RULES OF CIVIL PROCEDURE
RULE 1
Sec. 2. In what courts applicable. — These Rules shall apply in all the
courts, except as otherwise provided by the Supreme Court.
Sec. 3. Cases governed. — These Rules shall govern the procedure to
be observed in actions, civil or criminal, and special proceedings.
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.
A civil action may either be ordinary or special. Both are governed by
the rules for ordinary civil actions, subject to the specific rules
prescribed for a special civil action.
(b) A criminal action is one by which the State prosecutes a person for
an act or omission punishable by law.
(c) A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact.
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
Criminal action – one by which the State prosecutes a person for an
act or omission punishable by law.
Special proceeding – a remedy by which a party seeks to establish a
status, a right, or a particular fact
Special civil actions are called so because special rules govern.
Sec. 4. In what cases not applicable. — These Rules shall not apply to
election cases, land registration, cadastral, naturalization and
insolvency proceedings, and other cases not herein provided for,
except by analogy or in a suppletory character and whenever
practicable and convenient.
Cases where the Rules apply only by analogy or suppletorily
election cases
land registration
cadastral
naturalization and
insolvency proceedings, and
other cases not herein provided for
Sec. 5. Commencement of action. — A civil action is commenced by
the filing of the original complaint in court. If an additional defendant is
impleaded in a later pleading, the action is commenced with regard to
him on the date of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied by the
court.
A. Ordinary Civil Actions (Rules 2-5)
Kinds of actions
Real action – the subject matter of the action is real property (e.g.
foreclosure of real mortgage)
Personal action – the subject matter of the action is personal property
(e.g. foreclosure of chattel mortgage)
Action in personam – the decision is enforceable only against the
parties
Action in rem – the decision is enforceable against the whole world
Action quasi in rem – A real action may still be an action in personam.
Rule 2
Section 1. Ordinary civil actions, basis of. — Every ordinary civil action
must be based on a cause of action.
Sec. 2. Cause of action, defined. — A cause of action is the act or
omission by which a party violates a right of another.
CAUSE OF ACTION – act or omission by which a party violates a
right of another.
Sec. 3. One suit for a single cause of action. — A party may not
institute more than one suit for a single cause of action.
Sec. 4. Splitting a single cause of action; effect of. — If two or more
suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others.
A plaintiff can not split a single cause of action, but he may join several
causes of action against the same defendant, subject to the following
rules:
Jid
must comply with the rules on joinder of parties
2. joinder shall not include special civil actions or actions governed by
special rules (e.g. summary procedure)
3. where the causes of action are between the same parties but pertain
to different venues or jurisdictions, the joinder may be allowed in the
RTC provided
a. one of the causes of action falls within the jurisdiction of the RTC
court and
b. the venue lies within such RTC
4. where the claims in all the causes of action are principally for
recovery of money, the aggregate amount claimed shall be the test of
jurisdiction.
RULE 3 – PARTIES TO CIVIL ACTIONS
Section 1. Who may be parties; plaintiff and defendant. — Only natural
or juridical persons, or entities authorized by law may be parties in a
civil action. The term ―plaintiff‖ may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party
plaintiff. The term ―defendant‖ may refer to the original defending party,
the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
Sec. 2. Parties in interest. — A real party in interest is 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.
Sec. 3. Representatives as parties. — Where the action is allowed to
be prosecuted or defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these Rules.
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 principal.
Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued
jointly, except as provided by law.
Sec. 5. Minor or incompetent persons. — A minor or a person alleged
to be incompetent, may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a guardian ad litem.
Rule on permissive joinder of parties – All persons in whom or against
whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the
action. Misjoinder of causes of action is not a ground to dismiss a
case. The proper remedy is to severe the other cause of action and to
try separately. [Rule 6]
Sec. 7. Compulsory joinder of indispensable parties. — Parties in
interest without whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants.
Indispensable parties — parties in interest without whom no final
determination can be had of an action. Failure to implead an
indispensable party is ground to dismiss the case.
Necessary party – one who is not indispensable but who ought to be
joined as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or settlement of the
claim subject of the action. Failure to implead a necessary party is a
waiver of the claim against such party. It is not ground to dismiss the
case. [Sec. 8]
Sec. 9. Non-joinder of necessary parties to be pleaded. — Whenever
in any pleading in which a claim is asserted a necessary party is not
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joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party
if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary party.
Sec. 10. Unwilling co-plaintiff. — If the consent of any party who should
be joined as plaintiff can not be obtained, he may be made a defendant
and the reason therefor shall be stated in the complaint.
Sec. 11. Misjoinder and non-joinder of parties. — Neither misjoinder
nor non-joinder of parties is ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party
or on its own initiative at any stage of the action and on such terms as
are just. Any claim against a misjoined party may be severed and
proceeded with separately.
The non-joinder of a party which does not cause dismissal refers to
necessary parties. Non-joinder of an indispensable party is a ground to
dismiss the action.
Sec. 12. Class suit. — 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 and 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.
Requisites of a Class Suit
the subject matter of the controversy is one of common or general
interest
to many persons so numerous it is impracticable to join all as parties
a number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned sues or
defends for the benefit of all
Any party in interest shall have the right to intervene to protect his
individual interest.
Sec. 13. 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.
Sec. 14. Unknown identity or name of defendant. — Whenever the
identity or name of a defendant is unknown, he may be sued as the
unknown owner, heir, devisee, or by such other designation as the
case may require; when his identity or true name is discovered, the
pleading must be amended accordingly.
Sec. 15. Entity without juridical personality as defendant. — When two
or more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which
they are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed.
If the defendant dies before a case may be filed
for recovery of sum of money – file a claim before the estate
proceedings, where the creditor will have to present evidence on the
validity of his claim; because the amount sought to be collected is
definite
for recovery of property – file a separate case against the
executor/administrator; because the amount of the claim is
unliquidated
Jid
for damages for injury – file a separate case before the courts.
If the defendant dies
before a case is filed
for recovery of a sum of money – file a claim before the estate
proceedings, where the creditor will have to present evidence on the
validity of his claim
real action and action for damages – file a separate case against the
executor/administrator
after a case is filed but before judgment
for recovery of a sum of money – case shall not be dismissed but shall
instead be allowed to continue until entry of final judgment; the
judgment is then filed as a claim in the estate proceedings; decedent’s
legal representative should be substituted for the decedent.
real action and action for damages
1) heirs of the deceased may be allowed to be substituted,
without requiring the appointment of an executor or administrator and
the court may appoint a guardian ad litem for the minor heirs.
2) If no legal representative appears, the court may order
the opposing party, within a specified time, to procure the appointment
of an executor or administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of the deceased.
Priority to in the appointment to
a) Surviving spouse, or next of kin
b) one or more of the principal creditors, if competent and willing
to serve
c) other person as the court may select.
3) in case conflict of interest where a creditor being
appointed administrator is to appoint a special administrator where the
creditor appointed will have to file his own claim
after judgment but before execution
for sum of money – present the writ of execution as a claim before the
probate court
real action and action for damages – substitute the defendant with his
administrator or executor, and enforce the writ against him without
going to the probate court
after levy on execution (applies only to recovery of a sum of money) –
continue with the auction sale and the officer making the sale shall
deliver the proceeds to the plaintiff, and account to the executor or
administrator for any excess.
RULE 5 – UNIFORM PROCEDURE IN TRIAL COURTS
Rules on summary procedure are applicable in the following cases
before the MTCs
Civil cases
forcible entry and unlawful detainer, regardless of amount of damages
(compensation for use of property) or unpaid rentals
except probate proceedings, civil cases where the total amount of the
plaintiff’s claim does not exceed P10,000 exclusive of interest and
costs.
Criminal cases
traffic violations
rental law violations
municipal or city ordinances violations
damage to property through criminal negligence, where the imposable
fine does not exceed P10,000
penalty not exceeding 6-month imprisonment, or a P1,000 fine
Exceptions:
civil case where the plaintiff’s cause of action is pleaded in the same
complaint with another cause of action subject to the ordinary
procedure
criminal case where the offense charged is necessarily related to
another criminal case subject to the ordinary procedure.
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Recall that criminal cases that should undergo reconciliation
proceedings under the Katarungang Pambaranggay are offenses
punishable by not more than 1 year or a fine not over P5,000
Therefore nearly all summary procedure criminal cases must go
through the Katarungang Pambaraggay.
Sec. 2. Determination of applicability
Upon filing of the initiatory pleading, the court shall declare whether the
case is governed by the rule on summary procedure.
Civil Cases
Procedure in summary civil cases
complaint is filed
court declares it falls under summary procedure
may dismiss the case motu proprio; if not, issue summons
defendant files his answer within 10 days (defenses and claims not
pleaded are waived, except lack of jurisdiction over subject matter)
answer to counterclaims or cross-claims within 10 days from service of
the answer
preliminary conference not later than 30 days after the last answer is
filed; absence of
plaintiff – cause for the dismissal of his complaint; defendant entitled to
judgment on his counterclaim as if plaintiff did not file an answer to the
counterclaim; all cross-claims dismissed
sole defendant – plaintiff shall be entitled to judgment as if defendant
did not file an answer
1 or some of many defendants sued under a common cause of action
who had pleaded a common defense – no adverse effect on the
defense
the court issues record of preliminary conference, within 5 days after
the termination of the preliminary conference, covering
terms of any amicable settlement
stipulations or admissions entered into by the parties
Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without
the need of further proceedings, in which event the judgment shall be
rendered within 30 days from issuance of the order
material facts which remain controverted
matters intended to expedite the disposition of the case.
parties shall submit the affidavits of their witnesses and other evidence
on the factual issues defined in the order, together with their position
papers, within 10 days issuance of record of preliminary conference
within 30 days after receipt of the last affidavits and position papers, or
the expiration of the period for filing the same, the court either
renders judgment
requires clarification of certain material facts, within 10 days from
receipt of said order; then render judgment within 15 days from receipt
of the last clarificatory affidavits, or the expiration of the period for filing
the same
A. Pleadings allowed
Allowable pleadings (must all be verified)
complaint
compulsory counterclaims
cross-claims in the answer
answer
Note that permissive counterclaims and 3rd party complaints are not
allowed.
Sec. 5. Answer. - Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be filed and served within ten (10)
days from service of the answer in which they are pleaded.
Sec. 6. Effect of failure to answer.
Failure of the defendant to answer – the court shall render judgment as
may be warranted by the facts alleged in the complaint and limited to
Jid
what is prayed for; the court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or otherwise
unconscionable.
Note that when the defendant fails to answer in summary procedure,
the court may motu propio rule for the plaintiff. In ordinary civil actions,
the court can do so only upon motion by the plaintiff to declare the
defendant in default and after plaintiff supports his claim with evidence.
Sec. 7. Preliminary conference; appearance of parties. - Not later than
thirty (30) days after the last answer is filed, a preliminary conference
shall be held. The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall
be a cause for the dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be entitled to judgment on
his counterclaim in accordance with Section 6 hereof. All cross-claims
shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to
judgment in accordance with Section 6 hereof. This Rule shall not
apply where one of two or more defendants sued under a common
cause of action who had pleaded a common defense shall appear at
the preliminary conference.
* Effect of failure to appear at the preliminary conference by
the plaintiff – cause for the dismissal of his complaint; defendant who
appears entitled to judgment on his counterclaim as may be warranted
by the facts alleged. All cross-claims shall be dismissed.
the sole defendant –plaintiff entitled to judgment as may be warranted
by the facts alleged in his complaint
one of many defendants sued under a common cause of action who
had pleaded a common defense – case continues
Sec. 8. Record of preliminary conference. - Within five (5) days after
the termination of the preliminary conference, the court shall issue an
order stating the matters taken up therein, including but not limited to:
a) Whether the parties have arrived at an amicable settlement, and if
so, the terms thereof;
b) The stipulations or admissions entered into by the parties;.
c) Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without
the need of further proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the order;
d) A clear specification of material facts which remain controverted;
and
e) Such other matters intended to expedite the disposition of the
case.
Sec. 9. Submission of affidavits and position papers. - Within ten (10)
days from receipt of the order mentioned in the next preceding section,
the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon by them.
Sec. 10. Rendition of judgment. - Within thirty (30) days after receipt of
the last affidavits and position papers, or the expiration of the period for
filing the same, the court shall render judgment.
However should the court find it necessary to clarify certain material
facts, it may, during the said period, issue an order specifying the
matters to be clarified, and require the parties to submit affidavits or
other evidence on the said matters within ten (10) days from receipt of
said order. Judgment shall be rendered within fifteen (15) days after
the receipt of the last clarificatory affidavits, or the expiration of the
period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for
the rendition of the judgment.
Criminal Cases
Summary Procedure in Criminal cases
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Initiated either by complaint or information (only by information, in
Metro Manila and Chartered cities, except when the offense cannot be
prosecuted de oficio)
As many copies of the information or complaint, with affidavits of
complainant and his witnesses, as there are accused plus 2, within 5
days from filing; otherwise the case may be dismissed
Court declares if the case is covered by the rule on summary
procedure
If commenced by complaint and patently without basis or merit, court
may dismiss the case; otherwise, court requires accused to submit his
counter-affidavit and the affidavits of his witnesses and any evidence in
his behalf
Filing and service on prosecution of defense’s evidence within 10 days
from receipt of the order
prosecution may file reply affidavits within 10 days after receipt of the
counter-affidavits of the defense.
Court either dismisses the case, or set arraignment and trial
If the accused is in custody for the crime charged, he shall be
immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.
Preliminary conference
no admission by the accused shall be used against him unless
reduced to writing and signed by the accused and his counsel
parties must manifest intention to present additional affidavits or
counter-affidavits as part of his direct evidence, and it should be
allowed by the court; filed and served within 3 days after the
termination of the preliminary conference; accused may file and serve
his counter-affidavits within 3 days from such service.
Trial – the affidavits submitted by the parties shall constitute the direct
testimonies, subject to cross-examination, redirect or re-cross
examination; failure of affiant to testify will render his affidavit
incompetent for the offeror, but admissible for the opposing party;
witnesses must submit affidavits before testifying, except on rebuttal or
surrebuttal
Accused shall not be arrested, except for failure to appear when
required; Accused may be released either on bail or recognizance
the court renders judgment within 30 days after the termination of trial.
Note that preliminary conference is required in both civil and criminal
cases.
In criminal cases, there is hearing and actual trial. In civil cases, only
the pleadings, affidavit, evidence, and position papers are considered.
There is no hearing or trial in summary civil cases.
Only those who have executed affidavits may testify on the stand,
except rebuttal and sur-rebuttal witnesses.
Sec. 11. How commenced. - The filing of criminal cases falling within
the scope of this Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in Chartered Cities.
such cases shall be commenced only by information, except when the
offense cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the affidavits of
the complainant and of his witnesses in such number of copies as
there are accused plus two (2) copies for the court’s files. If this
requirement is not complied with within five (5) days from date of filing,
the case may be dismissed.
Sec. 12. Duty of court. -
(a) If commenced by compliant. - On the basis of the compliant and
the affidavits and other evidence accompanying the same, the court
may dismiss the case outright for being patently without basis or merit
and order the release of the accused if in custody.
(b) If commenced by information. - When the case is commenced by
information, or is not dismissed pursuant to the next preceding
paragraph, the court shall issue an order which, together with copies of
the affidavits and other evidence submitted by the prosecution, shall
require the accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving copies
thereof on the complainant or prosecutor not later than ten (10) days
from receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the
defense.
Jid
* Ground for motu propio dismissal of criminal case covered by
summary procedure initiated by complaint – patently without basis or
merit. The court can not dismiss a criminal case outright if it is
commenced by information.
Sec. 13. Arraignment and trial. - Should the court, upon a
consideration of the complaint or information and the affidavits
submitted by both parties, find no cause or ground to hold the accused
for trial, it shall order the dismissal of the case; otherwise, the court
shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be
immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.
Sec. 14. Preliminary conference. - Before conducting the trial, the
court shall call the parties to a preliminary conference during which a
stipulation of facts may be entered into, or the propriety of allowing the
accused to enter a plea of guilty to a lesser offense may be
considered, or such other matters may be taken up to clarify the issues
and to ensure a speedy disposition of the case. However, no
admission by the accused shall be used against him unless reduced to
writing and signed by the accused and his counsel. A refusal or failure
to stipulate shall not prejudice the accused.
Sec. 15. Procedure of trial. - At the trial, the affidavits submitted by the
parties shall constitute the direct testimonies of the witnesses who
executed the same. Witnesses who testified may be subjected to
cross-examination, redirect or re-cross examination. Should the affiant
fail to testify, his affidavit shall not be considered as competent
evidence for the party presenting the affidavit, but the adverse party
may utilize the same for any admissible purpose.
Except on rebuttal or surrebuttal, no witness shall be allowed to testify
unless his affidavit was previously submitted to the court in accordance
with Section 12 hereof.
However, should a party desire to present additional affidavits or
counter-affidavits as part of his direct evidence, he shall so manifest
during the preliminary conference, stating the purpose thereof. If
allowed by the court, the additional affidavits of the prosecution or the
counter-affidavits of the defense shall be submitted to the court and
served on the adverse party not later than three (3) days after the
termination of the preliminary conference. If the additional affidavits are
presented by the prosecution, the accused may file his counter-
affidavits and serve the same on the prosecution within three (3) days
from such service.
Sec. 16. Arrest of accused. - The court shall not order the arrest of the
accused except for failure to appear whenever required. Release of
the person arrested shall either be on bail or on recognizance by a
responsible citizen acceptable to the court.
Sec. 17. Judgment. - Where a trial has been conducted, the court shall
promulgate the judgment not later than thirty (30) days after the
termination of trial.
Sec. 18. Referral to Lupon. - Cases requiring referral to the Lupon for
conciliation under the provisions of Presidential Decree No. 1508
where there is no showing of compliance with such requirement, shall
be dismissed without prejudice and may be revived only after such
requirement shall have been complied with. This provision shall not
apply to criminal cases where the accused was arrested without a
warrant.
Failure to comply with Katarungang Pambaranggay when required is
ground for dismissal of the complaint, unless the accused was arrested
without a warrant.
* Prohibited pleadings and motions (Section 19):
Motion to dismiss the complaint or to quash the complaint or
information, except on the ground of lack of jurisdiction over the
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subject matter, or failure to comply with the Katarungang
Pambaranggay
Motion for a bill of particulars
MNT, or MfR, or motion for opening of trial
Petition for relief from judgment
Motion for extension of time to file pleadings, affidavits or any other
paper
Memoranda
Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court
Motion to declare the defendant in default
Dilatory motions for postponement
Reply
Third party complaints
Interventions.
Sec. 20. Affidavits. - The affidavits required to be submitted under this
Rule shall state only facts of direct personal knowledge of the affiants
which are admissible in evidence, and shall show their competence to
testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel
who submits the same to disciplinary action, and shall be cause to
expunge the inadmissible affidavit or portion thereof from the record.
* Special requirement for affidavits under summary procedure: must
state only admissible evidence and show their competence to testify on
such matters. Otherwise, the offering party or counsel may be subject
to disciplinary action and the inadmissible portion is expunged.
Sec. 21. Appeal. - The judgment or final order shall be appealable to
the appropriate regional trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa Blg. 129. The decision
of the regional trial court in civil cases governed by this Rule, including
forcible entry and unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.
Section 10 of Rule 70 (of the 1964 Rules of Court) shall be deemed
repealed.
Summary decisions are appealable to the RTC. RTC decision in
ejectment cases are immediately executory.
RULES 6 – 11: KINDS OF PLEADINGS
Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate judgment.
The complaint is the pleading alleging the plaintiff’s cause or causes of
action. The names and residences of the plaintiff and defendant must
be stated in the complaint.
An answer is a pleading in which a defending party sets forth his
defenses.
Defenses
(a) A negative defense is the specific denial of the material fact or facts
alleged in the pleading of the claimant essential to his cause or causes
of action.
(b) An affirmative defense is an allegation of a new matter which, while
hypothetically admitting the material allegations in the pleading of the
claimant, would nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession
and avoidance.
A counterclaim is any claim which a defending party may have against
an opposing party.
Jid
A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is connected with the
transaction or occurrence constituting the subject matter of the
opposing party’s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction.
Such a counterclaim must be within the jurisdiction of the court both as
to the amount and the nature thereof, except that in an original action
before the Regional Trial Court, the counterclaim may be considered
compulsory regardless of the amount.
A cross-claim is 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. Such cross-claim may
include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
Counterclaim is any claim which a defending party may have against
an opposing party
Requirements for a compulsory counterclaim:
arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim
does not require for its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction.
must be within the jurisdiction of the court both as to the amount and
the nature
In an original action before the RTC, a counterclaim may be
considered compulsory regardless of the amount. A permissive
counterclaim must also be within the jurisdiction of the court, and must
not require the presence of 3rd parties over whom the court can not
acquire jurisdiction. It must not be connected with the transaction or
occurrence constituting the subject matter of the opposing party’s
claim, otherwise, it would be a compulsory counterclaim.
Cross-claim is 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.
A reply is a pleading, the office or function of which is to deny, or allege
facts in denial or avoidance of new matters alleged by way of defense
in the answer and thereby join or make issue as to such new matters.
If a party does not file such reply, all the new matters alleged in the
answer are deemed controverted. If the plaintiff wishes to interpose
any claims arising out of the new matters so alleged, such claims shall
be set forth in an amended or supplemental complaint.
A third (fourth, etc.)-party complaint is a claim that a defending party
may, with leave of court, file against a person not a party to the action,
called the third (fourth, etc.)-party defendant, for contribution,
indemnity, subrogation or any other relief, in respect of his opponent’s
claim.
Necessary parties – When the presence of parties other than those to
the original action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order
them to be brought in as defendants, if jurisdiction over them can be
obtained.
RULE 7 – PARTS OF A PLEADING
Significance of counsel’s signature
The signature of counsel constitutes a certificate by him that he has
read the pleading; that to the best of his knowledge, information, and
belief there is good ground to support it; and that it is not interposed for
delay.
An unsigned pleading produces no legal effect. However, the court
may, in its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not intended
for delay.
Counsel who deliberately files an unsigned pleading, or signs a
pleading in violation of this Rule, or alleges scandalous or indecent
Page 5
matter therein, or fails to promptly report to the court a change of his
address, shall be subject to appropriate disciplinary action.
Verification – affidavit by an affiant that he has read the pleading and
that the allegations therein are true and correct of his personal
knowledge or based on authentic records.
Note that ―belief‖ as basis for verification has been deleted by a 1 May
2000 amendment.
based on ―information and belief,‖ or upon ―knowledge, information and
belief‖ is not sufficient verification.
Not all pleadings need to be verified.
Certification against forum shopping (applies to initiatory pleadings; de
Leon: and also to petitions for review, and petition for review on
certiorari)
that he has not theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other action or claim is
pending therein
if there is such other pending action or claim, a complete statement of
the present status thereof; and
if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within 5 days to the
court wherein his aforesaid complaint or initiatory pleading has been
filed
If dismissal of a case on the ground of lack of certificate against forum
shopping is silent, it is deemed to be without prejudice. If forum
shopping was willful and deliberate, dismissal shall be with prejudice.
RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADING
Manner of making averments of
Fraud or mistake – particular
malice, intent, knowledge, or other condition of the mind – general
If allegation of fraud or mistake is not particular, the remedy is to file a
bill of particulars.
Where an action or defense is based on a document, the substance of
such document be set forth in the pleading and a copy thereof
attached as an exhibit. The opposing party must specifically deny such
document under oath, otherwise, the genuineness and due execution
of the instrument shall be deemed admitted.
The rule applies only to ―pleadings,‖ not motions. Hence, an actionable
document in a MTD need not be denied under oath.
Note that even documents on which a defense is based must be
denied under oath. This is an exception to the rule that all new matters
in the answer are deemed controverted by failure to file a reply.
When denial under oath of an actionable document not required
the adverse party is not a party to the instrument
compliance with an order for an inspection of the original is refused
Allegations that may be general
ultimate fact, no evidentiary facts
pertinent provisions of law on which a defense relies on
conditions precedent
capacity or authority to sue and be sued, or legal existence must be
averred
Malice, intent, knowledge or other condition of the mind
judgment of another court or tribunal, domestic or foreign
official document or official act
denial of unliquidated damages
Allegations that must be specific
Questions as to legal existence or capacity to sue and be sued
circumstances constituting fraud or mistake must be stated with
particularity
substance of an document on which an action or defense is based
contest of an actionable document (under oath)
denial of plaintiff’s allegations
denial of usurious interest (under oath)
Jid
For an allegation that defendant is ―without knowledge or information
sufficient to form a belief as to the truth of a material averment made in
the complaint‖ to constitute denial, it must be shown that the defendant
indeed was in no position to know the truth of the averment in the
complaint. But if it can be demonstrated that he in fact was in a
position to know, then the denial is ineffective and the averment is
deemed admitted.
Matters that may be stricken out from a pleading
sham or false
redundant
immaterial
impertinent
scandalous
RULE 9 – EFFECT OF FAILURE TO PLEAD
Defenses appearing on the complaint which are not waived by failure
to plead, on which the court may dismiss the claim:
lack of jurisdiction over the subject matter
another action pending between the same parties for the same cause
(lis pendentia)
action is barred by a prior judgment (res adjudicata)
Statute of limitations
Procedure for declaring a defending party in default
failure to answer within the time allowed
motion of the claiming party
notice to the defending party
court declares the defending party in default
Court either
requires the claimant to submit evidence (may be delegated to the
clerk of court), or
renders judgment granting the claimant such relief as his pleading may
warrant, which shall not
1) exceed the amount prayed for or
2) be different in kind from that prayed for nor
3) award unliquidated damages
The court has no authority to motu proprio declare a defendant in
default. If the plaintiff does not move to declare the defendant in
default, the court may motu proprio dismiss with prejudice the action
on the ground of failure to prosecute under Rule 17 Sec. 3.
Effects of default
defaulting party still entitled to notice of subsequent proceedings, but
not to take part in the trial
defaulting party may move to set aside the order of default, provided
filed at any time after notice of default and before judgment
motion must be under oath
proper showing that
1) his failure to answer was due to fraud, accident, mistake
or excusable negligence (FAME), and
2) he has a meritorious defense
When some of several defending parties answer and the others fail to
do so, the court shall try the case against all upon the answers thus
filed and render judgment upon the evidence presented.
If Rule 38 is no longer available, then use Rule 47 (Annulment of
Judgments or Final Orders and Resolutions)
Actions where no defaults allowed
annulment
declaration of nullity
legal separation
RULE 11 – WHEN TO FILE RESPONSIVE PLEADINGS
When response to the following pleadings must be filed
main complaint, third or fourth party complaint – within 15 days after
service of summons, unless a different period is fixed by the court
Page 6
if defendant is a foreign private juridical entity and service of summons Papers required to be filed and served
is made on the government official so designated by law – within 30 judgment
days after receipt of summons by the foreign entity resolution
amended claims order
15 days from service of amended complaint, if amended as a matter of pleading subsequent to the complaint
right written motion
10 days from notice of admission of amended complaint, if amended notice
with leave of court (An answer earlier filed may serve as the answer to appearance
the amended complaint if no new answer is filed) demand
answer, counterclaim or cross-claim – within 10 days from service offer of judgment
supplemental complaint – within 10 days from notice of the admitting or similar papers
court order, unless a different period is fixed by the court (answer to
the complaint shall serve as the answer to the supplemental complaint Except court papers, resort to modes other than personal service must
if no new or supplemental answer is filed). be accompanied by a written explanation why the service or filing was
not done personally, otherwise it is ground to consider the paper as not
filed.

Grounds to admit an omitted counterclaim or cross-claim by Two ways of filing

amendment(before judgment) personally presenting the original copies to the clerk of court, who shall
oversight endorse on the pleading the date and hour of filing
inadvertence sending the original copies by registered mail, the date of the mailing
excusable neglect as shown by the post office stamp on the envelope or the registry
justice requires receipt, shall be considered as the date of their filing

Note that filing may not be by ordinary mail or substituted service.

These methods are available only on service of papers, not filing.
RULE 12 – BILL OF PARTICULARS
Proof of filing
Bill of particulars – definite statement of any matter which is not its existence in the record of the case
averred with sufficient definiteness or particularity to enable the If it is not in the record, but is claimed to have been filed
adverse party properly to prepare his responsive pleading. Personally – written or stamped acknowledgment of its filing by the
clerk of court on a copy
Procedure in bill of particulars registered mail – by the
application by an adverse party before responding to a pleading, or
within 10 days from service of the reply 1) registry receipt, and
clerk of court brings it to the attention of the court
(no hearing necessary) the court either 2) affidavit of the person who did the mailing, containing a full
deny it outright statement of
grant it outright
allow the parties the opportunity to be heard a) the date and place of depositing the mail in the post
If the motion is granted, the compliance therewith must be effected office
within 10 days from notice of the order, unless a different period is
fixed by the court. b) in a sealed envelope
The bill of particulars may be filed either in a separate or in an
amended pleading, serving a copy thereof on the adverse party c) addressed to the court
After service of the bill of particulars or of a more definite pleading, or
after notice of denial of his motion, the moving party may file his d) with postage fully prepaid
responsive pleading within the period to which he was entitled at the
time of filing his motion, which shall not be less than 5 days in any e) with instructions to the postmaster to return the mail to the sender
event. after 10 days if not delivered
If the order is not obeyed, or in case of insufficient compliance, the
court may order the striking out of the pleading or the portions thereof Four modes of service of papers
to which the order was directed or make such other order as it deems personal – complete upon delivery
just. Registered mail – complete upon actual receipt, or after 5 days receipt
A bill of particulars becomes part of the pleading for which it is of first notice of the postmaster, whichever is earlier
intended. ordinary mail – complete upon expiration of 10 days after mailing,
unless the court otherwise provides
substituted service – complete upon delivery to the clerk of court

RULE 13 – FILING AND SERVICE OF PLEADINGS, JUDGMENTS
AND OTHER PAPERS
Filing – the act of presenting the pleading or other paper to the clerk of
court.
Service – the act of providing a party with a copy of the pleading or
paper concerned.
If any party has appeared by counsel, service should be upon his
counsel, unless service upon the party himself is ordered by the court.
Where one counsel appears for several parties, he shall only be
entitled to one copy of any paper served upon him by the opposite
side.
Priorities in personal service of papers
leaving it in his office with his clerk or with a person having charge
thereof
if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at
his residence, with a person of sufficient age and discretion then
residing therein
Priorities in service by mail of papers
registered mail to office, if known
otherwise registered mail to residence, if known
If no registry service is available in the locality of either the sender or
the addressee, service may be done by ordinary mail.

Jid
Page 7
 Present in the Philippines
Requisites for substituted service of papers 1) Personal service (Rule 14, Sec. 6)
service can not be made personally or by mail 2) Substituted service (Rule 14, Sec. 7)
the office and residence of the party or his counsel being unknown Absent from the Philippines
deliver a copy to the clerk of court 1) Action in rem or quasi in rem – only Extraterritorial
with proof of failure of both personal service and service by mail service (Rule 14, Sec. 15)
(certified or sworn copy of the notice given by the postmaster to the 2) Action in personam, and judgment can not be secured by
addressee) attachment (e.g. action for injunction)

Sec. 13. Proof of service. — Proof of personal service shall consist of a
written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full statement
of the date, place and manner of service. If the service is by ordinary
mail, proof thereof shall consist of an affidavit of the person mailing of
facts showing compliance with section 7 of this Rule. If service is made
by registered mail, proof shall be made by such affidavit and the
registry receipt issued by the mailing office. The registry return card
shall be filed immediately upon its receipt by the sender, or in lieu
thereof the unclaimed letter together with the certified or sworn copy of
the notice given by the postmaster to the addressee.
RULE 14 – SUMMONS
Contents of a summons
names of the court and parties to the action
a direction that the defendant answer within the time fixed by these
Rules
a notice that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied for.
copy of the complaint and order for appointment of guardian ad litem, if
any
Procedure in summons
filing of the complaint and the payment of the requisite legal fees
the clerk of court issues the corresponding summons to the defendants
summons served by
the sheriff
his deputy
other proper court officer, or
any suitable person authorized by the court issuing the summons, for
justifiable reasons
If
service has been completed – within 5 days from service, the server
shall
1) serve a copy of the return, personally or by registered
mail, to the plaintiff’s counsel and
2) return the summons to the clerk who issued it,
accompanied by proof of service
If a summons is returned without being served on any or all of the
defendants
1) server shall serve a copy of the return on the plaintiff’s
counsel, stating the reasons for the failure of service within 5 days
therefrom
a) wait for the defendant to come to the Philippines and to
serve summons then
b) bait the defendant to voluntarily appear in court (Rule 14,
Sec. 20)
c) plaintiff can NOT resort to extraterritorial service of
summons [Kawasaki Port Services v. Amores, 199 SCRA 230 (1991),
and Dial Corporation v. Soriano, 161 SCRA 737 (1988)].
Requisites for service by publication
the action is in rem or quasi in rem
defendant’s identity or whereabouts
are unknown and
cannot be ascertained by diligent inquiry
with leave of court
Requisites for extraterritorial service
Either
defendant does not reside and is not found in the Philippines, or
defendant ordinarily resides within the Philippines, but who is
temporarily out of it
action either
affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the Philippines
1) in which the defendant has or claims a lien or interest, or
2) in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or
3) belongs to the defendant and has been attached
leave of court
the order shall specify a reasonable time, which shall not be less than
60 days after notice, within which the defendant must answer
Actions in rem or quasi in rem
affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the Philippines
in which the defendant has or claims a lien or interest, actual or
contingent, or
in which the relief demanded consists, wholly or in part, in excluding
the defendant from any interest therein, or
belonging to the defendant and has been attached

2) the clerk, on demand of the plaintiff, may issue an alias How extraterritorial service of summons effected – with leave of court
summons (also if summons has been lost) by personal service out of the Philippines
by publication with copy of the summons and order of the court shall
the rules on summons on defendant who is a resident Present in the be sent by registered mail to the last known address of the defendant,
Philippines or
in any other manner the court may deem sufficient
1) Personal service (Rule 14, Sec. 6) e.g. service by registered mail where registry return shows actual
2) Substituted service (Rule 14, Sec. 7) receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)]
3) Publication, but only if must be made outside the Philippines [Valmonte v. CA, 252 SCRA 92
a) his identity or whereabouts is unknown (Rule 14, Sec. (1996)]
14), AND
b) the action is in rem or quasi in rem [Citizen Surety v. RULE 16 – MOTION TO DISMISS
Melencio-Herrera, 38 SCRA 369 (1971)]
Absent from the Philippines Section 1. Grounds. — Within the time for but before filing the answer
1) Substituted service (Rule 14, Sec. 7) to the complaint or pleading asserting a claim, a motion to dismiss may
2) Extraterritorial service {Rule 14, Sec. 16 and 15; action be made on any of the following grounds:
need not be in rem or quasi in rem [Valmonte v. CA, 252 SCRA 92
(1996)]} (a) That the court has no jurisdiction over the person of the defending
non-resident party;

Jid
Page 8
(b) That the court has no jurisdiction over the subject matter of the
claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for
the same cause;
(f) That the cause of action is barred by a prior judgment or by the
statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff’s pleading has
been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied
with.
RULE 17 – DISMISSAL OF ACTIONS
Grounds for dismissal that bar refiling
cause of action is barred by a prior judgment
cause of action is barred by the statute of limitations
claim or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise extinguished
claim is unenforceable under the statute of frauds
Grounds to dismiss that the court may invoke motu proprio
the action is barred by a prior judgment
the action is barred by statute of limitations
no jurisdiction over the subject matter
there is another action pending between the same parties for the same
cause
RULE 18 – PRE-TRIAL
Section 1. When conducted. — After the last pleading has been served
and filed, it shall be the duty of the plaintiff to promptly move ex parte
that the case be set for pre-trial. (5a, R20)
It is now the plaintiff who moves ex parte that the case be set for pre-
trial.
Sec. 2. Nature and purpose. — The pre-trial is mandatory. The court
shall consider:
(a) The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and
of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a
commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
found to exist;
(h) The advisability or necessity of suspending the proceedings; and
Jid
(i) Such other matters as may aid in the prompt disposition of the
action.
Grounds for excused absence of a party at the pre-trial
valid cause is shown, or
a representative appears in his behalf fully authorized in writing to
enter into an amicable settlement
submit to alternative modes of dispute resolution, and
enter into stipulations or admissions of facts and of documents
Distinctions between pre-trial in civil and criminal casesCivil Pre-trial
Criminal Pre-trial
Mandatory
Presence of defendant and counsel mandatory Accused need not
be present, but his counsel must be present, otherwise he may be
sanctioned
Amicable settlement is discussed Amicable settlement is not
discussed, unless the criminal case is covered by summary procedure
Agreement included in pre-trial order need not be in writing
Agreements or admissions must be written and signed by
the accused and counsel to be admissible against him.
Can have proffer of evidence Proffer of evidence only after trial
RULE 21 – SUBPOENA
Subpoena is a process directed to a person requiring him to attend and
to testify at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his deposition. It
may also require him to bring with him any books, documents, or other
things under his control, in which case it is called a subpoena duces
tecum.
Grounds for quashing a subpoena duces tecum
unreasonable and oppressive, or
relevancy of the object does not appear, or
the person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production of the object
witness fees and kilometrage allowed by these Rules were not
tendered when the subpoena was served
Grounds for quashing a subpoena ad testificandum
the witness is not bound thereby
witness fees and kilometrage allowed by these Rules were not
tendered when the subpoena was served
RULES 23 – 29: MODES OF DISCOVERY
Kinds of depositions
Depositions Pending Actions
Depositions Before Action or Pending Appeal
Interrogatories to Parties
Admission by Adverse Party
Production or Inspection of Documents of Things
6. Physical and Mental Examination of Persons
The deponent may be examined regarding any matter
not privileged, and
is relevant to the subject of the pending action
After notice is served for taking a deposition by oral examination, upon
motion seasonably made by any party or by the person to be examined
and for good cause shown, the court in which the action is pending
may make an order that
deposition shall not be taken
it may be taken only at some designated place other than that stated in
the notice
it may be taken only on written interrogatories
certain matters shall not be inquired into
Page 9
the scope of the examination shall be held with no one present except
the parties to the action and their officers or counsel
after being sealed the deposition shall be opened only by order of the
court
secret processes, developments, or research need not be disclosed
the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court
any other order which justice requires to protect the party or witness
from annoyance, embarrassment, or oppression.
Requisites for a court order to terminate or limit the scope and manner
of taking of the deposition
motion or petition of any party or of the deponent
At any time during the taking of the deposition
showing that the examination is being conducted in bad faith or to
unreasonably to annoy, embarrass, or oppress the deponent or party
issued by the court in which the action is pending or the RTC of the
place where the deposition is being taken
If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is
pending.
Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a notice
for an order.
In granting or refusing such order, the court may impose upon either
party or upon the witness the requirement to pay such costs or
expenses as the court may deem reasonable.
The deposition may be used against any party who
was present or represented at the taking of the deposition, or
who had due notice
When deposition may be used
At the trial or
upon the hearing of
a motion or
an interlocutory proceeding
Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness.
Instances when the deposition of any witness may be used by the
adverse party for any purpose
the deponent is a party
the deponent, at the time of taking the deposition, was an officer,
director, or managing agent of a public or private corporation,
partnership, or association which is a party
Instances when the deposition of any witness may be used by any
party for any purpose
the witness is dead; or
the witness resides at a distance more than 100 kilometers from the
place of trial or hearing
the witness is out of the Philippines, unless it appears that his absence
was procured by the offeror
the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment
offeror has been unable to procure the attendance of the witness by
subpoena; or
upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used;
7. if only part of a deposition is offered in evidence by a party
RULES 30-32: TRIAL
Order of trial – the trial shall be limited to the issues stated in the pre-
trial order and shall proceed as follows
Jid
plaintiff shall adduce evidence in support of his complaint
defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaint
third-party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
fourth-party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them;
parties against whom any counterclaim or cross-claim has been
pleaded, shall adduce evidence in support of their defense, in the order
to be prescribed by the court;
The parties may then respectively adduce rebutting evidence only,
unless the court, for good reasons and in the furtherance of justice,
permits them to adduce evidence upon their original case; and
Upon admission of the evidence, the case shall be deemed submitted
for decision, unless the court directs the parties to argue or to submit
their respective memoranda or any further pleadings.
Exceptions to the order of trial
when separate trial of any claim or issue is ordered
court otherwise directs for special reasons
as determined by the court in case of several defendants or third-party
defendants, and so forth, having separate defenses who appear by
different counsel
RULE 33 – DEMURRER TO EVIDENCE
Distinguish demurrer to evidence in civil and criminal casesDemurrer
to Evidence in Civil Cases Demurrer to Evidence in Criminal Cases
Ground is: Facts and law show no right to relief ground is:
Insufficient evidence
On motion On motion or motu proprio
If denied – he has right to present evidence, no prior leave of court
required; If granted but reversed on appeal it is a waiver of the right to
present evidence If denied and MTD was filed without leave of court
– waiver of right to present evidence; If denied and MTD was filed with
leave of court – the accused may adduce evidence in his defense
RULE 35 – SUMMARY JUDGMENT
Procedure in summary judgments
motion served at least 10 days before the time specified for the hearing
any opposing affidavits, depositions, or admissions must be served by
the adverse party at least 3 days before the hearing
hearing
judgment sought shall be rendered forthwith if the pleadings,
supporting affidavits, depositions, and admissions on file, show that
except as to the amount of damages, there is no genuine issue as to
any material fact and
the moving party is entitled to a judgment as a matter of law.
if judgment is not rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court ascertains what material facts
exist without substantial controversy, and
are actually and in good faith controverted
Court makes an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further
proceedings in the action as are just.
The facts specified as without substantial controversy shall be deemed
established, and the trial shall be conducted only on the controverted
facts.
Distinguish between judgment on the pleadings and summary
judgmentJudgment on the Pleadings Summary Judgment
Available only a claimant Available to both claimant and
defending parties
There is no tender of issue There is no genuine issue
Judgment based on pleadings only Judgment based on
pleadings, affidavits, depositions, admissions
Motion for judgment on the pleadings must be served at least 3 days
prior to the scheduled hearing Motion for summary judgment must be
served at least 10 days prior to the scheduled hearing
Page 10
RULES 37-39 – POST JUDGMENT
Grounds for new trial — Within the period for taking an appeal when
the following causes materially affects the substantial rights of the
aggrieved party
FAME which ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been impaired in
his rights; or
Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if
presented would probably alter the result.
Grounds for reconsideration – Within the same period
the damages awarded are excessive
the evidence is insufficient to justify the decision or final order, or
the decision or final order is contrary to law
RULES 40-43 – APPEALS
There are 7 modes of appeal under the Civil Procedure
to the RTC from the MTC – notice of appeal (Rule 40)
to the CA from
the RTC in its original jurisdiction – notice of appeal (Rule 41)
the RTC in its appellate jurisdiction – petition for review (Rule 42)
quasi-judicial agencies – petition for review (Rule 43)
to the SC – petition for review on certiorari (Rule 45)
Annulment of Judgments or Final Orders and Resolutions (Rule 47)
Period to appeal – interrupted by MNT or MfR
by notice of appeal – within 15 days after notice to appellant of
judgment
by record on appeal – within 30 days after notice to appellant of
judgment
No extension of time to file MfR or MNT shall be allowed
Contents of the notice of appeal from MTC
the parties to the appeal
the judgment or final order or part thereof appealed from, and
the material dates showing the timeliness of the appeal.
Note that in notice appeal from MTC, the court to which the appeal is
taken need not be stated. In notice of appeal from the RTC, the court
to which the appeal is taken is required to be stated.
A record on appeal shall be required only in
in special proceedings and
other cases of multiple or separate appeals.
Contents of the record on appeal (same as in appeals from RTC)
full names of all the parties stated in the caption
include the judgment or final order from which the appeal is taken
in chronological order, copies of only such related pleadings, petitions,
motions and all interlocutory orders
such data as will show that the appeal was perfected on time.
If an issue of fact is to be raised on appeal, the record on appeal shall
include by reference all the related evidence, testimonial and
documentary
Subject index when the record on appeal exceeds 20 pages
In ejectment judgments, execution is stayed only if an appeal is made
to the RTC, supersedeas bond is filed and rentals continues to be paid
pending appeal. Failure to pay rentals means execution ensues. The
amount of supersedeas bond should be the amount of back rentals.
But further appeal from the RTC to the CA, execution can no longer be
stayed.
Cases that go to the SC are by petition for review on certiorari. The
only instance when a case can go to the SC on notice of appeal is in
criminal cases where the penalty imposed is reclusion perpetua, or life
imprisonment.
Jid
From quasi-judicial agencies to the CA, the appeal is by petition for
review. Appeal by itself does not stay execution of the decision. It is
stayed only if the CA issues a preliminary injunction.
On pure questions of law decided by RTC in its original jurisdiction, the
appeal is directly to the SC by petition for review on certiorari. Pure
questions of law decided by RTC in its appellate jurisdiction, the
appeal is still to the CA.
Appeal from the RTC (Rule 41)
An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(b) An order denying a petition for relief or any similar motion seeking
relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress,
or any other ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and third-
party complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65.
Period of ordinary appeal
within 15 days from notice of the judgment or final order appealed from
where a record on appeal is required, within 30 days from notice of the
judgment or final order.
The period of appeal shall be interrupted by a timely motion for new
trial or reconsideration.
No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.
Petition for Review from the RTC to the CA (Rule 42
Period to file and serve petition for review from RTC to CA – 15 days
from notice of the decision sought to be reviewed or of the denial of
petitioner’s MNT or MfR; extendible by another 15 days; further
extension of 15 days only with compelling reason
A party has a fresh 15 days to file a petition for review from denial of
the MFR or MNT, but only the remaining period to file a notice of
appeal.
The period to file a petition for review may be extended by the
appellate court, but the period to file a notice of appeal may not be
extended by the court a quo.
The period to file MNT or MfR is always non-extendible. The period to
file a notice of appeal is also not extendible.[Habaluyas v. Jabson, 138
SCRA 46 (1985)] However, a period to file a petition for review may be
extended by 15 days, and for the most compelling reason, another 15
days.
Grounds for motu propio dismissal of the petition for review
patently without merit
prosecuted manifestly for delay, or
the questions raised therein are too unsubstantial to require
consideration
Petitions for review, whether from quasi-judicial agencies or from the
RTC Ordinary appeals
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Petitioner has fresh 15 days from notice of denial of MNT or MfR to
petition for review Petitioner has only the remainder of the original 15
days from notice of denial of MNT or MfR to appeal
Period may be extended Non-extendible
Requires certificate of non-forum shopping Does not require
certificate of non-forum shopping
CA may dismiss motu propio CA has to entertain the appeal
RULE 45 – APPEAL BY CERTIORARI TO THE SUPREME COURT
Findings of the CA may be reviewed by the SC when:
(a) the conclusion is a fining grounded entirely on speculations,
surmises or conjectures;
(b) the inference made is manifestly mistaken, absurd, or
impossible;
(c) there is grave abuse of discretioin;
(d) the judgment is based on misapprehension of facts;
(e) finding of facts are conflicting;
(f) the CA, in making the findings, went beyond the issues of the
case and the same is contrary to the admissions made;
(g) CA manifestly overlooked certain relevant facts not disputed
by the parties and which if properly considered would justify a different
conclusion
Distinctions between Rule 45 and Rule 65Rule 45 – Appeal by
Certiorari Rule 65 – Special Civil Action for Certiorari
Only questions of law may be raised The only question that may be
raised is whether or not the respondent has acted with grave abuse of
discretion, or acted without or in excess of jurisdiction
Required to be filed within 15 days from notice of the judgment or final
order or resolution appealed from or of denial of motion for new trial or
consideration Must be filed not later than 60 days from notice of
the judgment or order or resolution
The parties are the appellants and the appellees as petitioners and
respondents, respectively The parties are the aggrieved party and
the respondent, the tribunal exercising judicial function
Requirements for petitions filed with the Supreme Court and the Court
of Appeals
1. Petitioner has not commenced any other action or proceeding
involving the same issues in the SC, CA or other tribunal or agency;
2. To the best of his knowledge, no such action or proceeding is
pending before the SC, CA or other tribunal or agency;
3. If there is such other action or proceeding pending, he must state
the status of the same;
4. If he should thereafter learn that a similar action or proceeding has
been filed or is pending before the SC, etc., he undertakes to promptly
inform said courts and such other tribunal or agency within 5 days
therefrom.
Cases where multiple appeals are allowed:
1. Actions for recovery of property with accounting
2. Eminent domain
3. Foreclosure mortgage
RULE 48 – PRELIMINARY CONFERENCE
Section 1. At any time during the pendency of a case, the court may
call the parties and their counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement, except when
the case is not allowed by law to be compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of documentary
exhibits, limit the number of witnesses to be presented in cases falling
within the original jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on the ground of
newly discovered evidence; and
(d) To take up such other matters which may aid the court in the
prompt disposition of the case.
GROUNDS FOR DISMISSAL OF APPEAL (RULE 50):
Jid
(a) Failure of the record on appeal to show on its face that the appeal
was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the
period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as
provided in section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved
record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or
of page references to the record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by the
court in its order;
(h) Failure of the appellant to appear at the preliminary conference
under Rule 48 or to comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable.
Requisites for Motion for New Trial before the CA (Rule 53):
filed after appeal has been perfected and before the CA loses
jurisdiction.
Ground is newly discovered evidence which
could not have been discovered prior to the trial in the court below by
the exercise of due diligence and
is of such a character as would probably change the result.
accompanied by affidavits showing
the facts constituting the grounds therefore; and
the newly discovered evidence.
Original cases cognizable before the SC (Rule 56):
petitions for
certiorari
prohibition
mandamus
quo warranto
habeas corpus
disciplinary proceeding against members of the judiciary and attorneys,
and
cases affecting ambassadors, other public ministers and consuls
An appeal to the Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where the penalty
imposed is death, reclusion perpetua or life imprisonment. Hence for
any civil decision by the CA to go to the SC, it must be by pettion for
review on certiorari.
Grounds for dismissal of appeal before the SC
Failure to take the appeal within the reglementary period;
Lack of merit in the petition;
Failure to pay the requisite docket fee and other lawful fees or to make
a deposit for costs;
Failure to comply with the reauirements regarding proof of service and
contents of and the documents which should accompany the petition;
Failure to comply with any circular, directive or order of the Supreme
Court without justifiable cause;
Error in the choice or mode of appeal; and
The fact that the case is not appealable to the Supreme court.
PROVISIONAL REMEDIES (RULES 57-61):
1. Preliminary Attachment
Preliminary Attachment – a provisional remedy, incidental and
ancillary to a principal action or proceeding, by which the property of
an adverse party is taken into legal custody as a security for the
satisfaction of any judgment that may be recovered by the plaintiff or
any proper party, the granting of which lies within the sound discretion
of the judge taking cognizance of the principal case upon whose
existence it depends.
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Purpose of attachment – to secure a contingent lien on defendant’s
property until plaintiff can obtain a judgment and have such property
applied to its satisfaction or to make provision for unsecured debts in
cases where the means of satisfaction thereof are liable to be removed
beyond the jurisdiction or improperly disposed of or concealed or
placed beyond the reach of creditors.
Kinds of attachment
Preliminary attachment – given at the beginning or during the
pendency of the action, or before judgment becomes final
Final attachment – given upon termination of the case to enforce or
satisfy a final and executory judgment
Attachment generally refers to corporeal property in the possession of
a party. Garnishment is a form of attachment which refers to money,
stocks, credits or other ncorporeal property which belongs to the party
but is in the possession or under the control of 3rd persons.
Attachment – property is attached at any time before entry of
judgment. Execution – property is levied after entry of judgment.
Instances upon which attachment may issue
In an action for the recovery of a specified amount of money or
damages, other than moral and exemplary, on a cause of action
arising from law, contract, quasi-contract, delict or quasi-delict against
a party who is about to depart from the Philippines with intent to
defraud his creditors;
In an action for money or property embezzled or fraudulently
misapplied or converted to his own use by a public officer, or an officer
or a corporation, or an attorney, factor, broker, agent, or clerk, in the
course of his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
In an action to recover the possession of property unjustly or
fraudulently taken, detained or converted, when the property, or any
part thereof, has been concealed, removed, or disposed of to prevent
its being found or taken by the applicant or an authorized person;
In an action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof;
In an action against a party who has removed or disposed of his
property, or is about to do so, with intent to defraud his creditors; or
In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication.
2. Preliminary Injunction (Rule 58)
Kinds of injunction
Prohibitory
preliminary
final
Mandatory – an order which requires the performance of a particular
act or acts
Preliminary
final
Preliminary Injunction – an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a
court, agency or a person to refrain from a particular act or acts. It may
also require the performance of a particular act or acts, in which case it
shall be known as a preliminary mandatory injunction.
Grounds for issuance of preliminary injunction
the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the
act or acts complained of, or in requiring the performance of an act or
acts either for a limited period or perpetually;
the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the
applicant; or
a party, court, agency or a person is doing, threatening or is attempting
to do, or is procuring or suffering to be done, some act or acts probably
in violation of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgment ineffectual.
Jid
Requisites for preliminary injunction or temporary restraining order
verified application showing facts entitling the applicant to the relief
demanded
bond conditioned on paying the party enjoined all damages which he
may sustain by reason of the injunction or temporary restraining order
if the court should finally decide that the applicant was not entitled
thereto
GR: hearing. Exception: court may issue TRO if plaintiff may suffer
grave or irreparable injury
When prior or contemporaneous service of summons is not required
summons could not be served personally or by substituted service
despite diligent efforts
the adverse party is a resident of the Philippines temporarily absent
the adverse party is a nonresident of the Philippines
Stages of injunction
72 hour TRO
if the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury
issued by executive judge of a multiple-sala court or the presiding
judge of a single-sala court
issued ex parte, without hearing
thereafter must
1) serve summons and other documents
2) conduct summary hearing to determine whether the TRO
shall be extended to 20 days until the application for preliminary
injunction can be heard
20-day TRO
If it shall appear from the facts shown by affidavits or by the verified
application that great or irreparable injury would result to the applicant
before the matter can be heard on notice
If application is included in initiatory pleading
1) Notice of raffle shall be preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the
complaint or initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
2) Raffled only after notice to and in the presence of the
adverse party or the person to be enjoined
issued with summary hearing (to determine whether the applicant will
suffer great or irreparable injury) within 24 hours after sheriff’s return of
service and/or records are received by the branch selected by raffle
Within 20-day period court must
- order said party or person to show cause why the injunction should
not be granted
- determine whether or not the preliminary injunction shall be granted,
and accordingly issue the corresponding order.
including the original 72 hours, total effectivity of TRO shall
1) not exceed 20 days, if issued by a RTC or MTC
2) not exceed 60 days, if issued by the CA or a member
thereof
3) until futher orders, if issued by the SC
TRO is automatically vacated upon expiration of the period and without
granting of preliminary injunction
effectivity is not extendible without need of any judicial declaration to
that effect
no court shall have authority to extend or renew the same on the same
ground for which it was issued.
Preliminary injunction
Hearing and prior notice to the party sought to be enjoined
If application is included in initiatory pleading
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1) Notice of raffle shall be preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the
complaint or initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
2) Raffled only after notice to and in the presence of the
adverse party or the person to be enjoined
Applicant posts a bond
Final injunction
Note that a bond is required only in preliminary injunctions, but is not
required in TROs.
After lapse of the 20 day TRO, the court can still grant a preliminary
injunction.
Note that irreparable injury is always a requisite in TROs. But in the 72
hour TRO, grave injustice must also be shown. In the 20 day TRO, the
ground is great or irreparable injury.
Paras v. Roura, 163 SCRA 1 (1988) Without a preliminary injunction, a
TRO issued by the CA expires without necessity of court action.
* Note that TROs issued by the SC are effected until further orders.
Grounds for objection to, or for motion of dissolution of, injunction or
restraining order
upon showing of insufficiency of the application
other grounds upon affidavit of the party or person enjoined
appears after hearing that irreparable damage to the party or person
enjoined will be caused while the applicant can be fully compensated
for such damages as he may suffer, and the party enjoined files a
counterbond
insufficiency of the bond
insufficiency of the surety or sureties
1. Receivership (Rule 59)
Receiver – an indifferent person between the parties to a case,
appointed by the court to receive and preserve the property or fund in
litigation pendente lite, when it does not seem reasonable to the court
that either party should hold it
However, funds in the hands of a receiver may be invested only by
order of the court upon the written consent of all the parties to the
action.
No action may be filed by or against a receiver without leave of the
court which appointed him.
2. Replevin (Rule 60)
A party praying for the recovery of possession of personal property
may, at the commencement of the action or at any time before answer,
apply for an order for the delivery of such property to him, in the
manner hereinafter provided
Support Pendente Lite (Rule 61)
Provisions of the Family Code:
Art. 194. Support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or
to and from place of work. (290a)
Art. 195. Subject to the provisions of the succeeding articles, the
following are obliged to support each other to the whole extent set forth
in the preceding article:
(1) The spouses;(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;(4) Parents and their illegitimate
children and the legitimate and illegitimate children of the latter; and(5)
Legitimate brothers and sisters, whether of full or half-blood
Art. 196. Brothers and sisters not legitimately related, whether of the
full or half-blood, are likewise bound to support each other to the full
extent set forth in Article 194, except only when the need for support of
the brother or sister, being of age, is due to a cause imputable to the
claimant’s fault or negligence.

Purpose of receivership – to preserve, administer, or dispose of

property in litigation, pendente lite

Instances when receivership may be granted

the party applying for the appointment of a receiver has an interest in
the property or fund which is the subject of the action or proceeding,
and that such property or fund is in danger of being lost, or materially
injured unless a receiver be appointed to administer and preserve it
in an action by the mortgagee for the foreclosure of a mortgage that
the property is in danger of being wasted or dissipated or materially
injured, and that its value is probably insufficient to discharge the
mortgage debt, or that the parties have so stipulated in the contract of
mortgage;
After judgment, to preserve the property during the pendency of an
appeal, or to dispose of it according to the judgment, or to aid
execution when the execution has been returned unsatisfied or the
judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
Whenever in other cases it appears that the appointment of a receiver
is the most convenient and feasible means of preserving,
administering, or disposing of the property in litigation.

General powers of receiver

to bring and defend, in such capacity, actions in his own name
to take and keep possession of the property in controversy
to receive rents
to collect debts due to himself as receiver or to the fund, property,
estate, person, or corporation of which he is the receiver
to compound for and compromise the same
to make transfer
to pay outstanding debts
to divide the money and other property that shall remain among the
persons legally entitled to receive the same
to do such acts respecting the property as the court may authorize.

Jid
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