indicated as such by the petitioner,
and shall:
(a) state the full names of the parties to the
case, without impleading the lower
courts or judges thereof either as
petitioners or respondents;
(b) indicate the specific material dates
showing that it was filed on time;
(c) set forth concisely:
i. a statement of the matters
involved,
ii. the issues raised,
iii. the specification of errors of fact or
law, or both, allegedly committed
by the Regional Trial Court, and
iv. the reasons or arguments relied
upon for the allowance of the
appeal;
(d) be accompanied by clearly legible
duplicate originals or true copies of the
judgments or final orders of both lower
courts, certified correct by the clerk of
court of the Regional Trial Court, the
requisite number of plain copies thereof
and of the pleadings and other material
portions of the record as would support
the allegations of the petition.
The petitioner shall also submit together with the
petition a certification under oath that he has not
theretofore commenced any other action
involving the same issues in the Supreme Court,
the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state
the status of the same; and if he should thereafter
learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof,
or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days
therefrom.
SECTION 3. Effect of failure to comply with
requirements.
The failure of the petitioner to comply with any
of the foregoing requirements regarding the
payment of the docket and other lawful fees, the
deposit for costs, proof of service of the petition,
and the contents of and the documents which
should accompany the petition shall be sufficient
ground for the dismissal thereof.
 service to adverse party and to the court
SECTION 4. Action on the petition.
The Court of Appeals may:
(a) require the respondent to file a comment
on the petition, not a motion to dismiss,
within ten (10) days from notice, or
(b) dismiss the petition if it finds the same to
be patently without merit, prosecuted
manifestly for delay, or that the questions
raised therein are too insubstantial to
require consideration.
SECTION 5. Contents of comment.
The comment of the respondent shall be filed in
seven (7) legible copies, accompanied by
certified true copies of such material portions of
the record referred to therein together with other
supporting papers and shall:
(a) state whether or not he accepts the
statement of matters involved in the
petition;
(b) point out such insufficiencies or
inaccuracies as he believes exist in
petitioner's statement of matters involved
but without repetition; and
(c) state the reasons why the petition should
not be given due course.
A copy thereof shall be served on the petitioner.
SECTION 6. Due course.
If upon the filing of the comment or such other
pleadings as the court may allow or require, or
after the expiration of the period for the filing
thereof without such comment or pleading
having been submitted, the Court of Appeals
finds prima facie that the lower court has
committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition.
 due course: the CA agrees to hear your
case for the 3rd time
Q: May you raise a pure question of law?
A: Yes. B.P. 129, Sec. 22
litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow
withdrawal of the appeal. (9a, R41)
 after the CA gives due course, that’s the
end of it… RTC loses its residual
powers
(b) Except in civil cases decided under the Rule
on Summary Procedure, the appeal shall stay the
judgment or final order unless the Court of
Appeals, the law, or these Rules shall provide
otherwise.
 GR: if an appeal Is made, the judgment
of the TC is stayed. It may only be
issued (execution) discretionary…
Stays the judgment or final order.
XPN: Summary Procedure is
immediately executory (Sec. 21)
Section 9. Submission for decision. — If the
petition is given due course, the Court of Appeals
may set the case for oral argument or require the
parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of
the last pleading or memorandum required by
these Rules or by the court itself. (n)

Section 7. Elevation of record. — Whenever the

Court of Appeals deems it necessary, it may
order the clerk of court of the Regional Trial
Court to elevate the original record of the case
including the oral and documentary evidence
within fifteen (15) days from notice.
 discretionary and not obligatory

SECTION 8. Perfection of appeal; effect

thereof.
(a) Upon the timely filing of a petition for
review and the payment of the corresponding
docket and other lawful fees, the appeal is
deemed perfected as to the petitioner.

The Regional Trial Court loses jurisdiction over

the case upon the perfection of the appeals filed
in due time and the expiration of the time to
appeal of the other parties.

However, before the Court of Appeals gives due

course to the petition, the Regional Trial Court
may issue orders for the protection and
preservation of the rights of the parties which do
not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent
 RULE 43
Appeals From the Court of Tax Appeals and
Quasi-Judicial Agencies to the Court of
Appeals
- practically the same procedure as Rule 42
Section 1. Scope. — This Rule shall apply to
appeals from judgments or final orders of the
(Court of Tax Appeals) and from awards,
judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Commission,
(Central Board of Assessment Appeals),
Securities and Exchange Commission, Office of
the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification
Administration, Energy Regulatory Board,
National Telecommunications Commission,
Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance
System, Employees Compensation Commission,
Agricultural Invention Board, Insurance
Commission, Philippine Atomic Energy
Commission, Board of Investments,
Construction Industry Arbitration Commission,
and voluntary arbitrators authorized by law.
 enumeration is not exclusive
 Walang appeal yung 3 CB, original
petition for certiorari under Rule 64
(Aratuk or something v. COMELEC)
 Atty. Esco: CTA is now a trial and
appellate court…. it is a regular court
 quasi-judicial body: body primarily
created to …. executive matters;
generally one exercising admin or
executive matter however, by an act of
Congress, *see reviewer*, when it is
opposed
o e.g. IPO - initially it is
administrative
 Office of the President (President is
acting as a judge… court… not as the
executive)
When do you apply the Doctrine of Exhaustion
of Admin Agencies? Only when it is in the
exercise of its quasi-judicial functions.
Section 2. Cases not covered. — This Rule shall
not apply to judgments or final orders issued
under the Labor Code of the Philippines.
 there is already a
Section 3. Where to appeal. — An appeal under
this Rule may be taken to the Court of Appeals
within the period and in the manner herein
provided, whether the appeal involves questions
of fact, of law, or mixed questions of fact and
law.
 XPN to the AJD of CA: SC
Section 4. Period of appeal. — The appeal shall
be taken within fifteen (15) days from notice of
the award, judgment, final order or resolution, or
from the date of its last publication, if publication
is required by law for its effectivity, or of the
denial of 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 full amount of the docket fee before the
expiration of the reglementary period, the Court
of Appeals may grant an additional period of
fifteen (15) days only within which to file the
petition for review. No further extension shall be
granted except for the most compelling reason
and in no case to exceed fifteen (15) days.
 allows extension of time
Section 5. How appeal taken. — Appeal shall be
taken by filing a verified petition for review in
seven (7) legible copies with the Court of
Appeals, with proof of service of a copy thereof
on the adverse party and on the court or agency a
quo. The original copy of the petition intended
for the Court of Appeals shall be indicated as
such by the petitioner.
Upon the filing of the petition, the petitioner shall
pay to the clerk of court of the Court of Appeals
the docketing and other lawful fees and deposit
the sum of P500.00 for costs. Exemption from
payment of docketing and other lawful fees and
the deposit for costs may be granted by the Court
of Appeals upon a verified motion setting forth
valid grounds therefor. If the Court of Appeals
denies the motion, the petitioner shall pay the
docketing and other lawful fees and deposit for
costs within fifteen (15) days from notice of the
denial. (n)
Section 6. Contents of the petition. — The
petition for review shall:
(a) state the full names of the parties to the
case, without impleading the court or
agencies either as petitioners or
respondents;
 (b) contain a concise statement of the facts
and issues involved and the grounds
relied upon for the review;
(c) be accompanied by a clearly legible
duplicate original or a certified true
copy of the award, judgment, final order
or resolution appealed from, together
with certified true copies of such
material portions of the record referred
to therein and other supporting papers;
and
(d) contain a sworn certification against
forum shopping as provided in the last
paragraph of section 2, Rule 42.
The petition shall state the specific material dates
showing that it was filed within the period fixed
herein. (Material Data Rule)
Section 7. Effect of failure to comply with
requirements. — The failure of the petitioner to
comply with any of the foregoing requirements
regarding:
(a) the payment of the docket and other
lawful fees,
(b) the deposit for costs,
(c) proof of service of the petition, and the
contents of and
(d) the documents which should accompany
the petition
shall be sufficient ground for the dismissal
thereof.
Section 8. Action on the petition. — The Court
of Appeals may require the respondent to file a
comment on the petition not a motion to dismiss,
within ten (10) days from notice, or dismiss the
petition if it finds the same to be:
(a) patently without merit,
(b) prosecuted manifestly for delay, or
(c) that the questions raised therein are too
unsubstantial to require consideration.
Section 9. Contents of comment. — The
comment shall be filed within ten (10) days from
notice in seven (7) legible copies and
accompanied by clearly legible certified true
copies of such material portions of the record
referred to therein together with other supporting
papers. The comment shall:
(a) point out insufficiencies or inaccuracies
in petitioner's statement of facts and
issues; and
(b) state the reasons why the petition should
be denied or dismissed.
A copy thereof shall be served on the petitioner,
and proof of such service shall be filed with the
Court of Appeals.
Section 10. Due course. — If upon the filing of
the comment or such other pleadings or
documents as may be required or allowed by the
Court of Appeals or upon the expiration of the
period for the filing thereof, and on the records
the Court of Appeals finds prima facie that the
court or agency concerned has committed errors
of fact or law that would warrant reversal or
modification of the award, judgment, final order
or resolution sought to be reviewed, it may give
due course to the petition; otherwise, it shall
dismiss the same. The findings of fact of the
court or agency concerned, when supported by
substantial evidence, shall be binding on the
Court of Appeals.
Section 11. Transmittal of record. — Within
fifteen (15) days from notice that the petition has
been given due course, the Court of Appeals may
require the court or agency concerned to transmit
the original or a legible certified true copy of the
entire record of the proceeding under review. The
record to be transmitted may be abridged by
agreement of all parties to the proceeding. The
Court of Appeals may require or permit
subsequent correction of or addition to the
record.
Section 12. Effect of appeal. — The appeal shall
not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court
of Appeals shall direct otherwise upon such
terms as it may deem just.
 CA can also issue EPA
Section 13. Submission for decision. — If the
petition is given due course, the Court of Appeals
may set the case for oral argument or require the
parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of
the last pleading or memorandum required by
these Rules or by the court of Appeals.
 to determine the …. for the court to
know the blah blah
RULE 45
Appeal by Certiorari to the Supreme Court
SECTION 1. Filing of petition with Supreme
Court.
A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court
of Appeals, the Sandiganbayan, the Regional
Trial Court or other courts whenever authorized
by law, may file with the Supreme Court a
verified petition for review on certiorari. The
petition shall raise only questions of law which
must be distinctly set forth.
 of plain copies thereof, and such material
Section 2. Time for filing; extension. — The
petition shall be filed within fifteen (15) days
from notice of the judgment or final order or
resolution appealed from, or of the denial of the
petitioner's motion for new trial or
reconsideration filed in due time after notice of
the judgment. On motion duly filed and served,
with full payment of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the
Supreme Court may for justifiable reasons grant
an extension of thirty (30) days only within
which to file the petition.
 like Rule 42 and 43, the court is allowed
to grant an extension of time within
which to file the petition
 initial: 30 days
Section 3. Docket and other lawful fees; proof of
service of petition. — Unless he has theretofore
done so, the petitioner shall pay the
corresponding docket and other lawful fees to the
clerk of court of the Supreme Court and deposit
the amount of P500.00 for costs at the time of the
filing of the petition. Proof of service of a copy,
thereof on the lower court concerned and on the
adverse party shall be submitted together with the
petition. (1a)
Section 4. Contents of petition. — The petition
shall be filed in eighteen (18) copies, with the
original copy intended for the court being
indicated as such by the petitioner and shall:
(a) state the full name of the appealing party
as the petitioner and the adverse party as
respondent, without impleading the lower
courts or judges thereof either as
petitioners or respondents;
(b) indicate the material dates showing when
notice of the judgment or final order or
resolution subject thereof was received,
when a motion for new trial or
reconsideration, if any, was filed and
when notice of the denial thereof was
received;
(c) set forth concisely a statement of the
matters involved, and the reasons or
arguments relied on for the allowance of
the petition;
(d) be accompanied by a clearly legible
duplicate original, or a certified true copy
of the judgment or final order or
resolution certified by the clerk of court of
the court a quo and the requisite number
portions of the record as would support
the petition; and
(e) contain a sworn certification against
forum shopping as provided in the last
paragraph of section 2, Rule 42.
Section 5. Dismissal or denial of petition. — The
failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of
the docket and other lawful fees, deposit for
costs, proof of service of the petition, and the
contents of and the documents which should
accompany the petition shall be sufficient ground
for the dismissal thereof.
The Supreme Court may on its own initiative
deny the petition on the ground that the appeal is
without merit, or is prosecuted manifestly for
delay, or that the questions raised therein are too
unsubstantial to require consideration. (3a)
Section 6. Review discretionary. — A review is
not a matter of right, but of sound judicial
discretion, and will be granted only when there
are special and important reasons thereof. The
following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of the reasons which will be
considered:
(a) When the court a quo has decided a question
of substance, not theretofore determined by the
Supreme Court, or has decided it in a way
probably not in accord with law or with the
applicable decisions of the Supreme Court; or
 cases of first impression
(b) When the court a quo has so far departed
from the accepted and usual course of judicial
proceedings, or so far sanctioned such departure
by a lower court, as to call for an exercise of the
power of supervision.
Section 7. Pleadings and documents that may be
required; sanctions. — For purposes of
determining whether the petition should be
dismissed or denied pursuant to section 5 of this
Rule, or where the petition is given due course
under section 8 hereof, the Supreme Court may
require or allow the filing of such pleadings,
briefs, memoranda or documents as it may deem
necessary within such periods and under such
conditions as it may consider appropriate, and
impose the corresponding sanctions in case of
non-filing or unauthorized filing of such
pleadings and documents or non-compliance
with the conditions therefor.


Section 8. Due course; elevation of records. —

If the petition is given due course, the Supreme
Court may require the elevation of the complete
record of the case or specified parts thereof
within fifteen (15) days from notice.

Section 9. Rule applicable to both civil and

criminal cases. — The mode of appeal
prescribed in this Rule shall be applicable to both
civil and criminal cases, except in criminal cases
where the penalty imposed is death, reclusion
perpetua or life imprisonment. (n)
 not certiorari but notice of appeal
 Q: Reclusion perpetua lower
A: Rule 45
RULE 44
Ordinary Appealed Cases
Section 1. Title of cases. — In all cases appealed
to the Court of Appeals under Rule 41, the title
of the case shall remain as it was in the court of
origin, but the party appealing the case shall be
further referred to as the appellant and the
adverse party as the appellee.
Section 2. Counsel and guardians. — The
counsel and guardians ad litem of the parties in
the court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall be
served immediately on the adverse party and
filed with the court.
Section 3. Order of transmittal of record. — If
the original record or the record on appeal is not
transmitted to the Court of Appeals within thirty
(30) days after the perfection of the appeal, either
party may file a motion with the trial court, with
notice to the other, for the transmittal of such
record or record on appeal.
 you might be adjudged for failure to
prosecute your appeal
Section 4. Docketing of case. — Upon receiving
the original record or the record on appeal and
the accompanying documents and exhibits
transmitted by the lower court, as well as the
proof of payment of the docket and other lawful
fees, the clerk of court of the Court of Appeals
shall docket the case and notify the parties
thereof.
Within ten (10) days from receipt of said notice,
the appellant, in appeals by record on appeal,
shall file with the clerk of court seven (7) clearly
legible copies of the approved record on appeal,
together with the proof of service of two (2)
copies thereof upon the appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal shall
be a ground for dismissal of the appeal.
Section 5. Completion of record. — Where the
record of the docketed case is incomplete, the
clerk of court of the Court of Appeals shall so
inform said court and recommend to it measures
necessary to complete the record. It shall be the
duty of said court to take appropriate action
towards the completion of the record within the
shortest possible time.
Section 6. Dispensing with complete record. —
Where the completion of the record could not be
accomplished within a sufficient period allotted
for said purpose due to insuperable or extremely
difficult causes, the court, on its own motion or
on motion of any of the parties, may declare that
the record and its accompanying transcripts and
exhibits so far available are sufficient to decide
the issues raised in the appeal, and shall issue an
order explaining the reasons for such declaration.
 object ka kung hindi sufficient
Section 7. Appellant's brief. — It shall be the
duty of the appellant to file with the court, within
forty-five (45) days from receipt of the notice of
the clerk that all the evidence, oral and
documentary, are attached to the record, seven
(7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the
appellee.
 katagal pa kaya walang extension dito
Section 8. Appellee's brief. — Within forty-five
(45) days from receipt of the appellant's brief, the
appellee shall file with the court seven (7) copies
of his legibly typewritten, mimeographed or
printed brief, with proof of service of two (2)
copies thereof upon the appellant.
Section 9. Appellant's reply brief. — Within
twenty (20) days from receipt of the appellee's
brief, the appellant may file a reply brief
answering points in the appellee's brief not
covered in his main brief.
Section 10. Time of filing memoranda in special
cases.
In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties
shall file in lieu of briefs, their respective
memoranda within a non-extendible period of
thirty (30) days from receipt of the notice issued
by the clerk that all the evidence, oral and
documentary, is already attached to the record.
(13a, R46)
The failure of the appellant to file his
memorandum within the period therefor may be
a ground for dismissal of the appeal.
 rider daw to dapat daw Rule 46
 appeal tong Rule 44 hindi original
action
Section 11. Several appellants or appellees or
several counsel for each party. — Where there
are several appellants or appellees, each counsel
representing one or more but not all of them shall
be served with only one copy of the briefs. When
several counsel represent one appellant or
appellee, copies of the brief may be served upon
any of them.
Section 12. Extension of time for filing briefs. —
Extension of time for the filing of briefs will not
be allowed, except for good and sufficient cause,
and only if the motion for extension is filed
before the expiration of the time sought to be
extended.
Section 13. Contents of appellant's brief. — The
appellant's brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief with
a digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to the
pages where they are cited;
(b) An assignment of errors intended to be urged,
which errors shall be separately, distinctly and
concisely stated without repetition and numbered
consecutively;
(c) Under the heading "Statement of the Case," a
clear and concise statement of the nature of the
action, a summary of the proceedings, the
appealed rulings and orders of the court, the
nature of the judgment and any other matters
necessary to an understanding of the nature of the
controversy with page references to the record;
(d) Under the heading "Statement of Facts," a
clear and concise statement in a narrative form of
the facts admitted by both parties and of those in
controversy, together with the substance of the
proof relating thereto in sufficient detail to make
it clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of
fact or law to be submitted, to the court for its
judgment;
(f) Under the heading "Argument," the
appellant's arguments on each assignment of
error with page references to the record. The
authorities relied upon shall be cited by the page
of the report at which the case begins and the
page of the report on which the citation is found;
(g) Under the heading "Relief," a specification of
the order or judgment which the appellant seeks;
and
(h) In cases not brought up by record on appeal,
the appellant's brief shall contain, as an appendix,
a copy of the judgment or final order appealed
from.
Section 14. Contents of appellee's brief. — The
appellee's brief shall contain, in the order herein
indicated the following:
(a) A subject index of the matter in the brief with
a digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to the
pages where they are cited;
(b) Under the heading "Statement of Facts," the
appellee shall state that he accepts the statement
of facts in the appellant's brief, or under the
heading "Counter-Statement of Facts," he shall
point out such insufficiencies or inaccuracies as
he believes exist in the appellant's statement of
facts with references to the pages of the record in
support thereof, but without repetition of matters
in the appellant's statement of facts; and
(c) Under the heading "Argument," the appellee
shall set forth his arguments in the case on each
assignment of error with page references to the
record. The authorities relied on shall be cited by
the page of the report at which the case begins
and the page of the report on which the citation
is found.
SECTION 15. Questions that may be raised on
appeal.
Whether or not the appellant has filed a motion
for new trial in the court below he may include in
his assignment of errors any question of law or
fact that has been raised in the court below and
which is within the issues framed by the parties.
 Q: Why can you never raise the issues
not raised by the parties themselves
A: That will violate due process
 RULE 50
Dismissal of Appeal
Section 1. Grounds for dismissal of appeal. —
An appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the
appellee, on the following grounds:
(a) Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by these Rules;
(b) Failure to file the notice of appeal or the
record on appeal within the period prescribed by
these Rules;
(c) Failure of the appellant to pay the docket and
other lawful fees as provided in section 5, Rule
40 and section 4 of Rule 41; (Bar Matter No. 803,
17 February 1998)
(d) Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in
the appellant's brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
 Sec. 1 of Rule 41
Section 2. Dismissal of improper appeal to the
Court of Appeals. — An appeal under Rule 41
taken from the Regional Trial Court to the Court
of Appeals raising only questions of law shall be
dismissed, issues purely of law not being
reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review
from the appellate judgment of a Regional Trial
Court shall be dismissed.
 WHY? CA has no jurisdiction
 WHY? The mode of appeal to review in
appeal the judgment of the RTC is via
petition to review under Rule 42, not
notice of appeal under Rule 41
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright.
Q: If you make an erroneous appeal to the SC
anong nangyayare?
A: Rule 56, Sec. 5(f)
Section 6. Disposition of improper appeal. —
Except as provided in section 3, Rule 122
regarding appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or
life imprisonment, an appeal taken to the
Supreme Court by notice of appeal shall be
dismissed.
 the effect is sustained ang trial court, C,
P, QW,
 in appealed cases Rule 45
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court submitting
issues of fact may be referred to the Court of
Appeals for decision or appropriate action. The
determination of the Supreme Court on whether
or not issues of fact are involved shall be final.
Section 7. Procedure if opinion is equally
divided.
Where the court en banc is equally divided in
opinion, or the necessary majority cannot be had,
the case shall again be deliberated on, and if after
such deliberation no decision is reached, the
original action commenced in the court shall be
dismissed, in appealed cases, the judgment or
order appealed from shall stand affirmed; and on
all incidental matters, the petition or motion shall
be denied.
Section 3. Withdrawal of appeal. — An appeal
may be withdrawn as of right at any time before
the filing of the appellee's brief. Thereafter, the
withdrawal may be allowed in the discretion of
the court. (4a)
 RULE 52
Motion for Reconsideration

Section 1. Period for filing. — A party may file

a motion for reconsideration of a judgment or
final resolution within fifteen (15) days from
notice thereof, with proof of service on the
adverse party.

Section 2. Second motion for reconsideration. —

No second motion for reconsideration of a
judgment or final resolution by the same party
shall be entertained.

Section 3. Resolution of motion. — In the Court

of Appeals, a motion for reconsideration shall be
resolved within ninety (90) days from the date
when the court declares it submitted for
resolution.

Section 4. Stay of execution. — The pendency of

a motion for reconsideration filed on time and by
the proper party shall stay the execution of the
judgment or final resolution sought to be
reconsidered unless the court, for good reasons,
shall otherwise direct.
 RULE 53
NEW TRIAL

SECTION 1. Period for filing; ground.

At any time after the appeal from the lower court
has been perfected and before the Court of
Appeals loses jurisdiction over the case, a party
may file a motion for a new trial 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 shall be accompanied by
affidavits showing the facts constituting the
grounds therefor and the newly discovered
evidence.

SECTION 2. Hearing and order.

The Court of Appeals shall consider the new
evidence together with that adduced at the trial
below, and may grant or refuse a new trial, or
may make such order, with notice to both parties,
as to the taking of further testimony, either orally
in court, or by depositions, or render such other
judgment as ought to be rendered upon such
terms as it may deem just.

SECTION 3. Resolution of motion.

In the Court of Appeals, a motion for new trial
shall be resolved within ninety (90) days from the
date when the court declares it submitted for
resolution.

SECTION 4. Procedure in new trial.

Unless the court otherwise directs, the procedure
in the new trial shall be the same as that granted
by a Regional Trial Court.
 trial de novo ka
 2 stages: is it really newly discovered?
would it change the result if granted?
 RULE 51
JUDGMENT
Section 1. When case deemed submitted for
judgment. — A case shall be deemed submitted
for judgment:
A. In ordinary appeals. —
1) Where no hearing on the merits of the main
case is held, upon the filing of the last
pleading, brief, or memorandum required by
the Rules or by the court itself, or the
expiration of the period for its filing.
2) Where such a hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum as may be required
or permitted to be filed by the court, or the
expiration of the period for its filing.
appellant’s reply brief
B. In original actions and petitions for review. —
1) Where no comment is filed, upon the
expiration of the period to comment.
2) Where no hearing is held, upon the filing
of the last pleading required or permitted to
be filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the main
case is held, upon its termination or upon the
filing of the last pleading or memorandum as
may be required or permitted to be filed by
the court, or the expiration of the period for
its filing. (n)
Section 2. By whom rendered. — The judgment
shall be rendered by the members of the court
who participated in the deliberation on the merits
of the case before its assignment to a member for
the writing of the decision. (n)
Section 3. Quorum and voting in the court. —
The participation of all three Justices of a
division shall be necessary at the deliberation and
the unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or
final resolution. If the three justices do not reach
a unanimous vote, the clerk shall enter the votes
of the dissenting Justices in the record.
Thereafter, the Chairman of the division shall
refer the case, together with the minutes of the
deliberation, to the Presiding Justice who shall
designate two Justices chosen by raffle from
among all the other members of the court to sit
temporarily with them, forming a special
division of five Justices. The participation of all
the five members of the special division shall be
necessary for the deliberation required in section
2 of this Rule and the concurrence of a majority
of such division shall be required for the
pronouncement of a judgment or final resolution.
(2a)
Section 4. Disposition of a case. — The Court of
Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may
direct a new trial or further proceedings to be
had. (3a)
Section 5. Form of decision. — Every decision
or final resolution of the court in appealed cases
shall clearly and distinctly state the findings of
fact and the conclusions of law on which it is
based, which may be contained in the decision or
final resolution itself, or adopted from those set
forth in the decision, order, or resolution
appealed from. (Sec. 40, BP Blg. 129)
Section 6. Harmless error. — No error in either
the admission or the exclusion of evidence and
no error or defect in any ruling or order or in
anything done or omitted by the trial court or by
any of the parties is ground for granting a new
trial or for setting aside, modifying, or otherwise
disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent
with substantial justice. The court at every stage
of the proceeding must disregard any error or
defect which does not affect the substantial rights
of the parties.
Section 7. Judgment where there are several
parties. — In all actions or proceedings, an
appealed judgment may be affirmed as to some
of the appellants, and reversed as to others, and
the case shall thereafter be proceeded with, so far
as necessary, as if separate actions had been
begun and prosecuted, and execution of the
judgment of affirmance may be had accordingly,
and costs may be adjudged in such cases, as the
court shall deem proper. (6)
Section 8. Questions that may be decided.
No error which does not affect the jurisdiction
over the subject matter or the validity of the
judgment appealed from or the proceedings
therein will be considered unless:
(a) stated in the assignment of errors, or
(b) closely related to or dependent on an
assigned error and properly argued in the
brief
save as the court may pass upon plain errors and  must be transmitted
clerical errors.
GR: Walang execution of judgment; only the
An appeal in a civil case is strictly by a writ of court of origin… it can only order
error: the CA may only decide a case as regards XPN: blah blah blah ordered to be immediately
the assigned errors pag di mo inassign wala yan executory
di na papansin yan pwera nalang kung 1. EPA
jurisdiction
LBP v. De Leon (MR Rule 42)
Section 9. Promulgation and notice of judgment. LBP v. Rodriguez G.R. No. 148892, May 6,
— After the judgment or final resolution and 2010***
dissenting or separate opinions, if any, are signed LBP v. CA G.R. No. 190660, April 11, 2011 ***
by the Justices taking part, they shall be delivered Not Rule 41 but by petition for review under Rule
for filing to the clerk who shall indicate thereon 42
the date of promulgation and cause true copies Kasi CARP may dinaan na yan sa baba.
thereof to be served upon the parties or their - PARAB, DARAB then CA
counsel. (n)
Neypes v. CA
Section 10. Entry of judgments and final - fresh period rule
resolutions. — If no appeal or motion for new
trial or reconsideration is filed within the time Bañaga v. Majaducon
provided in these Rules, the judgment or final - you will just further delay the case dun sa
resolution shall forthwith be entered by the clerk execution lao mong tatagalan
in the book of entries of judgments. The date - *list* XPNs daw
when the judgment or final resolution becomes
executory shall be deemed as the date of its entry. Vda. De Villegas v. Gaboya
The record shall contain the dispositive part of - walang statement of the case, facts… di nag-
the judgment or final resolution and shall be comply so dinismiss ng CA
signed by the clerk, with a certificate that such
judgment or final resolution has become final and In Re: Shewak A. Keswani
executory. (2a, R36) - appeals… do not anymore appy Sec. 11
- mag Rule 41 ka
Section 11. Execution of judgment. — Except
where the judgment or final order or resolution, Fabian v. Desierto***
or a portion thereof, is ordered to be immediately - a law cannot amend the Constitution
executory, the motion for its execution may only - pwedeng dagdagan basta may consent ng SC
be filed in the proper court after its entry. - unconstitutional
- administrative disciplinary cases – quasi-
In original actions in the Court of Appeals, its judicial body
writ of execution shall be accompanied by a - decision of the OMB in admin cases and
certified true copy of the entry of judgment or decision in blah blah probable cause PI (in the
final resolution and addressed to any appropriate conduct of mode of review)
officer for its enforcement. - the determination of probable cause is an
executive function… you cannot appeal it to the
In appealed cases, where the motion for courts however you can ask petition for review
execution pending appeal is filed in the Court of - admin cases: Rule 43
Appeals at a time that it is in possession of the - executive: Rule 65
original record or the record on appeal, the
resolution granting such motion shall be Lanting v. OMB
transmitted to the lower court from which the - probable cause….. to SC because it is an
case originated, together with a certified true executive function
copy of the judgment or final order to be
executed, with a directive for such court of origin OMB v. Samaniego Oct. 5 2010
to issue the proper writ for its enforcement. - the SC granted partial reconsideration of the
 EPA is filed when the in possession blah MR filed in the OMB
blah
- in the admin case, CA issued an injunction to
stop the implementation of the decision of the
OMB, is that valid?
- SC: Yes. It is not valid. The court considered
the internal rules of the OMB. Sec. 7 of Rule
3…… “finality and execution of decision….” the
decision shall be final, executory and
unappealable… in other cases the decision may
be appealed to the CA
- *an appeal shall not stop the decision from
being executory: if you apply strictly the
authority of the CA, the CA can direct
otherwise… that would run encroach upon the
rule-making power of the OMB. The rule clearly
supersedes the authority of the CA to provide
otherwise. It is a special rule and prevails over
the general rule of the Rules of Court.
- Atty. Esco: While the OMB has the authority to
promulgate its own rules, nonetheless that
authority is the authority only to promulgate its
own Rules in the OMB; while the SC has the
authority to promulgate Rules in the Courts. The
principle applies only when they are 2 rules
promulgated by the same authority.
Cabrera v. Lapid
SARSABA v. VDA. DE TE (July 30, 2009)***
- Te had no authority to sue since she is not a RPII
- the prevailing rule is that you cannot file a 3rd
party complaint in the court if the levy was made
by the NLRC
- lack of JD: Sereno died no summons was
served; Vda. De Te also died
- Attorney-in-fact: provided that the case is
prosecuted in the name of the RPII (Araneta
case)
- Is the appeal proper? (Dumiretso sya sa SC)
MTD
- QoF or QoL: Interlocutory order and not a
final order (MTD was denied) An order denying
a MTD is interlocutory. Sec. 1(c), Rule 41
BRIONES v. HENSON-CRUZ
- Briones asked the court as administrator for her
fee
- although it does not finally disposes of the case
but it disposes of an issue
- multiple appeals
MUN. OF BIÑAN v. CA
MIRANDA v. CA
- in an action for partition, you must already
appeal that do not await the second aspect which
is accounting and the final division of the
property
- same as in the expropriation, do not wait for the
decision in the just compensation
- if there are many CoA joined in one complaint,
do not wait for the decision in the other CoA
PNB REP. BANK (now Maybank) v. SPS.
CORDOVA (March 14, 2008)
- asking to increase the award of damages
- the notice of appeal was filed out of time
- can the appeal be considered? No. Its appeal
having been perfected by filing of the 1 st notice
of appeal……. this is in accordance with the
ruling in Pacific Life Assurance “we hold that
petitioner need not file another notice of
appeal….”
- yung konti nga inaappeal mo, yung malaki pa
kaya? superfluity… petitioner’s filing of a
belated 2nd notice of appeal does not …..
- Losing its JD over the case except to issue
orders to protect the rights… of the parties.
Obviously the issue of the correctness of the
decision is the issue of the………
- when an appeal is perfected the court loses JD
over the appellant. Cannot withdraw the same for
the purpose of reviving the JD of the TC. By
filing the NoA, he has perfected his appeal to the
CA and it must be on that court on which he …
his appeal. The appellant cannot anymore file a
motion to that court except the residual powers.
- by filing of a NoA the appellant as far as he is
concerned has perfected his appeal it should be
purely on that court that he may pursue any
further benefit
DEL ROSARIO v. BONGA (Rule 44)
- *cases reviewer*
- wag na daw to
PEPSI-COLA BOTTLERS v. GAL-LANG
-
Q: May an interlocutory be appealed eventually?
A: Yes. After a judgment has been rendered. You
can raise that as one of your assigned errors. (E.g.
non-referral to the Lupon… na-deny ka. You
cannot appeal that immediately. Pagkatapos ng
judgment talo ka, e di you raise that as an error)
Q:
A:
MARINDUQUE MINING v. CA and PNOC
- PNOC filed an expropriation case against a
property of MMC in Lanao. Not the entire
property was expropriated.
- GR: There are at least 2 decisions:
1. determination of WON there is a right to
expropriate
2. Just compensation
- PNOC: notice of appeal only instead of a record
of appeal
- SC: By mere notice appeal. The rationale
behind ….. *case reviewer* Nothing more
substantial is left to the determination of the
courts. All issues had been disposed. The reason
for the record on appeal ceases to exist.
- Ganon rin sa SP

REPUBLIC v. NISHINA
- nagpa-late registration 2nd husband
- correction of entry in the … cancellation of the
birth certificate and to change the name by virtue
of the adoption
- SolGen appealed to the CA by mere notice of
appeal. Nishina filed a MTD.
- SC: Okay na yan. Yan lang naman ang issue na-
resolve na sa isang decision. There’s nothing
more for the court to resolve.

REPUBLIC v. BERMUDEZ-LORINO
- immediately executory: meaning there is no
appeal
 RULE 47
Annulment of Judgments of Final Orders and
Resolutions
- original action
- B.P. 129, Sec. 9(2)
Macalalag v. Omb
- Sec. 9 speaks only of the decision of the RTC
-
Fraginal v. Heirs of Paranal
- supporting the cause of action or defense and a
PP v. YGANA June 26 2007
- The remedy cannot be resorted to when the
RTC judgment being questioned was rendered in
a criminal case.
- Atty. Esco: right remedy is writ of habeas
corpus
Section 1. Coverage.
This Rule shall govern the annulment by the
Court of Appeals of judgments or final orders
and resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of:
(1) new trial,
(2) appeal,
(3) petition for relief or
(4) other appropriate remedies
are no longer available through no fault of the
petitioner.
Section 2. Grounds for annulment.
The annulment may be based only on the
grounds of:
(1) extrinsic fraud and – fraud that prevented
the party from presenting his case
(2) lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in
a motion for new trial or petition for relief.
Section 3. Period for filing action. — If based on
extrinsic fraud, the action must be filed within
four (4) years from its discovery; and if based on
lack of jurisdiction, before it is barred by laches
or estoppel.
Section 4. Filing and contents of petition. — The
action shall be commenced by filing a verified
petition alleging therein with particularity the
facts and the law relied upon for annulment, as
well as those supporting the petitioner's good and
substantial cause of action or defense, as the case
may be.
The petition shall be filed in seven (7) clearly
legible copies, together with sufficient copies
corresponding to the number of respondents. A
certified true copy of the judgment or final order
or resolution shall be attached to the original
copy of the petition intended for the court and
indicated as such by the petitioner.
The petitioner shall also submit together with the
petition affidavits of witnesses or documents
sworn certification that he has not theretofore
commenced any other action involving the same
issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any
other tribunal or agency if there is such other
action or proceeding, he must state the status of
the same, and if he should thereafter learn that a
similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days
therefrom. (n)
Section 5. Action by the court. — Should the
court find no substantial merit in the petition, the
same may be dismissed outright with specific
reasons for such dismissal.
Should prima facie merit be found in the
petition, the same shall be given due course and
summons shall be served on the respondent. (n)
Section 6. Procedure. — The procedure in
ordinary civil cases shall be observed. Should
trial be necessary, the reception of the evidence
may be referred to a member of the court or a
judge of a Regional Trial Court.
Section 7. Effect of judgment. — A judgment of
annulment shall set aside the questioned
judgment or final order or resolution and render
the same null and void, without prejudice to the
original action being refiled in the proper court.
However, where the judgment or final order or
resolution is set aside on the ground of extrinsic
fraud, the court may on motion order the trial
court to try the case as if a timely motion for
new trial had been granted therein.
 same ng Rule 38 except don may
specific period… through no fault of
your own, Rule 47 nalang
Section 8. Suspension prescriptive period. — May be The amount
The prescriptive period for the refiling of the sought at of bond to be
aforesaid original action shall be deemed any stage of posted by the
suspended from the filing of such original action the action applicant is
until the finality of the judgment of annulment. Preliminary
but before addressed to
Injunction
However, the prescriptive period shall not be the entry of the sound
suspended where the extrinsic-fraud is final discretion of
attributable to the plaintiff in the original action. judgment in the court
(n) the case
May be filed The bond as
Section 9. Relief available. — The judgment of at any stage fixed by the
annulment may include the award of damages, of the action court is now
attorney's fees and other relief. or always
proceeding required of
If the questioned judgment or final order or and even the petitioner,
resolution had already been executed the court after final whether or
may issue such orders of restitution or other relief judgment not the
as justice and equity may warrant under the therein in appointment
circumstances. Receivership order to of a receiver
preserve the has been
Section 10. Annulment of judgments or final property applied ex
orders of Municipal Trial Courts. involved or parte
An action to annul a judgment or final order of a to aid
Municipal Trial Court shall be filed in the execution or
Regional Trial Court having jurisdiction over the otherwise to
former. It shall be treated as an ordinary civil carry the
action and sections 2, 3, 4, 7, 8 and 9 of this Rule judgment
shall be applicable thereto. into effect
 WHY? because Sec. 9(6) of BP 129 Must be The bond to
applied for be posted by
PROVISIONAL REMEDIES before the the applicant
PRELIMINARY CONSIDERATIONS defendant is in an
files his amount
Provisional remedies, also known as ancillary Replevin
answer double the
or auxiliary remedies, are writs and processes value of the
available during the pendency of the action personal
which may be resorted to by a litigant to preserve property to be
and protect certain rights and interests therein seized
pending rendition, and for purposes of the May be No bond is
ultimate effects, of a final judgment in the case. sought at generally
 They are provisional because they any stage of required from
constitute temporary measures availed of the action, the applicant
during the pendency of the action, and and even for
they are ancillary because they are mere the first time
incidents in and are dependent upon the on appeal
result of the main action. provided the
Support basis or
May be The amount pendente lite propriety
sought at of bond to be thereof was
any stage of posted by the established
the action applicant is at the trial,
Preliminary
but before addressed to but
Attachment
the entry of the sound obviously
final discretion of before the
judgment in the court final
the case judgment in
said case on
appeal
 RULE 57 debtor, and
PRELIMINARY ATTACHMENT garnishee (bank)
Usually with actual No actual seizure of
Preliminary Attachment (Levy on Attachment) seizure of property. property. The bank
is a remedy where the property of the adverse will just hold the
party is taken into custody at the commencement money and forbid
of the action or at any time before the entry of withdrawal.
judgment as a security for the satisfaction of any
judgment that the plaintiff or any party may Attachment Garnishment
recover. Directed to tangible Directed to intangible
 The remedy is available to the plaintiff or properties properties
any proper party (e.g. defendant who sets
up a counterclaim or third-party; any SECTION 1. Grounds upon which attachment
party who has a claim) may issue.
 Since preliminary attachment may be At the commencement of the action or at any
sought at the commencement of the action time before entry of judgment, a plaintiff or any
and before entry of judgment, the grounds proper party may have the property of the
and a motion for preliminary attachment adverse party attached as security for the
may be alleged and incorporated right in satisfaction of any judgment that may be
a verified complaint; or if not so alleged, recovered in the following cases:
thereafter but before entry of judgment, a
corresponding motion therefor may be (a) In an action for the recovery of a specified
filed in the case. amount of money or damages, other than moral
 Where the judgment is already and exemplary, on a cause of action arising from
final and executory, a motion for law, contract, quasi-contract, delict or quasi-
execution is the remedy. delict against a party who is about to depart
 Nature of attachment proceedings: In from the Philippines with intent to defraud his
rem or quasi in rem because a lien creditors;
created is directed towards a particular  money claims only
property. The attaching creditor acquires
the lien, which ripens into a judgment (b) In an action for money or property
against the thing when the order of final embezzled or fraudulently misapplied or
sale is acquired. It is a judgment against converted to his own use by a public officer, or
the thing. an officer of a corporation, or an attorney, factor,
 Attachment lasts until: broker, agent, or clerk, in the course of his
(a) judgment dent is fully paid or employment as such, or by any other person in
satisfied; or a fiduciary capacity, or for a willful violation
(b) judgment is discharged or vacated. of duty;
 Types of Attachment:  money claims or property
(a) Preliminary attachment  violation is either malversation or estafa
(b) Final attachment
(c) Garnishment (c) In an action to recover the possession of
property unjustly or fraudulently taken,
Preliminary Final Attachment detained or converted, when the property, or
Attachment (Rule 39) any part thereof, has been concealed, removed,
(Rule 57) or disposed of to prevent its being found or taken
Resorted to at the Available after the by the applicant or an authorized person;
commencement of the judgment in the main  recovery of personal property
action or at any time action has become
before entry of executory, and for (d) In an action against a party who has been
judgment for the the satisfaction of guilty of a fraud in contracting the debt or
temporary seizure of said judgment incurring the obligation upon which the action
property of the is brought, or in the performance thereof;
adverse party  covers both dolo causante (in contracting
Involves two parties: Involves three the obligation) and dolo incidente (in the
creditor and debtor parties: creditor, performance thereof)

MIRANDA v. CA
- the bank refused to accept the installment
because Atty. Rayos ordered not to ….
- action with prayer for preliminary
attachment
- Dolo incidente only. Not the fraud which had
it been know the other would not have entered
into the agreement
- Art. 1171: fulfillment (incidente) Art. 1338:
prior and simultaneous to the consent
(e) In an action against a party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors; or
(f) In an action against a party who does not
reside and is not found in the Philippines, or
on whom summons may be served by
publication.
 precisely to avoid “paper victories”
 service of summons by publication: Secs.
14, 15, 16, last paragraph of 12, of Rule
14
 a foreign corporation duly licensed to do
business in the Philippines is not a
nonresident within the meaning of this
section
SECTION 2. Issuance and contents of order.
An order of attachment may be issued either:
(a) ex parte or
(b) upon motion with notice and hearing
by the court in which the action is pending, or by
the Court of Appeals or the Supreme Court, and
must require the sheriff of the court to attach so
much of the property in the Philippines of the
party against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant's demand, unless such party makes
deposit or gives a bond as hereinafter provided in
an amount equal to that fixed in the order, which
may be the amount sufficient to satisfy the
applicant's demand or the value of the property to
be attached as stated by the applicant, exclusive
of costs. Several writs may be issued at the same
time to the sheriffs of the courts of different
judicial regions.
SECTION 3. Affidavit and bond required.
An order of attachment shall be granted only
when it appears by the affidavit of the applicant,
or of some other person who personally knows
the facts:
(1) that a sufficient cause of action exists,
(2) that the case is one of those mentioned in
Section 1 hereof,
(3) that there is no other sufficient security for
the claim sought to be enforced by the
action, and
(4) that the amount due to the applicant, or the
value of the property the possession of
which he is entitled to recover, is as much
as the sum for which the order is granted
above all legal counterclaims.
The affidavit, and the bond required by the next
succeeding section, must be duly filed with the
court before the order issues.
Notes:
 Indispensable requirements: affidavit and
attachment bond
o Notice and hearing to the adverse
party is not required as the time
which the hearing will entail could
be enough to enable the defendant
to abscond or dispose of this
property before the writ issues.
 For a writ of attachment to be valid, the
affidavit must contain all the allegations
required. Failure to do so renders the writ
totally defective as the judge issuing writs
acts in excess of jurisdiction.
 The grant of the provisional remedy of
attachment basically involves three
stages:
First, the court issues the order
granting the application;
Second, the writ issues pursuant to the
order granting the same; and,
Third, the writ is implemented.
In the first two stages, it is not necessary
that jurisdiction over the person of the
defendant should be obtained. However,
to validly implement the writ, the court
must have acquired jurisdiction over the
defendant, otherwise it has no authority to
act.
 Q: The order as well as the writ may be
issued ex parte. In such an instance, is the
court called upon to determine the truth or
falsity? Can the court just rely on it?
A: Yes. Because if there is a falsity, it will
be answered by the bond posted by the
applicant. He is liable because any one of
the stated in the affidavit is false and it is
 shown by the parties upon whom the writ
issued and he is able to prove damages.
SECTION 4. Condition of applicant's bond.
The party applying for the order must thereafter
give a bond executed to the adverse party in the
amount fixed by the court in its order granting the
issuance of the writ, conditioned that the latter
will pay all the costs which may be adjudged to
the adverse party and all damages which he may
sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was
not entitled thereto.
Notes:
 The bond posted by the attaching creditor
responds for the damages and costs which
may be adjudged to the adverse party
arising from and by reason of the
attachment.
o There must be a finding in the
decision imposing liability and the
costs shall only be those arising
from the attachment itself and not
to other judicial costs that may be
imposed against the losing party.
SECTION 5. Manner of attaching property.
The sheriff enforcing the writ shall without delay
and with all reasonable diligence attach, to await
judgment and execution in the action, only so
much of the property in the Philippines of the
party against whom the writ is issued, not exempt
from execution, as may be sufficient to satisfy
the applicant’s demand, unless the former
makes a deposit with the court from which the
writ is issued, or gives a counter-bond executed
to the applicant, in an amount equal to the bond
fixed by the court in the order of attachment or to
the value of the property to be attached, exclusive
of costs.
GR: No levy on attachment pursuant to the writ
issued under Section 2 hereof shall be enforced
unless it is preceded, or contemporaneously
accompanied:
(1) by service of summons,
(2) together with a copy of the complaint,
(3) the application for attachment,
(4) the applicant's affidavit and bond, and
(5) the order and writ of attachment,
on the defendant within the Philippines.
XPN: The requirement of prior or
contemporaneous service of summons shall not
apply where:
(a) the summons could not be served
personally or by substituted service
despite diligent efforts (Sec. 14, Rule 14)
or
(b) the defendant is a resident of the
Philippines temporarily absent therefrom
(Sec. 16, Rule 14) or
(c) the defendant is a non-resident of the
Philippines (Sec. 15, Rule 14) or
(d) the action is one in rem or quasi in rem
(Sec. 15, Rule 14).
Notes:
 The attaching officer must serve a copy of
the applicant’s affidavit, so that the
adverse party may contest the grounds for
the attachment, and there must also be
service of a copy of the applicant's bond,
so that the other party may except to the
sufficiency thereof.
 Q: May the writ be issued even though it
is already secured?
A: Yes. He may cause the levy on the very
property which the mortgage existed. If
he files an ordinary action for the
collection of the debt. The mortgage is
deemed abandoned. (Otherwise, splitting
of causes of action)
 You cannot enforce the writ unless the
court has acquired jurisdiction over the
person of the party upon whom the writ or
issued. But for the purposes of issuing the
order, that may be done before the court
acquires jurisdiction over the person upon
whom the writ is issued.
 The attached property released in the
same
 To constitute a valid attachment:
(1) take actual possession/enforce
dominion over the property
adverse to and exclusive of the
party against whom the writ is
issued
(2) such property must be in his
possession
SECTION 6. Sheriff's return.
After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court
from which the writ issued, with:
 (1) a full statement of his proceedings under
the writ and
(2) a complete inventory of the property
attached,
(3) together with any counter-bond given by
the party against whom attachment is
issued, and
(4) serve copies thereof on the applicant.
SECTION 7. Attachment of real and personal
property; recording thereof.
Real and personal property shall be attached by
the sheriff executing the writ in the following
manner:
(a) Real property, or growing crops thereon, or
any interest therein, standing upon the record of
the registry of deeds of the province in the name
of the party against whom attachment is issued,
or not appearing at all upon such records, or
belonging to the party against whom attachment
is issued and held by any other person, or
standing on the records of the registry of deeds in
the name of any other person, by filing with the
registry of deeds:
(1) a copy of the order,
(2) together with a description of the property
attached, and
(3) a notice that it is attached, or that such real
property and any interest therein held by
or standing in the name of such other
person are attached, and
(4) by leaving a copy of such order,
description, and notice with the occupant
of the property, if any, or with such other
person or his agent if found within the
province.
Where the property has been brought under the
operation of either the Land Registration Act or
the Property Registration Decree, the notice shall
contain a reference to the number of the
certificate of title, the volume and page in the
registration book where the certificate is
registered, and the registered owner or owners
thereof.
The registrar of deeds must index attachments
filed under this section in the names of the
applicant, the adverse party, or the person by
whom the property is held or in whose name it
stands in the records. If the attachment is not
claimed on the entire area of the land covered by
the certificate of title, a description sufficiently
accurate for the identification of the land or
interest to be affected shall be included in the
registration of such attachment;
(b) Personal property capable of manual
delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt
therefor.
(c) Stocks or shares, or an interest in stocks or
shares, of any corporation or company, by
leaving with the president or managing agent
thereof:
(1) a copy of the writ, and
(2) a notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such
writ;
(d) Debts and credits, including bank deposits,
financial interest, royalties, commissions and
other personal property not capable of manual
delivery, by leaving with the person owing
such debts, or having in his possession or
under his control, such credits or other
personal property, or with his agent:
(1) a copy of the writ, and
(2) notice that the debts owing by him to the
party against whom attachment is issued,
and the credits and other personal
property in his possession, or under his
control, belonging to said party, are
attached in pursuance of such writ;
(e) The interest of the party against whom
attachment is issued in property belonging to the
estate of the decedent, whether as heir, legatee,
or devisee, by serving the executor or
administrator or other personal
representative of the decedent with:
(1) a copy of the writ and
(2) notice that said interest is attached.
A copy of said writ of attachment and of said
notice shall also be filed in the office of the clerk
of the court in which said estate is being settled
and served upon the heir, legatee or devisee
concerned.
If the property sought to be attached is
in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-
judicial agency, and notice of the attachment
served upon the custodian of such property.
Notes:
  Where the property attached by the
judgment creditor had previously been
mortgaged, the judgment creditor’s lien is
inferior to that of the mortgagee which
must first be satisfied in the event of
foreclosure. In reality, what was attached
by the judgment creditor was merely the
judgment debtor’s right or equity of
redemption.
 Property legally attached is property in
custodia legis and cannot be interfered
with without the permission of the proper
court, but this is confined to cases where
the property belongs to the defendant or
one in which the defendant has
proprietary interest.
SECTION 8. Effect of attachment of
debts, credits and all other similar personal
property.
All persons having in their possession or under
their control any credits or other similar
personal property belonging to the party against
whom attachment is issued, or owing any debts
to him, at the time of service upon them of the
copy of the writ of attachment and notice as
provided in the last preceding section, shall be
liable to the applicant for the amount of such
credits, debts or other similar personal property,
until:
(a) the attachment is discharged, or
(b) any judgment recovered by him is
satisfied,
unless such property is delivered or transferred,
or such debts are paid, to the clerk, sheriff, or
other proper officer of the court issuing the
attachment.
Notes:
 Garnishment is a species of attachment
for reaching property or credits pertaining
or payable to a judgment debtor.
o It results in a forced novation by
the substitution of creditors, that
is, the judgment debtor who is the
original creditor of the garnishee
is, through service of the writ of
garnishment, substituted by the
judgment creditor who thereby
becomes the creditor of the
garnishee.
 Garnishment has also been described as a
warning to a person, who has in his
possession property or credits of the
judgment debtor, not to pay the money or
deliver the property to the latter but to
instead appear and answer the plaintiffs
suit.
 It is not necessary to serve summons upon
the garnishee in order that the trial court
may acquire jurisdiction to bind him. All
that is necessary is the service upon him
of the writ of garnishment, as a
consequence of which he becomes a
virtual party or a forced intervenor in the
case and the trial court thereby acquires
jurisdiction to require compliance by him
with all its orders and processes.
SECTION 9. Effect of attachment of interests in
property belonging to the estate of a decedent.
The attachment of the interest of an heir, legatee,
or devisee in the property belonging to the estate
of a decedent shall not impair the powers of the
executor, administrator, or other personal
representative of the decedent over such property
for the purpose of administration. Such
personal representative, however, shall report
the attachment to the court when any petition for
distribution is filed, and in the order made upon
such petition, distribution may be awarded to
such heir, legatee or devisee, but the property
attached shall be ordered delivered to the
sheriff making the levy, subject to the claim of
such heir, legatee, or devisee, or any person
claiming under him.
Notes:
 There is already estate proceeding. The
interest of an heir can be attached.
 The executor/administrator will retain
hold of the property.
 “Ibigay kay sheriff and share ni heir”
SECTION 10. Examination of party whose
property is attached and persons indebted to him
or controlling his property; delivery of property
to sheriff.
Any person owing debts to the party whose
property is attached or having in his possession
or under his control any credit or other personal
property belonging to such party, may be
required to attend before the court in which the
action is pending, or before a commissioner
appointed by the court, and be examined on oath
respecting the same. The party whose property is
attached may also be required to attend for the
purpose of giving information respecting his
property, and may be examined on oath. The
court may, after such examination, order
personal property capable of manual delivery
belonging to him, in the possession of the person
so required to attend before the court, to be
delivered to the clerk of the court or sheriff on
such terms as may be just, having reference to
any lien thereon or claim against the same, to
await the judgment in the action.
Notes:
 Unlike the proceeding in Rule 39, the
examination is not subject to a
preliminary condition but is anticipatory
in nature and may be resorted to even if
the writ of attachment was not returned
because no property could be found to be
levied upon thereunder.
 If the garnishee does not admit the
indebtedness or he claims the property,
the controversy must be determined in an
independent action, and the court which
issues the writ of attachment cannot
compel the garnishee to appear before it
for examination, as Sec. 10 applies only
where the garnishee admits having in
his possession property belonging to the
defendant.
 Adverse interest to the party to which
attachment blah bhlah… remedy: Sec. 43,
Rule 39
o to give the judgment obligee to file
and recover that in a separate
action
SECTION 11. When attached property may be
sold after levy on attachment and before entry of
judgment.
Whenever it shall be made to appear to the court
in which the action is pending, upon hearing with
notice to both parties:
(a) that the property attached is perishable,
or
(b) that the interests of all the parties to the
action will be subserved by the sale
thereof,
the court may order such property to be sold at
public auction in such manner as it may direct,
and the proceeds of such sale to be deposited in
court to abide the judgment in the action.
REMEDIES AVAILABLE TO THE
ADVERSE PARTY AGAINST A WRIT OF
ATTACHMENT
1. Discharge of attachment upon giving counter-
bond. (Sec. 12)
2. Discharge of attachment on other grounds.
(Sec. 13)
Q: What is the effect of the obligation of the
bondsman under the ………
SECTION 12. Discharge of attachment upon
giving counter-bond.
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on
the security given. The court shall, after due
notice and hearing, order the discharge of the
attachment if:
(a) the movant makes a cash deposit, or
(b) files a counter-bond
executed to the attaching party with the clerk of
the court where the application is made:
GR: in an amount equal to that fixed by the
court in the order of attachment, exclusive of
costs
XPN: But if the attachment is sought to be
discharged with respect to a particular property,
the counter-bond shall be equal to the value of
that property as determined by the court.
In either case, the cash deposit or the counter-
bond shall secure the payment of any judgment
that the attaching party may recover in the action.
A notice of the deposit shall forthwith be served
on the attaching party. Upon the discharge of an
attachment in accordance with the provisions of
this section, the property attached, or the
proceeds of any sale thereof, shall be delivered
to the party making the deposit or giving the
counter-bond, or to the person appearing on
his behalf, the deposit or counter-bond
aforesaid standing in place of the property so
released. Should such counter-bond for any
reason be found to be or become insufficient, and
the party furnishing the same fail to file an
additional counter-bond, the attaching party may
apply for a new order of attachment.
Notes:
  Q: Is it either/or? Amount equal to that
fixed by the court or equal to the value of
property?
A: It is not either/or. If the one sought to
be claimed is a property, it is equal to the
value of the property because it is a
property being claimed. (Tinago mo yung
property subject of chattel mortgage:
yung value ng kotse kasi yun yung claim
ng plaintiff) If what you are seeking is
money, the basis will be that equal to that
fixed by the court.
 Yung palit mong cash or counter-bond is
yon na nag security to pay the judgment
later. Na-lift na or na-discharge na yung
unang sinecure.
 The deposit or counter-bond aforesaid
standing in place of the property so
released: there is still security
 You can only ask for the replacement after
the writ of attachment had been enforced.
 It is the court who issues the writ:
affidavit as basis
It is the CoC who issues the order
SECTION 13. Discharge of attachment on other
grounds.
The party whose property has been ordered
attached may file a motion with the court in
which the action is pending, before or after levy
or even after the release of the attached property,
for an order to set aside or discharge the
attachment on the ground:
(a) that the same was improperly or
irregularly issued or enforced, or
(b) that the bond is insufficient.
If the attachment is excessive, the discharge shall
be limited to the excess. If the motion be made
on affidavits on the part of the movant but not
otherwise, the attaching party may oppose the
motion by:
(a) counter-affidavits or
(b) other evidence in addition to that on
which the attachment was made.
After due notice and hearing, the court shall order
the setting aside or the corresponding discharge
of the attachment if it appears:
(a) that it was improperly issued, or
o “di totoo lahat ng nasa affidavit…
kontrahin mo yung 4 requisites ng
affidavit”
o affidavit or bond
(b) that it was irregularly enforced, or
o Sec. 5
(c) that the bond is insufficient, or
o “kulang yung value or yung
insurance company insolvent”
(d) that the attachment is excessive, and the
defect is not cured forthwith.
Notes:
 Where the attachment is challenged for
having been illegally or improperly
issued, there must be a hearing, with the
burden of proof to sustain the writ being
on the attaching creditor. An ex parte
discharge or suspension of the attachment
is a disservice to the orderly
administration of justice and nullifies the
underlying role and purpose of
preliminary attachment in preserving the
rights of the parties pendente lite as an
ancillary remedy.
 Unlike the bond posted for the issuance of
a writ of preliminary attachment, which
responds for damages resulting from the
attachment (Sec. 20), the counter-bond
posted for the discharge of such
attachment responds for the payment of
the judgment recovered by the attaching
creditor (Sec. 17), regardless of the
wordings of the bond, as this liability is
deemed incorporated therein. An order for
the execution of the judgment pending
appeal can also be enforced against said
counter-bond.
 The merits of the complaint are not triable
in a motion to discharge an attachment,
otherwise an applicant for the dissolution
of the writ could force a trial on the merits
of the case of the strength alone of such
motion.
 Thus, when the preliminary attachment is
issued upon a ground which also
constitutes the applicant’s cause of action,
such as an action for money or property
embezzled or fraudulently converted by
the defendant, he is not allowed to move
for the dissolution of the attachment
under Sec. 13 of this Rule by offering to
show the falsity of the averments in the
applicant’s motion and supporting
documents since the hearing on that
motion for dissolution would be
tantamount to a trial on the merits in the
main action. A similar doctrinal rule
obtains in preliminary injunction.
 Lifting of an order of attachment is by
motion. It cannot be granted ex parte.
However, asking for the writ may be
 granted ex parte otherwise the creditor
may dispose of the property. (Davao
Light)
 For purposes of motion, affidavit on the
part of the movant. It can be contradicted
by counter-affidavit.
SECTION 14. Proceedings where property
claimed by third person.
GR: The sheriff shall not be bound to keep the
property under attachment if:
(1) the property attached is claimed by any
person other than the party against whom
attachment had been issued or his agent,
and
(2) such person makes an affidavit of his title
thereto, or right to the possession thereof,
stating the grounds of such right or title,
and
(3) serves such affidavit upon the sheriff
while the latter has possession of the
attached property, and a copy thereof
upon the attaching party
XPN: Unless the attaching party or his agent, on
demand of the sheriff, shall file a bond approved
by the court to indemnify the third-party claimant
in a sum not less than the value of the property
levied upon.
In case of disagreement as to such value, the
same shall be decided by the court issuing the
writ of attachment. No claim for damages for the
taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the
taking or keeping of such property to any such
third-party claimant, if such bond shall be filed.
Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property, or prevent the attaching
party from claiming damages against a third-
party claimant who filed a frivolous or plainly
spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of
the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall
not be required, and in case the sheriff is sued
for damages as a result of the attachment, he shall
be represented by the Solicitor General, and if
held liable therefor, the actual damages adjudged
by the court shall be paid by the National
Treasurer out of the funds to be appropriated for
the purpose.
Notes:
 Remedy of the third-party is to file a claim
under Sec. 16, Rule 39.
 Where the property of a defendant has
been attached, a third party claiming an
interest therein can maintain a separate
action to vindicate his interest over the
property and the injunctive relief granted
in the latter case does not constitute an
interference with the writ of attachment
issued by the other court as this procedure
is sanctioned by Sec. 14 of Rule 57.
SECTION 15. Satisfaction of judgment out of
property attached, return of sheriff.
If judgment be recovered by the attaching party
and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the
property attached, if it be sufficient for that
purpose in the following manner:
(a) By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of the
court, or so much as shall be necessary to
satisfy the judgment;
(b) If any balance remains due, by selling so
much of the property, real or personal, as may
be necessary to satisfy the balance, if enough
for that purpose remain in the sheriff's hands, or
in those the clerk of the court;
(c) By collecting from all persons having in
their possession credits belonging to the
judgment obligor, or owing debts to the latter at
the time of the attachment of such credits or
debts, the amount of such credits and debts as
determined by the court in the action, and stated
in the judgment, and paying the proceeds of such
collection over to the judgment obligee.
The sheriff shall forthwith make a return in
writing to the court of his proceedings under this
section and furnish the parties with copies
thereof.
SECTION 16. Balance due collected upon an
execution; excess delivered to judgment obligor.
If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment any balance shall
remain due, the sheriff must proceed to collect
such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return to
the judgment obligor the attached property
remaining in his hands, and any proceeds of the
sale of the property attached not applied to the
judgment.
SECTION 17. Recovery upon the counter-bond.
When the judgment has become executory, the
surety or sureties on any counter-bond given
pursuant to the provisions of this Rule to secure
the payment of the judgment shall:
(1) become charged on such counter-bond
and
(2) bound to pay the judgment obligee
upon demand the amount due under the
judgment, which amount may be recovered from
such surety or sureties after notice and summary
hearing in the same action.
Notes:
 Q: What is the remedy if you want to go
against the attachment bond?
A: Procedure is Sec. 20
 Q: Sec. 12
A: Sec. 17
 3 stages: (Lee Lin v. someone)
1. execute against judgment obligor
2. if returned unsatisfied fully or
partially, demand to the surety
3. if he does not pay, file a motion and
the court
 counter-bond is the replacement of the
attached property: you can only file it
after the judgment has become final and
executory
SECTION 18. Disposition of money deposited.
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond:
(a) If the judgment is in favor of the attaching
party:
i. it shall be applied under the
direction of the court to the
satisfaction of any judgment, and
ii. after satisfying the judgment the
balance shall be refunded to the
depositor or his assignee.
(b) If the judgment is in favor of the party
against whom attachment was issued: the
whole sum deposited must be refunded
to him or his assignee.
SECTION 19. Disposition of attached property
where judgment is for party against whom
attachment was issued.
If judgment be rendered against the attaching
party:
(1) all the proceeds of sales and money
collected or received by the sheriff, under
the order of attachment, and
(2) all property attached remaining in any
such officer's hands,
shall be delivered to the party against whom
attachment was issued, and the order of
attachment discharged.
Notes:

SECTION 20. Claim for damages on account of
improper, irregular or excessive attachment.
An application for damages on account of
improper, irregular or excessive attachment must
be filed:
(a) before the trial or
o upon commencement of action;
compulsory counterclaim
(b) before appeal is perfected or
o after answer
(c) before the judgment becomes executory,
with due notice to the attaching party and his
surety or sureties setting forth the facts showing
his right to damages and the amount thereof.
Such damages may be awarded only after proper
hearing and shall be included in the judgment on
the main case.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued he must claim damages
sustained during the pendency of the appeal by:
(1) filing an application in the appellate court,
(2) with notice to the party in whose favor the
attachment was issued or his surety or
sureties,
 (3) before the judgment of the appellate court
becomes executory.
The appellate court may allow the application to
be heard and decided by the trial court.
Nothing herein contained shall prevent the party
against whom the attachment was issued from
recovering in the same action the damages
awarded to him from any property of the
attaching party not exempt from execution
should the bond or deposit given by the latter be
insufficient or fail to fully satisfy the award.
Notes:
 Sec. 20 governs the consequences where
the attaching creditor fails to sustain his
action and judgment is rendered against
him.
o The debtor whose property was
attached can proceed against the
bond posted by the attaching
creditor to obtain the writ of
preliminary attachment.
o However, even if judgment was
rendered against the attaching
creditor but he proves that he acted
in good faith in procuring such
preliminary attachment, the
adverse party cannot recover on
the attachment bond.
 The application for damages must be
made by a counterclaim in the answer or
by motion in the same action.
o It should be filed in the trial court
at any time before the trial or
before the appeal from the
judgment therein is perfected or
before such judgment becomes
executory, and shall include all
damages sustained by reason of
the attachment during the
pendency of the case in the trial
court, and cases cited therein
regarding the bond in injunction
cases.
 If the case is appealed and the judgment
of the appellate court is in favor of the
party whose property was attached, he can
ask for damages sustained by him during
the pendency of the appeal by filing a
motion in the appellate court at any time
before such judgment on appeal becomes
executory, but if he did not apply for
damages in the trial court, he cannot ask
for damages during the pendency of the
trial by motion in the appellate court.
However, where the writ of preliminary
attachment issued by the trial court was
declared null and void in an original
action before the appellate court, the
damages sustained by the party whose
property was attached can be adjudicated
on appeal in the main case by the Court of
Appeals, especially since Sec. 9 of B.P.
129 grants it the power to resolve factual
issues in cases falling within its original
or appellate jurisdiction. The appellate
court shall hear and decide the application
and include in its judgment the award
against the surety, or it may refer such
claim to the trial court and allow it to hear
and decide the same.
 The surety must be notified of the
application for damages, otherwise the
judgment thereon cannot be executed
against him. Where the judgment became
final and the surety was not impleaded by
such notice, the surety is relieved from
liability.
 The damages recoverable for a wrongful
attachment is limited to the amount of
the bond.
o XPN: last paragraph
 The procedure for claiming damages
outlined in Sec. 20 is exclusive, hence
such claims for damages cannot be the
subject of an independent action, except:
(a) where the principal case was
dismissed for lack of jurisdiction
by the trial court without giving an
opportunity to the party whose
property was attached to apply for
and prove his claim for damages;
and
(b) where the damages by reason of
the attachment was sustained by a
third person who was not a party to
the action wherein such writ was
issued.
 The claim for damages against the bond in
an alleged wrongful attachment can only
be sought in the same court where the
bond was filed and the attachment was
issued.
 If you want to claim damages against the
attachment bond, you must file that before
the judgment becomes final and
executory.
 The procedure under this section is
different from that in Sec. 17:
Section 17 Section 20
 This is the remedy if This is the remedy if
you go against the you avail Secs. 4 and
counter-bond in Sec. 13
12
Applied after Filed before the trial
execution was or before the appeal
returned unsatisfied is perfected, or
before the judgment
becomes executory
LEE LIN v. C&S AGRO (Sec. 20)
 Sec. 20 v. Sec. 17
 There is an apparent confusion *see case
reviewer*
 writ of garnishment
OLIB v. PASTORAL (Old Rule)
 no pronouncement as to the dissolution
of the attachment
 Q: Can the court dissolve the writ?
Assuming that the court has still the
records.
A: Atty. Esco: Yes. Residual powers?
(protection blah blah)
 SC: Where the main case is appealed…
 As to the premiums of bond: wa na epek
daw
o the obligation under the bond is
not extinguished by reason alone
of non-payment

VANGUARD ASSURANCE CORP. v. CA CALDERON v. IAC (Sec. 4)

(Sec. 20)
 It apparently relies….. *see case
reviewer*
TOWERS ASSURANCE v. ORORAMA
 This requisite is not applicable….
BENITEZ v. IAC (Sec. 12 and 13; cannot be
granted ex parte)
 He is now claiming that the applicant has
no cause of action.
 The affidavit may have been sufficient to
justify the issuance….. blah blah
 Hearing must be conducted in order to….
 Hearing can be by affidavits and counter-
affidavits
D.P. LUB OIL v. NICOLAS (Sec. 12 and 13;
cannot be granted ex parte)
 The petitioner’s prayer…..
 If you were the judge if the statement
were all conclusions you can deny it ha
SANTOS v. AQUINO
 There are only 2 remedies: Secs. 12 and
13
 Counter-bond was denied based on the
unreliability of the insurance company
 The properties released from the
attachment were either sold or mortgaged
to third parties
 SC: You cannot substitute. The only time
where the law allows substitution is
under Sec. 12
 It would in effect…. due process
 21 days after the sale the BOC for failure
to pay
 They put up a counter-bond to lift the
attachment
 The surety contended that with the
dissolution of the attachment it had the
effect of extinguishing the liability. Wala
na syang obligasyon kasi may counter-
bond na
 SC: It is clear from Sec. 4
 Assuming that nanalo sya pero not one of
the grounds, can he still be liable? Yes. If
the court finally adjudges blah blah
 SC: Equally untenable is the
contention……. Whether the attachment
was discharged…
 The GR is that actual damages as a result
of the issuance but moral and …
damages may be recovered where the
attachment was proven to be maliciously
sought
PIONEER INSURANCE v. HONTAGAS
 where to file case for damages
CONSOLIDATED BANK v. IAC
 Relief from erroneous judgment must be
 An action for damages in an attachment
can only be claimed in the court which
issued the attachment.

PERLA v. RAMOLETE
 RULE 58  A mandatory injunction is an extreme
PRELIMINARY INJUNCTION remedy and will be granted only on a
showing that:
SECTION 1. Preliminary injunction (a) the invasion of the right is material
defined; classes. and substantial,
A preliminary injunction is an order granted at (b) the right of the complainant is
any stage of an action or proceeding prior to the clear and unmistakable, and
judgment or final order, requiring a party or a (c) there is an urgent and paramount
court, agency or a person to refrain from a necessity for the writ to prevent
particular act or acts. It may also require the serious damage.
performance of a particular act or acts, in  A preventive preliminary injunction, as
which case it shall be known as a preliminary an ancillary remedy, may be resorted to
mandatory injunction. by a party to protect or preserve his rights
for no other purpose.
Notes: o It is not a cause of action in itself
 It may be an action in itself or it may just but merely adjunct to a main
be a provisional remedy for and as an cause, in order to preserve the
incident in the main action which may be status quo until the merits of the
for other reliefs. case can be heard.
 Injunction is a judicial process operating o Thus, a person who is not a party
in personam since it is directed to a in the main suit cannot be bound
particular person. by an ancillary writ of injunction
 It is not designed to protect future, since he is a stranger.
contingent or inchoate rights; it is only  Distinctions between injunction and
there to protect real rights. prohibition:
 It is not there for the purpose of creating a
contract or relation between the parties. A Injunction Prohibition
contract is based on the mutual agreement Generally directed Directed against a
of the courts. against a party in the court, tribunal or
 Primary purpose: to preserve status quo action person exercising
by restraining action or interference or by judicial powers
furnishing preventive relief. Does not involve the May be on the ground
 Kinds of Injunction: jurisdiction of the that the court against
court whom the writ is
Preliminary Final Injunction sought acted without
Injunction (Section 9) or in excess of
(Section 1) jurisdiction
An order granted at One issued in the May be the main Always a main action
any stage of an action judgment in the case action itself, or just a
prior to the judgment permanently provisional remedy
or final order therein. restraining the in the main action
defendant or making
the preliminary  As a general rule, courts should avoid
injunction issuing a writ of preliminary injunction
permanent. which in effect disposes of the main case
Main action is not for Main action is really without trial. Otherwise, there will
injunction. for injunction. practically be nothing left for the lower
court to try except plaintiffs claim for
Preventive Mandatory damages.
Injunction Injunction  GR: A second application for preliminary
Requires a person to Requires the injunction, which rests in the sound
refrain from doing a performance of a discretion of the court, will ordinarily be
particular act. particular act. denied
XPN: Unless it is based on facts unknown
at the time of the first application.
 o This rule cannot be invoked where
relief is sought against a different
act.
SECTION 2. Who may grant preliminary
injunction.
A preliminary injunction may be granted by the
court where the action or proceeding is
pending. If the action or proceeding is pending
in the Court of Appeals or in the Supreme Court,
it may be issued by said court or any member
thereof.
Notes:
 Jurisprudential rules:
(a) Supreme Court: on appeal before it
or in original actions commenced
therein.
(b) Court of Appeals: WON in aid of
its appellate jurisdiction.
(c) Regional Trial Court: in cases
pending before it and those
pending in lower courts within its
territorial jurisdiction –
i. the jurisdiction to restrain
acts is limited to those
being or about to be
committed within its
territorial jurisdiction
 Sec. 21(1) in re to:
Sec. 13 of B.P. 129
 “which may be
enforced in any part
of their respective
regions”
 do not consider
venue only, also
look into the
enforceability
ii. it could not issue this writ
in ULP, or where the issue
involved is interwoven
with an ULP case pending
in the NLRC
iii. it could not issue this writ
against SSC, SEC, or in
disputes within the
exclusive jurisdiction of the
SEC, or PSC, IPO, or
COMELEC, as the remedy
lies in either the CA or SC,
as the case may be
iv. it could not interfere by
injunction with the
judgment of a court of
concurrent or coordinate
jurisdiction, provided the
relief sought by such
injunction is one which
could be granted by the
court which rendered
judgment, or when no
third-party claimant is
involved
(d) Metropolitan Trial Court: if the
main case is for final injunction, it
cannot issue, otherwise, if the case
is pending before it, it can.
 While preliminary injunction can be
challenged by certiorari, a judgment for
permanent injunction should be the
subject of an appeal.
DIRECTOR OF THE BTC v. ALIGAEN
(citing the case of Gonzales v. Secretary of
Public Works)

LIMJAT v. ANIMAS
 CFI Manila has JD to issue because the
acts sought to be done are in Davao
however the order emanated from Manila
DAGUPAN ELECTRIC CORP. v. PAÑO
 CFI of QC may issue the injunction
because DEC has its principal office
 preliminary mandatory injunction
DECANO v. EDU

OLONGAPO v. NPC
LIANGA BAY LODGING v.
- injunction may also be issued only where the
public officer holds office
P.D. 1818
Courts cannot issue an injunction in the case
involving infrastructure projects of the
government
GARCIA v. BURGOS
 Is a reclamation project an infrastructure
project?
 Yes. *see case reviewer*
R.A. 7227
No court, except SC, may issue a TRO against
any contract in the BCDA
ALLIED DOMECQ v. VILLON
 No. That is within the contract or activity
within the BCDA
BCDA v. UY
 RTC cannot issue a TRO or preliminary
injunction but it does not mean to say that
it has no JD to issue final inunction. IT
cannot issue the provisional remedy but
not the final injunction.
RA 8975
RTC cannot issue a PI if it is a NG infra
DFA v. FALCON
 Yes. The scope of the prohibition in 8975
 Passport project is not … it is a
procurement of an equipment. Not BOT
SECTION 3. Grounds for issuance of
preliminary injunction.
A preliminary injunction may be granted when it
is established:
(a) That the applicant is entitled to the relief
demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of, or
in requiring the performance of an act or acts
either for a limited period or perpetually;
 the main case is really for permanent
injunction in whole or in part: one
incapable of pecuniary estimation
o e.g. injunction for the foul-smell
produced by a factory
(b) That the commission, continuance or non-
performance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
 e.g. a PI for dispossession of a property in
a forcible entry, the electric company
cancelling the contract of supplying
electricity to the factory
(c) That a party, court, agency or a person is
doing, threatening, or is attempting to do, or is
procuring or suffering to be done some act or acts
probably in violation of the rights of the
applicant respecting the subject of the action
or proceeding, and tending to render the
judgment ineffectual.
 e.g. If you file a case there is a rule in
evidence that a spouse cannot testify for
or against the other spouse. The
prosecution allowed the wife to testify.
You can use injunction because it would
render the judgment ineffectual.
Notes:
 GR: As a rule, injunction does not lie to
restrain the enforcement of a law alleged
to be unconstitutional
XPN: If it will result in injury to rights in
private property.
 Injunction contemplates acts being
committed or about to be committed,
hence injunction does not lie against
acts already consummated. You should
ask then for preliminary mandatory
injunction.
 Q: May a court issue an injunction against
a quasi-judicial body?
A: No. An RTC has no authority to issue
such because they are of co-equal rank.
That’s why the appeal is you go to the CA.
The injunction must emanate from a
superior court. But if it is in the exercise
of its administrative functions, yes.
 Illustrations:
You can ask the sheriff from stop
executing the decision. (Rule 39)
You can already stop the execution of the
judgment which is being sought to be
annulled. (Rule 47)
In a petition for, the judgment obligee
posts a bond to the sheriff, public auction
sale, you file an independent action in
another case to vindicate your right to the
property, your right is finally determined
In petitions for certiorari, prohibition,
mandamus (Rule 41), while the CA is
hearing the case you can stop the case
from further hearing the case. To
determine whether the RTC was correct in
blah blah otherwise the judgment may be
rendered ineffectual
Questioning the constitutionality of a law
 Not proper in cases
1. no right in esse
2. against the constitution
3. criminal prosecution
 Q: When may the court issue PMI:
A: extreme urgency – a clear right
SECTION 4. Verified application and bond for
preliminary injunction or temporary restraining
order.
A preliminary injunction or temporary
restraining order may be granted only when:
(a) The application in the action or proceeding is
verified, and shows facts entitling the applicant
to the relief demanded; and
 right in esse – clear right
(b) Unless exempted by the court the applicant
files with the court where the action or
proceeding is pending, a bond executed to the
party or person enjoined, in an amount to be fixed
by the court, to the effect that the applicant will
pay to such party or person all damages which he
may sustain by reason of the injunction or
temporary restraining order if the court should
finally decide that the applicant was not
entitled thereto. Upon approval of the requisite
bond, a writ of preliminary injunction shall be
issued.
 the bond is not an indispensable
requirement because the court can exempt
the applicant
(c) When an application for a writ of preliminary
injunction or a temporary restraining order is
included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and
in the presence of the adverse party or the
person to be enjoined. In any event, such notice
shall be preceded, or contemporaneously
accompanied, by service of summons, together
with a copy of the complaint or initiatory
pleading and the applicant's affidavit and bond,
upon the adverse party in the Philippines.
 before raffle dapat na serve na ng
summons
However:
(a) where the summons could not be served
personally or by substituted service
despite diligent efforts, or
(b) the adverse party is a resident of the
Philippines temporarily absent therefrom
or
(c) is a nonresident thereof,
the requirement of prior or contemporaneous
service of summons shall not apply.
(d) The application for a temporary restraining
order shall thereafter be acted upon only after
all parties are heard in a summary hearing
which shall be conducted within twenty-four (24)
hours after the sheriff's return of service and/or
the records are received by the branch selected by
raffle and to which the records shall be
transmitted immediately.
 hearing agad pero summary palang
 TRO: summary hearing
Notes:
 The grant, denial or lifting of a TRO does
not in any way preempt the court’s power
to decide the issue in the main action
which is the injunction suit.
 TRO is issued prior to the hearing. There
can be a hearing also but it is only
summary.
SECTION 5. Preliminary injunction not granted
without notice; exception.
GR: No preliminary injunction shall be granted
without hearing and prior notice to the party or
person sought to be enjoined.
XPN: If it shall appear from facts shown by
affidavits or by the verified application that great
or irreparable injury would result to the applicant
before the matter can be heard on notice, the
court to which the application for preliminary
injunction was made, may issue ex parte a
temporary restraining order to be effective
only for a period of twenty (20) days from
service on the party or person sought to be
enjoined, except as herein provided. Within the
said twenty-day period, the court must order said
party or person to show cause, at a specified time
and place:
(1) why the preliminary injunction should not
be granted, (during the entire pendency of
the case)
(2) determine within the same period whether
or not the preliminary injunction shall be
granted, and
(3) accordingly issue the corresponding
order. (Bar Matter No. 803, 17 February
1998)
XPN to the XPN: However, and subject to the
provisions of the preceding sections, if the matter
is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the
presiding judge of a single sala court may
issue ex parte a temporary restraining order
effective for only seventy-two (72) hours from
issuance but he shall immediately comply with
the provisions of the next preceding section as to
service of summons and the documents to be
served therewith. Thereafter, within the aforesaid
seventy-two (72) hours, the judge before whom
the case is pending shall conduct a summary
hearing to determine whether the temporary
restraining order shall be extended until the
application for preliminary injunction can be
heard. In no case shall the total period of
effectivity of the temporary restraining order
exceed twenty (20) days, including the original
seventy-two hours provided herein.
 1st par. v. 2nd par.: 1st par immediately ang
period is 20 days yung isa 72 hours
 DIFFERENCE: Dun sa unang paragraph
na serve na ng summons atsaka na raffle
na pero wala pang summary hearing
 2nd par: Wala pang service of summons
andon palang sa executive judge if there
is extreme urgency upon the filing sans
raffle sans service of summons can issue
a TRO but effective only within 72 hours
In the event that the application for preliminary
injunction is denied or not resolved within the
said period, the temporary restraining order is
deemed, automatically vacated. The effectivity
of a temporary restraining order is not extendible
without need of any judicial declaration to that
effect and no court shall have authority to extend
or renew the same on the same ground for which
it was issued.
However, if issued by the Court of Appeals or a
member thereof, the temporary restraining order
shall be effective for sixty (60) days from
service on the party or person sought to be
enjoined. A restraining, order issued by the
Supreme Court or a member thereof shall be
effective until further orders.
* the preliminary injunction or restraining order
Notes:
 1st paragraph: FULL HEARING
GR: Within 24 hours summary hearing
XPN: if it will cause irreparable injury (ex
parte 20 days)
 The prohibition against the renewal of the
order applies only if the same is sought
under and by reason of the same ground
for which it was originally issued.
 Injury is “irreparable” if it is of such
constant and frequent recurrence that no
fair or reasonable redress can be had
therefor in a court of law, or where there
is no standard by which their amount can
be measured with reasonable accuracy,
that is, it is not susceptible of
mathematical computation.
 A restraining order, like an injunction,
operates upon a person and has no in
rem effect to invalidate an action done in
contempt of a court order, except where
by statutory authorization the decree is so
framed as to act in rem on property.
 The amount of the bond required for the
issuance of a writ of preliminary
injunction, and subsequent reduction in
the amount thereof, are addressed to the
sound discretion of the court and will
not be interfered with absent a showing of
GAD.
SECTION 6. Grounds for objection to, or for
motion of dissolution of, injunction or
restraining order.
The application for injunction or restraining
order may be denied, upon a showing of its
insufficiency. The injunction or restraining order
may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavits of
the party or person enjoined, which may be
opposed by the applicant also by affidavits. It
may further be denied, or if granted, may be
dissolved, if it appears after hearing that although
the applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof, as the case may be, would cause
irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may
suffer, and the former files a bond in an amount
fixed by the court conditioned that he will pay all
damages which the applicant may suffer by the
denial or the dissolution of the injunction or
restraining order. If it appears that the extent of
granted is too great, it may be modified.
Notes:
 Injunction may be refused or dissolved if:
(a) The application for injunction or
restraining order is insufficient;
 basis: Sec. 4
(b) On other grounds upon affidavits
of the party or person enjoined,
which may be opposed by the
applicant also by affidavits; or
(c) It would cause irreparable damage
to the party or person enjoined
while the applicant can be fully
compensated for such damages as
 he may suffer, and the former files
a bond in amount fixed by the
court conditioned that he will pay
all damages which the applicant
may suffer by the denial or the
dissolution of the injunction or
restraining order.
 A motion for dissolution of the writ of
preliminary injunction must be verified.
 You file a counter-bond, because while
the applicant is entitled, it will cause more
damage to the other.
 The court has authority to issue injunction
after a hearing because it is an
interlocutory order. IT is under the
authorit of the court.
 Q: Is it necessary that the notice f doissolc
be verieid?
A: MTD not necessarily verified because
the Rules does not prescribe the rules to
be followed or the modicifiation or
dissolution of the OI
 An order may be dissolve ex parte but you
cannot dissolve attavhment without
hearig for in the latter lien is created.
Property right. Deprivation of due
process.
 Q: Is the mere offer of a counter-bond
sufficient to issue?
 A: Does not by itslef suffice to warrant the
issuance if the writ. 1. show irreparable
injury and 2. that the damages to the
applicant can be fully compensated
SECTION 7. Service of copies of bonds; effect
of disapproval of same.
The party filing a bond in accordance with the
provisions of this Rule shall forthwith serve a
copy of such bond on the other party, who may
except to the sufficiency of the bond, or of the
surety or sureties thereon.
If:
(a) the applicant's bond is found to be
insufficient in amount, or
(b) if the surety or sureties thereon fail to
justify, and a bond sufficient in amount
with sufficient sureties approved after
justification is not filed forthwith
the injunction shall be dissolved.
If:
(a) the bond (counter-bond) of the adverse
party is found to be insufficient in
amount, or
(b) the surety or sureties thereon fail to justify
a bond sufficient in amount with
sufficient sureties approved after
justification is not filed forthwith
the injunction shall be granted or restored, as
the case may be.
SECTION 8. Judgment to include damages
against party and sureties.
At the trial, the amount of damages to be awarded
to either party, upon the bond of the adverse
party, shall be claimed, ascertained, and awarded
under the same procedure prescribed in section
20 of Rule 57.
Notes:
 Same procedure as in preliminary
attachment.
 Attachment, to go against the counter-
bond, Sec. 17; but to claim against the
attachment bond under Sec. 4, Sec. 20.
 If awarded to the adverse party, injunction
bond… if awarded to the applicant,
injunction counter-bond, Sec. 20.
 Recovery of damages for irregular
issuance of injunction, as where the main
case is dismissed and the injunction is
dissolved, is limited to the amount of the
bond.
o Malice or lack of good faith on the
part of the party who procured the
injunction which was later
dissolved is not required as a
prerequisite for recovery by the
injured party on said bond.
 Test: The bond shall be liable for the
damages when the party at whose instance
t was issued was shown not to be entitled
thereto.
SECTION 9. When final injunction granted.
If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined the court
shall grant a final injunction perpetually
restraining the party or person enjoined from the
commission or continuance of the act or acts of
confirming the preliminary mandatory
injunction.
Supersedeas bond: Rule 39
A claim against the supersedeas bond you don’t
follow Sec. 20 of Rule 57.
 RULE 59
RECEIVERSHIP
Receiver – an indifferent person between the
parties to a case, appointed by the ouvrt to
resrve the money or propepty …
Q: Id the receiver an agent?
A: No he is regarded as an officer of the court
Q: Is the matter of the appint an absolute right?
NO . the facts and cirscumtances of each case
determine the sound discretion of the court to
which application is made
“when there is no other means for the right to be
protected”
Remedy of the party aggrieved?
It is an interlocutory order. Unappealable. May
elevate the appoinktne via Rule 65
Effect: To place under the receiver for him to
safeguard or prserve it for the benefit of all
parties subject only to the court
- vests the court no absolute control over the
property. cnnot blah blah vested contract liens
- creates no lien or preferences of the cases
- does not determine the rights of the parties
SECTION 1. Appointment of receiver.
Upon a verified application, one or more
receivers of the property subject of the action or
proceeding may be appointed by the court where
the action is pending or by the Court of Appeals
or by the Supreme Court, or a member thereof, in
the following cases:
(a) When it appears from the verified application,
and such other proof as the court may require:
(1) that the party applying for the
appointment of a receiver has an interest
in the property or fund which is the
subject of the action or proceeding, and
(2) that such property or fund is in danger of
being lost, removed, or materially injured
unless a receiver be appointed to
administer and preserve it;
(b) When it appears in an action by the
mortgagee:
(1) for the foreclosure of a mortgage that the
property
(2) is in danger of being wasted or dissipated
or materially injured, and
(3) that its value is probably insufficient to
discharge the mortgage debt, or
(4) that the parties have so stipulated in the
contract of mortgage;
(c) After judgment, to preserve the property
during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid
execution when the execution has been returned
unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into
effect;
(d) 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 the property in litigation.

During the pendency of an appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin and the receiver
appointed to be subject to the control of said
court.
Notes
 Always required that the property is the
very subject of the litigation. Otherwise
Rule 59 will not be applied.
 Different from Rule 39, Sec. 41: Need
not be the very subject of the action.
o e.g. wastage
 As a GR the receiver cannot be
appointed where the effect is to take the
real property form the possession of the
dfednant before adjudication
 X treme cases and to prevent the person
f
SECTION 2. Bond on appointment of receiver.
Before issuing the order appointing a receiver the
court shall require the applicant to file a bond
executed to the party against whom the
application is presented, in an amount to be fixed
by the court, to the effect that the applicant will
pay such party all damages he may sustain by
reason of the appointment of such receiver in
case the applicant shall have procured such
appointment without sufficient cause; and the
court may, in its discretion, at any time after the
appointment, require an additional bond as
further security for such damages.
Notes:
  The bond is indispensable.
SECTION 3. Denial of application or discharge
of receiver.
The application may be denied, or the receiver
discharged:
(1) when the adverse party files a bond
executed to the applicant, in an amount to
be fixed by the court, to the effect that
such party will pay the applicant all
damages he may suffer by reason of the
acts, omissions, or other matters specified
in the application as ground for such
appointment;
 counter-bond
(2) if it is shown that his appointment was
obtained without sufficient cause.
Notes:
 However, funds in the hands of a receiver may be
Section 4. Oath and bond of receiver. — Before
entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum
as the court may direct, to the effect that he will
faithfully discharge his duties in the action or
proceeding and obey the orders of the court.
Notes:
 Section 7. Liability for refusal or neglect to
Section 5. Service of copies of bonds; effect of
disapproval of same.
The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a
copy thereof on each interested party, who may
except to its sufficiency or of the surety or
sureties thereon. If either the applicant’s or the
receiver’s bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to
justify, and a bond sufficient in amount with
sufficient sureties approved after justification is
not filed forthwith, the application shall be
denied or the receiver discharged, as the case
may be. If the bond of the adverse party is found
to be insufficient in amount or the surety or
sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties
approved after justification is not filed forthwith,
the receiver shall be appointed or re-appointed,
as the case may be.
Section 6. General powers of receiver.
Subject to the control of the court in which the
action or proceeding is pending a receiver shall
have the power:
(1) to bring and defend, in such capacity,
actions in his own name;
(2) to take and keep possession of the
property in controversy;
(3) to receive rents;
(4) to collect debts due to himself as receiver
or to the fund, property, estate, person, or
corporation of which he is the receiver;
(5) to compound for and compromise the
same; to make transfers;
(6) to pay outstanding debts;
(7) to divide the money and other property
that shall remain among the persons
legally entitled to receive the same; and
(8) generally to do such acts respecting the
property as the court may authorize.
invested only by order of the court upon the
written consent of all the parties to the action.
No action may be filed by or against a receiver
without leave of the court which appointed him.
 Representative capacity
 May he blah blah WRITTEN
CONSENT OF ALL PARTIES
deliver property to receiver.
A person who refuses or neglects, upon
reasonable demand, to deliver to the receiver all
the property, money, books, deeds, notes, bills,
documents and papers within his power or
control, subject of or involved in the action or
proceeding, or in case of disagreement, as
determined and ordered by the court, may be
punished for contempt and shall be liable to the
receiver for the money or the value of the
property and other things so refused or neglected
to be surrendered, together with all damages that
may have been sustained by the party or parties
entitled thereto as a consequence of such refusal
or neglect.
Section 8. Termination of
receivership; compensation of receiver.
Whenever the court, motu proprio or on motion
of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due
notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of
the funds and other property in his possession to
the person adjudged to be entitled to receive them
and order the discharge of the receiver from
further duty as such. The court shall allow the
receiver such reasonable compensation as the
circumstances of the case warrant, to be taxed as
costs against the defeated party, or apportioned,
as justice requires.

Section 9. Judgment to include recovery against

sureties. The amount, if any, to be awarded to
any party upon any bond filed in accordance with
the provisions of this Rule, shall be claimed,
ascertained, and granted under the same
procedure prescribed in section 20 of Rule 57.

Claim damages bond

*case*

Ylarde v. Enriquez
 title blah blah

CENTRAL SAWMILL v. ALTO

 Where there is a final and executory
judgment…. even if the property is not
involved in the litigation; that is an aid
in the execution of the judgment
 basis: not Rule 59 becase it refers only
to propertis where the very suejcto f he
litgation is the one pout I nthe
recevriship
 RULE 60
REPLEVIN
1. reivindicatoria
2. publiciana
3. interdictal
“to replevin”
as a PR consists also in the delivery. order of the
court to deliver the property or to give
damages…. to protect the plaintiff’s right or
possession
- possession of the property
SECTION 1. Application.
A party praying for the recovery of possession
of personal property may
(a) at the commencement of the action or
(b) at any time before answer,
apply for an order for the delivery of such
property to him, in the manner hereinafter
provided.
before answer is served
MACHINERIES & ENG SUPPLIES v. CA
SECTION 2. Affidavit and bond.
The applicant must show by his own affidavit or
that of some other person who personally knows
the facts:
(a) That the applicant:
(1) is the owner of the property claimed,
particularly describing it, or
(2) is entitled to the possession thereof;
(b) That the property is wrongfully detained by
the adverse party, alleging the cause of detention
thereof according to the best of his knowledge,
information, and belief;
(c) That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to
the adverse party in double the value of the
property as stated in the affidavit
aforementioned, for the return of the property to
the adverse party if such return be adjudged, and
for the payment to the adverse party of such sum
as he may recover from the applicant in the
action.
Notes:

BA FINANCE v. CA (reiterating Servicewide
Doctrine)
 In an action for replevin, when the right
being claimed by the ….. is a chattel
mortgagee for the purpose of having it
sold in a public auction
 A chattel mortgagee unlike a pledgee
need not be in nor entitled to in the
 only entitled to the possession of the
property if the mortgagor defaults in the
payment of the debt and the mortgagee
seeks to foreclose it
 that can uphold their right to replevin
the property
 the adverse party cannot be just
deprived of his possession simply
because the ,g,mg,m action for replevin
 Nature of the suit: a clear right of
possession must be established (chattel
mortgage and default…. cannot be
established without the presence of
mortgagee)
 replevin is only the first step before
foreclosure
 indispensable party: when he will
prejudice the rights. when you can’t
simply determine the issue unless you
prove………
Section 3. Order.
Upon the filing of such affidavit and approval of
the bond, the court shall issue an order and the
corresponding writ of replevin, describing the
personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to
take such property into his custody.
Notes:
 ex parte: reason is the urgency
 Rule 57, Sec. 1(c) – bond is only the value
of the property, sa replevin double.
idedeliver sa applicant yung replevin,
attachment sa sheriff
Section 4. Duty of the sheriff.
Upon receiving such order, the sheriff must serve
a copy thereof on the adverse party, together with
a copy of the application, affidavit and bond, and
must forthwith take the property, if it be in the
possession of the adverse party, or his agent, and
retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure,
the sheriff must demand its delivery, and if it be
not delivered, he must cause the building or
enclosure to be broken open and take the
property into his possession. After the sheriff has
taken possession of the property as herein
provided, he must keep it in a secure place and
shall be responsible for its delivery to the party
entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the
same.
Section 5. Return of property.
If the adverse party objects to the sufficiency of
the applicant’s bond, or of the surety or
sureties thereon, he cannot immediately require
the return of the property, but if he does not so
object, he may, at any time before the delivery of
the property to the applicant, require the return
thereof, by filing with the court where the
action is pending a bond executed to the
applicant, in double the value of the property as
stated in the applicant's affidavit for the delivery
thereof to the applicant, if such delivery be
adjudged, and for the payment of such sum, to
him as may be recovered against the adverse
party, and by serving a copy of such bond on the
applicant.
Notes:
 1. sufficiency
2. counter-bond
Section 6. Disposition of property by sheriff. —
If within five (5) days after the taking of the
property by the sheriff, the adverse party does not
object to the sufficiency of the bond, or of the
surety or sureties thereon; or if the adverse party
so objects and the court affirms its approval of
the applicant's bond or approves a new bond, or
if the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an
approved bond, the property shall be delivered to
the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return
it to the adverse party.
Notes:
 sa attachment binobodega lang.
 mentioned therein.
Section 7. Proceedings where property claimed
by third person.
If the property taken is claimed by any person
other than the party against whom the writ of
replevin had been issued or his agent, and such
person makes an affidavit of his title thereto, or
right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon
the sheriff while the latter has possession of the
property and a copy thereof upon the applicant,
the sheriff shall not be bound to keep the property
under replevin or deliver it to the applicant unless
the applicant or his agent, on demand of said
sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property under replevin
as provided in section 2 hereof. In case of
disagreement as to such value, the court shall
determine the same. No claim for damages for
the taking or keeping, of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for
the taking or keeping of such property, to any
such third-party claimant if such bond shall be
filed. Nothing herein contained shall prevent
such claimant or any third person from
vindicating his claim to the property, or prevent
the applicant from claiming damages against a
third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate
action.
When the writ of replevin is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not
be required, and in case the sheriff is sued for
damages as a result of the replevin, he shall be
represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer
out of the funds to be appropriated for the
purpose.
Notes:
 pareho ng third-party complaint in Rule
39 and Rule 57
Section 8. Return of papers.
The sheriff must file the order, with his
proceedings indorsed, thereon, with the court
within ten (10) days after taking the property
Notes:
Section 9. Judgment.
After trial of the issues the court shall determine:
 (1) who has the right of possession to and
(2) the value of the property and
(3) shall render judgment in the alternative:
i. for the delivery thereof to the party
entitled to the same, or
ii. for its value in case delivery
cannot be made, and
iii. also for such damages as either
party may prove, with costs.
The amount, if any, to be awarded to any party
upon any bond filed in accordance with the
provisions of this Rule, shall be claimed,
ascertained, and granted under the same
procedure as prescribed in section 20 of Rule 57.
Notes:
 whether it is the replevin bond or counter-
bond

Notes:
 Why is the judgment in the alternative?
To afford the plaintiff the measure of
relief if the property cannot be retruned
in substantially the same condition. His
right ot reject he chattel can be
exercised noto lny in the execution of
thej udment but also pendente lite

AGO v. CA
To begin with, where judgment is rendered for
the articles or their value and they cannot be
returned in substantially the same condition, it is
settled that the prevailing party may refuse to
take them and instead sue on the redelivery bond
or, as in this case, execute on the judgment for
value. If the prevailing party has this right after
judgment, it is at once obvious that he must also
have the same right when, asking for the delivery
pendente lite of the same property, he afterwards
finds them in a substantially depredated
condition. Here, the Court of Appeals found
“beyond dispute” that the tractor and the hoist
had so deteriorated that they had become
unserviceable. This right to reject is assured in
the first instance by the provision that the
judgment in a suit for replevin must be in the
alternative so as to afford a measure of relief
where the property cannot be returned (Rule 60,
sec. 9); in the second case it is implied from the
requirement that “if for any reason the property
is not delivered to the plaintiff, the officer must
return it to the defendant.” The right (alternative)
is absolute.

CASE v. JUGO
Implication: You must notify the party of the
bond.
Both requirements are mandatory: counter-bond
and furnishing plaintiff a copy of the counter-
bond

BACHRACH MOTORS

Section 10. Judgment to include recovery

against sureties.
 RULE 61
SUPPORT PENDENTE LITE
Alimony – allowance during the pendency of the
action
Available only in actions for support
1. are you entitled for support? establish the
relationship
2.
Section 1. Application. — At the commencement
of the proper action or proceeding, or at any time
prior to the judgment or final order, a verified
application for support pendente lite may be filed
by any party stating:
(1) the grounds for the claim and
(2) the financial conditions of both parties,
and
(3) accompanied by affidavits, depositions or
other authentic documents in support
thereof.
Section 2. Comment. — A copy of the
application and all supporting documents shall be
served upon the adverse party, who shall have
five (5) days to comment thereon unless a
different period is fixed by the court upon his
motion. The comment shall be verified and shall
be accompanied by affidavits, depositions or
other authentic documents in support thereof.
SECTION 3. Hearing.
After the comment is filed, or after the expiration
of the period for its filing, the application shall be
set for hearing not more than three (3) days
thereafter. The facts in issue shall be proved in
the same manner as is provided for evidence on
motions.
SECTION 4. Order.
The court shall determine provisionally the
pertinent facts, and shall render such orders as
justice and equity may require, having the regard
to the probable outcome of the case and such
other circumstances as may aid in the proper
resolution of the question involved. If the
application is granted, the court shall fix the
amount of money to be provisionally paid or such
other forms of support as should be provided,
taking into account the necessities of the
applicant and the resources or means of the
adverse party, and the terms of payment or mode
for providing the support. If the application is
denied, the principal case shall be tried and
decided as early as possible.
SECTION 5. Enforcement of order.
If the adverse party fails to comply with an order
granting support pendente lite, the court
shall, motu proprio or upon motion; issue an
order of execution against him, without prejudice
to his liability for contempt.
When the person ordered to give
support pendente lite refuses or fails to do so, any
third person who furnished that support to the
applicant may, after due notice and hearing in the
same case obtain a writ of execution to enforce
his right of reimbursement against the person
ordered to provide such support.
discretionary upon the RTC
SECTION 6. Support in criminal cases.
In criminal actions where the civil liability
includes support for the offspring as a
consequence of the crime and the civil aspect
thereof has not been waived, reserved and
instituted prior to its filing, the accused may be
ordered to provide support pendente lite to the
child born to the offended party allegedly
because of the crime. The application therefor
may be filed successively by the offended party,
her parents, grandparents or guardian and the
State in the corresponding criminal case during
its pendency, in accordance with the procedure
established under this Rule.
SECTION 7. Restitution.
When the judgment or final order of the court
finds that the person who has been providing
support pendente lite is not liable therefor, it
shall order the recipient thereof to return to the
former the amounts already paid with legal
interest from the dates of actual payment,
without prejudice to the right of the recipient to
obtain reimbursement in a separate action from
the person legally obliged to give the support.
Should the recipient fail to reimburse said
amounts, the person who provided the same may
likewise seek reimbursement thereof in a
separate action from the person legally obliged to
give such support.