Lecture & Recit Notes in CIVIL PROCEDURE (Dean Virgilio B.

Jara)
Prepared by: Ezekiel Joshua L. Villena 3C; Edited by: Section 3S, 2009-2010; edited by Edgar Cruz 3E, 2014

• What is the jurisdiction of the Supreme Court? Section 5, Article VIII, 1987 Constitution
(ARACPA)
1. Exercise original jurisdiction over cases Affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus
2. 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: (cljrq)
(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
(e) all cases in which only an error or question of law is involved
3. Assign temporarily judges or lower courts to other stations as public interest may require.
Such temporary assignment shall not exceed six months without the consent of the judge
concerned
4. Order a Change of venue or place of trial to avoid a miscarriage of justice
5. Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the SC
6. Appoint all officials and employees of the judiciary in accordance with the Civil Service
Law

• What is the jurisdiction of the Regional Trial Court? BP 129 (IRAPNJAS)

1. actions Incapable of pecuniary estimation
2. title to or possession of Real property or any interest therein, the assessed value exceeds
P20,000 or exceeds P50,000 in Metro Manila
3. Admiralty and maritime cases where demand or claim exceeds P300,000 or exceeds
P400,000 in Metro Manila
4. Matters of Probate (testate or intestate) where the gross value of the estate exceeds P300,000
or exceeds P400,000 in Metro Manila
5. Cases NOT within the exclusive jurisdiction of any court, tribunal, person, or body
exercising judicial or quasi-judicial functions (general jurisdiction of the RTC)
6. Civil actions and special proceedings falling within the exclusive original jurisdiction of the
Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now
provided by law
7. All other cases where demand exclusive of IDALEC (interest, damages of whatever kind,
attorney’s fees, litigation expenses, and costs) or the value of the property in controversy
exceeds P300,000 or exceeds P400,000 in Metro Manila
8. Under Section 5.2 of the Securities and Regulations Code

• Are cases involving marriages and family relations still covered by the RTCs? NO, the
jurisdiction has been transferred to the Family Court, pursuant RA 8369

• What is the jurisdiction of the Family Court? (GAASSD)

1. Petitions for Guardianship, custody of children, etc.
2. Petitions for Adoption of children and revocation thereof

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 3. Complaints for Annulment and declaration of nullity of marriage, and other matters relating
to marital status and property relations of a married couple
4. Support and/or acknowledgement
5. Summary judicial proceedings under the Family Code
6. Petitions for Declarations of status of children, and commitment of children

• In criminal cases? (BMDVD)

1. One or more of the accused is/are Below 18 years old but not less than 9 years old
2. Where one of the victims is a Minor at the time of the commission of the crime
3. Cases against minors cognizable under the Dangerous Drugs Act
4. Violations of RA 7610 and RA 7658
5. Cases of Domestic violence against women and children

• Can the CA try cases? YES, the Court of Appeals shall have the power to try cases and conduct
hearings, receive evidence and perform and all acts necessary to resolve factual issues raised in
cases falling within its original and appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings. Section 9(4) BP 129, as amended by RA 7902

• Exclusive original jurisdiction, what if without “exclusive”, what is the original jurisdiction of
the RTC? (1) Actions affecting ambassadors, public ministers, etc. (2) To issue petitions of
CPMHQI (Certiorari, Prohibition, Mandamus, Habaes corpus, Quo warranto, and Injunction),
Section 21, BP 129

• The RTC has matters that fall within their original jurisdiction only, are the instances also
cognizable with the SC and CA?
• Suggested Answer: YES, under BP 129; in terms of the first instance, YES; in terms of the
second instance, NOT ALL; always remember that jurisdiction is vested by law, BP 129
provides that the RTC shall have original jurisdiction to issue CPMHQI; the SC and CA, by
law, provides that it can only issue CPMHQ, not “I” because injunctions against lower courts
are issued by the RTC exercising its territorial jurisdiction; in the CA, however, after CPMHQ,
it is also allowed to issue “auxiliary writs or processes” (Section 9[1], BP 129) within its
original jurisdiction (not sure if injunctions fall within this category) what is sure is that the CA
has jurisdiction over final judgments, decisions, resolutions, orders and awards (which can
include an injunction), exercising its appellate jurisdiction (Section 9[3], BP 129); but in terms
of original jurisdiction, since the law does not expressly provide concurrent jurisdiction to the
CA and SC for injunctions, it cannot be assumed

• What is the jurisdiction of inferior courts? (PDPPIAS)

1. Actions involving Personal property, whose value does NOT exceed P300,000 or in Metro
Manila, the amount does NOT exceed P400,000
2. Demand for money NOT exceeding P300,000 or in Metro Manila NOT exceeding P400,000
3. Probate proceedings (testate or intestate) where the gross value of the estate does NOT
exceed P300,000 or in Metro Manila the value does NOT exceed P400,000
4. Actions involving title to or possession of Real property, or interest therein where the
assessed value or interest therein does NOT exceed P20,000 or in Metro Manila, does NOT
exceed P50,000
5. Inclusion or exclusion of voters
6. Admiralty and maritime cases where demand or claim does NOT exceed P300,000 or in
Metro Manila, does NOT exceed P400,000
7. Those covered by the Rules on Summary Procedure: (Forcible Entry & Unlawful Detainer
[FEUD] and other civil cases except probate proceedings not exceeding P100,000, in MM
P200,000)

• In exercising jurisdiction over matters involving forcible entry and unlawful detainer, what is
the proviso? That ONLY the issue of possession may be raised; “that when, in such cases, the
defendant raises the question of ownership in his pleadings and the question of possession

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 cannot be resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession, Section 33(2), BP 129

• Is the rule of excluding some items in ascertaining jurisdiction applied in MTC cases? YES,
IDALEC (interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs)
are excluded, Section 33(1), BP 129

• What is the totality rule? Where there are several claims or causes of actions between the same
or different parties, embodied in the same complaint, the amount of the demand shall be the
totality of the claims in all causes of action, irrespective of whether the causes of action arose
out of the same or different transactions, Section 33(1), BP 129

• In conferring jurisdiction on inferior courts, does the law mention provisional remedies? The
law does not expressly provide but provisional remedies may be granted or denied by inferior
courts; the MTC has exclusive original jurisdiction to grant or deny provisional remedies in
cases where the principal action is within its jurisdiction (p. 151, Riano)
• How about the RTC in granting or denying provisional remedies? YES, the RTC is allowed in
its exercise of general jurisdiction

• What is your proof that the RTC is of general jurisdiction? Section 19(6), BP 129 provides, “in
all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial
functions; the RTC is a court of general jurisdiction because all cases , the jurisdiction of which
is not specifically provided by law to be within the jurisdiction of any other court falls within
the jurisdiction of the RTC (p.158, Riano)

• What is the jurisdiction of the CA?

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and
quo warranto, and auxiliary writs and processes, whether or not in aid of its appellate
jurisdiction
2. Exclusive original jurisdiction over actions for annulment of judgments of the RTC
3. Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or
awards of the RTC and quasi-judicial agencies, instrumentalities, boards or commissions,
including the SEC, SSC, ECC, and CSC, except those falling within the appellate jurisdiction
of the SC in accordance with the Constitution, Labor Code
• Jurisdiction of the CA under Judiciary Act of 1948?
e.g. subpar 1 of 3rd par - Crim – if 1 is reclusion perpetua, other is temporal =>appeal to SC so as not
to split appeal; subpar 4 of 4th par of Sec 17 - appeal from RTC on pure legal question]
• What are the exceptions to the appellate jurisdiction of the CA? COMELEC, COA

• What is the Judiciary Act of 1948?

• TRICK QUESTION: What is the jurisdiction of the SC as provided in BP 129? None because
the jurisdiction of the SC is provided in the Constitution, NOT in BP 129
• What other legal source provides for the jurisdiction of the SC, only the Constitution? NO, the
jurisdiction of the SC is also provided in the Judiciary Act of 1948
• Wasn’t this statute automatically repealed by the Constitution which is a later law which
should prevail? NO, it was not repealed because the provisions of the Judiciary Act of 1948 are
not inconsistent with the Constitution, hence, the provisions are still in effect

• What does “incapable of pecuniary estimation” mean? An action other than the recovery of
money. The money claim in this kind of action is merely incidental (p.158, Riano)
 Supposing, A files a complaint for recovery of damages against B in the amount of P600,000
pesos, which court has jurisdiction? RTC, because the recovery of damages here is the main
cause of action, and not merely incidental to the principal cause of action

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• An action for specific performance is one generally considered incapable of pecuniary
estimation. The amount of damages that may be claimed in addition to the prayer for specific
performance is not determinative of jurisdiction (p.160, Riano)
 Supposing, A claims an unpaid loan from B in the amount of P700,000, which court has
jurisdiction? RTC

• Are real actions only cognizable in the RTC? NO, also with the MTC (actions involving real
property or interest therein with a value not exceeding P20,000, and in Metro Manila, P50,000)

• What is an accion reinvindicatoria? Which court does it fall? RTC, actions involving title or
possession of real property or interest therein, exceeding P20,000, in Metro Manila, P50,000

 Supposing, the plaintiff failed to allege the amount of the property in question, will the case
be dismissed? YES, due to a “failure to state a cause of action”, which means an insufficiency
in the alleged facts, NOT a total absence of a cause of action; since the amount of the property
cannot be determined, the jurisdiction cannot be ascertained, hence a lack of jurisdiction, a
ground for dismissal

• What is the authority of the Supreme Court to promulgate rules? Section 5(5) of the 1987
Constitution provides that, the SC shall have the power to “promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

• When did the Rules of Court take effect?

August 7, 1901 – Act 190 (Code of Civil Procedure)
July 1, 1940 – Old Rules of Court
January 1, 1964 – Revised Rules of Court
July 1, 1997 – Revised Rules on Civil Procedure
(p.16, 2004 Jara Notes; but don’t be fooled, because Dean Jara does not care about the
Interim Rules of Civil Procedure mentioned in his lecture so don’t say it at all)
• How many parts are there in the Rules of Court? Five (Civil Procedure, Criminal Procedure,
Special Proceedings, Evidence, Legal Ethics)
• Did all parts take effect at the same time?

• Before 1997, what was followed?

• With regard to the 1997 Rules on Civil Procedure, do they cover all civil actions filed after
1997 effectivity? YES, because there was prospective application

• What is the jurisdiction of the RTC? IPAPNJAS, (refer to p.1 of this reviewer)
• What kind of jurisdiction is this? Exclusive and original
• What is the original jurisdiction of the RTC? (1) To issue CPMHQI, (2) Actions affecting
ambassadors, public ministers, and consuls
• In issuing CPMHQI, what is the clause that follows? “which can be enforced in any part of
their respective regions”

• What is the appellate jurisdiction of the RTC? All cases decided by inferior courts, in their
respective territorial jurisdiction
• All inferior courts/Any inferior court? NO, only those within their territorial jurisdiction

• In criminal cases, what is the jurisdiction of the RTC? (1) cases where the offense is punishable
by imprisonment of more than 6 years, (2) cases not within the exclusive jurisdiction of any

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 court, tribunal, or body except those falling under the exclusive jurisdiction of the
Sandiganbayan

• What is the concept of a civil action? One by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong
• What are special civil actions? Those not governed by the rules on ordinary civil actions
• What are special proceedings? A remedy by which a party seeks to establish a status, a right,
or a particular fact
• What is a criminal action? One by which the State prosecutes a person for an act or omission
punishable by law

 Supposing, a complaint for accion reivindicatoria before the RTC is filed today, does the
RTC acquire jurisdiction also today? NO, there are still certain procedures to be followed first
before acquiring jurisdiction, i.e. the payment of docket fees, so the commencement of the
action takes place upon the filing of the complaint, followed by the payment of docket fees
• What happens if you fail to pay the docket fees? The court will not acquire jurisdiction (p.20,
2004 Jara Notes)
• What if the docket fees paid were incorrect or insufficient? The plaintiff is given reasonable
time within a prescriptive period to pay the correct and full amount of docket fees
• This is what is done with civil actions, how about criminal actions, the same?

• What is the difference between a cause of action and a right of action? (refer to Memory Aid)
CAUSE OF ACTION
- the wrongful act or omission committed
by the defendant violating the rights of
another
- the reason for the action
- formal statement of operational facts giving
rise to a remedial right
- matter of procedure & depends on pleadings
filed by the parties
- not affected by affirmative defenses
RIGHT OF ACTION
- remedial right or right to relief granted by
law to institute an action against the person
who has violated his rights
- the remedy or means for relief
- remedial right given to a person because of
the occurrence of alleged facts
- matter of right, and depends on substantive
law
- affected by affirmative defenses

• Is a right of action, substantive in character? YES

• Does it follow then that a cause of action is procedural? NO
• Why? Because by definition, it is a right in itself
• What again is the definition of a cause of action? An act or omission that violates the right of
another
• Why substantive, substantive law creates rights, in a cause of action was a right created? NO,
not created, but the violation of another’s right gives rise to a right to the offended party
• Is it possible that a right may be violated but there is no right of action? YES

• What is the rule on splitting a cause of action? It is prohibited

• Why? To avoid multiplicity of suits, conflicting decisions, and unnecessary vexation and
harassment of defendants

• Llarena v. Villanueva
• Did it involve a payment of money? NO, what was involved was a contract of lease
• Can the rules governing a contract of lease be related to that of a contract of loan?

• Blossom v. Manila Gas

• What are the principles enunciated in the two cases?

• Can they be applied to a contract of loan?
• Give an example: a 1million peso loan payable in instalments quarterly, P250,000 per quarter

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• Is demand essential to the accrual of the cause of action? YES
• Prior to the demand, there is no cause of action? Not necessarily, there may be a cause of
action but is still unenforceable without the demand because the demand required by law in
order for the debtor to be in default, may be in effect, a mere procedural requirement, but in
essence there is already a cause of action that has arisen out of the mere delay or failure to pay
the amount due upon maturity, even without a demand yet

 In the example, if the 1st instalment became due, what court has jurisdiction? MTC
 Supposing, the 2nd instalment fell due during the pendency of the case for the 1st instalment,
what can the creditor do?
 Can the plaintiff incorporate the 1st and 2nd instalment? YES, but you will a problem with the
amount you can claim because the MTC can only grant up to P400,000, when in the example,
the plaintiff may be entitled to P500,000
 What can be done? Another option is to file a 2nd complaint with the MTC
 Why, is there a jurisdictional problem if you incorporate the two instalments? YES, because
of the jurisdiction of the MTC (Check memory aid or BP 129)

• What is the principle of a joinder of causes of action? A party may in one pleading assert, in
the alternative or otherwise, as many causes of action as he may have against an opposing
party, subject to the conditions provided in the Rules of Court (Rule 2, Section 5)

 Supposing, a contract of loan, payable on instalments, without an acceleration clause

• What grounds may be invoked for the dismissal of complaints, define each? Litis pendencia,
res judicata, etc. (p.27, 2004 Jara Notes) non-waivable defenses

 All four instalments matured and have been demanded by the creditor in one complaint to
recover all four instalments, is this a joinder? NO, check Sec.5, Rule 2 on the requisites of a
joinder (different venues or jurisdictions)

• Is a joinder of parties a limitation to a joinder of causes of action?

• Arising out of the same transaction, joinder of parties or joinder of causes of action?

• Example in p.31 (2004 Jara Notes), is that possible? YES

• Even if arising out of different transactions? YES, as long as it follows the requisites of a
joinder in Section 5, Rule 2 (p.31, 2004 Jara Notes)

• What is the rule on joinder of causes of action? Section 5, Rule 2

• Give an example of the 3rd limitation (Sec.5[c])

• If one of the two causes is NOT cognizable, if you are the court, what should you do? The RTC
is allowed to take cognizance of both causes; the rule says that if one of the causes is not within
the jurisdiction of the RTC, the joinder would still be proper as long as one of the causes is
within the jurisdiction of a RTC (p.32, 2004 Jara Notes)
• Is that what the law provides? Not necessarily; the RTC is allowed to take cognizance of the
causes, but at the same time, it is given discretion to dismiss that cause which is out of the
court’s jurisdiction
• Is the RTC compelled to take cognizance? NO
• Is the RTC compelled to dismiss if one of the causes is outside its jurisdiction? NO
• Hence, is the RTC given discretion? YES

• What is the 1st limit under Section 5? As long as it satisfies the requisites of joinder of parties
(Section 5[a])
• Does both limit each other?

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• The “joinder of parties” mentioned Section 5(a), permissive or compulsory? Probably
permissive, because the parties have to comply with the rules as required by Section 5(a), and
not necessarily by order of the courts as in compulsory joinder
• Give an example

• What is the rule on compulsory joinder? Parties in interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants

• Who is a real party in interest? The party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real
party in interest (Section 2, Rule 3)
• If a real party in interest is not impleaded, should the court dismiss? NO, it depends what kind
of party s/he is, either indispensible or necessary
• If it is a real party in interest who is indispensible who is not impleaded, is final determination
for the case needed? YES
• If it is a real party in interest who is necessary who is not impleaded, is final determination for
the case needed? NO

• Who are representatives? Someone who is acting in a fiduciary capacity; may be a trustee of
an express trust, guardian, executor, or administrator, or a party authorized by law or by the
Rules of Court (Section 3, Rule 3)
• Can an agent be impleaded? YES, an agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal except when the
contract involves things belonging to the prinicipal (Section 3, Rule 3)
• Who is a guardian? May be a legal guardian, or a court-appointed guardian ad litem

• Who is a plaintiff? Refers to the claiming party, or the party whose rights were violated
• Who is a defendant? Refers to the defending party, or the party who violated the rights of
another
• Can there be a defendant who has not violated the rights of the plaintiff? YES, those acting in a
representative capacity, or an unwilling co-plaintiff
• Why can an unwilling co-plaintiff be compelled to appear before the court if in the first place
he did not want to file a case? In order to protect the rights of the other plaintiffs; in effect, the
unwilling co-plaintiff, though not indispensible, becomes a necessary party whose participation
is needed to obtain the full and complete relief sought from the defendant
• So, in effect, there will be a case entitled, “Plaintiff vs. Unwilling co-plaintiff”? NO, even
before the unwilling co-plaintiff is impleaded, there is already a defendant impleaded by the
plaintiff to begin with
• Is there an unwilling co-defendant?

• Is the identity of the plaintiff always needed? YES

• How about the defendant? NO, it is not always needed, he may still be sued as an unknown
party or by designation, and the pleading may be amended after his identity is discovered
(Section 14, Rule 3)

• Who are alternative defendants? Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them as defendants in the alternative,
although a right to relief against one may be inconsistent with a right of relief against the other
(Section 13, Rule 3)

• What if there are two defendants impleaded, P500,000 is demanded from the first; P150,000
from the second, is this allowed? YES, a right to relief against one may be inconsistent with a
right of relief against the other (Section 13, Rule 3)

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• What if the wrongdoer is a minor? The court, upon motion with notice, may allow the action to
be continued by or against the minor assisted by a legal guardian or a guardian ad litem
• What if there is no guardian at all, can it continue even when there is no guardian in the
complaint? YES, the court may compel the appointment of a guardian, by virtue of a prayer or
motion to provide for a guardian
• Notwithstanding the fact that the family courts have jurisdiction over cases involving minors?
YES, an inferior court may have authority to appoint; the guardianship proceeding that is
vested exclusively upon a family court does not refer to the appointment of a guardian ad litem.
The guardianship that is allocated to a family court is what we call a general guardianship, a
guardianship over the property or persons of a minor. But when the guardian is simply a
guardian ad litem, that is an incident or collateral to the main action itself. So for purposes of
appointing a guardian ad litem even inferior courts possess the authority to do so.
• Can there be a plaintiff who is still a minor? Can he file a complaint?

• What is a class suit? It is when the subject matter of the controversy is one of common or
general interest to many persons so numerous that it is impracticable to join all as parties, a
number of them which the court finds to be sufficiently numerous an representative as to fully
protect the interests of all concerned may sue or defend for the benefit of all. Any party in
interest shall have the right to intervene to protect his individual interest (Section 12, Rule 3)
• Is a class suit, a joinder? NO
• How many causes of action are there in a class suit? One (1)
• In a joinder? Two (2) or more

• Who is an indispensible party? Parties in interest without whom no final determination can be
had of an action (Section 7, Rule 3)
• Who is a necessary party? One who is not indispensible but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for a complete determination
or settlement of the claim subject of the action (Section 8, Rule 3)

 Supposing the court orders that a necessary party be impleaded, and the plaintiff ignores, will
the case be dismissed? NO, as an effect, the plaintiff’s ignorance of the court order shall be
deemed a waiver to implead the necessary party involved
 Supposing the court orders that an indispensible party be impleaded, and the plaintiff ignores,
will the case be dismissed? There can be a compulsory joinder by the court in its own
initiative, OR the case may be simply dismissed for failure to state a cause of action, because
there is no violation of rights unless an indispensible party is impleaded

• Superlines Transportation v. PNCC

• Pepsi Co. v. Emerald Pizza
• Regner v. Logarta
• Bacalso v. Padigos

• What is the effect of the death of a party? Section 16, Rule 3

 Supposing, there is a plaintiff in an unpaid loan, what will happen to the case if s/he dies? The
case may continue, by virtue of substitution by the heirs
 Supposing, using the same case, it is the defendant, however, who dies, what happens? If the
case involved is purely personal in nature, the action shall not be survived by the death of the
defendant; but if it involves money claims, such as in the case, it may be charged upon the
estate of the deceased, (with the plaintiff as preferred creditor)
• Who then will pay? The heirs

 Supposing there is an unpaid loan of P1 million:

• Can the creditor sell his rights? YES
• The creditor then assigned his rights to an assignee for only P500,000
• In a case filed to recover the unpaid loan, is the original creditor an indispensible party? YES

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• The assignee, an indispensible party? NO, only a necessary party to have a complete relief of
judgement
• The debtor, indispensible? YES
• Is Section 19 applicable in the given situation? NO, Rule 3, Section 19 only applies if the
transfer of interest happens during the pendency of the case
• Is it a defective complaint if the case is in the name of the assignor, even if he has transferred
his rights to the claim in the pending case? NO
• If it is in the assignee’s name, defective? YES

• If the court rules favorably, can the court award P1 million to the assignee?
Two views:
1. NO, the court can only award P500,000 to the assignee, because he cannot acquire greater
rights than his assignor as provided in the Civil Code
2. YES, the court should award P1million because that was what was prayed for, hence
regardless of the amount for which the assignment was made, the court should award in full
• If given P1 million, should the assignee return P500,000 to the assignor? NO, because the
when the assignee paid P500,000, it was the whole interest (which was worth P1 million) that
was sold
• Why would an assignor sell his rights for half the price of what it is really worth? Probably the
assignor is badly in need of money

• Do we follow the answers given if the assignment was made after the filing of the complaint?
NO, Section 19 applies
• Which court has jurisdiction over the case? Since it is P1 million, it is the RTC
• Does the assignment, during the trial, need court approval? NO
• How about to continue the action for recovery of money, does it need court approval? YES, so
as to determine whether to join the parties (assignor and assignee) as joint plaintiffs or not, or
even substitution
• Is an assignee pendent lite now an indispensible party? NO, he still a necessary party
• How about the assignor? Still an indispensible party
• If the court does not order a substitution of parties, can the assignee compel the debtor to pay?
NO, it is still the assignor who has the right to compel payment
• Can the assignee refuse substitution? YES
• Can the court continue with the action on its own discretion? YES
• If there is no substitution, is the caption of the case still the same? YES
• If prosecution is successful, can the court award the money claim to the original creditor?
Two views:
1. YES, the original creditor will now be liable to the assignee for P1 million because the
transfer of interest was for the entirety of the claim
2. NO, it is the transferee who should be awarded

• Can the defendant tell the court that if he pays P500,000, the claim is extinguished?
Two views:
1. NO, the claim is not extinguished because the initial claim was for P1 million, hence that
should be paid in full to satisfy the claim; the contract between the original creditor and the
debtor was for P1 million and the assignment made thereafter did not affect the obligations of
the debtor in the contract, thus the contract between creditor and debtor should prevail; the
defendant’s argument is erroneous
2. YES, the defendant can pay P500,000 and satisfy the claim, because the assignee cannot
acquire greater rights than the assignor; since the award should now benefit the assignee due
to the transfer of interest, the assignee should not get more than P500,000

• What is the difference between venue and jurisdiction?

VENUE JURISDICTION
- procedural - substantive
- refers to the locality of the courts - refers to the authority of the courts to hear/decide
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- may be determined by the parties in a - always determined/conferred by law
contract
there is NO difference between venue and jurisdiction in criminal cases
venue and jurisdiction are different only in civil cases

• What is the rule on venue for civil actions? Depends on whether the action for real or personal
property
• For real property? Place where the real property or any portion thereof is located
• For personal property? All other cases where the plaintiff or any of the principal plaintiffs
reside, where the defendant resides, or where a non-resident defendant may be found
• What is the rule on venue for defendant who is a non-resident, and cannot be found? Where the
plaintiff resides or where the property involved is situated (Section 3, Rule 4)
• What is the rule on venue if it is the plaintiff who is a non-resident? Anywhere he files the case
will be a proper venue because that court will simply acquire jurisdiction over him, since he
voluntarily submitted himself to that court’s jurisdiction

 Supposing, there is a case for unlawful detainer, the land is situated in Manila, but the case
was filed in Tarlac, is there a procedural defect? YES, because there is improper venue
• Is there a defect in jurisdiction if filed in the MTC of Tarlac? NO, jurisdiction was proper
• So, to acquire jurisdiction, unlawful detainer should be filed in the MTC where the land is
situated? NO, the MTC can acquire jurisdiction regardless of where the land in question is
situated; the MTC still acquires jurisdiction over the unlawful detainer
• If you have to dismiss this case, would it be for improper venue or lack of jurisdiction?
Improper venue, where the court may dismiss motu propio because unlawful detainer falls
under Summary Procedure, which does not allow motion for dismissal generally unless only
for lack of jurisdiction over subject matter or non-compliance with a condition precedent
• What if the court neglects to dismiss? The defendant can still file a motion to dismiss by an
answer with an affirmative defense
• What are the civil cases governed by Summary Procedure?
1. unlawful detainer and forcible entry cases
2. probate proceedings not exceeding P100,000 and small claims

• What are the prohibited pleadings in Summary Procedure? (DBN-REMP-DDTRI)

1. Motion to Dismiss except on the grounds of jurisdiction on subject matter and non-
compliance of a condition precedent
2. Motion for Bill of Particulars
3. Motion for New trial, or reconsideration of judgment
4. Petition for Relief from judgment
5. Motion for Extension of time to file
6. Memoranda
7. Petition for Certiorari, Prohibition, Mandamus against an interlocutory order
8. Motion to declare defendant in Default
9. Dilatory motions for postponement
10. Third party complaints
11. Reply
12. Interventions

• Which of these pleadings are seen in criminal cases only? Which are seen in civil cases only?

• What criminal cases are governed by Summary Procedure?

1. BP 22 cases
2. rental laws
3. traffic laws
4. violations of ordinances
5. cases where the penalty does not exceed 6 months

10 ejlvillena.2009//
• There is no motion to dismiss in criminal cases, instead we call it? Motion to Quash
• Motion to dismiss in civil cases? YES

• What are the Rules on Summary Procedure? p.20, 2008 Memory Aid; or p.19 of 2009 Memory
Aid

• Supposing, you have a case of unlawful detainer, what kind of procedure should be applied?
Summary procedure

• If the defendant does not answer the complaint filed by the plaintiff, what happens? The court
may motu propio enter a judgment by default and rule based on the plaintiff’s complaint
• So, there will be a judgment rendered without a trial? YES, because in a summary procedure,
there is no trial, instead there will be a judgment on the pleadings
• So, if the defendant doesn’t answer, the court simply relies on the plaintiff’s pleading? YES
• Always only on the pleadings? NO, the court may require the submission of position papers
and/or clarificatory papers, or, affidavits
• How about evidence, no evidence will be presented? NONE, because evidentiary matters may
be incorporated in the pleadings submitted
• So, in these pleadings, position/clarificatory papers, the affiant can put anything? So the court
has no control over the content of the affidavit because any matter may be incorporated
therein? Since the affiants will not be examined, the court has discretion to disregard or
expunge items in the affidavit or pleadings, which the court may deem as irrelevant or
erroneous, and, if there are items maliciously put there, the court may impose disciplinary
actions against the affiant or her/his counsel
• Is the same process applied in criminal cases? NO, because if there is doubt as to the content of
the papers or pleadings, the courts may require the appearance of the affiant

• What are covered by the Small Claims Court?

1. For money owed under any of the following: (LLSSM)
(a) contract of lease
(b) contract of loan
(c) contract of services
(d) contract of sale
(e) contract of mortgage

2. For damages arising from any of the following: (FQC)

(a) fault or negligence
(b) quasi-contract
(c) contract

3. the enforcement of a barangay amicable settlement or an arbitration award involving a

money claim

• Supposing, there is a foreclosure instituted on a mortgage, the value of which was P50,000,
small claims? YES
• What are the prohibited pleadings in Small Claims Court? DBN-REMP-DDTRI
• Are these also the same pleadings prohibited in Summary Procedure? YES
• What then is submitted by the plaintiff? Statement of Claim
• The equivalent of a? Complaint
• How about the defendant? Response
• The equivalent of? An Answer
• Are counterclaims allowed? YES
• What kind? Compulsory or Permissive(?) the law does not provide
• Same with Summary Procedure? YES, but in Summary Procedure, only compulsory
counterclaims are allowed, but in Small Claims, any counterclaim is allowed

11 ejlvillena.2009//
• Are counterclaims allowed in both Summary Procedure and Small Claims Court? YES, but in
Summary Procedure, only compulsory counterclaims are allowed, as provided/enumerated by
law; in Small Claims, both are allowed

• What are the differences between Summary Procedure and Small Claims Court?

SUMMARY PROCEDURE SMALL CLAIMS COURT

- only allows compulsory counterclaim
- decision is appealable
- discuss the criminal and civil aspect
- Complaint VS. Answer
- there is a preliminary conference
- no trial/hearing, only affidavits
- lawyers are allowed
- allows both permissive and compulsory
- not appealable; immediately executor
- civil aspect only, even for a criminal case
- Statement of Claim VS. Response
- no preliminary conference needed
- there is a trial/hearing
- lawyers not allowed

• What are the similarities of both?

1. both seek the speedy disposition of cases
2. both have prohibited pleadings which are also similar
3. both apply the Rules of Court suppletorily

• Can the decisions of Small Claims be appealed? NO, Section 23 of the law

• What if the defendant fails to answer in Summary Procedure? The court may motu propio enter
a judgment by default
• In ordinary procedure, if the defendant fails to answer, the same can be done? NO, the plaintiff
can file a motion to declare the defendant in default, or the court may allow the plaintiff to
present evidence ex parte
• Why is this default not recognized in Summary Procedure? Because a motion to declare the
defendant in default is one of the pleadings prohibited in Summary Procedure
• So, in Summary Procedure, there is no default, because a motion to declare in default is a
prohibited pleading; in Ordinary Procedure, after the court declares the defendant in default,
what happens after, judgment is also rendered based on the plaintiff’s complaint? NO, the court
will now order the plaintiff to present evidence ex parte, this may be ordered by the court

• What’s the difference between Summary Procedure and Ordinary Procedure?

Summary Procedure – the complaint may be attached with evidence already
Ordinary Procedure – the defendant is still allowed to file a motion to lift the default order due
to FAME (fraud, accident, mistake, excusable negligence)

Summary Procedure – the complaint even without evidence attached, the court can still render
judgment? YES
Ordinary Procedure – there are two options for the court after the declaration of default: (1)
plaintiff may present evidence ex parte, (2) render judgment

• Why the difference? Why should the court freely believe the complaint submitted in Summary
Procedure, unlike the complaint Ordinary Procedure? Because the complaint in Summary
Procedure is verified; all pleadings filed under Summary Procedure should be verified, while in
pleadings under Ordinary Procedure verification of a pleading is only required when so
provided by the Rules
• In Ordinary Procedure, general rules apply that verification is not required in pleadings unless
required by law or the Rules
• Verification – should be based on the affiant’s personal knowledge and authentic records
• What are the allowed motions to dismiss in Summary Procedure? (1) lack of jurisdiction over
subject matter, (2) failure to comply with conditions precedent

12 ejlvillena.2009//
• What are the cases governed by the Prior Barangay Conciliation? G-POP-RDP-CJ
• Are the juridical persons allowed to file actions before the barangay? NO, the law provides that
only natural persons are allowed
• Why are juridical persons not allowed?
• Are there pleadings submitted under the Prior Barangay Conciliation? NO
• Are docket fees paid? YES

• If Prior Barangay Conciliation is not fulfilled? The court has the discretion to dismiss the case
for failure to state a cause of action upon motion of the defendant
• Is this mandatory? NO
• But is the court given discretion? YES, the court, instead of dismissing, may refer the case for
prior barangay conciliation and compel the parties to submit to an appropriate barangay; the
court in turn will suspend the proceedings

“Lawyers are the greatest exaggerators.”

- Dean Virgilio B. Jara

• What is the procedure followed in the Katarungang Pambarangay? (pls. refer to the 2009
Remedial Law Memory Aid)
• When a barangay court executes an amicable settlement, within what period can the settlement
be enforced? Within 6 months
• Does the enforcement need court approval? NO
• Without court approval, what will happen? The amicable settlement shall be binding among
the parties
• Is that provided by the LGC? NO, it is provided in the Implementing Rules of the Katarungang
Pambarangay, but it should be attested by the barangay chairman

• Why is the amicable settlement the contract between the parties? Autonomy of Contracts
• Discuss how the amicable settlement is enforced?
• Only within 6 months?
• It follows that the compromise agreement contains reciprocal obligations, what if one party
fails to comply? A motion for execution may be filed; there will be a hearing then when
resolved, a notice of execution will be issued
• Then a levy on personal properties will be made?

• What procedure should be followed in the execution? Section 6 of the Katarungang

Pambarangay

• Can the barangay court have jurisdiction over a case where the amount of the subject matter is
P2 million with a provision for prior barangay conciliation? YES if by agreement there should
be prior barangay conciliation

• Are all disputes covered? NO, only those who reside within the same municipality/city

• What if the execution of the judgment was insufficient to satisfy the obligations of the
defendant? Motion of execution submitted before the inferior courts (?) in accordance with
applicable provisions of Rule 39
• Can real property be levied? Generally NO, but the Implementing Rules provide that it may
depend on what is being prayed for in the complaint
• What if the defendant really cannot provide? Will real properties be levied?

• What should be filed, an independent action, or a mere motion?

• Can the amicable settlement be brought before the small claims court? YES
• So what should be filed?

13 ejlvillena.2009//
• What is a pleading? A written statement of the respective claims and of the parties submitted
to the courts for appropriate judgment

• What are the classifications of a pleading? Initiatory and non-initiatory

1. Initiatory pleadings – requires a certificate of non-forum shopping, and payment of docket
fees
2. Non-initiatory pleadings – does not require certificate of non-forum shopping and payment
of docket fees

• What is the concept of forum shopping? It is when one complaint is filed in two or more
tribunals
• Supposing, one complaint is filed, with one cause of action, filed before one tribunal, can there
be still forum shopping? YES, res judicata by having a prior favorable judgment, then filing a
case in relation to the prior one

• What is a complaint? The pleading alleging the plaintiff’s cause or causes of action

• What is a third-party complaint? A claim that a defending party may, with leave of court, file
against a person NOT a party to the for Contribution, Indemnity, Subrogation, or Any other
relief (CISA), in respect to his opponent’s claim

• What is a reply? The response of the plaintiff to the defendant’s answer, the function of which
is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in
the answer and thereby join or make issue as to such new matters

• What is a compulsory counterclaim? One which arises out of or is necessarily connected with
the transaction or occurrence that is the subject matter of the opposing party’s claim

• What is the concept of an actionable document? An actionable document is a document which

is the basis of a cause of action
• In the complaint, the actionable document may either be incorporated by: (1) writing word for
word or verbatim the contents of the actionable document, or (2) indicating the contents of the
document in substance while attaching a copy of the original actionable document; the adverse
party should specifically deny under oath the actionable document, and should be verified,
otherwise he shall be deemed to have admitted to the genuineness and due execution of the
actionable document
• What is the sanction to the adverse party for not following the proper manner? Deemed
admission of the actionable document by the adverse party
• What is the sanction to the plaintiff for not following the proper manner? Several answers:
1. The adverse party will not be required to specifically deny under oath the actionable
document
2. The court may dismiss the case for lack of cause of action (or failure to state a cause of
action?)
• If the court dismisses, should there be a motion from the adverse party or can it be done motu
propio?

• What is the difference between specific denial under oath and mere specific denial?
1. specific denial under oath – requires a Reply
2. mere specific denial – no need for Reply because the may be controverted in the Answer

• What is a compulsory counterclaim? One which arises out of or is necessarily connected with
the transaction or occurrence that is the subject matter of the opposing party’s claim
• Give an example.
• How is the jurisdiction over a compulsory counterclaim determined? Pp.70-71, 2004 Jara
Notes

14 ejlvillena.2009//
• Is there a compulsory cross-claim?

• Why differentiate a compulsory counterclaim with a permissive counterclaim?

1. Compulsory – not an initiatory pleading hence does not require certificate of non-forum
shopping and payment of docket fees
2. Permissive – an initiatory pleading hence requires a certificate of non-forum shopping, and
payment of docket fees

• Is a crossclaim the subject of a separate complaint?

• Swagman
• Section 5, Rule 10
• 2nd part = is there really an amendment done by a pleader in his pleading? YES
1st part = does the pleader amend his pleading? He may or may not (?)

• Didn’t the court apply Section 5 to Swagman? YES

• Was the decision consistent with the evidence presented in trial? NO
• But at the time they were offered, notes already matured isn’t it?
• Give an example where Section 5 applies
• If the 1st isn’t amended, is leave of court necessary? YES
• Situation in Section 5, 2nd part
• Judgment by default; there is an objection

• PPA Case
• Reformation – substantial amendment?
• What is the history of the rule on amendment?
• Can a 3rd party complaint be amended as a matter of right?

• What is a responsive pleading? Answer

• Is there an amended motion for leave of court? Pleadings already on appeal

• In an amended complaint, is summons necessary?

• Is there a bill of particulars in Summary Procedure? NO

• What is the defendant supposed to do?
• What is the remedy of the defendant in Summary Procedure if allegations are vague?

• Why is a bill of particulars not allowed in Summary Procedure? Affirmative defense

• Allegation of fraud – not made particularity; no allegation at all

• What may be averred generally?

• What requires particularity?

• Is a bill of particulars available to both sides? YES

• What if a bill of particulars is denied? File an answer
• If granted?
• Plaintiff – BOP – denied, what happens? Reply (not mandatory)
• When is Reply mandatory?

• If a BOP not complied – consequences, options?

• Strike out vague – bad for plaintiff, if his allegations in the complaint were stricken out?
• What if entire answer was stricken out? Default
• Similar to Rule 8, Section 12

15 ejlvillena.2009//
• E. B. Villarosa
• The list of officers is exclusive, thus in the case, summons served to the branch manager was
deemed improper; but before 1997 what was the rule? “agent” was named in the list, hence, the
branch manager may have been allowed
• Supposing, summons were to be served to a partnership, to whom should it be given?
Managing partner
• How about a limited partnership?
• How about summons to a limited partner, proper? YES, if that limited partner is also a general
partner, something which is allowed by law
• How is a limited partner liable? To the extent of his contribution

• How about summons served to an entity without incorporation, how?

• Robinson v. Millares
• What are the requisites of substituted service made under the Rules?
1. impossibility of personal service within reasonable time
2. efforts were exerted to locate the person but cannot be located
3. service to a person of competent age and discretion in the same residence of defendant or in
charge of defendant’s place of business
• Based on the case, was there service according to the Rules? NO, the security guard does not
fall under the third category
• But the SC decided against Robinson, why? Because it was upon her instruction to the guard to
prevent anyone to go to her house hence preventing the sheriff to serve the summons, and she
presented no evidence to refute the sheriff’s statement that the summons was given to the
guard, thus there was no indication to show that she did not actually receive the summons
• Is it an exception to the rule on substituted service? YES, because the SC considered the
attending circumstances
• Why was the SC strict in its application of the Rules in Villaroza, while being liberal in
Robinson? In Villaroza, what was involved was a juridical entity hence the strict application;
while in Robinson, what was involved was a natural person, thus the liberal application of the
Rules

• Citizens’ Surety
• The Insurance Company should have located properties to be attached
• Steps:
1st: look for properties
2nd: attach properties
3rd: effect of attachment will be conversion (from in personam to in rem)
4th: then publication of summons

• Even if it is in rem, the defendant still has 60 days after publication, only after that time, if still
without an answer, can he be declared in default
• Aside from publication, what is the plaintiff required to do in addition? Copy of the summons
and order of publication sent to the last known address of the defendant, as proof of service by
publication (Section 19, Rule 14)
• What is the doctrine in Citizens’ Surety?
• What is the additional requirement in service by publication? Sending a copy of summons to
the last known address of the defendant
• There is a 90% chance that the summons will not be received at the last known address, why
require it anyway? To serve as proof that the summons has been published
• Service by mail = substituted service
• Is the service valid even without the sending by mail? NO, Section 19, Rule 14 uses the word
“and” between the publication and sending by mail, hence they are complementary not
alternative
• After the attachment of property, the jurisdiction is acquired by the court, right? YES

16 ejlvillena.2009//
• Why send the mail anyway? To serve as proof and to fulfil the requirement that due process
must always be observed

• Jose v. Boyon
• Does it say in the rules that publication should be in rem or quasi in rem? NO
• Where does it say? Doctrine laid down in Citizens’ Surety
• What were the grounds? (1) , and (2)

• Santos v. PNOC
• Were the principles in Citizens’ Surety not applied? YES, in Section 14, it says, “any action”
hence no express need for conversion
• What is the time to answer? 60 days, according to Section 15
• Was there a motion to declare Santos in default? NO, there was only a motion to present
evidence ex parte
• Why is there no pre-trial? Because there was no Answer from Santos in the first place
• NO motion for default, NO pre-trial, Admitted evidence ex parte, why? Isn’t this in violation
of procedure? NO, because Santos filed an Omnibus Motion for Reconsideration and to Admit
Answer
• Was it disadvantageous? What was the effect? YES it was disadvantageous, because in
attempting to have his answer admitted by the Court, he somehow waived his right to question
the defects in the procedure, hence, the court readily acquired jurisdiction over the person of
Santos

• What is a motion? An application for relief other than by a pleading. A motion is not a
pleading
• Can the relief sought in a motion be similar to the relief sought in a pleading, is that possible?
YES, dismissal of claim

• Option of the defendant = motion to dismiss or incorporate defense in the answer = Allowed

• In terms of form, is a pleading the same as a motion? YES, under Rule 7

• Is there a difference? NO, Rule 7 is followed in terms of the caption, designation, signature and
other matters of form (Section 10, Rule 15)
• Is there a material difference?

• What is a litigated motion? One made with notice to the adverse party to give an opportunity to
oppose, i.e. Motion to Dismiss
• Is the adverse party given a copy of the motion?
• Is his presence required?
• Who decides whether the resolution of a motion is debatable or prejudicial? By the signature of
both parties
• What is the effect of a motion that fails the requisites? It is deemed a mere scrap of paper and
has no legal effect
• Is a motion to dismiss allowed in Summary Procedure? Generally, NO, except on the ground of
(1) lack of jurisdiction over the subject matter, and (2) non-compliance with a condition
precedent

• What are the allowable motions to dismiss under Rule 16? (D SILL RPF CUN)
1. that the court has no jurisdiction over the person of the Defending party
2. no jurisdiction over the Subject matter of the claim
3. Improper venue
4. no Legal capacity to sue
5. Litis pendencia
6. Res judicata
7. Prescription

17 ejlvillena.2009//
 8. Failure to state a cause of action
9. Claim has been paid, waived, abandoned, or otherwise extinguished
10. the claim is Unenforceable under the Statute of Frauds
11. Non-compliance of a condition precedent

• What is the time frame to file a motion to dismiss? Anytime before the Answer is given by the
defendant
• Does it apply also to Summary Procedure?
• What if the motion to dismiss is filed after the Answer has been given, is that allowed? It
depends on the grounds, if it is one of the four non-waivable defenses, it may be brought up
anytime during the course of the case
• Does this apply to Summary Procedure?

• Can the grounds in Rule 16 be raised all at once in a single motion to dismiss? Technically
YES
• What about the four non-waivable defenses? They may be raised in succession
• If all the grounds to dismiss are raised, won’t that create inconsistencies between the grounds?
YES, there may be inconsistencies
• Give an example: a Motion to Dismiss on the ground that the Claim has been paid, abandoned,
or extinguished is inconsistent with a Motion to Dismiss on the ground that a Claim is
Unenforceable
• Why? Because the first claim assumes that there is a valid and subsisting contract that is to be
extinguished, while the other claims that the contract is not subsisting because it is
unenforceable

• Tijam v. Sibunghanoy
• To what court was the action filed? Court of First Instance (CFI) of Cebu
• What was the amount involved? P 1,908.00
• This amount is cognizable by what court? Inferior courts
• So in the case, the CFI had no jurisdiction? YES, the CFI had no jurisdiction, by virtue of the
Judiciary Act of 1948, which was still a new law (barely a month in effect)
• Didn’t the CFI know that it had no jurisdiction?
• How did the CA resolve the issue? The CA affirmed the orders of the CFI, and decided on the
motion for execution against Manila Surety, even without the appellee’s briefs; on the question
of jurisdiction, the CA elevated the case to the SC due to the question on the jurisdiction of the
lower courts (the law provides that the SC shall have jurisdiction over questions in the
jurisdiction of lower courts)
• What happened to the case while in the CA? Manila Surety filed a motion to dismiss the case
for lack of jurisdiction
• Why did the CA certify the case to the SC to decide on the issue of jurisdiction, isn’t that
dependent on the parties/litigants to bring the action to the SC? Because the appellees failed to
submit their answers
• What are the options for the trial court in deciding on a motion to dismiss?
1. to grant 3. to order an amendment of the pleadings
2. to deny
• What is a fourth option? To refer the matter for arbitration
• Does the CA have the same options? NO, these four options are only available to trial courts;
the CA is only allowed to grant or deny a motion to dismiss
• In the case, the CA neither granted nor denied the motion to dismiss, why?
• What is the status of a decision if it was made by a court without jurisdiction? The decision is
null and void
• Why didn’t the SC nullify the lack of jurisdiction by the CFI? estoppel by laches
• The SC tried to justify its decision by making a parallelism with The Calvary of Jesus Christ,
why? Because like the mountain which Jesus Christ had to climb from bottom to top while
having the burden to carry a heavy cross, the plaintiffs will have to climb a mountain again

18 ejlvillena.2009//
 from bottom to top in presenting their case if the same is dismissed for lack of jurisdiction, thus
forcing the plaintiffs to go back to the inferior courts then having to elevate to higher courts in
case of appeals or for other recourse, similar to the Calvary
• In the case, whose Calvary are we talking about? The plaintiff-creditors

• What is estoppel by laches?

• Is there another kind of estoppel? Estoppel by deed

• Calimlim v. Ramirez
• To what court was the case filed? CFI Pangasinan
• Did the doctrine in Calimlim abandon the doctrine in Tijam? NO, Tijam is NOT applicable to
the Calimlim case; the Tijam doctrine on estoppel by laches is an exception to the rule rather
than the general rule

• Soliven v. Fastforms
• How much was sought to be recovered? P 195,155.00
• Plus damages? P 595,155.00
• What was the prayer of Fastforms? That the claim of Soliven should not have included
IDALEC, hence arguing that the case should be dismissed for lack of jurisdiction of the RTC
of Makati
• After the rendition of the judgement, was the case filed in time? YES, the case was still
pending
• What kind of estoppel are we talking about in this case? Estoppel by deed
• What is the deed? Fastforms is estopped by “actively participating in all stages of the
proceedings in the trial court”

• Atwel v. Concepcion Progressive Association Inc.

• In Atwel, did the court really have jurisdiction? NO, because the special commercial court had
no jurisdiction over CPA since CPAI excluded the petitioners in the incorporation hence the
case does not constitute an intra-corporate dispute

• Figueroa v. People
• Isn’t the Tijam doctrine applicable to both criminal and civil cases?
• Why was not estoppel by laches applied in this case even if the defendant actively participated
in the stages before the court? Estoppel did not apply even if there was laches because in
criminal cases, rules are liberally construed in favor of the accused. Also because per
Wisdom’s Adm’r v Sims, “Delay alone, though unreasonable, will not sustain the defense of
‘estoppel by laches’ unless it further appears that the party, knowing his rights, has not sought
to enforce them until the condition of the party pleading laches has in good faith become so
changed that he cannot be restored to his former state, if the rights be then enforced, due to loss
of evidence, change of title, intervention of equities, and other causes.” I.e., there is no
significant prejudice to the State, its remedy is to refile the case before a court with jurisdiction
(MTC).
• If Figueroa’s Motion to Dismiss was denied, he was subsequently found guilty and convicted
by a court without jurisdiction, and the period for appeal has expired, what is his remedy?
Petition for habeas corpus.
• In a civil case, if a defendant’s Motion to Dismiss on the ground of lack of jurisdiction over the
subject matter was denied, and he lost the case before the RTC, what is his remedy? Petition
for annulment of judgment before CA under Rule 47.

• Is the Tijam doctrine still applicable in the present day? YES

• Where does it get its authority, when it is not specified in Rule 9? It gets its authority in Rule
47, though it does not specifically mention the Tijam case, the doctrine enshrined in that case is
provided for in Rule 47

19 ejlvillena.2009//
• Hong Kong Shanghai Bank v. Aldecoa
• In litis pendencia, do we assume that there are two pending cases? YES
• What are the requirements for litis pendencia?
1. identity of parties or at least such parties representing the same interests in both actions
2. there is substantial identity in the cause of action and relief sought, the relief being founded
on the same facts; and
3. the identity in the two cases should be such that any judgment that may be rendered in one,
regardless of which party is successful, would amount to res judicata in the other case
• In the instant case, what are the cases pending?
1. action to annul the mortgage
2. foreclosure of the mortgage
• If there are two or more cases pending, do we assume that they are pending before the same
court? NO, they may be pending in different courts
• Can the court dismiss a case due to litis pendencia only upon motion? NO, the court may
dismiss motu propio
• Which case must be dismissed, the first or second? Any of the two cases
• Is the plaintiff in the dismissed case barred from recovering what he prayed for? NO, he may
still recover
• May he still recover reliefs prayed for in the dismissed case, even if it is different from the
relief prayed for in the other case, for example, in the 1st case he prayed for P1M, and in the
second he prayed for P2M, then the second case was dismissed, can he still recover P2M? YES
• What is his remedy? What the plaintiff should do is to file a motion to amend the pleadings

• Yu v. CA

• What dismissal is the result of a motion to dismiss under Rule 16? Generally, a dismissal
without prejudice
• Is it necessary or mandatory for the plaintiff to know whether the dismissal is with or without
prejudice? YES, he needs to know so that he may know what appeal can he use next, either
under Rule 41 or under Rule 65
• The general rule in Rule 16 is a dismissal without prejudice, what is the exception?
• What is the effect of a dismissal under Rule 16? If the dismissal is based on the grounds of
prescription, res judicata, litis pendencia, claim is paid, abandoned, or extinguished, or claim is
unenforceable, refiling of the same claim is barred
• Can there be a dismissal of res judicata without prejudice?
• Isn’t the court entitled to say or has the prerogative to determine whether it is with or without
prejudice regardless of the ground for dismissal?
• If the motion to dismiss is denied, the defendant has 5 days to file an answer
• Does Rule 16, Section 4 apply to Summary Procedure?
• Supposing, there was a motion to dismiss for failure to state a cause of action, it was denied, is
the defendant given the same time? He will be given the remaining period from the date of
notice
• Is it possible that there be no time remaining anyway? YES
• What will happen? The court may motu propio or upon motion to render summary judgment

• What is the difference between Rule 16 and Rule 17?

Rule 16 Rule 17
- motion filed before the answer is filed - motion filed after the answer is filed
- for the defendant - for the plaintiff

• Does Rule 16 prohibit a plaintiff to file a motion to dismiss using the grounds under Rule 16?
NO, the plaintiff may use the same grounds; Rule 17, Section 2

• Dael v. Beltran
• What is the advantage of a notice of dismissal? It is a dismissal without prejudice

20 ejlvillena.2009//
• What is the difference of Section 1 and Section 2 of Rule 17? How do their benefits differ?
• Give an example of the two-dismissal rule.
• Give an example where the two-dismissal rule will not apply = lack of jurisdiction of the court
in either of the two dismissals
• In accion reivindicatoria = ASSESSED VALUE of the property determines jurisdiction
• What is the option of the defendant under Section 2 Rule 17? To pursue counterclaim in the
same case or pursue it in an independent action after the dismissal
• Is this option available regardless of the nature of the counterclaim? YES

• What is Section 3? Dismissal due to the fault of the plaintiff, or for failing to prosecute his
action for an unreasonable length of time
• What is the latin maxim contemplated in this section? Nolle prosequi
• What are the grounds to allow a motion to dismiss under Section 3?
1. may be upon motion of the defendant or by the court motu propio
2. should be without prejudice to the right of the defendant to prosecute his counterclaim in the
same or in a separate action

• If it is a necessary party, can he further file a claim?

• If it is an indispensible party can he further file a claim?

• Why punish the defendant for non-appearance in presenting evidence in chief? Because if it is
the defendant who fails to appear, there is also a sanction-wherein the plaintiff may be allowed
by the court to present evidence ex parte

• What is a pre-trial? A mandatory conference and personal confrontation before the judge
between the parties and their respective counsel
• Is it mandatory in regular procedure? YES
• Is there pre-trial in summary procedure? YES, preliminary conference
• Is it mandatory in Summary Procedure? YES
• In small claims court, is there a pre-trial?
• In criminal cases is there a pre-trial? YES
• Is it mandatory? YES
• Is it for the same purpose? NO, in civil cases, it is for possible amicable settlement; in criminal
cases, it is for the interest of the state

• Can the civil aspect of the criminal case be subjected to pre-trial? YES, because it can be
amicably settled

• If the court does not conduct a pre-trial as required, what will happen?

• If the plaintiff fails to file a motion to set the pre-trial, what will happen? Dismissal of the
complaint
• Isn’t it the duty of the court to just set the pre-trial in case of failure of the plaintiff? Notice of
Pre-trial shall be sent by the clerk of court
• Is the mandatory character of a pre-trial applicable to the plaintiff? NO, also to the court

• Supposing, the plaintiff files a motion to dismiss under Rule 17?

• Period to set pre-trial, five days from what? After the last pleading has been filed
• What is the last pleading? “last pleading” should not be literally construed, and should be given
liberal construction; it may mean the expiration of the period for which a pleading has to be
filed
• What about other pleadings? third-party complaint, intervention = these may be filed after
because they require leave of court anyway to be accepted
• Is there no period for a third-party complaint?

21 ejlvillena.2009//
• If the defendant fails to give an answer, hence no pre-trial, what will happen? The plaintiff may
ask the court to declare the defendant in default
• After the default, should there be pre-trial? NO, because by not giving an answer, the
defendant does not want to put up a fight, so why have a pre-trial

• Why can’t Rule 9 stand along Rule 18? Because Rule 9 does not contemplate a possibility of
an amicable settlement
• If a third party complaint is filed, should it be related to the subject matter of the issues to be
discussed in the pre-trial? YES
• What is a third-party complaint? A claim that a defending party may, with leave of court, file
against a person not a party to the action, called the third-party defendant, for contribution,
indemnity, subrogation, or any other relief, in respect of his opponent’s claim
• What is a cross-claim? Any claim by one party against a co-party arising out of the transaction
or occurrence that is the subject matter either of the original action or of a counterclaim therein
• Should it be related as well? YES
• All matters are encouraged to be amicable settled

• Is appearance of the parties required? YES

• Is it ok if the appearance is not personal? YES, but the counsel representing the party should be
equipped with a special power of attorney to represent, amicably settle, and sign in behalf of
the party represented
• What if without the SPA? Considered as non-appearance
• What if the plaintiff fails to appear? Dismissal with prejudice
• What if the defendant fails to appear? Plaintiff will be allowed by the court to present evidence
ex parte

• In civil cases, is pre-trial required? YES

• In Summary Procedure?
• In criminal cases? YES

• What are the contents of the pre-trial brief? (WSIDAN)

1. A statement of their Willingness to enter into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms thereof
2. a Summary of admitted facts and proposed stipulation of facts
3. the Issues to be tried or resolved
4. the Documents or exhibits to be presented, stating the purpose thereof
5. a manifestation of their having Availed or their intention to avail themselves of discovery
procedures or referral to commissioners
6. the Number and names of the witnesses, and the substance of their respective testimonies

• Are the issues in the pre-trial the same with the issues in the pleadings? NO, it may be different
• Give an example

• What is the state policy in the ADR Law? To actively promote party autonomy in the
resolution of disputes or the freedom of the party to make their own arrangements to resolve
their disputes; as an important means to achieve speedy and impartial justice and declog court
dockets; means for the use of ADR as an efficient tool and an alternative procedure for the
resolution of appropriate cases

• What is the difference between the ADR Law and Katarungang Pambarangay?
ADR Law Katarungang Pambarangay
- may have counsel - absolutely no counsel
- not a condition precedent - is a condition precedent

• Can there be an arbitral award in Katarungang Pambarangay? NO, because what the barangay
court does is only to certify that an action in court may be filed, not to give an award
22 ejlvillena.2009//
• Is there an overlap between the ADR Law and Rule 18? YES

• What are the purposes of pre-trial? (PSNPLAPAO)

1. the possibility of an amicable settlement or of a submission to alternative modes of dispute
resolution
2. the simplification of the issues
3. the necessity or desirability of amendments to the pleadings
4. the possibility of obtaining stipulations or admission of facts and of documents to avoid
unnecessary proof
5. the limitation of the number of witnesses
6. the advisability of a preliminary reference of issues to a commissioner
7. the propriety of rendering judgment on the pleadings, or summary judgment, or of
dismissing the action should a valid ground therefor be found to exist
8. the advisability or necessity of suspending the proceedings
9. such other matters as may aid in the prompt disposition of the action

• What is an arbitration clause? A contract to arbitrate a controversy thereafter arising between

the parties, as well as a submission to arbitrate an existing controversy

• KOGIES Technologies Inc. v. PGSMC

• What if the plaintiff files directly to the court without going through arbitration, what is the
defendant’s remedy? To file a motion to dismiss before that court on the ground of lack of
jurisdiction for failure to state a cause of action
• In that motion to dismiss, may the validity of the arbitration clause be an issue? NO, the court
can only resolve the motion to dismiss; the validity of the arbitration clause may be taken up in
a special summary proceeding
• If the court is convinced that the arbitration clause is valid, what is the next step? For the court
to refer the case for arbitration (referral)

• Supposing, A has a contract with B that has an arbitration clause; then in the complaint filed,
he pleaded against C & D, can C & D be compelled to comply with the arbitration clause? NO,
because the arbitration clause is a contract binding only to A & B
• If the arbitration clause is nullified, can the complaint against C & D stand? YES, because the
arbitration clause is a separate contract
• Isn’t that splitting cause of action? NO

• ABS-CBN v. CA
• Was it domestic arbitration, even if one of the parties is a foreign entity? YES, RA 876 was
applied
• There was a stipulation that the award by the arbiter is not appealable, is that valid? YES,
anyway it has to be confirmed by the RTC
• Rule 43 talks about voluntary arbiters, did it apply in this case? YES

• Metrobank v. Presiding Judge of Manila RTC Branch 39

• Don’t you think the remedy that should have been taken in this case should be an appeal under
Rule 41, and not under Rule 65? NO, because the court’s allowance of the intervention
complaint is an interlocutory order which cannot be appealed under Rule 41

• Can the intervenor file an answer-in-intervention? YES

• Can the answer-in-intervention stand on its own? NO, it has to be united with the defendant’s
resistance of the plaintiff’s claim (MAYBE, if it has an attached counterclaim?)
• Will the dismissal of the original case affect the answer-in-intervention? YES, because it
should be united with defendant’s resistance of the plaintiff’s claim, unlike in a compliant-in-
intervention, it can have its own claim, hence it can stand on its own just like in the instant case

23 ejlvillena.2009//
• So an intervenor is limited to only two pleadings? NO, when the intervention is allowed by the
court, only then can the intervenor file other pleadings under Rule 6, provided it is consistent
with his initial stand
• How about a third-party complaint? This can only be filed when the intervenor has given an
answer-in-intervention

• If the intervention is disallowed by the court, isn’t that prejudicial to the intervenor? NO,
because he can still file a separate complaint of his own

• Is intervention allowed in Summary Procedure? NO, it is one of the motions prohibited under
the Rules on Summary Procedure

• What are the requisites of intervention?

1. that the intervenor has a legal interest over the subject matter of the case
2. he has interest in the success of either the plaintiff or defendant
3. he has an interest in the success of both
4. upon disposition or distribution of the property in question or in custody of the court, his
rights will be directly affected
• If in Summary Procedure, the intervenor complies with all these requirements, what can he do?
File a separate action
• Is it possible to have the main case under Summary Procedure while the intervening case under
Ordinary Procedure? YES, main case – unlawful detainer; intervening case – claim of
ownership
• How about in Small Claims?

• What are the classifications of a subpoena?

1. subpoena ad testificandum
2. subpoena duces tecum

• What’s the difference?

1. subpoena ad testificandum - for the presentation of a person for him to testify
2. subpoena duces tecum – for the production of documents and exhibits necessary in the case

• How is service of subpoena made? Same with how summons is served

• Personal service? YES
• Substituted service? YES
• Service by publication? NO

• Who may serve the subpoena?

1. an officer of the court
2. an officer of the body or tribunal authorized to investigate a case
3. an officer of the SC or CA
4. an officer of the court for the purpose of taking a deposition
• Can the litigants themselves serve the subpoena? YES, for the purpose of taking a deposition

• Can a non-party to whom the subpoena is given ask for the quashal of the subpoena? YES,
because service to the non-party is allowed anyway
• What are the grounds for quashal of a subpoena?
1. non-payment of kilometrage fees
2. non-payment of transportation fees
3. non-payment of fees for the production of documents (duces tecum)
4. the subpoena is only to oppress or embarrass the party subject to a subpoena
5. the documents subject to a subpoena are irrelevant (duces tecum)
6. the person subjected to a subpoena has a viatory right

24 ejlvillena.2009//
• What is this viatory right? If the deponent is more than 100km away from the court of
jurisdiction by usual course of travel
• What is the importance of the phrase “usual course of travel”? the law contemplates this as
land transportation; if ‘any’ course of travel was allowed, say air transportation, Manila to
Davao by plane would only take less than an hour of travel; unlike if done by land, Manila to
Davao is more than 100km away from each other hence a Davao resident whose deposition
wants to be taken can have a viatory right

• What mode of discovery is similar to subpoena duces tecum? Production and inspection of
documents and exhibits under Rule 27

• What’s the difference?

Subpoena duces tecum
- for evidentiary matters
- limited only to documents hence
can be brought to court
Production and inspection of documents
- only for gathering information unless entered
evidence thereafter
- can involve other properties and can’t be brought
to court sometimes, i.e. inspection of an
immovable property (land or building)

• Enumerate the modes of discovery

1. Depositions pending actions (Rule 23)
2. Depositions before action or pending appeal (Rule 24)
3. Interrogatories to parties (Rule 25)
4. Admission by adverse party (Rule 26)
5. Production or inspection of documents of things (Rule 27)
6. Physical and mental examination of persons (Rule 28)
7. Refusal to comply with modes of discovery (Rule 29)

• What are the contents of a pre-trial brief? (WSIDAN) Refer to p.22 of this reviewer

• Are litigants required to comply or avail of modes of discovery as stated in the pre-trial brief?
NO, they may or may not avail
• What benefit can the litigants get from availing of modes of discovery? Speedy disposition of
cases, gathering sufficient information to strengthen one’s case

• In taking a deposition, should there be a pending case? NO, there can be a deposition before
action (Rule 23)
• This is sometimes called what? Perpetuam rei memoriam or in perpetuation of testimony
• Why be interested in such? To know what actions are available to him

• In the process, what is the first step in order to take a deposition? File a petition to the court
• To whom should it be filed?
• Against whom?
• Are summons needed? NO, notice by the court is enough
• How will the court acquire jurisdiction? RTC – incapable of pecuniary estimation(?)

• What is the concept of letters rogatory? These are sent by a domestic court to a foreign court
requesting that the latter take the deposition of a person residing in that foreign country
• How is it used? When the deponent is residing in another country, it is sent to the foreign court
with jurisdiction over the deponent
• For example Manila to Davao, is letters rogatory used? NO, only for foreign courts, not courts
within the Philippines
• Who will then take the deposition of the Davao resident? The court or the litigants with
counsel; If there is a pending case in Manila, the Manila court will go to Davao, i.e. the
litigants and their counsel (p.127 of 2004 Jara Notes)

25 ejlvillena.2009//
• Supposing, the proponent files a motion to take a deposition, what if the Manila court denied
the motion?
• Is permission of the Manila court required?
* without leave of court – if there is already an answer
* with leave of court – if the court has jurisdiction but before an answer is filed

• Without leave of court – seeking deposition you will have to go to Davao

• How about the adverse party, does he have remedies? Section 16 and 18 of Rule 23

• Can the Davao resident oppose the taking of his deposition? YES, Section 16, Rule 23
• What excuse may he give? Expenses(?)
• Can the deposition be stopped? YES, Section 19 of Rule 23

• What is the difference between interrogatories of parties and written interrogatories?

• Why does the proponent have to ask questions? Because of the sanctions that may be incurred
under the last sections Rule 25 and 26 if deposition or interrogatories are not taken

• Why will the adverse party have to answer the questions when he can simply say, just get my
answers from the Answer pleading that I’m going to file or has been previously filed? To
prevent incurring sanctions under Rule 29

• Study Rule 30 – Trial

(Midterm Examinations; coverage up to Rule 30)

• Wood Technologies v. Equitable PCI Bank

• The judgment did not warrant a judgment on the pleadings, right? YES
• Why didn’t the SC or CA remand the case to the RTC instead of ruling that it was actually a
summary judgment
Possible answers:
- for purposes of expediency because remanding it would be a waste of time
- the question of whether it is a judgment on the pleadings or a summary judgment, is a
question of law anyway so the SC can rule on it
- the CA cannot remand cases, it has to decide the case on appeal

• What were the principal issues in the case?

- that the promissory note had no due date
- that the contract they had was one of adhesion
- that the interest computed by the respondent is unconscionable

• Why move for summary judgment where there is no trial when the genuineness of the issues
has not yet been determined? Shouldn’t there be a hearing on the genuineness?

• On the issue of not having a due date, the petitioner said it was premature filing because no due
date was written hence the respondent cannot simply demand for payment anytime, isn’t this a
genuine issue? NO, because the courts deemed the instrument payable on demand
• Payable on demand, is that what substantive law provides? YES, under Section 7(b) of the
Negotiable Instruments Law; and based on the original intention of the parties, they intended
not to really put a date, and the contract did not specify that the parties would agree later on to
a maturity date, hence the contract on its face manifests the intent of the parties

• What are the modes of consolidation?

26 ejlvillena.2009//
 1. Consolidation proper
2. Recasting
3. Test case method
• Cases to be consolidated should have common questions of fact or law

• If the consolidation is with the same court but different branches, what is the rule?
• Give an example
• Why is the SC’s permission needed in a situation where the cases fall within different branches
but with the same court? Because it will be discourteous for a court to order its co-equal court,
though of a different branch, to consolidate a case

• Wouldn’t the case lose its identity? In consolidation proper and test case method, the identity
of the case is NOT lost; it is ONLY in recasting where the identity of a case is lost
• Give an example of recasting

• What cases are consolidated?

• Can the court refuse to conduct a trial after consolidation?

• If consolidated, is trial mandatory?

• What if the cases involve ONLY a common question of law, can’t you consolidate? The cases
can still be consolidated because the Rules of Court provides that what can be consolidated are
cases with common questions of law OR fact, NOT common questions of law and fact
• Common questions of law are consolidated under what method? Test case method

• Requisites for a valid judgment

1. in writing
2. personally and directly prepared by the judge
3. must indicate the laws or facts which were the basis for the judgment
4. signed by the judge
5. filed “WITH” the clerk of court, NOT “by” the clerk of court

• Do these requisites apply in Summary Procedure? YES

• Summary Judgment? YES
• Small Claims? YES

• What are the judgments under Rule 36?

1. Several Judgment -
2. Separate Judgment -
• Why are they unique? Because they are generally not available
• So they are not judgments? NO, they are judgments but only a part of the case is resolved or
there is only partial judgment if the case is severable, hence, parties who wish to appeal the
judgment have to wait for the disposition of the entirety of the case before they can appeal

• What are the other judgments?

1.
2.
3.

• What is a judgment on the pleadings?

• Do we assume that there is a submission of an answer? YES
• In judgment by default? NO Answer
• Summary Judgment? There may be an answer if filed by the plaintiff; if filed by the
defendant, no Answer is needed
• Demurrer to Evidence? YES there is an Answer
27 ejlvillena.2009//
• Why in Demurrer? Because evidence in chief has already been presented by the plaintiff

• Is there an issue in demurrer to evidence? YES

• Genuine issue? YES
• In summary judgment? NO genuine issue
• In judgment on the pleadings? NO issue at all, the Answer fails to tender an issue or admits to
the material allegations in the complaint
• In an Answer that admits, judgment on the pleadings can be done? YES
• No need for a motion? Motion of the plaintiff is not always needed in judgment on the
pleadings because in the pre-trial, the court may deem it proper or necessary for a judgment on
the pleadings to be entered, hence the court motu propio may enter a judgment on the pleadings
• Can the court deny a plaintiff’s motion for judgment on the pleadings? YES, in cases where a
judgment on the pleadings is prohibited, i.e. actions for (1) annulment of marriages, (2) legal
separation, (3) declaration of nullity
• Is the granting of the motion for judgment on the pleadings ministerial? NO, court may deny
the motion if pertains to marriage-related actions/cases
• Why? To preserve the family as an institution, hence a trial is in order

• Is there a judgment on the pleadings in Summary Procedure? Essentially, the result in

Summary Procedure is indeed a judgment on the pleadings
• But isn’t a motion for judgment on the pleadings a prohibited motion? NO, and even if it were
prohibited, the court anyway may motu propio enter a judgment on the pleadings during the
preliminary conference

• In Summary Judgment, if the defendant files the motion, is an Answer necessary? NO, Rule
35, Section 3, states that the defendant may file the motion “at any time”
• Will he be declared in default if he does not file an Answer? NO
• If there is a no genuine issue, how will you know the stand of the other parties if there is no
Answer and trial? Depositions, affidavits, admissions, supporting papers
• What situation contemplates a summary judgment without an Answer? Rule 8 on damages

• What is the concept of a new trial? Motion filed on the grounds of (1) fraud, accident, mistake,
or excusable negligence [FAME], which ordinary prudence could not have guarded against and
by reason of which such aggrieved party has probably been impaired in his rights [extrinsic
fraud], or (2) newly-discovered evidence
• Suppose it does not really impair the rights where impairment is not certain in Section 1 (a) of
Rule 37? What the provision requires is just a probability that rights have been impaired
(“aggrieved party has probably been impaired in his rights”)

• What is a motion of reconsideration? Motion filed on the grounds that (1) damages awarded
are excessive, (2) the evidence is insufficient to justify the decision or final order, (3) the
decision or final order is contrary to law, (4) FAME

• Are the requirements identical? NO, they are identical only as to FAME

• What is a pro-forma motion?

• Is a pro-forma motion bad? YES, because it may be disadvantageous to the movant who may
lose his right to have an appeal as a remedy

• Neypes v. CA
• Before Neypes, what was followed?
• What is the effect of filing a motion for new trial? The period for appeal is interrupted
• In Neypes, it does not only interrupt, what is the basis for such a decision by the SC to amend
the Rules? To standardize appeals cases

28 ejlvillena.2009//
• What again are the grounds for a new trial? Section 1 (a&b) of Rule 37
• What is the fraud contemplated? Extrinsic fraud
• What is extrinsic fraud? Acts of dishonesty which prevent the trial from going on or prevents
the adverse party from exercising his rights
• What are examples of intrinsic fraud? Presenting as evidence a forged check as proof of
unpaid debt vis-à-vis allowing an adverse party to present a forged receipt as evidence to prove
that the debt has been paid

• Dinglasan v. CA

• If the motion for new trial is denied, what is the remedy? Appeal from judgment
• If it is a motion for reconsideration which is denied? Is it appeal from judgment not order of
denial? NO
• If new trial is granted? Old judgment is vacated, but the evidence and issues used in the old
trial may still be maintained
• If the MR is granted? The judgment is amended only, new judgment is not necessary; amend
only as to the excessive damages, insufficient evidence, and where judgment is contrary to law

• What is the effect of a partial new trial? There shall be a trial only on some of the issues which
were tried, if severable

• Can the movant file two successive motions for new trial? Generally, YES, unless the second
motion contains grounds already raised in the first
• Is the second motion for new trial different from that of reconsideration? YES
• Why is a second motion allowed in new trial but not in reconsideration?
1. Motion for new trial – the second motion may be based on a different ground due to newly-
discovered evidence
2. Motion for reconsideration – (1) Omnibus motion rule, (2) the movant is deemed to be
aware of all the possible defects in a judgment whether on damages, evidence, or it being
contrary to law-all of these shall be reflected in the judgment right away hence they should
all be raised in the first motion for reconsideration, thus a second one is not needed

• What is Rule 38? Petition for relief from judgment

• What is the basis for saying that a judgment in Rule 38 is “final and executory” when the same
is not specifically provided in Rule 38? The term “entered” means that the lapse of the
reglamentary period will be deemed the date of its entry (Rule 36 and Rule 50)

• What is the 2nd situation in Rule 38? Petition for relief from judgment where appeal is
prevented due to FAME and the petition prays that the appeal be given due course

• Is Rule 38 available for newly-discovered evidence? NO, only FAME is considered

• What is the fraud contemplated in Rule 38? Extrinsic
• Why? It is not specifically provided in Rule 38? Based on Rule 47

• If Rule 38 is not availed of, what is the remedy available? Rule 47

• What is the time frame? 60 days to 6months (Section 3, Rule 38)
• When shall the petition be given due course? When it is sufficient in form and substance, then
answers will be asked from the adverse parties
• If the petition for relief is granted? The court shall continue to hear and decide the case as if no
decision has been rendered
• Is it possible that there won’t be a new trial? YES
• Is a new trial mandatory? NO, p.173 of the 2004 Jara Notes

• Are Rules 37 and 38 allowed in Summary Procedure? NO, because they are prohibited motions
• In Rule 38, after the 6 months has lapsed, is there no other remedy available? Rule 47

29 ejlvillena.2009//
• Filed in what court? To the CA if it is an RTC decision; To the RTC if it is a MTC decision
• If with the CA, exercising what kind of jurisdiction? Exclusive and original jurisdiction over
RTC decisions or final orders

• After entry of judgment, what are the remedies? Rule 38 – Petition for relief from judgment or
Rule 47 – Petition for Annulment of judgment
• What is the difference between Rule 38 and Rule 47?
1. Rule 38
- grounds are FAME, extrinsic fraud or, newly-discovered evidence
- can be availed even without first availing other remedies available
- period is 60 days to 6 months
2. Rule 47
- grounds are extrinsic fraud or, lack of jurisdiction only
- can be availed only when other remedies have been exhausted
- for fraud: 4 years from discovery; for lack of jurisdiction: anytime before barring by laches

• In Rule 38, so the petitioner may just let the period lapse because it has to be filed after entry of
judgment? NO, he can only avail of Rule 38 only if he failed to avail of motion for new trial
and motion for reconsideration without his fault; he should not have let the period lapse on
purpose; petition for relief from judgment can be availed of in exceptional cases
• In Rule 47, other remedies have to be availed of first

• So if he fails to avail of Rule 38 by letting it lapse, he can avail of Rule 47? NO, his availment
should be without his own fault

• Where should a petition to annul a judgment under Rule 47 be filed? If it is a decision of the
RTC, it should be filed with the CA; if it is a decision of the MTC/lower court, it should be
filed with the RTC
• How about a petition for relief from judgment under Rule 38, where should it be filed? The
petition should be filed where the court decision was rendered

• So in Rule 47 is not a continuation of the trial? NO, it is independent of the original case

• Where does it say that the CA will have authority to annul RTC decisions, and MTC decisions
may be annulled by the RTC? Batas Pambansa Blg. 129, BP 129
• But BP 129 doesn’t speak of annulment by the RTC of MTC decisions, right? YES, it only
speaks of the exclusive and original jurisdiction of the CA to annul RTC decisions
• Where does the RTC get its jurisdiction? Under the general jurisdiction of the RTC
• Does BP 129 recognize that cognizance by the RTC? YES, Section 19(6) of BP 129
• If there is a petition to annul a decision of the MTC, can you file it with the CA? NO, because a
MTC decision still falls under the territorial jurisdiction of its appropriate RTC
• If BP 129 did not exist, what would be the basis for the jurisdiction of the RTC in the
annulment of judgments? As cited in Islamic Dawah Council v. CA and Canlas v. CA,
annulment of judgments is vested with the RTC hence even a decision of the RTC may be
annulled by a RTC of another branch
• So this doctrine was applied by the SC? YES
• So the SC can define the jurisdiction of lower courts? Based on the Constitution the SC can’t
but by jurisprudence

• What is the difference between annulment of judgment in the RTC with annulment of
judgment in the CA?
• Same grounds? YES, (1) lack of jurisdiction, and (2) extrinsic fraud
• Lack of jurisdiction over both the subject matter and over the person? YES, both are allowed

• What is the effect if the petition is denied?

30 ejlvillena.2009//
• If granted?
1. if the ground is lack of jurisdiction, the judgment will be set aside without prejudice to the
refilling of an action with the proper court
2. if the ground is extrinsic fraud, it would be as if there is a new trial
• In the 2nd instance, who will try the case, the RTC or CA?

• If an annulment of judgment is filed before the RTC, what is the effect? If the ground is lack of
jurisdiction, the RTC may try the case not as an appellate court but may treat it as an ordinary
civil action as if it was first filed with the RTC

• Who are the parties?

General rule: the original parties
Exception: when a stranger files the petition for annulment of judgment

• But do we implead the trial court? YES

• Who is at fault? The other litigant because they have to show

• Islamic Dawah v. CA
• Under Rule 47, what are the essential elements? (1) lack of jurisdiction, (2) extrinsic fraud
• The petitioner should show that? Other remedies have been availed of
• Does this apply to a non-litigant? In actions involving motion for new trail, motion for
reconsideration, and petition for relief from judgment = 3rd parties are not allowed to bring
such actions, hence a 3rd party’s remedy is only a petition to annul a judgment

• Fraginal v. Parañol
• Is annulment of judgment applicable only to judgments of the court? Is it not applicable to
decisions rendered by a quasi-judicial body? There is NO law allowing the CA to annul
judgments of quasi-judicial bodies because it is limited to RTC decisions; there should be
exhaustion of administrative remedies under the Local Government Code
• Annulment may not be the remedy but appeal
• May an annulment of judgment under Rule 47 be done on a decision of a barangay court? NO,
an annulment of judgment is provided in the Rules of the Katarungang Pambarangay where a
nullification of an award should be brought within 10 days with the local trial court
(MTC/MCTC)

• What are the remedies before entry of judgment? (1) motion for new trial, (2) motion for
reconsideration, (3) appeal

• Supposing, an aggrieved party files a motion for reconsideration in time, then after filing such,
he files a notice of appeal, will you have to resolve the motion for reconsideration first? NO, it
is deemed waived because upon filing of the notice of appeal, the appeal is deemed perfected
as to him

• Supposing, both parties feel aggrieved in a civil case, the plaintiff files a motion for
reconsideration, while the defendant files a notice of appeal, what is the effect? The motion for
reconsideration has to be resolved first but practically, the plaintiff might not do that because
the judgment was beneficial for him since the ground of his motion of reconsideration may
only be for 3 grounds: excessive damages, insufficient evidence, and judgment contrary to law;
the first 2 will usually be in favor of the plaintiff so why file a motion for reconsideration
which if granted may be detrimental to him in the end; so in order for the motion for
reconsideration to be filed by the plaintiff, it should be for the ground of judgment contrary to
law ONLY
• As to the defendant, the appeal is perfected as to him with regard to the time due to his notice
of appeal; however, since procedurally, the plaintiff may file a motion for reconsideration, it
may be granted and would thus effect into an amended judgment; when the judgment is thus
amended, the appeal may be dismissed motu propio by the court without prejudice to the

31 ejlvillena.2009//
 appellant to file a new appeal, because the original appeal was for the original judgment
subsequently amended, thus the original appeal becomes moot. Hence, the motion for
reconsideration should be resolved first.

• What are the modes for appeal?

1. Ordinary appeal
2. Petition for review
3. Appeal on certiorari

• Are all the modes available if the court of origin is an inferior court? NO, generally only an
ordinary appeal may be filed to the higher court
• Is there an exception? YES, when the inferior court has decided a case under its delegated
jurisdiction over land registration or cadastral proceedings
• If it is the RTC acting as a trial court? If the RTC acts under its original jurisdiction = ordinary
appeal; if the RTC acts under its appellate jurisdiction = petition for review

• Under Rule 45? Only questions of law may be raised

• Any exceptions? 11 instances (check memory aid)

• Can a motion to dismiss be filed with an inferior court? YES

• With the RTC? YES
• If the ground for dismissal is lack of jurisdiction, can the case dismissed by the inferior court
be brought to the higher court? Explain residual jurisdiction
• What is the mode of appeal? Ordinary appeal

• If the RTC dismisses the case for the same ground, can it be brought up to the higher court?
NO, because it is a non-appealable case
• Are all modes of appeal is not allowed? YES
• What is the remedy? File an action under Rule 65
• So is Rule 65 the 4th mode of appeal? NO, Rule 65 is not a mode of appeal, it is a special civil
action

• Under Section 8, what mode may be used? Ordinary appeal

• What documents should be filed? Notice of appeal and payment of docket fees

• But in cases which are purely a question of law like lack of jurisdiction, can the RTC entertain?
YES, the RTC may entertain exercising general jurisdiction
• Why the difference where:
If a RTC acts and decides as a trial court = remedy is Rule 65
If a MTC acts and decides as a trial court = remedy is appeal to RTC
Answer: Because the RTC has general jurisdiction, while the CA has limited jurisdiction only

• Can a purely question of law be entertained by the RTC? YES

• Isn’t that in conflict with the Constitution? NO
• What is the appellate jurisdiction of the RTC under the Constitution? Revise, review, etc
• Isn’t there an inconsistency? NO, because there is a proviso “as may be provided by the Rules
of Court or by law”
• So, the plaintiff has 2 options whether to file with the SC or with RTC in appealing inferior
court decisions? NO, the Rules provide that it is the RTC, and also by law under BP 129
• Inferior courts in the Constitution = CA, RTC, MTC
• Inferior courts in BP 129 = MTC
• So the proviso in the Constitution allows for exclusive appellate jurisdiction by the RTC? YES

• In Rule 41, do we follow the general rule that all judgments and final orders are appealable?
NO, there are non-appealable cases

32 ejlvillena.2009//
• Which are? Non-appealable cases under Rule 41
1. an order denying a petition or any motion seeking relief from judgment
2. an interlocutory order
3. an order denying or dismissing an appeal
4. an order denying a motion to set aside a judgment by confession, consent, or compromise
5. an order of execution
6. an order denying a motion for or against one or more several parties, or in separable claims,
counterclaims, cross-claims, third-party complaints
7. an order dismissing an action without prejudice

• An order denying a petition for relief from judgment, why is it a final order? Because it
disposes of the case
• How about granting a petition for relief from judgment, is that appealable? NO, because it is an
interlocutory order, hence non-appealable according to Rule 41

• Denying a motion to set aside a judgment by compromise, confession or consent, what is that?
• Why can’t it be a denial of the judgment by compromise, confession, consent
• Without the motion to set aside, appealable? NO, because it is considered final and executory
• Why does the Rules allow a motion to set aside judgment with vitiated consent?
• Why is judgment based upon a compromise final and executory? Based on the Civil Code
Articles 2028 to 2046

• What is a confession by judgment?

• What are the latin maxims?
1. Cognivit Actionem
2. Cognivit Relicta Verificatione

• What is the test whether a judgment should be with or without prejudice? Res judicata,
• Why is it important to know for the plaintiff? To let him know what remedy he should take;
with = appeal, without = re-file or Rule 65
• What’s the difference of a dismissal without prejudice in Rule 16 and with prejudice in Rule 16
• What’s the difference of a dismissal without prejudice in Rule 17 and with prejudice in Rule 17

“Is there an ‘unless’? There is none.”

- Dean Virgilio B. Jara

• So it is within the discretion of the court to say whether a dismissal is with or without
prejudice?

• What is the rule on harmless error?

• But the appellant has the prerogative to assign errors, right? YES
• Will the appeal be dismissed if the appellant assigns errors that are harmless? What is
contemplated in harmless error is that which is committed by the court, not by the appellant in
his assignment of errors
• Is that a ground for dismissal of an appeal? NO
• Is the court bound to entertain an appeal despite harmless error? YES
• Who commits harmless error? The court
• What should the court do? Disregard any error or defect

• What are the grounds of dismissal of an appeal in the RTC?

1. filing out of time
2. non-payment of docket fees
3. failure to submit an appeal memorandum

33 ejlvillena.2009//
• Supposing, an appeal was filed on time, and there was no payment of docket fees made, can
the appeal be dismissed? YES, because payment of docket fees is jurisdictional; without the
payment of docket fees, the court will not acquire jurisdiction over the action

• Why is failure to submit an appeal memorandum ground for dismissal? Because an appeal
memorandum serves as an assignment of errors, and without it, the lower court’s decision will
be presumed as correct, based on the Rules on Evidence

• Is it equivalent to Rule 50 where there is failure to submit an appeal memorandum? In cases

where there is an absence of specific assignment of errors

• Is it the duty of the appellate court to look errors of the trial court? NO
• Isn’t it a violation of the right to appeal in requiring an appeal memorandum or assignment of
errors?
• Why will an assignment of errors negate the appeal as a matter of right?

• What are the last two sections of Rule 39?

• What are the effects of an improper and erroneous appeal? It depends on what court
RTC
Erroneous – ok, will not be dismissed
Improper – ok, will not be dismissed
* because the RTC may entertain questions of law or fact; and the RTC could try a case as if it
was originally filed before it

CA
Erroneous – will be dismissed
Improper – will be dismissed

SC
Erroneous – will be dismissed
Improper – may be remanded to the CA, or may be dismissed

• Give the rule on res judicata. Last two sections of Rule 39

• Why is it said that Rule 39 is the life of the law? Because it gives rise to the
execution/implementation of a judgment based on a law; without it, the judgment is not given
life

• When is execution a matter of right? P.66 of the 2009 Remedial Law memory aid
• Is it filed with any court?

• When is an execution a matter of right?

• When may a final and executory judgment be challenged?

• What is the winning party in a judgment called? Judgment creditor (under the old Rules);
judgment obligee (under the new Rules)

• May the judgment oblige insist on the execution? The judgment obligee and judgment obligor
stand together
• Is a motion needed for a writ of execution? YES
• Can the court deny the motion? NO
• So, it is the court’s duty to grant the motion? YES
• Are there any exceptions? P.66 of the 2009 Remedial Law memory aid

34 ejlvillena.2009//
• When a judgment is not final and executory, can the judgment be executed? YES, p.67 of the
2009 Remedial Law memory aid - two grounds
• Is it ministerial on the part of the court? NO
• But the court may be compelled? YES, p. 67 of the 2009 Remedial Law memory aid

• What are the instances when appeal may be asked pending appeal? P.67
• Among the exceptions, what constitutes that all embracing clause? Actions for unlawful
detainer or forcible entry

• What is your concept of a dormant judgment? A judgment not executed within 5 years from its
date of entry
• Even if there is a motion to execute? It will not affect the period of 5 years, because the motion
is not conclusive of execution
• If there is a motion for execution, which is granted by the court, will it still be dormant? YES it
may still be dormant, especially if the judgment obligee fails to manifest his intent to have the
judgment executed, and if the judgment remains not executed or complied with by the
judgment obligor; as long as there is no compliance or satisfaction of execution by the
judgment obligor, the 5-year period will still run which may lead to a dormant judgment

• So, execution is dependent on the compliance of the judgment obligor? YES, the satisfaction
by the judgment obligee of the order of execution shall prevent a judgment from being dormant

• What is the effect of non-compliance of an execution? If the delay in execution is traceable to

the judgment obligor’s fault, the 5-year period may be extended to prevent a dormant judgment

• If the 5-year period lapses, does the judgment obligee lose his right to the judgment? NO, his
remedy is an action for revival of judgment, under Rule 39 Section 6
• Is this a separate action? YES, it is an independent action
• To what court should a revival for judgment be filed? RTC
• Is it capable of pecuniary estimation? NO, because the action filed pertains to the judgment
itself
• Is it always with the RTC? YES because it is incapable of pecuniary estimation
• Of what region? It depends on what property is in involved
• Is an action for revival of judgment a real action or personal action? It depends on the property
involved in the judgment (Infante v. Aran Builders)

• Should the 3rd person to whom the judgment obligor gave the property involved, be impleaded
in the revival of judgment?
• Can the 3rd person be compelled to satisfy the order of execution? YES, as a necessary party

• If the judgment is not yet final, and the judgment is not yet dormant, may it be revived? YES
with an action for revival of judgment under Rule 39 Section 34

• What about the non-appealing defendants, if an appeal is made by one of the defendants, the
trial court execute the judgment in favor of all?

• What are the requisites for residual powers? Section 2 Rule 39

• Does the judgment obligor have a remedy when the judgment is not yet executory and the
judgment is ordered executed?

• What is the meaning of levy? It is an act by which an officer sets apart or appropriates a part of
the whole property of the judgment debtor for purposes of the execution sale
• So it is a levy on execution?

35 ejlvillena.2009//
• So it is the levy which satisfies the judgment? NO
• So then, what satisfies the judgment? Payment by the judgment obligor; satisfaction of
judgment
• So a levy is always an essential part to the satisfaction of a payment? NO, if the judgment
obligor is willing and able to pay, there is no need to levy
• So if the judgment obligor is unwilling to pay, a levy is necessary to satisfy judgment? NO, it
depends on the award: if payment of money - ; if (Section 9, Rule 39)
• “unwilling” is different from “unable”
• So levy is an essential part? NO, because there is an instance when to satisfy or pay judgment
• Isn’t the levy the means to compel payment? Section 9b

• How can you satisfy a judgment which is not formal? Section 10 Execution of judgments for
specific acts
• Such as?
1. conveyance, delivery of deeds, or other specific acts; vesting title
2. sale of real or personal property
3. delivery or restitution of real property
4. removal of improvements on property subject of execution
5. delivery of personal property

• What else? Section 11, Execution of special judgments

• How will the court satisfy judgments if they are not for money, not for a signed document,
etc.? Section 11

• What happens if the judgment obligor refuses to deliver, or disobeys the writ of execution, or
order? He could be cited for contempt
• So he will be imprisoned? YES
• Isn’t that in violation of the time-honored principle that no one shall be imprisoned for non-
payment of debts? NO, because the judgment obligor will be imprisoned not because of the
non-payment of debt but for his disobedience or defiance of the court order

• Supposing the judgment is for payment of money, and the judgment obligor fails or refuses to
comply, can he be cited for contempt? NO

• If there is an irregularity in the levy? The levy is not valid

• How should the levy for execution be carried out?
• How is levy imposed on personal property? By taking possession or control over the property
• Over real property? The sheriff shall put a notice on the property through the Register of Deeds
that there is a levy on the property
• What if shares of stock of a corporation are levied? The coprporation shall be given notice to
such levy
• If the judgment obligor has an account in a bank, and the account is levied or garnished, is that
valid? YES
• Isn’t that a violation of bank secrecy? NO, because the levy or garnishment does not involve
inquiry on the accounts hence there is no secrecy violation

• In terms of real property, so the possessor shall remain in possession of the property? YES
• How about the rentals? Shall be considered as income of the possessor

• Where will notice for real property be posted? Notice shall be posted at conspicuous places,
Section 15 Rule 39

• So in execution, there may be an auction sale? YES

• Is this public? YES

36 ejlvillena.2009//
• Can the debtor sell his attached properties? YES
• Once the sheriff conducts an auction, is the judgment obligor deprived of his ownership upon
levy? NO
• Is he deprived of appropriation? NO
• Transfer of ownership? NO

• Can another creditor make another levy on the subject property? YES

• What is a redemptioner? He is the owner of a property sold at a public auction sale

• What lien is contemplated in execution? Lien subsequent to the sale

• How are funds generated to satisfy the judgment?

• Can the judgment obligee enforce judgment on properties of the judgment obligor to be
obtained in the future? NO

• During the auction, can anybody participate in that auction? YES

• Is the judgment obligor allowed to bid? Why allow him to bid, when he can pay the judgment
obligee directly anyway sans the auction sale
• Why is the judgment obligee allowed to bid? Because if it is equivalent to his claim in the
judgment, he will not be required to pay the purchase price anymore
• Is there an exception? If there is a 3rd party claim submitted

• Can anyone bid in the public auction sale? YES

• Is there any exception on who can bid? The sheriff and his deputies can’t bid
• Why is the sheriff prohibited? Because he is the one directly in-charge of the public auction
sale
• So, other court officials such as the clerk of court or the stenographer, may bid? NO, according
to Article 1491 of the Civil Code; the auction sale will be void because even court officials are
precluded from bidding based on the said provision
• The judgment obligee is allowed to bid? YES
• Judgment obligor? NO
• Why disallow the judgment obligor? Because he can sell the property anyway to settle his
obligation
• Will the levy be lifted if the judgment is settled? YES

• Supposing, personal property worth P500,000 is put up for auction, the highest bidder is a
stranger, his winning bid is P10,000, what will happen? The court may annul or set aside the
public auction sale
• Upon motion or motu propio?
• Why allow the court to annul or set aside the auction? Because if the winning bid is
unconscionably low in case of personal property, the court may set aside the auction because
the judgment obligor has no right of redemption over personal properties sold in an auction
sale
• Does the same rule apply with real property? NO, if the winning purchase price for a real
property is unconscionably low, the court may not annul or set aside the auction because the
judgment obligor has a right of redemption over the real property and hence he may reacquire
the property for a cheaper price
• What happens if the auction for personal property is annulled or set aside? Another auction sale
may be conducted until the winning bid is not considered as unconscionably low

• For how long may the judgment obligor exercise his right of redemption? One (1) year from
the date of registration of the deed of sale

37 ejlvillena.2009//
• Can the parties agree to extend the period for redemption? YES
• Can they agree to reduce the period for redemption? NO, the Rules prohibit the reduction of
the period for redemption
• Is there an instance when the period of redemption shall be less than 1 year? YES, the period of
redemption shall be 3 months from the actual sale, when the foreclosing creditor or mortgagor
is a juridical person, such as a bank, under the General Banking Law of 2000

• Does the judgment debtor enjoy the right of redemption? YES

• For how long? 1 year from the registration of the deed of sale
• Can this period be shortened under Rule 39? NO, but under the General Banking Law of 2000,
the period for redemption shall only be 3 months

• Is the right of redemption a property right? YES, it can be sold or assigned

• Can it be the subject of a levy? YES, but not by the same attaching creditor
• Why? It would defeat the purpose of redemption because instead of having the judgment
obligee acquiring the right of redemption, the judgment obligor can just pay his obligation to
the judgment obligee directly, because it has the same effect anyway because with the right of
redemption, the judgment obligee will have a right to collect from the judgment obligor,
rendering the redemption nugatory

• If there is a deficiency in the satisfaction of the judgment, what can be done? The judgment
obligee can levy as much property that can be levied
• Supposing, an apartment of the judgment obligor is levied, and was sold at a public auction
sale; while the period of redemption was running, the judgment obligor collected rentals from
his tenants, who is entitled to these rentals? Still the judgment obligor which will form part of
his income
• Even if the apartment has been sold in the auction already? YES, because there is still a period
of redemption and until the title over the property has not yet been consolidated (consolidation
of title happens after the lapse of the period of redemption) ownership has not yet been
transferred to the highest bidder in the auction

• What if despite the public auction sale, the judgment still is not satisfied? The judgment
obligee has 3 remedies
1. examination of the judgment obligor
2. examination of the debtor of the judgment obligor
3. appointment of a receiver

• Discuss the first remedy

• Isn’t that a mode of discovery? NO, because the examination should be done during a hearing
and there is a judgment already, unlike in the mode of discovery, it is done outside of the court
and has no judgment yet
• What mode of discovery is closely related to this remedy? Interrogatories of parties
• Do the Rules provide that modes of discovery cannot be used after judgment? NO, but the
Rules provide that the availment of a mode of discovery or intention to avail of a mode of
discovery should be indicated in the pre-trial brief, otherwise, it cannot be availed of.
• What are the modes of discovery
• Won’t there be a novation of judgment? NO, novation contemplates an incompatibility of
elements in the judgment

• Discuss the 2nd remedy.

• Shouldn’t the judgment obligee just ask for execution or specifically, garnishment instead of
having this remedy? In garnishment the property in the possession of the 3rd person is still
owned by the judgment obligor but is just possessed by another, i.e. a bank possessing the
money of judgment obligor; while in the 2nd remedy, the judgment obligor does not really have
any property available anything at this point or in the possession of another, what he has is just
that right to collect from his debtor
38 ejlvillena.2009//
• How will examination of the debtor be made? Ask an order from the court
• Isn’t there a problem if it is the judgment obligee who files a case to collect against the debtor,
does he have personality? YES he may do that, this situation is an exception to the usual
procedure of having direct attacks

• Last two sections of Rule 39.

• What are the other terms for res judicata? Bar by prior judgment, a matter adjudged,
conclusiveness of judgment
• What constitutes conclusiveness of judgment? Identity in parties, identity in subject matter,
identity of claims

• Supposing, the creditor in a case collects the principal as per judgment; in a 2nd case he tries to
collect the interest from the same debtor? Is there res judicata? YES, if the claim could have
been raised in the 1st case
• The Court is NOT deprived after rendition of judgment of jurisdiction until the judgment is
entered (meaning final and executory)

• Supposing, the creditor files a case for recovery of a loan in the amount of P600,000. The case
was decided, then the creditor files another case for recovery of interest in the amount of
P200,000, is there res judicata? Or conclusiveness of judgment?

• Is conclusiveness of judgment a ground for dismissal of the case? Like res judicata?

• What procedural principle is violated by the creditor? Splitting cause of action

• What if it is the other way around, 1st case – claim for interest, 2nd case – claim for the
principal amount?

• Plaintiff files a case for accion publiciana (recovery of a piece of land); defendant assails that
he had possession in good faith, then the judgment was entered in favor of the plaintiff.
Defendant then files a case against plaintiff claiming the amount for improvement, is there res
judicata? Is there conclusiveness of judgment?

• What are the elements of res judicata?

1. identity of parties 3. identity of cause of action
2. identity of subject matter

• If there is a reversal of roles where the plaintiff becomes the defendant and vice versa, is there
res judicata? YES
• Can res judicata be raised in a counterclaim? YES but it is not compulsory
• Why not in a compulsory counterclaim? Because if it is not filed, the party is precluded to raise
issues which could have been raised

• What are the essentials of res judicata?

1. court with competent jurisdiction 3. identity in the parties, subject matter, causes of action
2. final and executory judgment 4. adjudication upon the merits

• When is there deemed an adjudication upon the merits? Rule 17 (two-dismissal rule, nolle
prosequi, etc.)
• That is under Rule 17, how about under Rule 16? Non-waivable defenses

• What is law of the case?

• Give an example of conclusiveness of judgment: promissory note payable in 2 installments in

the total amount of P10 Million. 1st installment became due in the amount of P5 Million, and
for collecting such amount, a case was filed, but the genuineness of the signature was assailed
39 ejlvillena.2009//
 and thereafter declared valid by the court. When the 2nd installment became due, another case
was filed, but the issue of genuineness of the signature cannot be raised anymore
• So the 2nd complaint is not barred? NO, but it should have a different claim

• What is the last paragraph of Section 48, Rule 39? In either case, the judgment or final order
can be repelled by evidence showing want of notice, want of jurisdiction, fraud, collusion, or
clear mistake of fact or law
• This involves a foreign judgment? YES
• Can it be applied to a local judgment? YES, except the ground of clear mistake of law or fact
because the facts and laws applied are conclusive
• So how can a local judgment be repelled? Under Rule 38 or Rule 47

• Can a motion for execution be denied on account of want of jurisdiction, want of notice,
collusion, fraud, or clear mistake of law or fact? NO, only a judgment or final order only

• So a motion for execution is limited by Section 48? Rules even allow a motion to quash a writ
of execution
• So a motion for execution can be denied by reason of collusion, fraud, absence of jurisdiction,
want of notice

• Can the judgment debtor oppose a motion for execution? NO, the court will grant it; only the
higher court can stop/invalidate the judgment NOT the same court, because it will not void its
own judgment

• What attack is made in filing an action under Rule 47? Direct attack
• Can a collateral attack be made on a judgment? NO
• If there is a motion for execution and the remedy used by the judgment debtor is an opposition
and assailed the validity of the judgment, is this valid? NO, that is a collateral attack on the
judgment

• In consolidation of title, how is it made? This is non-judicial in Rule 39, where a deed of
conveyance is issued to the purchaser and the same is filed with the Register of Deeds
• What if there is a redemption?

• If the highest bidder is entitled to possession, how is this made? By an application for a writ of
possession, which under Rule 39 may be issued ex parte, and may be issued by another branch

• In annulment of judgment, why do we presuppose that the judgment is already final and
executory?

• If there is a writ of execution, may a party avail of Rule 47? YES

• What is a judgment upon the merits? Upon issues which could have been raised

• In probate proceedings, presumptive prima facie evidence of the death may be established by a
living person

• What is an example of matters which could have been raised? Where the case involves a loan
and only the principal amount was demanded, and the issue of interest was not raised
• Matters directly adjudged? Possession

• In foreign judgments, why may it be assailed by reason of error? Correctness is presumed but
not conclusive

40 ejlvillena.2009//
Provisional Remedies

• What are instances when a writ of preliminary attachment may be issued? Section 1, Rule 57
• If you are the lawyer of the applicant, what are the documents to be submitted to the court?
Affidavit and Bond

• May the application be granted ex parte? YES

• Does it mean to say that there is no need to adduce evidence?
• Before any court? YES
• The main action may involve real action? YES, property
• If the case is for accion publiciana or reivindicatoria and defendant not resident and not found,
mat it be granted?

• Reivindicatoria action, may it fall under Section 1? YES, under the last paragraph
• May the property subject of the action be attached?
• NO, it is inconsistent since the applicant is the plaintiff who claims ownership over the very
property sought to be attached. The purpose is to secure the judgment
• Then what is the remedy (same property)? Notice of lis pendens to protect one’s interest

• Do the grounds necessarily amount to criminal fraud? Not necessarily. There is dolo causante
& dolo incidente = civil fraud

• Does preliminary attachment require prior or contemporaneous service of summons? Generally

YES; exception-Section 5, Rule 57
• So there is no need for summons? Generally, implementation requires it but not in issuance,
but in the exceptions, it may be after, through publication = due process

• In attachment, what is the distinction between Rule 39 and Rule 57 where there is a pending
case? Rule 57 = General rule, and exception ; Rule 39 =

• In Rule 57, who will get the property? It depends if it is personal property; the sheriff

• Is it immune from any of the processes of other courts? NO, it can attach those which are
already subject to attachment. Reason: it is only a lien

• What benefit would the 2nd attachment have? Under Rule 57, if there is excess, if the 1st is
foreclosed, will go to the 2nd attachment

• What are the remedies of the defendant?

1. Counter-bond
2.

• Why is ex parte allowed in the issuance not in the discharge? Because during the time of the
hearing, it may give a chance to abscond

• Motion is denied = interlocutory order - not appealable

• If discharged already, may a motion to discharge still be filed? YES, because there is still a
counter-bond as a security, Section 13

• Do we have a 3rd party claim in Rule 57? What is its distinction with Rule 39? In Rule 57, the
3rd party claimant must file a motion to intervene so he be able to claim because judgment has
not yet been rendered, and the trial has been ongoing; it is proper before rendition by the trial
court; this is not allowed in the appellate court

41 ejlvillena.2009//
• May a 3rd party dispense with terceria? YES, the remedies are cumulative

• Where to file 3rd party’s independent action if the attachment is issued by the CA?

• If the independent action is filed by a stranger? The declaration of the inferior court prevails.
Since the property belongs to another person, the attachment is void.

• What is the difference between levy on attachment (Rule 57) and levy on execution (Rule 39)?
Levy on Attachment Levy on Execution
- for security - for satisfaction
- no auction is involved except if the property - there is a public auction sale
is perishable
- before judgment - after judgment
- grounds are exclusive - grounds are NOT exclusive

• After the trial, if the court decides in favor of the applicant, can he be held liable for wrongful
attachment, even if the judgment is in favor of the applicant? YES, if the ground is not one of
those under Section 1, Rule 57

• If the applicant loses the case, is he automatically liable for damages? NO, defendant should
assail damages under Section 20, Rule 57

• How? File an Answer with Counterclaim

• So will there be another trial? NO, it should be assailed within the same case
• How will you prove damages? File an Answer with Counterclaim to show evidence of
improper attachment

• What if there is no counterclaim filed, may he still recover? YES, before the perfection of
appeal or during the pendency of the appeal

• Explain how a car may be recovered using a writ of replevin.

• What court has jurisdiction? It depends on the allegations of the complaint

• How will the plaintiff obtain the writ of replevin?
• Why is it important to determine the value of the property? To be able to fix the bond, which is
double the market value of the property
• Is there a period in which to apply for a writ of replevin? Is there a time? Anytime before the
defendant answers

• What if the replevin is filed after the Answer?

• If the replevin is forfeited, can a writ of preliminary attachment be filed?

Two views:
1. NO, because there is a conflict in the purpose: PA – security; Replevin – recovery
2. YES, because if your purpose is simply to dispossess (not necessarily recovery because the
applicant may be a non-owner) the adverse party, then PA can applied for as long as the
object of the action falls within Section 1 of Rule 57, because in PA, the possession of the
property goes to the sheriff

• If not PA, can receivership be sought instead?

Two views:
1. NO, because of the difference in purpose
2. YES, because again if the purpose is just to dispossess, this can be achieved in receivership
where the possession is taken from the adverse party to the receiver

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• If not PA and receivership, can preliminary mandatory injunction be sought instead?
Two views:
1. NO, because preliminary mandatory injunction is usually used as a remedy to recover
possession of real property; PMI cannot be used for personal property because the Rules
specifically provide for the remedy in recovering possession of personal property and that is
replevin only
2. YES, PMI can be used to compel a person to do something, such as to delivery the personal
property in question

• What are the contents of a preliminary injunction?

• If not PA, receivership, or PMI, perhaps the remedy of support may be used? Of course NOT

• Is contemporaneous service required in replevin?

• If the sheriff now has possession of the car, what happens then? The sheriff shall retain the
property for 5 days. Within such period, the adverse party may object to the sufficiency of the
applicant’s bond or surety or he may file a redelivery bond

• What is the amount of the counterbond?

• As long as the counterbond is filed, is that an assurance that he will recover the property? NO

• If the counterbond is filed on the 7th day, why can’t the property be recovered? Because after 5
days, it shall be delivered to the applicant already

• Is a 3rd party claim applicable in replevin? YES similar to execution, but through a motion to
intervene because in contrast to execution, in replevin, there is no judgment yet

• If there is NO counterbond, NO terceria, the car is delivered to the applicant. The car, however,
is the subject of a mortgage, can he sell the car at a public auction after foreclosure? Can
replevin be used if the applicant is a mortgagee, considering that in replevin, the applicant be a
non-owner? p. 129, 2008 Jara Notes
• Can he foreclose even if his possession is only by virtue of a provisional remedy? YES,
because replevin is loosely used
• Without filing a new complaint?
• What if at the end of trial, the judgment is not in favor of the applicant?
• Shouldn’t he file an action to foreclose? NO need
• Can the mortgagee ask for the dismissal of the case? YES, by notice of dismissal under Rule
17 = this is not a good move because to ask for dismissal if applicant forecloses, he has to
participate in the trial
• Five (5) day period of the sheriff = includes Saturday and Sunday
• Replevin bond is based on complainant’s allegations; the court cannot compel the complainant
to allege
• If the mortgagor files a complaint for recovery of damages, should he file an Answer? P. 122,
2008 Jara Notes
• If the case is dismissed, the mortgagee should return the car because his possession is by virtue
of a provisional remedy, which cannot stand without a case; a provisional remedy cannot stand
on its own without a case as it be based on a principal / main action

• How can a temporary restraining order be permanent? By judgment or final order

• What is the difference between a TRO and preliminary injunction?

• Who can issue a TRO or PI?

43 ejlvillena.2009//
• What is the meaning or irreparable injury? If it is of such constant and frequent recurrence
that no fair or reasonable redress can be had therefore in a court of law or where there is no
standard by which their amount can be measured with reasonable accuracy
• Can the adverse party use this as an excuse or defense against a preliminary injunction granted
to an applicant?
• 6 months

• Supposing a court issues a TRO within a limited period, within that period what should be
done? To resolve whether the limited period should be extended or not

• What are the rules on the reckoning period of TROs?

- If the TRO issued is for 72 hours, the reckoning period will be from the issuance or until the
applicant for preliminary injunction can be heard; if extended to 20 days, the 72 hours shall be
included in counting the 20 days
- If the TRO issued is for 20 days, the reckoning period is from notice to the party sought to be
enjoined

• Can a preliminary injunction be foregone by a counterbond? NO, Section 6

• When is a preliminary injunction not available?

1. foreclosure of a mortgage by a government bank
2. commencement and performance of infrastructure projects by the government
3. concessions, licenses, permits, patents or public grants as to the disposition, exploitation,
utilization, exploration and/or development of natural resources

• Can the SC issue an injunction? The SC can issue a provisional remedy of preliminary
injunction, but it cannot entertain an action for injunction because that is vested with the RTC
exercising its territorial jurisdiction
• What is the authority of the SC to entertain an injunction?

• What are the provisional remedies covered by the Family Court

1. spousal support 4. visitation rights 7. administration of common property
2. child support 5. hold departure order
3. child custody 6. protection order

• Can it be issued ex parte? NO

• Can there be support in criminal cases? YES, rape or other cases where there can be
application of support
• How about support pendent lite? Only in civil cases

• In an action for support garnted virtue of a judgment , can the support be changed, perhaps two
years after entry of judgment? YES, the court may apply current economic living conditions

• How can a person be compelled to give support?

1. writ of execution
2. contempt citation
3. 3rd party to give support instead

• What is the scope of a protection order?

• What is the difference between an interim protection order and a protection order under
the Family court

• What is a writ of amparo?

• What are the other interim reliefs available in the writ of amparo?

44 ejlvillena.2009//
• Can the writ of amparo be issued by virtue of an independent proceeding?

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