Civil Procedure (LECTURES)

Dean Agranzamendez

MODULE 1

Civil Procedure
- Part of remedial law referring to the procedure of the filing, processing and
adjudication, of a civil action (civil case/ civil suit).
- Procedural law or adjective law because it prescribes the method of enforcing rights
and obtaining redress for their invasion or violation. (Rules of Court)
- Oppose from substantive law, because a substantive law is a law that creates and
defines and regulates right and duties that may give rise to cause of action. (Civil Code)

Topics:

The General Provision Rule 1

Ordinary Civil Action 2-5
Procedure in Regional TC – 6-39
Appeals – 40-56
Provisional Remedies – 57-61
Special Civil Action – 62 – 71

1991 Rules on Summary Procedure

Local Gvernment Code on Barangay Justice System
Small Claims

JURISDICTION

- From latin word ‘Juris’ and ‘Dico’ meaning ‘I speak by the law’
- The power or authority of the court or tribunal to hear try and decide a case.
- Authority by which a court or a judicial officer to take cognizance of a case and decide
it.

Classification:

Original v. Appellate

Original Jurisdiction is that bestowed upon a court in the first instance.

An example is the Regional Trial Court (RTC), which has original jurisdiction over
civil actions that are incapable of pecuniary estimation. On the other hand,
Appellate Jurisdiction is that given to a court by means of an appeal from a
judgment of a lower court.

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General v. Special

General Jurisdiction means the power of a court to adjudicate all cases

except those expressly withheld from its power. The Regional Trial Court (RTC) is
an example of a Court with general jurisdiction. While Special or Limited
Jurisdiction is that which limits the court’s jurisdiction only to some particular
cases.

Exclusive v. Concurrent

Exclusive Jurisdiction is the power of a court or a tribunal to adjudicate a

case to the exclusion of other courts or tribunal. Whereas, Concurrent
Jurisdiction sometimes referred to as "coordinate jurisdiction" is the power
conferred upon different courts whether of the same level or different ranks. An
example is that the RTC has concurrent jurisdiction with another RTC.

Delegated Jurisdiction
The grant of authority to inferior courts to hear and determine cadastral
and registration cases under certain conditions. Example Jurisdiction of the MTC
in cadastral cases and land registration cases when the lot involved is uncontested
land. Or even contested but the value of the lot doesn’t exceed 100K.

Interlocutory/ Special Jurisdiction

The power of the inferior courts to hear and decide petitions for writ of
habeas corpus or applications for bail in the absence of all RTC judges in the
province or city. Mtcs jurisdiction to hear and decide petitions for writ of Habeas
corpus or application for bail in the absence of all RTC judges in the province or
cities

Primary jurisdiction
The doctrine of primary jurisdiction states that administrative agencies that
have quasi-judicial power has the primary jurisdiction to try and adjudicate a case
because these administrative agencies are more equipped with competence and
skill to render a judgment and decision over that case.

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PHILIPPINE COURT/ JUDICIAL SYSTEM (LEVELS)

SC Sandigan Bayan

CA

RTC

MTC/ MeTC/ MTCC/ MCTC (First Level Courts)

Doctrine of Hierarchy of Courts

Principle that requires litigant to initially seek the proper relief from the lower court
in those case where the Supreme Court has concurrent jurisdiction with the CA and RTC
to issue the extra ordinary writs (mandamus, prohibition or certiorari). The SC’s original
jurisdiction to issue extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons therefor exist.

Continuity of jurisdiction (also known as Adherence to jurisdiction)

The doctrine stating the rule that when a jurisdiction is acquired by one court, then
that court shall continue to exercise the jurisdiction of that case until its termination. Also,
the Court will not lose the jurisdiction over that case until it is terminated.

Exclusionary principle
Happens when one of the courts with concurrent jurisdiction over a case validly
acquired jurisdiction over the case. Thus, the court with primary jurisdiction will take
cognizance of the case to the exclusion of the other courts

Doctrine of Judicial Stability or non-interference

A court of co-equal rank cannot interfere with the judgment or processes of another
court of the same rank.

What Determines Jurisdiction?

The jurisdiction of the Court is determined by the facts alleged in the complaint
and by the law then enforced at the time of the commencement of the action.
However, there is one exception when the jurisdiction will also be determined by
the defense set up by the defendant in his answer. That is in an ejectment case filed
with the MTC and the defendant will set up the defense of agricultural tenancy.

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Total Absence of Jurisdiction
If the Court has no jurisdiction over a decided case, all the proceedings including
the judgment is void. The only power that a court has, is to dismiss the case.
The Judgment of such can be attack, impugned or assail directly or collaterally
anytime. However, when the party himself has invoked the jurisdiction of a court, then
such court rendered judgment adverse to her, then he cannot question the judgment of a
court whose jurisdiction he has invoked. (Principle of laches or estoppel)
Requisites of a Valid exercise of Jurisdiction

1. The Court must have jurisdiction over the persons of the parties.
The Court acquires jurisdiction over the plaintiff when the plaintiff files a
complaint to the court. By doing so, he submits his person to the jurisdiction of that
court.
On the other hand, the Court may acquire jurisdiction over the person of the
defendant either by valid service of summons upon the defendant or by his
voluntary appearance in court.

2. The Court must have jurisdiction over the Subject Matter of the case.

3. The Court must have jurisdiction over the RES

The Court acquires jurisdiction over the res or the property in litigation only
if it affects the:
i. status of the plaintiff in the Philippines; or
ii. involves the property of the defendant situated in the
Philippines.
However, jurisdiction over the res is necessary only when the defendant is
non-resident defendant who is not in the Philippines
If jurisdiction is acquired by the Court, then the Court shall continue to exercise jurisdiction
over the case until its termination. (Continuity of Jurisdiction)

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KINDS/ CLASSIFICATION OF CIVIL ACTION

1. As to the basis or the foundation of the action:

a. Real Action
- action that affects title to or possession over a real property or any
interest therein.
- founded upon the privity of a real estate meaning the issue for litigation is
the title to or possession over the real property.

Classification:

a.1. Accion Interdictal

- Forcible entry and unlawful detainer cases
- purpose is to recover possession de facto (physical or
material possession) of real property.

a.2. Accion Publiciana

- to recover right of possession or possession de jure of real
property.

a.3. Accion reivindicatoria

- action to recover ownership including possession of a real
property

b. Personal Action
- action in which the plaintiffs seek the recovery of a personal property; or
the enforcement or a rescission of a contract; or the recovery of damages
(i.e. Annul a contract of loan including a real estate mortgage)

2. As to the object of the action

a. Action in Personam
- action is directed against a particular individual
- the purpose of the action is to establish a claim against a particular
person on the basis of his personal liability
- the judgment that the Court may render toward that case will bind him
personally.

It must be shown that the Court has acquired jurisdiction over the
person of the defendant to validly take cognizance of the case

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 b. Action Quasi in Rem
- also an action brought against a particular individual
- the purpose of the action is to subject the interest of the defendant in a
particular property to the obligation pertaining the property
- the judgment is conclusive only between the parties
- action that deals with the status, ownership or liability of a particular
property but which are intended to operate on these questions only as
between the plaintiffs and the defendant (i.e. action of partition,
attachment or foreclosure of a mortgage, status of an individual)

- Even if the Court has not acquire jurisdiction, still it can validly take
cognizance of the case and assume jurisdiction provided it has jurisdiction
over the res

c. Action in Rem
- action against all persons who might be minded to make an objection of
any sort against the right sought to be established in that action.
- action directed against the whole world
- the judgment binds the whole world.
- An action directed against the thing itself, property or status of a
person (i.e. land registration proceedings, petition for cancellation or
correction of entry in the civil registry [rule 108])

- Even if the Court has not acquire jurisdiction, still it can validly take
cognizance of the case and assume jurisdiction provided it has jurisdiction
over the res

 An action in personam is not necessarily a personal action

 A real action is not necessarily an action in rem

It is important to know the classification of civil action to determine what Court has
jurisdiction over the case, venue of the action and the mode of service of summons upon the
defendant in a civil case.

*How may the Court acquire jurisdiction over the Res?

It can do so in any of the following ways:

1. By the seizure of the property under legal process whereby the property is
brought into the actual custody of the Court
2. As a result of the institution of the legal proceedings in which the power of the
Court is recognized and made effective.

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JURISDICTION OF THE MTC

1. Over all civil actions and probate proceeding whether testate or intestate where the
value of the personal property or the demand does not exceed 300,000 pesos or
400,000 pesos in Metro Manila;
- personal action
- exclusive of DIAL-C, Damages of any kind wherein damages is incidental to the
cause of action, Interest, Attorney’s fees, litigation expense and cost

2. All cases of forcible entry and unlawful detainer;

- real action
- ejectment cases or action interdictal
- Regardless the assessed value of the real property involved

3. All civil actions which involve title to or possession of real property or any interest
therein where the assessed value of the property does not exceed 20,000 or 50,000 pesos
in Metro Manila
- real action; either accion publiciana or accion reivindicatoria
- based on the assessed value of the real property

JURISDICTION OF THE RTC

1. Exclusive and original jurisdiction in which the subject of litigation is incapable of

pecuniary estimation;
- personal action (i.e. action for specific performance)
- when the subject cannot be estimated in terms of money (no money value)
- Action for expropriation, Action for support

2. Over all civil actions which involve the title to or possession of real property and any
interest therein where the assessed value of the property exceeds 20,000 pesos or 50,000
pesos in Metro Manila;

3. All actions in admiralty and maritime jurisdiction where the demand or claim exceeds
300,000 pesos or 400,000 in Metro Manila;

4. All matters of probate both testate and intestate where the gross value of the estate
exceeds 300,000 pesos or 400,000 in Metro Manila;

5. All actions involving contract of marriage and marital relations (Family Court);

6. All cases not within the exclusive and original jurisdiction of any Court or tribunal
exercising judicial or quasi-judicial function;

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 7. All other case in which the demand exclusive of the interest, damages of whatever kind,
attorney’s fees, litigation expense and cost or the value of the property in controversy
exceeds 300,000 pesos or 400,000 in Metro Manila;

PERSONAL AND REAL ACTION

1. Personal Action
- fall within the jurisdiction of the MTC or RTC depending on the total amount of
plaintiffs claim or demand exclusive of DIAL-C
- MTC if the amount does not exceed 300, 000 or 400,000 pesos in Metro Manila;
but if it exceeds such amount then it is the RTC that will have jurisdiction

2. Real Action
- look into the assessed value of the real property involved in the case
- MTC if the assessed value does not exceed 20, 000 or 50,000 pesos in Metro
Manila; but if it exceeds such amount then it is the RTC that will have jurisdiction.
However, if it is an ejectment case, it is always MTC’s jurisdiction regardless
of the assessed value of the real property.
- the assessed value must be alleged and stated in the complaint or at least shown
in the document attach in the complaint as its annex. If not, then theres no way the
Court will determine whether they have jurisdiction over the case. Thus, dismiss.

TEST IN DETERMINING JURISDICTION

1. Nature of the Action Test

-determine if the action is capable of pecuniary estimation or not
- yield to the primary or ultimate objective test

2. Primary or Ultimate Objective Test

- even if the action is incapable of pecuniary estimation but the primary objective
or the ultimate objective is to recover ownership or possession of a real property
the action is in fact a real action and the jurisdiction of the Court will be based on
the assessed value of the property.
- ex. Action for specific performance but the purpose is to compel the defendant to
transfer the ownership of a parcel of land;
- Cancellation of Certificate of title (Transfer of ownership)

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MODULE 2

RULE 1
General Provisions

1997 Rules of Civil Procedure amended on May 1, 2020 by AM No. 19-10-20-SC (Rules 6-35)

- These rules shall apply on all courts and in all civil actions, criminal actions and special
proceedings except as otherwise provided by the Supreme Court.

However, it do not apply to the following cases:

1. Election Cases;
2. Land Registration cases;
3. Cadastral cases;
4. Naturalization proceedings;
5. Insolvency cases; and
6. Other cases like Labor cases

Except in analogy or in suppletory in character and whenever

practicable and convenient

CIVIL ACTION (CIVIL CASE)

- is one by which a party sues another for the enforcement and protection of a right or
the prevention or redress of a wrong.
- adversarial – one party asserting a claim and another party opposing a claim.
- Object is the formal demand of a right by one against another

There are two classifications of civil action; namely Ordinary Civil Action and Special
Civil Action (i.e. interpleader). Both are governed by these Rules. However, there are special
rules that apply only to a particular special civil action.

Criminal Action
- an action by which the State prosecutes a person for an act or omission punishable by law
(crime, felony, or offense).

Special Proceeding
- remedy by which a party seeks to established a status, a right or a particular fact.
- may or may not be adversarial – becomes only one if there is an opposition
- simply a declaration of a status a right or a particular fact.
- i.e. settlement of an estate of a deceased person, adoption, habeas corpus, change of name,
arbitration.

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COMMENCEMENT OF A CIVIL ACTION

Rule: The Civil Action is commenced upon the filing of the original complaint in Court.

Importance of knowing the commencement of an action:

1. Important to determine the interruption of the period of the cause of

action’s prescription. Simply, the commencement of the civil action
interrupts the prescriptive period of the cause of action as to the parties
to the action; and

2. So that it may be considered a pending civil action for the purpose of the
asking for the dismissal of the other action on the grounds of litis
pendentia.

FILING
- refers to the act of presenting the complaint to the clerk of Court and payment of the
correct amount of docket fees and filing fees.
- Deemed completed only upon the payment of filing and docket fees regardless of the
actual date of filing. It is only here where the court acquire jurisdiction.
- However, the payment of the filing fee maybe paid within the reasonable time but before
the expiration of the applicable prescriptive period for the cause of action.
- If not, then the defendant may promptly raise the question of non-payment of the docket
fees, otherwise, estopped from doing so.

Exception to the payment of filing or Docket Fees

- When the plaintiff is authorized to litigate as indigent or pauper litigant then he

is exempt from the requirement of payment of filing fees.

Rule on additional defendant

- if an additional defendant is impleaded in a later pleading (amended complaint) then the
Civil Action is commenced, as far as the additional defendant is concerned, on the date of the
later filing of the pleading, regardless of the motion for its admission is admitted or denied by
the Court. (- through amendment)

AMENDMENT
- there are changes in the original complaint
- either a matter of right or it should be with leave of Court. If with leave of Court,
then a motion for leave must be filed to be granted or denied by the Court.
- if a complaint is amended, to change the plaintiffs cause of action, the
amended complaint is a New Complaint and therefore the Civil ation is
deemed commence upon the filing of the amended complaint.

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How should the Rules of Court Be Construed?

The rules shall be construed liberally to promote their objective of securing a just, speedy
and inexpensive disposition of every action or proceeding. The rules must be facilitate and not
to frustrate the ends of justice.

However, the party invoking the principle of liberal construction must be able to adequately
explain his failure to comply with the rules.

MODULE 3

RULE 2 OF THE RULES OF COURT

Cause of Action

Basis of an Ordinary Civil Action as distinguish from Special Civil Action

The basis of an ordinary civil action is a cause of action.

CAUSE OF ACTION
- basis of every ordinary civil action (Rule 2, Sec. 1)
- is the act or omission by which a party violates a right of another.
- an action without cause of action may be dismissed for lack of cause of action
- there is no action, and no right of action if there is no cause of action.

Requisites:

1. Existence of a plaintiff’s right by whatever means or under whatever law it

arises or is created.

2. An obligation on the part of the defendant to respect and not to violate the
right of the plaintiff

3. An act or omission on the part of the defendant constituting a violation on

plaintiff’s right which causes damage or injury to the plaintiff.

DIFFERENCE BETWEEN AN ACTION, RIGHT OF ACTION AND CAUSE OF ACTION

1. An Action is the suit filed in Court for the enforcement and protection of a right and
for the prevention and redress of a wrong; while a cause of action is the basis for the
filing of the action.

2. Right of Action is the right to commence and maintain an action; while a cause of
action is a formal statement of the operative facts that give rise to such right of action.

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 3. The right of action is the consequence of the violation of plaintiffs cause of action;
thus, there is no right of action if there is no cause of action.

How many suits can be filed on the basis of a single cause of action?

A party may not institute more than one suit for a single cause of action. Thus, a party
may not split a single cause of action.

Splitting of a single cause of action

- the process of dividing a cause of action (claim or a demand) into two or more parts and
bringing suits for each of this parts.
- Splitting is not allowed. A party may not institute more than one suit for a single cause
of action. This is because of the following reasons:
1. It breeds multiplicity of actions or suits;
2. It clogs the dockets of Courts; and
3. It causes unnecessary expenses to the parties.

Consequences:
1. 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 anyone is available as a ground
for the dismissal of the other.

Ground for dismissal:

1. Litis pendentia/ lis pendens (there is another action pending
between the same parties and for the same cause); or

2. Res Judicata (Barred by prior judgment)

When may it be a dismissal on the ground of litis pendentia and when is it res judicata?

If both actions are pending then the ground is litis pendentia; while if there is already
a judgment in one case and the judgment become final then it is res judicata.

*Motion to dismiss is a prohibited motion except if it alleges the following:

1. Lack of jurisdiction over the subject matter of the action

2. Litis pendentia
3. Res Judicata
4. Prescription

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How to determine the singleness of a cause of action?

If the action arises from quasi-delict, an action ex delicto or one arising from the fault
or negligence of the defendant then the singleness of the cause of action lies on the singleness
of the delict or wrong committed by the defendant in violation of plaintiff’s right. If there is
one delict or wrong committed, then, there is only one cause of action.

However, if the obligation arises from a contract, in an action ex contractu or one

arising from or founded from a contract, then distinguish first the nature of the obligation
whether it is indivisible or a divisible obligation. The rule is the following:

1. If the obligation is indivisible, then there is only one cause of action regardless
of the violations committed; while

2. If the obligation is divisible, there would be as many causes of action as there

are obligations violated or violations committed.

DOCTRINE OF ANTICIPATORY BREACH

- doctrine which states that even if the contract is indivisible and the future performance
is not yet due but the obligor already manifested his refusal to comply or not to fulfil
his obligation then the contract is entire and the breach is total. Thus there is only one
cause of action.

May the plaintiff join several causes of action in one complaint?

Yes, a plaintiff may join several causes of actions in one complaint known as ‘Joinder of
Causes of action’

JOINDER OF CAUSES OF ACTION

- the act of joining several causes of actions in one complaint
- However, it is only permissive – meaning a plaintiff may or may not join their causes of
action. (The plaintiff is not compelled to join them)

Requisites:

1, The party joining the causes of action shall comply with the rules on joinder of parties;

2. The joinder shall not include a special civil action or a civil action governed by special
rules.

3. Where the causes of action are between the same parties but pertain to different
venues and jurisdictions, the joinder may be allowed before the Regional Trial court
provided one of the causes of action falls within the jurisdiction of the said court or
the venue lies therein

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 4. When the claims in all the causes of action are principally for recovery of money, the
aggregate amount shall determine the jurisdiction of the court. (Rule 2, Sec 5) Totality Rule

MISJOINDER OF CAUSES OF ACTION

- when an action governed by special rule is joined by ordinary civil action or a special
civil action is joined with an ordinary civil action.
- is not a ground for dismissal of an action, on motion of the party or the Court itself – on
its own initiative or motu proprio may drop a cause of action.

May the Court render judgment on a misjoinder of causes of action?

Yes, provided the Court has jurisdiction over all the causes of action.

MODULE 4

RULE 3
Parties

Parties to a Civil Action

- only natural persons, juridical persons, or entities authorized by law may be parties
to a civil action.
- Natural persons (individuals), Juridical persons (Corporations, Partnership and even the
state and its political subdivisions, entities authorized by law.

i. Plaintiffs
- is one who has interest in the subject of the action and in obtaining the
relief demanded
- the claimant in an original complaint, counterclaim, cross claim or third
party complaint
- If not among those allowed by the rules, the complaint or action may be
dismiss on the ground that plaintiff has no legal capacity to sue.

*Cross-claim
- a claim which a party has against his co-party.

ii. Defendant
- is one who has interest in the controversy adverse to the plaintiff.
- If not among those allowed by the rules, the complaint or action may be
dismiss on the ground that the complaint fails to state a cause of action.

* Entities authorized by law

- entities which may not have legal personality but allowed by the rules as a party to a
civil action
- Example: two or more persons not organized as an entity with juridical personality enter
into transaction under a common name (not a partnership).

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 - They can be sued under the common name used but they cannot sue under the same name.
Thus, use their own name.
- Estate of a deceased person, Labor Organization, Corporation by or Partnership by
estoppel.

Sole-proprietorship
- NOT an entity authorized by law. Cannot be a party to a civil action, no legal
personality. Thus, file on the name of the sole owner.
- As a plaintiff, no legal capacity to sue (ground for dismissal).

Rule : An action may only be prosecuted or defended in the name of the real party in interest
UNLESS otherwise authorized by law or the rules (ex. Class Action)

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
- Thus, the plaintiff (benefited)/defendant (injured) must be a real party in interest
- The interest must be real, material and direct as oppose to mere expectancy or a future,
contingent or consequential interest.

Classification:

1. Indispensable party
- is a party without whom no final determination can be had on an action
- meaning, if at least one is absent, the judgment rendered is void for lack
of authority to act, on the part of the Court, not only to the party absent but
even to those parties present.

2. Necessary Party
- one who is not indispensable but ought to be join as a party if complete
relief is to be accorded as to those already parties or for complete
determination or settlement of the claim subject to the action
- new term for proper party (old case)

What if an action is filed or brought against a person who is not a real party in interest?

If the plaintiff is not the real party in interest, but among those allowed by the rules to
file an action, then the complaint may be dismissed on the ground that it fails to state a cause
of action. (not on the ground that he has no legal capacity to sue since he is allowed by the rules)

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FAILURE TO JOIN, OMISSION OR NON-JOINDER OF:

1. Indispensable party
- not a ground for dismissal of an action
- the Court will issue an order directing the plaintiff to amend his complaint to
implead the omitted indispensable party. If the plaintiff fails or refuses to
comply, then this time the Court may now dismiss the complaint on the ground of
failure of the plaintiff to obey an order of the Court without any justifiable reason.

2. Necessary party
- the plaintiff must state the name of the omitted necessary party and the reason
of his omission or non-inclusion. The Court will determine the merit of such
case.
- the Court will issue an order directing the plaintiff to amend his complaint to
implead the omitted necessary party. If the plaintiff fails or refuses to amend his
complaint then the failure or refusal will amount to a waiver of his claim against
the omitted necessary party.

Distinctions between the Indispensable party and Necessary party

1. The non-inclusion of an indispensable party MAY result to the dismissal of a complaint.

However, there is no immediate dismissal. The Court will first issue an

order directing the plaintiff to amend his complaint to implead the omitted
indispensable party. If the plaintiff fails or refuses to comply, then the Court may
now dismiss the complaint on the ground of failure of the plaintiff to obey an order
of the Court without any justifiable reason

While, the non-inclusion of a necessary party may result to a waiver of the claim
of the plaintiff to the omitted necessary party.

2. The indispensable party is not impleaded, there can be no FINAL determination

that can be had on that action.

While, if a necessary party is not impleaded, there can be no COMPLETE

determination of the action.

UNWILLING CO-PLAINTIFF
- also known as “Non-consenting plaintiff” may be impleaded as a defendant for the court
to acquire jurisdiction over its person
- if it is made a plaintiff, it will amount to a denial of due process

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REPRESENTATIVES AS PARTIES
- persons who can sue in behalf of a real party in interest
- one acting in fiduciary capacity, but the beneficiary is incapacitated, then the beneficiary
still be included in the title and shall deemed to be the real party-in-interest.
- Ex. Trustee, guardian, executor etc.

PRO FORMA PARTY

- “nominal party”
- is one who is joined as a plaintiff/defendant not because he has any interest in the
subject matter of the litigation or in the relief demanded but merely because the rules of pleadings
require the presence of such party.

Ex.
The husband may not file an action without joining the wife. The Wife is the pro
forma party. Because, husband and wife shall sue or be sued jointly except as provided by
law. *Joint administrator of the Conjugal property.

Minors or incompetents may sue or be sued with the assistance of the father, mother
or guardian. If the child has none, by the guardian ad litem.

Guardian ad litem
- special guardian appointed by the court in which a particular litigation is
pending to represent or assist a minor or incompetent in the action
- its status exist only in that particular litigation in which the appointment
occurs.

JOINDER OF PARTIES
- only permissive (you may or may not join them) except when the party is indispensable
party then his joinder is compulsory EXCEPT in a class suit.
- there can be no joinder if there’s only one party. There must be several plaintiffs/
defendants or both.

Requisites:

1. There must be right to relief for or against several parties arising from the
same transaction or event;

2. There must be a question of law or a question of fact common to all of them.

Class Suit
- (THERE MUST BE A COMMUNITY OF INTERST)
- all individuals or persons belonging to the class are indispensable parties but not all of
them need to be joined as parties because there are so many of them that it is impracticable
to join as parties.
- also known as class Action. Maybe plaintiffs as a class or a defendant as a class

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 - Dona Paz Tragedy
- Not a proper class suit
- the claim of individual damages are separable
- individual’s claim pertain to him and him alone and he has no interest to the claim
of damages of other family (No community of interest)

Requisites:

1. The subject matter of the controversy must be common or general interest to

many persons.
- (Community of Interest)
- the interest of one is not separable to the interest of the others
- not determinable, identifiable or separable interest
- Oposa v. Factoran – Generation yet unborn

2. The parties affected is so numerous that it is impracticable to join all as parties

3. The parties bringing or defending the class suit are found by the Court as
sufficiently numerous or representative to fully protect the interest of all.

To comply, the complaint must contain the allegation:

1. The existence of a subject matter which is alleged to be of common or general

interest to many persons
2. The existence of a class and the number of persons belonging to this class

When is there a Misjoinder of Parties?

There is a misjoinder of parties or a party is misjoined when that party is made a party
to the action although he should not be impleaded because he has no material interest in the
subject of the litigation.

When is there a Non-joinder of Parties?

There is a non-joinder of parties when a party is supposed to be joined in an action is not

impleaded.

As a general rule, both misjoinder and non-joinder is not a ground for dismissal of an
action. Parties may be dropped or added by the order of the Court by a motion of one party or upon
the initiative of the Court itself at any stage of the action and on such terms as may be just.

However, if the Court issues an order to drop a party or implead a party who is not joined
and the plaintiff refuses or fails to obey that order, then the complaint or an action may be
DISMISSED on the ground of failure to obey an order of the Court.

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Who will plaintiff sue if he is not sure against whom he will file his complaint or
UNCERTAIN?

He may join any or all of them as defendants in the alternative. Although the right to
relief against one may be inconsistent with the right to relief against the other.

What if the identity or the name of the defendant is unknown?

That defendant may be sued as the unknown owner or by such other designation as the
circumstances may allow.

Effect of DEATH of a party.

When a party dies, and his claim is not extinguish by his death, it shall be the duty of
the counsel of the party to inform the Court within 30 days after such death of the fact of death
of the party and the name and address of the legal representative of the deceased party.

Upon Notice of Death, the Court shall Issue an Order directing the legal representative to
appear in Court and be substituted in the action within 30 days from receipt of the notice. The
Counsel then should not assume to be retained as counsel by the legal rep. as he may engaged
the services of another.

These 2 steps must be followed for the substitution to be valid.

Supposed the counsel fails to comply, he has noticed the death of the client BUT does not
notify the Court, then he may be subject to a disciplinary action.

Supposed the Court conducted trial without substitution even upon notice, then the
judgment will not be binding to the legal representative or the heirs of the deceased party
for the lack of due process.

IF NO LEGAL REPRESENTATIVE
- mere absent or not appearing in Court upon 30 days
- the opposing party must secure the appointment of an administrator or executor and
such is substituted in the place of the deceased party.

PUPROSE:
The purpose of substitution is for the protection of the right of every party to due process.

When the action survives

- Actions arising from delict
- Actions for the recovery of real and personal property
- Actions for the recovery of the sum of money
- Actions for damages

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 Actions that do not survive
- Not applicable, and will just be dismissed and NO substitution of parties
- Action that are personal to a party
- Action for support
- Action for annulment or legal separation

DEATH OR SEPARATION OF A PUBLIC OFFICER

- sued or suing in his official capacity

- If he dies, resigns, dismiss or ceases to hold office, then the action may be maintained
or continued by against his successor.

If within 30 days after the successor assume the office or such time as the Court may allow,
and shown by the party that there is a substantial need for continuing or maintaining the
action. Then such successor will do so.

Requisites:

1. There must be satisfactory proof by any party that there is a substantial need
for continuing or maintaining the action.

2. The successor adopt, or continues or threatens to adopt or continue the acts of

his predecessor

3. The substitution is effected within 30 days after the successor assumes office or
within the time granted by the Court.

4. The notice of the application for substitution must be given to the other party.

FAILURE TO MAKE THE SUBSTITUTION is a ground for dismissal of the action.

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Effect of Death of the Defendant in an action involving CONTRACTUAL MONEY CLAIM

- based from contract, expressed or implied.

-Before Entry of Judgment: (Survives)

- pending in Court
- Should not be dismissed and the action will continue until entry of judgment.
There will be a substitution.
- The final judgment however cannot be presented for execution. Thus, presented
as money claim based on judgment. The judgment is a conclusive proof.
- Judgment is not final or on appeal

-Before filing of the complaint:

- Complaint cannot be filed due to the death of the party (no legal personality
anymore)
- Remedy: Present his claim as a money claim in the testate or intestate proceeding
of the estate of the decease debtor. Subject to proof of the claim. May be approved
or denied by the administrator.

- After there is a levy on his property:

- the proceedings will be allowed to continue.
- The levy has the effect of segregating the property from the other property.

- After entry of judgment:

- Thus, it will only have to present as money claim based on judgment. The
judgment is a conclusive proof

Effect of Death of the Plaintiff in an action involving CONTRACTUAL MONEY CLAIM

- There will simply be a substitution of parties.

- Then the action will continue until there is judgment until it is final. Until there will be
execution of judgment and levy to the defendant

Transfer of Interest pendente lite

- If the interest of the party (transferor) is conveyed to another person (transferee pendente
lite) who is not a party to the action.
- The transferee will just take the place of the transferor. However, the transferee may be
substituted or impleaded as an additional party
- The action may continue by or against the original parties
- Effected by means of sale or by means of a donation or by any mode by which the interest
is conveyed by the transferor to the transferee (ex. Quit claims)

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Indigent litigant
- also known as pauper litigant
- one who litigates a claim in court but has no money or property sufficient for food shelter
and basic necessities for himself or his family
- one whose gross income and that of his immediate family does not exceed an amount
double the monthly minimum wage of an employee AND who does not own real property
with a fair market value more than 300,000 pesos.

- must file an application in Court to be authorized to litigate his claim as an indigent

or pauper litigant.
- IF SO AUTHORIZED by the court, he will be exempt from payment of docket or filing
fees.

When may the Solicitor general be required to appear in the action?

- In any action involving the validity of any treaty law, ordinance, executive order,
presidential decree, rule or regulation.
- and he may be heard in person or thru a Representative whom he has deputized

MODULE 5

RULE 4
Venue of actions

Venue
- place where the action is to be commenced and tried
- proper location for the trial of a case

Distinctions between a venue and jurisdiction

1. Venue is the place where the action is commenced or tied. While Jurisdiction is the
authority of the Court to hear, try and decide a case

2. Venue may be waived. While, Jurisdiction over the subject matter of an action cannot
be waived. (not Jurisdiction over the person)

3. Venue may be the subject of a written agreement between parties. While jurisdiction,
cannot be such.

4. A court cannot motu proprio dismissed an action on the ground of improper venue.
Except if a case is governed by the rule on summary procedure. While a Court, can motu
proprio dismissed an action for lack of jurisdiction over the subject matter of the action.

5. Venue establishes a relation between the plaintiff and the defendant. While Jurisdiction
establishes a relation between the Court and the subject matter.

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In a civil action, is improper venue jurisdictional?

No. In a civil action, improper venue is not jurisdictional. Even if improperly laid, when
the subject matter is within the jurisdiction of the court, that Court can still render a valid judgment.

What is the venue of civil action?

The rules of venue will depend whether the action is a real action or a personal action.

If it is a real action, the venue will be the proper Court which has jurisdiction over the place
where property involved or a portion of it is situated.

If it is a personal action, the venue is where the plaintiff or any of the principal plaitiffs
reside. Or, where the defendant or any of the principal defendant resides. Or if the defendant is a
non-resident defendant (only if it affects the personal status of the plaintiff or the personal property
of the defendant in the Philippines) then it is where the plaintiff resides or the place where the
subject property is situated may be found at the election of the plaintiff.

If the plaintiff is the non-resident, then he will be limited to where the defendant or any
principal defendants resides.

EXCEPTION:

1. If it is expressly provided for by law like in Libel

2. When the Parties have VALIDLY agreed in writing on an exclusive venue

of an action (Stipulation of parties)

To be valid:

a. In writing

b. Made prior to the institution of the Civil Action

Reside – PLACE OF ABODE (Whether permanent or temporary)

Who has the choice of venue?

THE PLAINTIFF

Who can question the venue of an action?

The defendant is the one who can raise the question of improper venue. (applicable
disregard past ruling). Not in a motion to dismiss but by ascertaining it as a positive defense in
his answer. If not, then he is deemed to have waived the question of improper venue.

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 As the 1997 Rules of Civil Procedure is now revised by AM No. 19-10-20-SC which took
effect on May 1, 2020

Motion to Dismiss is NOW a PROHIBITED MOTION except if it has filed based on

any of the following grounds:

1. Lack of Jurisdiction over the subject matter of the action;

2. Litis Pendentia (there is another action pending between the same parties and of
the same cause);

3. Res Judicata (barred by prior judgment); or

4. Statute of limitations (Prescription).

MODULE 6, Lec 1

RULE 6, 7 AND 8
Pleadings
[Rule 6-35 (amended)]

Pleading
-Written statement of the respective claims and defenses of the parties submitted to
the Court for appropriate judgment.
- Means by which the issues are laid before the Court, because the issues involved in the
litigation is defined by the pleadings.
- states a claim or cause of action (complaint, counterclaim)
- states defenses – Answer
- to be liberally construed so as to do substantial justice. Thus, FORMAL DEFECTS may
be cured at any stage of the proceeding by means of an amendment.
- However, a party is still bound to the allegations and statements made in his pleading.

However in cases governed by the rules of summary procedure the only pleadings
allowed are:
1. Complaint,
2. compulsory counter claim pleaded to the answer
3. crossclaim pleaded to the answer
4. answers thereto

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KINDS OF PLEADINGS

1. Complaint, counterclaim, crossclaim, third-party complaint or even a complaint in

intervention. Also, answer and the defenses of the party, reply to the answer.

1. COMPLAINT
- the pleading alleging the plaintiff’s or claiming party’s cause/s of action
- state the name and residences of the plaintiffs and the defendant

2. ANSWER
- contains the answer of the defendants

*Kinds of Defenses

1. Negative Defenses
- in the form of specific denial of the material fact alleged in the pleading
of a claimant, essential to his cause/s of action

*Kinds of Specific denial

1. ABSOLUTE DENIAL - Specifically denying the material

allegation in the pleading of the adverse party. And setting forth
the substance of the matter upon which he relies for such a denial

*A general denial or Negative pregnant denial is

an admission.

2. PARTIAL DENIAL - The defendant will deny only a part of the

allegation by specifying so much of it as true and deny only the
remainder.

3. DENIAL BY DISAVOWAL - By stating lack of knowledge or

information sufficient to form a belief as to the truth of the allegation
in the pleading of the adverse party

* If made in Bad faith it will amount to an admission

2. Affirmative Defense
- allegation of new matter which although hypothetically admitting the
material allegations in the pleading would nevertheless bar or prevent
recovery by him.

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What are the affirmative defenses that a defending party or the defendant may set-up in his
answer?

1. Fraud
2. Statute of Limitations
3. Release
4. Payment
5. Illegality
6. Statute of Frauds
7. Estoppel
8. Former Recovery
9. Discharge in Bankruptcy
10. Other matters by way of confession and avoidance

Others include:

1. The Court has no jurisdiction over the subject matter of the action
2. Litis Pendentia
3. Res Judicata

Another group are:

1. The Court has no jurisdiction over the person of the defendant

2. That the venue is improperly laid
3. Plaintiff has no legal capacity to sue
4. The pleading asserting a claim states no cause of action
5. That the condition precedent for the filing of the claim has not been
complied with.

These cannot be pleaded in a Motion to dismiss anymore (thru AM 19-10-20-SC) Except

if the ground is

1. No Jurisdiction over the SM of the Action

2. Litis pendentia
3. Res Judicata
4. barred by the Statute of limitation

These affirmative defenses must be invoked at the earliest opportunity. Rule 8 Sec. 12(b),
Failure of which shall constitute a waiver thereof.

*Earliest opportunity – Asserting them as affirmative defenses in the answer. But if the
grounds is the four, then invoking them in a Motion to dismiss may also be considered an earliest
opportunity.

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 Within 15 days – conduct summary hearing, then within 30 days make a judgment.
However, if the 5, then no summary hearing is needed. Can motu proprio decide on these
affirmative defenses.

Requisites of Litis pendentia

1. There must be an identity of parties or at least such representing the same interest in
both action

2. Identity of rights ascertain, and reliefs prayed for being founded on the same facts

3. The identity in both cases is such that the judgment rendered in the pending case
regardless of which party is successful will amount to res judicata in the other case.

When there are two pending cases involving the same parties and of the same cause which
of the two cases should be dismissed?

The following test must be applied:

1. Priority in time Rule

- means that the first case should have priority over the second case
- Thus, the second case should be dismiss.
- However, it must yield to the second test

2. More appropriate action test

- means that there is another action pending between the same parties and
for the same cause.
- If the second case is more appropriate than the first case, then the first
case should be the one to be dismiss.

SUFFICIENCY OF A COMPLAINT

If a complaint fail to state a cause of action then failure to state a cause of action
may be asserted as affirmative defense, and if a Court finds it so, then the Court may
dismiss the complaint for failure to state a cause of action.

In determining the whether the complaint states a cause of action, should the Court requires
presentation of evidence?

No, the court will simply confine itself within the four corners of the Complaint.
Then it will look at the facts alleged in such complaint and if the Court can render
judgment based on the facts as it is alleged in the complaint, then the complaint is
sufficient.

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 However, even if the facts are hypothetically admitted, if the Court cannot render
a valid judgment based on this facts then the cause of action is insufficient. Therefore, the
complaint must be dismiss.

REQUISITES OF RES JUDICATA

1. There must be a former judgment that is already final.

2. The judgment must be rendered by a Court having jurisdiction over the subject matter
of the action and over the parties

3. The judgment must be a judgment on the merits of the case

4. There must be between the first and the second actions identity of parties, identity of
subject matter and identity of causes of action

A cause of action is different from remedies because a cause of action may

give rise to two or more remedies.

A party cannot escape the effect of res judicata by simply adopting a different method of
presenting his case or varying the form of his action.

Has res judicata set in?

If yes, then the second case should be dismiss. If no, then the second case can proceed
and it will prosper.

LACK OF LEGAL CAPACITY TO SUE

- only on the part of the plaintiff

- means that the plaintiff is not in the exercise of his civil rights or does not have the
necessary qualification to appear in the action or does not have the character or
representation that he claims. In any of these, the plaintiff is said not to possess a legal
capacity to sue. A condition precedent for a filing of a claim has not been complied with.

Not the same as lack of legal personality to sue as this means that the plaintiff is not the
real party in interest.

It can be set up on the following instances:

1. When the plaintiff fails to exhaust administrative remedies

2. When the plaintiff fails to comply with the requirements of prior referral of the dispute
to the Lupon.
3. When the suit is between members of the same family, it must be alleged in a verified
complaint that earnest effort towards compromise have been made but the same has
failed.

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3. REPLY
- a reply is a pleading the office or function of which is to deny or alleged facts in denial
or avoidance of a new matter alleged in or relating to an actionable document attached
to the answer of the defending party.

- the only instance for a plaintiff to file a reply is when the affirmative defense of the
defendant is based on an actionable document, such reply is to deny under oath the
genuineness and due execution of that actionable document.
- If the plaintiff failed to do such, then the plaintiff would have been deemed admitted
the genuineness and due execution of that actionable document.

For a specific denial to produce the effect of a negative defense, must the denial be under oath?

No, it need not be under oath. As long as it was made in the three allowed ways.
Except to deny the genuineness and due execution of that actionable document that is
the basis of the cause of action or the basis of the defense, the denial must be under oath.

***The plaintiff cannot set up a cause of action or claim against a defendant in a reply even if it
arose in new matters alleged in the defendants answer.

4. COUNTERCLAIM
- is a claim which a defending party has against the opposing party.
- it is a pleading but it is incorporated in the answer.

* KINDS:

1. Compulsory Counterclaim

Requisites:

a. It arises out of or is necessarily connected with the transaction or occurrence that is

the subject matter of the opposing party’s claim or complaint

b. It does not require for its adjudication the presence of a third person over whom the
Court cannot acquire jurisdiction

c. It must be cognizable by the regular Court of Justice

d. It 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 RTC the counterclaim is still
compulsory regardless of the amount thereof

e. It must already be existing at the time the defendant/defending party files his answer.

2. Permissive Counterclaim

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Distinctions between a Compulsory Counterclaim and a Permissive Counterclaim

1. A compulsory counterclaim arises out of or is necessarily connected with the

transaction or occurrence constituting the subject matter of the opposing party’s claim.
While a permissive counterclaim does not arise out of or is necessarily connected with
the transaction or occurrence constituting the subject matter of the opposing party’s claim.

2. A compulsory counterclaim is barred if not set up in the answer. While a permissive

counterclaim is not barred even if not set up in the answer.

3. A plaintiff is not required to answer a compulsory counterclaim and he cannot be

declared in default with respect thereto. While a permissive counterclaim must be
answered after the payment of the docket fees otherwise the plaintiff may be declared
in default.

4. A compulsory counterclaim is not an initiatory pleading and therefore does not

require a certification on non-forum shopping. While a permissive counterclaim is an
initiatory pleading and requires a certification on non-forum shopping

May a counterclaim implead a person who is not a party to the original complaint?

Yes, so that there can be a complete adjudication of the claim and the subject matter of
the action, A compulsory counterclaim may implead a person who is not yet a party or who is
not a party to the original complaint to enable the court to adjudicate the entire controversy
involving the parties.

Should summons be served to the defending party?

Yes as to the other party who is not yet or who is not a party to the original
complaint.

5. CROSS-CLAIM

A claim of one party against a co-party arising out of a transaction or an

occurrence that is the subject matter either of the original action or the counterclaim therein.

6. THIRD PARTY COMPLAINT

A claim that a defendant may with leave of Court file against a person not party
to the action called the “third party defendant” for contribution, indemnity, subrogation
or any other relief in respect to his opponents claim.

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PARTS OF THE PLEADING

1. Caption
2. Body
3. Signature
4. Address
5. Verification
6. Certification on non-forum shopping

1. CAPTION
- it includes the name of the Court, the title of the case and the docket number if one
has already been assigned
- The title must specify the names of all the parties and their participation in the action.
However, in the subsequent pleading it is enough to mention the name of the first party
with an appropriate indication that there are other parties (et al.). Further, however,
in a notice of appeal or on the record of appeal the names of all the parties must be specified.

2. BODY
- should set forth the designation of the pleading, the allegation of facts constituting the
party’s claims or defenses and the reliefs prayed for and the date of the pleading.
- if it is complaint then it must state so in the body

*Relief prayed for

- Wherefore phrase at the end of the pleading
- it may include a general prayer for such and a relief that may be found just and
equitable

Under the new rules (AM No, 19-10-20-SC), aside from the designation, allegations
constituting the cause of action or defense of the parties and the relief prayed for and the date,

The following should also be included in the complaint:

1. The names of witnesses who will be presented to prove the party’s claim
or defense

2. The summary of the witnesses’ intended testimony provided that the

judicial affidavit of these witnesses must already be attached to the
pleading
- Only witnesses whose judicial affidavits are attached to the
pleading will be allowed to testify in the hearings

3. The documentary and object evidence in support of the allegations

contained in the pleadings must also be stated.

31
3&4 SIGNATURE AND THE ADDRESS
- the counsel representing the party may sign the pleading but even the party himself
or herself may sign the pleading

Suppose a party is already represented by a counsel, may the party still sign his pleading?

Yes, but if a party is not represented by a counsel then he should sign his own pleading.

What is pro se?

Basically means “for himself” without the aid or assistance of a counsel. When a party
will sign his own pleading then he signs it pro se. A party may litigate and defend pro se or for
himself without the aid or assistance of a counsel.

What does the signature of a counsel constitute?

1. The signature of a counsel constitutes a certificate by him that the pleading is not
being presented for any improper purpose such as to harass, cause unnecessary delay
or needlessly increase the cost of litigation.

2. That the claims, defenses or other legal contentions are warranted by existing law or
jurisprudence or by a non-frivolous argument for extending, modifying or reversing
existing jurisprudence.

3. The factual contentions or allegations have evidentiary support or if specifically so

identified will likely have evidentiary support after availment of the modes of discovery
under the rules.

4. The denial of factual contentions are warranted on the evidence or if specifically

identified are reasonably based on belief or a lack of information

Suppose a party files a pleading but not signed, what is the effect of an unsigned pleading?

An unsigned pleading produces no legal effect.

Why is an address required?

An address is required for service of pleadings or judgments.

5. VERIFICATION

- A pleading need not be verified UNLESS the law or the rules required that it be
verified.

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How is a pleading verified?

A pleading is verified by an affidavit of an affiant, the one who execute the affidavit that:

1. The allegations in the pleading are true and correct based on his or her
personal knowledge or on offending documents

2. The pleading is not filed to harass or cause unnecessary delay or needlessly

increase the cost of litigation

3. The factual allegations in the pleading have evidentiary support or if specifically

so identified will likely have evidentiary support after a reasonable opportunity for
discovery.

What is the purpose of a verification?

A verification is intended to secure an assurance that an allegations in the pleading are

true and correct and not the product of imagination or a matter of speculation and that it is
verified in good faith.

Some pleadings that need to be verified:

1. When a case is governed by the rules in summary procedure

2. A petition for relief in judgment
3. Petition for annulment of judgment
4. Petition for certiorari, prohibition or mandamus
5. Complaint in forcible entry or unlawful detainer cases
6. Petition for guardianship
7. Petition for quo warranto

6. CERTIFICATION ON NON-FORUM SHOPPING

What pleadings require a certification on non-forum shopping?

A complaint needed a certification on non-forum shopping and other initiatory

pleading. INITIATORY PLEADING refers to the one that commences the civil proceedings
or initiate an action (permissive counterclaim)

It must be executed by the plaintiff or the petitioner and certify under oath that he has not
commence any action or file any claim involving the same issue in any Court, tribunal or any
quasi-judicial agency and to the best of his knowledge no such other claim or action is pending
therein. Also certifies under oath, that if there is such or other pending claim he must make a
complete statement on the present status of such claim or action. Moreover, he should also certify
under oath that if he should learn thereof that the same or similar action is pending in another
Court, he shall report that fact to the Court within 5 days from the time he learns of the same.

33
How will you comply to this requirement of certification on non-forum shopping?

By attaching the certification on the pleading or by incorporating it in the pleading

What is the effect of non-compliance to the certification on non-forum shopping?

The lack of certification is not curable by amendment. The complaint or pleading will
be dismissed but the dismissal is without prejudice unless otherwise stated by the Court to be
with prejudice.

On the other hand, the submission of false certification on non-forum shopping

constitutes indirect contempt without prejudice to any administrative or criminal actions and
the complaint will be dismissed.

If the act of the party or its counsel constitutes a willful and deliberate act of forum
shopping, this will resort to the summary dismissal with prejudice to his complaint. Meaning,
you cannot refile your complaint (with prejudice).

When is there forum shopping?

There is a forum shopping when the elements of litis pendentia or res judicata are
present.

Who must execute the certification on non-forum shopping?

The plaintiff or the petitioner itself should execute the certification. If there are several
plaintiffs then all of them must sign the certification. However, if they are relatives or co-
owners of a property in dispute and therefore share a common interest in the subject matter of the
case, then some but not all of them may sign the certification.

May a person other than a plaintiff/petitioner execute the certification on non-forum

shopping?

Yes, if there is an authorization to act on behalf of the plaintiff or the petitioner. The
authorization should be in the form of a special power of attorney attached to the pleading.

May the counsel itself sign the certification on non-forum shopping?

No, the counsel himself cannot sign the certification. However, in the following instances
the counsel is allowed to sign the certification:

1. If the counsel is the solicitor general; or

2. In-house counsel

34
State whether the following require a certification of non-forum shopping.

1. Application for a search warrant – NO

2. Petition for issuance of a writ of possession – NO because it is a motion although called

a petition

3. A complaint filed with the ombudsman – No because the Ombudsman is not a Court

MODULE 7

Distinctions between verification and certification on non-forum shopping.

1. A verification is a sworn statement that the allegations in the pleading are true and correct
based on the personal knowledge of the affiant and/or based on authentic records. While
certification on non-forum shopping is a sworn statement that there is no other action or claim
that has been filed or is pending in another Court or tribunal.

2. A verification may be required in an initiatory pleading (complaint) or even a responsive

pleading (answer) While certification on non-forum shopping is required only in a complaint
or other initiatory pleadings.

3. A defect in the verification is curable by amendment. But, a defect in a certification on non-

forum shopping is not curable by amendment.

4. A defect in the verification does not immediately result in the dismissal of a complaint. While
a defect or lack of a certification on non-forum shopping will result in the dismissal of the
complaint.

5. A verification may be signed by a counsel or a party. While a certification on non-forum

shopping must be signed only by a party.

How to plead an actionable document in a pleading?

An actionable document may be the basis of a cause of action or a defense.

An actionable document is pleaded by setting forth the substance of actionable

document in the pleading and attached the original copy or a copy of the actionable document
to the pleading.

Failure to specifically deny under oath an actionable document will be deemed to be an

admission on the genuineness and due execution of that actionable document. Moreover, because
of that implied admission, the party will not be allowed to set up defenses that are inconsistent
with his implied admission.

35
RULE 9
Effects of Failure to plead

Waiver of defenses and objections.

As a rule, all objections and defenses must be pleaded in a motion to dismiss or in an

answer, otherwise, they shall be deemed waived.

Exceptions:

1. If it appears on the pleadings or evidence on record that:

a. The Court has no jurisdiction over the subject matter of the action.
b. Litis pendentia
c. Res Judicata
d. The action is barred by statute of limitations

Then the Court should dismiss the case.

Note: A compulsory counterclaim or a cross claim must be set up in the answer unless they shall
be barred

DEFAULT

When a plaintiff files a complaint in Court, the Court in due time issues a summons. The
summons is served to the defendant and the defendant has 30 days extendible by another 30 days
(total of 60 days with extension) to file his answer to the complaint. If the defendant fails to file
his answer within the period allowed then he may be declared in default and a judgment in
default may be taken against him.

However, even if the defendant filed his answer, he can still be declared in default on
the following instances:

1. If he refuses or fails to obey an order requiring him to comply with the modes
of discovery;

2. If the defendant or its managing agent willfully fails to appear before the officer
who is to take his deposition.

However, the Court on its own cannot (motu proprio) declare the defendant in default.

36
 The REQUISITES so that a defendant may be declared in default:

1. The plaintiff must file a motion to declare the defendant in default. (Motion to
declare a defendant in default)

2. There must be notice of his motion to the defendant.

3. There must be a proof of failure on the part of the defendant to file his answer
within the reglementary period.

If the Court finds the motion meritorious, then it will issue an order
declaring the defendant in default. (order of default)

Why can’t the Court motu proprio declare the defendant in default?

The plaintiff must be able to protect his own interest.

Once the defendant is declared in default the Court has two options:

1. The Court can immediately proceed to render judgment granting the claimant or
plaintiff such relief as his pleading or complaint may warrant

2. The Court in its discretion requires the claimant or plaintiff to submit evidence ex
parte
- The acceptance may be delegated to the Clerk of Court provided that he/she is
a member of the Philippine BAR.

Finally, the Court then issues a judgment by default.

Order of Default v. Judgment by Default

The ORDER OF DEFAULT is the order declaring the defendant in default. The order
of default comes first before an order of judgment. Once the Order of Default is issued, the
Court may render a judgment in default.

A JUDGMENT BY DEFAULT is appealable but an order of default is not appealable

because such is simply interlocutory. Interlocutory, meaning the order does not put an end or
terminate the case. This is the opposite of a final order which is appealable.

What is the extent of the relief that may be awarded in a judgment by default?

A judgment rendered against a defendant in default shall not exceed the amount or be
different in kind from that prayed for nor award or liquidated damages.

37
What is the effect of order of default?

The defaulted defendant shall be entitled to notice of subsequent proceedings but not to
take part in the trial.

Effects of partial default

If one party filed an answer and the other party did not, is it proper for the Court to declare
the second party as a defendant in default and then render judgment against him and after
rendering judgment against the defaulted defendant it will now hear the case with the non-
defaulted defendant?

No, in situation where a plaintiff files a complaint asserting a common cause of action
against several defendants one or some of them file an answer and the others did not. Then, the
Court should try the case against all the defendants on the basis of an answer that was filed.

The Court should not split the case between those in default and those not in default.
Rather, it should try the case against all the defendants on the basis of the answer that was
filed by one or some of the defendants. It is not within the authority of the Court to divide the
case by first hearing the case ex parte against the defaulted defendants and render a judgment
against them. Then proceed to hear a case against the non-defaulted defendants.

What happens if the defendant is declared in default? Does the defendant declared in default
still have remedies?

Yes, the following are the remedies of a defendant declared in default:

1. Motion to set aside order of default;

- must be under oath and must be filed by the defendant from anytime from notice
of declaration of default but before judgment. Defendant must show by an affidavit
of merit that his failure to file his answer was due to fraud, accident, mistake or
excusable negligence and that he has a good and meritorious defense.

Extrinsic Fraud
- Fraud that prevented the defendant from having his day in Court
and from presenting his defenses.

2. Motion for new trial.

- there can be MNT only if a judgment by default has been rendered but the
judgment has not become final yet.

3. Appeal from the judgment by default

- there should now be a judgment but within 15 days from notice of the judgment,
a notice of appeal should be filed.

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 4. Petition for relief from judgment
- based on FAME. Should be filed if appeal is not available as remedy thru no fault
of the defendant himself. It is a remedy in equity, as it is only resorted to if appeal
is not available. Must be filed within 60 days from notice of the judgment but within
6 months from entry of judgment (when the judgment become final).

5. Action for the annulment of judgment

- based on extrinsic fraud. Here the judgment by default became final and within 4
years upon the discovery of the fraud, the defendant may file this action on the
ground of extrinsic fraud.

6. A petition for Certiorari

-which may be filed within 60 days from notice subject of the petition. If he files a
motion for reconsideration then the 60 days should be recon from the notice of the denial
of the MR. This is available to the defendant if he has been improperly declared in default.

However, no judgment in default may be declared by the Court in the following cases:

1. Annulment of marriage
2. Declaration of nullity of marriage
3. An action for legal separation
4. An action for expropriation
5. Forcible Entry and unlawful detainer cases
6. Other cases governed by the rule on summary procedure.

Instead, the Court shall order the state to inquire whether there is a collusion between the
parties. If none, then the State shall order the prosecution to intervene on behalf of the state

MODULE 8

RULE 10
Amended Pleadings v. Supplemental Pleadings

Amendments
- shall consist of adding or striking out an allegation or the name of any party, correction
of mistakes in the name of the party or a mistaken or inadequate allegation or description of an
object in the pleading.

Purpose:
So that the actual merits of the controversy may be determined without regard to
technicalities.

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 Kinds:

1. Formal amendments
- It is formal when you want to correct a defect in the designation of parties
and other clerical errors may be summarily corrected (mistake in the names)

2. Substantial amendments
- all other amendments are considered substantial. Like changing or adding
a cause of action.

When may an amendment be made?

Formal and substantial amendment can be made once as a matter of right (without leave
of court) (the succeeding will then need a leave of Court) before a responsive pleading is served
or in case of a reply at any time within ten days after it is served.

Motion to dismiss is not a pleading, it is a motion. Thus, it cannot be a responsive pleading.

What is a responsive pleading?

These are pleading that are filed by a party who will respond to a pleading filed against
him. That is to deny an allegation against him or her. An answer and reply (filed only when it is
based on an actionable document) a responsive pleading.

Amendment can be made even if the case is dismissed provided that the dismissal has not
attained finality yet. If dismissal is final, amendment cannot be made as there is nothing more to
amend.

After the plaintiff has been served with a copy of defendants answer, may the plaintiff still
amend his complaint?

Yes, but if the plaintiff want to introduce substantial amendment he must first obtain a
leave of Court.

After the filing of a responsive pleading substantial amendments require leave of court.

When may the Court refuse leave to amend? Or what are the limitations in the right of a
party to amend his pleading?

The following are the limitation on the right of the party to amend his pleading:

1. A responsive pleading has been served and filed and the motion for leave to amend was
made with intent to delay.

2. The purpose of the amendment is to confer jurisdiction upon the Court.

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 3. The purpose of the amendment is to cure the defect of a non-existent cause of action

In order to be valid one must attached to the motion for leave the propose amended
complaint.

If amendment requires leave of Court but the party did not obtain leave of Court, what is
the standing of the amended pleading?

It has no standing. Thus, it may be stricken from the records of the case.

Amendment to conform to evidence

When issues not raised in the pleading are tried with expressed or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings and there can
be an amendment to conform to the evidence but failure to amend will not affect the result of the
trial of these issues.

However, this does not apply to a defendant declared in default because a judgment by
default cannot exceed the amount or be different in kind from that prayed for or award or liquidated
damages.

Suppose when the plaintiff was presenting evidence, there was a timely objection from the
defendant and the Court sustained the objection. What is the remedy of the plaintiff?

The remedy of the plaintiff is to ask the Court to allow him to amend his complaint so as
to authorize the presentation of evidence.

Amendment to authorized presentation of evidence

When evidence objected to at the trial on the ground that it is not within the issues made
by the pleadings and the Court sustains the objection on motion of the party affected like the
plaintiff, the Court may allow the pleadings to be amended so as to authorize the presentation of
evidence and the Court may do so with liberality.

What are the effects of an amended pleading?

1. It supersedes the pleading that it amends.

2. Admissions in the superseded pleadings may be received as evidence against the pleader

3. Claims and defenses alleged in the superseded pleading but not incorporated in the
amended pleading shall be deemed waived (except of course those defenses [Sec. 1, Rule
9] that are not deemed waived even if not pleaded in a motion to dismiss or in an answer).

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How is amended pleading filed?

The amendments or the amended portions of the pleading must be indicated by

underscoring them.
Supplemental Pleading

If a pleading was filed like a complaint and then facts occur or events transpire after the
filing of that complaint then you can file a supplemental complaint to allege those facts or
events occurring since the time or after the filing of the complaint.

What are the distinctions of an amended pleading and a supplemental pleading?

1. An amended pleading is filed either as a matter of right or with leave of court. While a
supplemental pleading is always with leave of court.

2. An amended pleading alleges matters and facts occurring before the filing of the original
pleading. While a supplemental pleading alleges matters or facts occurring after the filing of the
original pleading.

3. An amended pleading supersedes the pleading that it amends. While a supplemental

pleading allows the original pleading to stand (they will be taken together).

MODULE 9

RULE 11
When to file Responsive pleading

Responsive pleading

- a pleading that sets up defenses (negative or affirmative)

- A complaint is not a responsive pleading, however an answer is a responsive pleading

Periods of filing (MEMORIZE the No. of days)

1. Answer to the complaint of a case governed by Rules on Summary Procedure – 10

calendar days after the service of summons

- When counting day exclude the first and include the last. If the last day falls on
a Saturday, Sunday or a legal holiday in the place where the Court sits then the
pleading may be filed on the next business day, provided that it is not a holiday.

10 days from July 1 is July 11. (Last day is July 11)

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 2. Answer to the complaint of a case governed by the regular rules - 30 calendar days after
the service of summons upon the defendant unless a different period is fixed by the court (as
amended by AM 19-10-20-SC)

3. Answer to the amended complaint – if the amendment is a matter of right then the
defendant will have 30 calendar days after being served with a copy of the amended complaint.
While, if the amendment is with leave of court it is 15 days from the notice admitting the amended
complaint.

4. Answer of a defendant foreign private juridical entity – If the summons is served upon
its resident agent then it has 30 days from service of summons. But if served on a government
official designated by law to receive the summons on behalf of the defendant then it have 60
calendar days after receipt of summons by such entity.

5. Answer to third- (fourth, etc.) party complaint – should be filed within 30 calendar days
after service of summons unless a different period is fixed by the Court.

6. Answer to complaint-in-intervention – must be filed within 15 calendar days from notice

of the order admitting the complaint in intervention unless a different period is fixed by the Court.

7. Answer to counterclaim/cross claim – 20 calendar days from service of the counterclaim

or cross claim. If it is a permissive counterclaim it must be answered. But if it is a compulsory
counterclaim it may or may not be answered

8. Answer to the supplemental complaint – 20 calendar days from the notice of the order
admitting the supplemental complaint unless a different period is fixed by the Court.

9. Reply – 15 days from the service of pleading responded to

May the defendant file a motion for extension of time to file a responsive pleading?

A motion for extension to file a pleading other than an answer is a prohibited motion.
Applicable only to an answer. Moreover, you are only allowed to file only one motion of extension.
But if it is a pleading other than an answer, a motion for extension to file that pleading is a
prohibited motion.

After the expiration of the period to file the answer can you file a motion of extension?

No, because at that time there is nothing else to extend. The period has expired and
therefore there is nothing else to extend.

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What is the remedy for failure to file an answer within the period of filing it and without
filing a motion for extension?

The only remedy is to file the answer even after the period for filing it and then file along
with it (attaching) a motion to admit the answer.

The Court may allow an answer or other pleading to be filed after the time fixed by the
Rules provided you can offer a justification for your tardiness in filing the answer.

May the period for filing a responsive pleadings be shortened?

No, the Court may extend but cannot shorten the time for filing of an answer. Except in
quo warranto cases, the period may be shortened by the Court.

When may a complaint be filed?

Since it is not a responsive pleading, the plaintiff may file his complaint from the accrual
of his cause of action or anytime thereafter but before his cause of action is barred by the statute
of limitations.

RULE 12
Bill of Particulars

Bill of Particulars
- it is a definite statement of any matter which is not alleged with sufficient definiteness or
particularity in a pleading and the purpose is to enable the defendant or a party to properly
prepare his responsive pleading. (so the vague allegations will become clearer)

- It is resorted to when the complaint is deficient in some details with respect to factual
basis of the allegations. BUT if the deficiency amounts to a failure to state a cause of action
then the remedy is not a motion of a bill of particulars but to assert it as an affirmative
defense.

- Filed before filing an answer or before responding to a pleading

- A copy of the motion shall be served to the plaintiff because a Motion for bill of
particulars is a litigious motion, thus, the plaintiff must be given notice of such motion.
- The defendant MUST point out the defects, the paragraph where it is found and the
details that is being desired.

- The defendant will file a MOTION FOR BILL OF PARTICULARS. If granted, the plaintiff
will file a Bill of particulars.

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When may the defendant file a motion for bill of particulars?

Before filing his answer. But if the pleading is a reply the motion must be filed within ten
days from the service of the reply.

Assuming that the Motion is granted, after the plaintiff will serve the defendant with bill
of particulars (Service of bill of particulars) OR notice of the denial of the defendant’s motion, the
DEFENDANT has the remaining period that he was entitled to at the time of the filing of the
motion which was not less than five days in any event.

What is the duty of the Clerk of Court upon the filing of a motion of the Bill of particulars?

The Clerk of Court must bring it immediately to the attention of the Court for the
granting or denial of such motion.

How may the Plaintiff comply with the order if granted?

The compliance should be within ten days from notice of the order. He may file the bill
of particulars either as a separate pleading or as an amended pleading.

Suppose the plaintiff believes that there is nothing wrong in his complaint and refuses to
comply?

The Court may order the portion of the pleading to which the order is directed stricken out
or the complaint will be stricken out. Then, the court may dismiss the complaint because the entire
complaint is stricken out or may simply dismiss it for failure of the plaintiff to obey a Court order.

MODULE 10

Rule 13
Filing and service of Pleadings, Judgments and other papers

FILING
- act of submitting the pleading or other paper to the court
- A complaint is deemed filed only upon the payment of filing or docket fees

SERVICE
- is the act of providing the other party with a copy of the pleading or any other Court
submission

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Upon whom may the pleading be served?

It may be served upon the party. But if the party is represented by a counsel, then the service
must be made upon the counsel. If a counsel represents several parties, he will be served only one
copy of the pleading or papers.

But if several counsel appear for a party or parties then they will be entitled to only one
copy. The pleading will be served upon the lead counsel if one is so designated.

Counsel if plural form of many lawyers is still Counsel

Modes of filing. How to file?

1. Personal Filing – By submitting personally the original copy of the pleading, motion or
other papers to the Court plainly indicated as such.

2. Filing by registered mail

3. Filing by accredited courier – like LBC, in the new rules

4. Filing by electronic mail or other electronic means like facsimile transmission to the
Court as may be authorized by the Court in places where the Court is electronically
equipped.

However, the following should be file thru personal filing or filing by registered
mail and not be filed electronically unless expressly authorized by the Courts (Sec. 14):

a. Initiatory pleading and initial responsive pleadings (answer);

b. Subpoena, protection orders and writs;
c. Appendices and exhibits to motions and other documents that are not
readily amenable to electronic scanning; or
d. Sealed and confidential documents or records.

At what point or time are these papers considered filed?

If made by personal filing the clerk of Court shall indorsed on the pleading, motion or other
Courts submission the date and time of the filing.

If made by registered mail or accredited courier, the date of the mailing and the payment
and deposit as shown by the post office stamped on the envelope or the registry receipt shall be
considered the date of its filing, payment and deposit in Court. The envelop shall be attached to
the record of the case. (Date of mailing is the date of filing).

If made by electronic mail or other electronic means the date of the electronic transmission
shall be considered the date of filing.

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What are the papers required to be filed with the Court and served to the parties affected?

These are the following:

* Judgment, resolution, order, pleading, pleading subsequent to the complaint,
written motion, notice, appearance, demand offer in judgment or similar paper.

Modes of service of pleadings, motion and notices and other Court submissions?

1. Personal Service – made by personally delivering a copy to the party or to his counsel
by leaving it in his or her office with his clerk or with a person having charge with the office

If no office or cannot be located – By leaving the copy between the hours of 8 in the
morning and 6 in the evening at the party’s or counsel’s residence with a person of sufficient age
and discretion residing therein.

2. Service by mail – it may either be by registered mail or ordinary mail

3. Service thru accredited courier

4. Service by electronic mail or by facsimile transmission or other electronic means as

maybe authorized by the Court

5. Substituted Service – by delivering a copy to the clerk of Court with proof of failure of
both personal service and service by mail

However, in case of judgments, final orders or resolutions the following are the
modes:

1. Personal Service

2. Service by registered mail

3. Service by accredited courier

4. Service by publication – only when the defendant is summoned by

publication and he did not appear in the action

NOTICE OF HEARING

Presumptive service of a notice of hearing

- There is a presumptive notice to a party of a court setting if such notice appeared on the
record to have been mailed at least 20 calendar days prior to the scheduled date of hearing and the
addressee is from within the same judicial region where the case is pending. 30 calendar days if
outside the judicial region prior to the date of the hearing

- Applies only to service of notice of hearing.

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When is service complete? What is the rule regarding completeness of service?

It is important for the period of filing and appeal.

If by personal service – complete upon actual delivery

If by ordinary mail- upon expiration of 10 calendar days after mailing unless the Court
provides otherwise.

If by registered mail – upon actual receipt of the addressee or after 5 calendar days from
the date the addressee receive the first notice of the postmaster whichever is earlier.

If by accredited courier – upon actual receipt by the addressee or after at least 2 attempts
to deliver by the courier or upon expiration of 5 calendar days after the first attempt to deliver
whichever is earlier.

If by facsimile (fax) transmission, it is complete upon receipt of the other party as

indicated in the facsimile transmission print out.

If by electronic service, like email or any other electronic means, it is complete at the time
of the electronic transmission of the document. However, it is not effective or complete if the party
serving the document learns that it did not reach the addressee or the person to be served.

If by substituted service it is complete at the time of the actual delivery to the Clerk of
Court.

NOTICE OF LIS PENDENS

- may be recorded only if the action is a real action.

- It is an announcement to the world that a particular real property is the subject of a pending
litigation and so it serves as a warning to everyone who might want to deal with this property or
enter into a transaction involving this property that he will acquire it subject to the outcome of the
litigation.

Do you need a Court order to be able to record a notice of lis pendens?

A notice of lis pendens is recorded in the office of the Registry of Deeds in the province or
city where the real property is located.

The recording is extrajudicial in the sense that A COURT ORDER IS NOT NEEDED to
record a notice of lis pendens. Moreover, there is no such thing as action for annotation of lis
pendens

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 The Notice contains the name of the parties and the object of the action; (description of the
land or the property), then the notice is directed to the Register of Deeds. A copy of the complaint
should be attached to your notice or if not as long as the title of the case, the case number, the
Court where it is pending is indicated in the request for the recording of the notice.

The request for the recording of notice can be in the form of a letter.

In what action may a notice of lis pendens be recorded?

A notice of lis pendens is available only in a real action – an action affecting title or
possession of real property. Specifically these actions are:

a. Action to recover possession or ownership of real property; or

b. Action to quiet title thereto; or
c. Action to remove clouds therefrom; or
d. Action for partition; or
e. Any other proceeding of any kind in Court directly affecting title to the land or
use or occupation thereof or a building thereon.

Who may record a notice of lis pendens?

The plaintiff or even the defendant if the defendant in this action is also asking for
affirmative relief involving the real property subject of the litigation.

Cancellation of Notice of Lis pendens.

Although the recording is extrajudicial, you just have to file a case and if the case involves
title to or possession of a particular real property (real action), then you may record a NOTICE of
LIS PENDENS in the office of the Register of Deeds.

The Notice of Lis Pendens serve as a warning to everyone that the property mentioned in
the notice is a subject of pending litigation.

THE CANCELLATION IS NOT EXTRAJUDICIAL, there must be a Court order.

To record a notice of Lis pendens you do not need a Court order. But for it to be cancelled there
must be a Court order and the Court will issue an order directing the cancellation of the notice
of lis pendens if it is shown:

1. That the notice is only for the purpose of molesting the adverse party; or
2. It is not necessary to protect the right of the party who caused it to be recorded.

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MODULE 11

RULE 14
SUMMONS

Summons (Summonses plural)

- it is a writ issued and signed by the Clerk of Court upon the filing of the complaint and
payment of the requisite docket fees addressed to the defendant and directing him to file his answer
to the complaint with a warning that if he fails to do so, then the plaintiff will take a judgment in
default and he may be granted the relief applied for.
- The summons must contain the name of the Court and the names of the parties.

Two-Fold Purpose of Summons

The two-fold purpose of summons is to enable the Court to acquire jurisdiction over the
person of the defendant and to notify the defendant of the filing of the complaint against him.

What is the significance of summons?

- Summons is the primary means by which the Court is able to acquire jurisdiction over the
person of the defendant and to give notice that an action has been commenced against him.
- it is the writ by which the defendant is notified of an action brought against him.

How may a Court acquire jurisdiction over the person of the defendant?

Jurisdiction over the person of the defendant can only be acquired thru:

1. Valid service of summons; or

2. By the defendant’s voluntary appearance in the action.

What is equivalent to service of summons?

The voluntary appearance of the defendant in the action shall be equivalent to service of
summons.

When may the Court direct the Clerk of Court to issue the summons to the defendant?

If the complaint is not dismissible on its face under Section 1, Rule 9, the Court shall within
5 calendar days from receipt of the complaint from the initiatory pleading and proof of payment
of the requisite legal fees direct the clerk of court to issue the summons to the defendant.

50
What should the summons contains?

The following should be contained in the summons:

1. Name of the Court;

2. Name of the parties;

3. Authorization from the plaintiff to serve the summons to the defendant if authorized by
the Court upon ex parte motion;

4. A direction that the defendant answer within the time fixed by the rules and a notice that
if the defendant so answers, plaintiff will take a judgment in default and maybe granted by
the relief applied for.

5. A copy of the complaint and order for the appointment of a guardian ad litem if any,
should be attached to the original and each copy of the summons.

Who may serve the summons?

Summons may be served by:

1. The Sheriff or his deputy or other proper Court officer;

2. By the plaintiff if authorized by the Court in case there is a failure of service

of summons by the sheriff his deputy or other proper Court Officer;

3. The plaintiff shall be authorize to cause the service of summons in the following
instances:

i. If the summons is to be served outside the judicial region of the Court

where the case is pending;

ii. If summons is returned without being served in any or on all the

defendants

If the summons is returned without being served to any or all of the defendants the Court
shall order the plaintiff to cause the service of the summons by other means available under the
rules.

What if the plaintiff fails to comply with the order for him to cause the service of summons?

The failure of the plaintiff to comply with the order will cause the dismissal of the
complaint or initiatory pleading without prejudice (can be refiled).

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If the summons is issued, what is the lifetime of summons? Until when is the summons valid?

A summons has no definite lifetime. Once issued it shall remain valid until duly served or
recall by the Court. However, if the summons is lost or destroyed without being served, then the
Court upon motion shall issue an “ALIAS SUMMONS”

When may the Court issue an “Alias summons”?

If the summons is lost or destroyed without being served, then the Court may upon motion
issue an “ALIAS SUMMONS”

Filed by the one who is interested to have another summons issued is the Plaintiff. Thus he
will be the one to file.

What are the modes of service of summons or how may summons be served?

These are the following:

1. Service in person on the defendant

2. Substituted Service
3. Service of summons by publication

How may Service in person on the defendant be effected?

There are two ways:

1. By handing the copy of the summons to the defendant in person and informing
him that he or she is being served with summons.

2. If the defendant refuses to receive and sign for it, by leaving the summons within
the view and in the presence of the defendant.

When may Substituted Service of summons be effected?

If for justifiable causes the defendant cannot be served with summons after at least 3
attempts on two different days then substituted service of summons may be effected

How substituted service of summons be effected?

1. By leaving a copy of the summons at the defendant’s residence to a person at least 18

years of age and of sufficient discretion residing therein;

2. By leaving copies of summons on the defendant’s office or regular place of business

with some competent person in charge thereof.

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 Who is a competent person?

A competent person includes but not limited to those who customarily

receives correspondences for the defendant.

3. By leaving a copy of summons if refused entry upon making his authority and purpose
known with any officers of the homeowners association or condominium corporation or its chief
security officer in charge in the community or the building where the defendant may be found.

4. By sending an electronic mail to the defendant’s electronic mail address if allowed by

the Court.

May summons be served by sending electronic mail to defendant?

Yes. That is one way of making a substituted service of summons.

The one serving the summons shall make a return of the summons. Report of what
happens to the summons. The return to be filed by the Sheriff or process server or person
authorized by the Court to serve the summons shall state the following (the return must state the
following):

a. The impossibility of prompt personal service within a period of 30 calendar days

from issue and receipt of summons.

b. The date and time of the three attempts in at least two different dates to cause the
service in person and the details of inquiries made to locate the defendant residing
thereat.
c. The name of the person at least 18 years of age and of sufficient discretion
residing at the residence of the defendants or name of the competent person in
charge of the defendants office or place of business or the name of the officer of
the homeowners association or condominium corporation or its chief security
officer in charge in the community or the building where the defendant may be
found.

SERVICE OF SUMMONS BY PUBLICATION

What are the instances when Service of summons by publications may be made?

The following are the instances:

1. In any action where the identity of the defendant is unknown as when the
defendant is simply designated as unknown owner.

2. In any action in which the whereabouts of the defendant is unknown and cannot
be ascertained by diligent inquiry within 90 calendar days from the commencement of the
action.

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 3. If the defendant does not reside and is not found in the Philippines but the suit
can be properly maintained against him it being an action in rem or quasi in rem

4. If the defendant is a resident of the Philippines but is temporarily out of the

country.

How may summons be effected outside the Philippines?

This is known as extraterritorial service of summons. However, the Court will not be able
to acquire jurisdiction over the person of the defendant because the defendant does not reside in
the Philippines and is not found in the Philippines. But then, what is important is to acquire the
RES.

The purpose of serving him with summons is to comply with DUE PROCESS.

What are the modes of extraterritorial service of summons?

The modes are the following

1. By personal service or as provided for in international conventions to which the

Philippines is a party;

2. By publication in a newspaper of general circulation in such places and for such time as
the Court may order and a copy of the summons and order of the Court must be sent by
registered mail to the last known address of the defendant; or

3. In any other manner which the court may deem sufficient.

ALL THESE MODES WILL REQUIRE LEAVE OF COURT

Upon whom may summons be served?

The service of summons shall be made upon the defendant. But if the defendant is:

a. Entity without juridical personality then the service may be effected upon all the
defendants by serving upon any of them;

b. Prisoner confined in a jail or an institution service shall be effected by serving

the summons upon him or by the officer having the management of such jail or
institution who is deemed to be a special sheriff for said purpose

c. Minor Insane or an Incompetent person, service of summons shall be made upon

the defendant and on his legal guardian. If none, upon his guardian ad litem

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How summons may be served upon a domestic private juridical entity (corporation/
partnership)?

Summons may be served upon any of the following officers:

1. The President;
2. Managing partner;
3. The general manager:
4. Corporate Secretary;
5. Treasurer; or
6. The in-house counsel

In case of their absence or unavailability then the summons may be served upon their
secretaries or upon any person who customarily receives correspondence for the defendant at
its principal office (the security guard may be included).

But if the summons cannot be served upon any of these individuals either because they are
absent, unavailable or refusal despite three attempts in two different dates, then, service of
summons may be made ELECTRONICALLY if allowed by the Court.

How summons may be served upon a foreign private juridical entity?

If the defendant foreign private juridical entity transacted or is doing business in the
Philippines (licensed), service may be made upon its RESIDENT AGENT. But if there be no such
resident agent, then upon the government official designated by law to receive summons for FPJE
or on any of its officers, agents, directors or trustees within the Philippines. If it is an insurance
company, then it is the Insurance commissioner, as to all other corporations, it is the Security and
Exchange Commission.

However, if the FPJE is not registered here in the Philippines or has no resident agent but
transacted and doing business in the Philippines, then the service of summons may with leave of
Court be effected outside the Philippines thru any of the following means (Extraterritorial
Service of summons):

1. By personal service course thru the appropriate Court in the Foreign country with the
assistance of the Department of Foreign Affairs;

2. By publication once in a newspaper of general circulation in the Country where the

defendant may be found and by serving the Court Order order and a copy of the summons
by registered mail to the last known address of the defendant; or

3. By facsimile or by electronic means with the prescribed proof of service

4. By such other means as the Court in its discretion may direct

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Upon whom the summons be served if the defendant is a public corporation?

If the defendant is the Republic of the Philippines service of summons may be effected on
the Solicitor general.

If the defendant is a province city or municipality or a public corporation service of

summons may be effected on its executive head or on such other officer as the law or court may
direct.

What is the proof of service of summons? And it what form shall it be made?

The proof of service of summons shall be made in writing by the server and set forth the
manner, the place and the date of service. And shall specify any papers have been served along
with the summons and the name of the person who received the summons and shall be sworn to if
received by the person other than a sheriff or his deputy.

If summons were served by electronic mail, a printout of the email and the copy of the
summons as served and the affidavit of the person mailing shall constitute as proof of service.

If the service was made by publication, the service may be proved by the affidavit of the
publisher, the editor or the advertising manager. And to the affidavit shall be attached with a copy
of the publication.

Suppose the summons was not served to those required by law? What is the effect of the
service?

None, because the non-service of summons is void. If the service is made not in the manner
mentioned and not to the individuals or persons mentioned then the service of summons is void.

What is the effect of defendant’s voluntary appearance in the action?

Assuming the service of summons is void or no summons was served, its voluntary
appearance in the action is equivalent to service of summons.

Suppose the defendant files a motion to dismiss and in his motion it includes other grounds
aside from lack of jurisdiction, what is the effect of such inclusion?

The inclusion of other grounds, other than the lack of jurisdiction, shall be deemed a
voluntary appearance on the part of the party.

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NEW RULE:

If a lawyer or a counsel appears on behalf of a defendant, entering a special

appearance on behalf of the defendant, to question the Courts jurisdiction over the person
of the defendant, that is the validity of the service of summons, the counsel may be required
and deputized by the court to serve the summons to his client/ defendant.

MODULE 12

RULE 15
Motions

- Generally it must be in writing, except those made in an open court made in open Court
in the course of the trial or proceedings.
- application for a relief or an order other than by pleading

Litigious v. Non-Litigious

A motion which the Court may act upon without prejudicing the rights of the adverse party
are NON-LITIGIOUS.

If the motion is non-litigious it shall not be set for hearing but is shall be resolved by
the Court within 5 calendar days from receipt of the motion. Moreover, it need not any notice
of a hearing.

The following are non-litigious motions:

1. A motion for issuance of an “Alias summons”
2. Motion for extension to file answer
3. Motion for the issuance of writ of execution
4. Motion for the issuance of an order directing the sheriff to execute a final
certificate of sale.

A motion which prejudice the rights of the adverse party are LITIGIOUS MOTION.

If the motion is a litigious motion the opposing party shall file his opposition within 5
calendar days from receipt of the motion. No other submissions shall be allowed or shall be
considered by the Court in the resolution of the motion. The Court has 15 calendar days
from receipt of the opposition of the motion or expiration of the 15 days for filing the
opposition to resolve the motion. Moreover, a notice of hearing is discretionary on the part
of the Court.

If the motion is litigious motion then the Court at its discretion may set the motion
for hearing in which case the Court will issue a notice of hearing

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 The following are litigious motions:
1. Motion for bill of particulars.
2. Motion to dismiss
3. Motion for New trial
4. Motion for reconsideration
5. Motion for execution pending appeal

Notice of hearing

- it specifies the date, time and place of the hearing of the motion.
- if it did not so specify, then the notice of hearing is defective and it will invalidate the
motion itself. It will render the motion pro forma motion.
- If the movant fail to comply with the “three day notice rule” then the motion is also
rendered a pro-forma motion

- NEW RULE: it is not anymore the movant that will make the notice of hearing. That will
now be discretionary on the part of the Court whether to set the motion for hearing or not

Module 12 Lecture

Requisites of a valid motion

The following are the requisites:

1. A motion must be in writing except if made in an open Court and in the course of the
proceeding;

2. Must state the reliefs sought to be obtained and the grounds upon which it is based. If
required by the rules or necessary to prove the facts therein stated it must be accompanied by
affidavit or other supporting papers;

3. It must be served by personal service, accredited private courier, by registered mail or

by electronic means to insure its receipt by the other party.

4. There must be a proof of service of the motion

Do motion requires a notice of hearing?

If the motion is a non-litigious motion there is no notice of hearing. A notice of hearing is

not required if it is a non-litigious motion. On the other hand, if a motion is a litigious motion, a
hearing in the motion is discretionary so a notice of hearing is discretionary on the part of the
Court. If it does so issue a notice of hearing then the notice should be addressed to all parties
concerned and it shall specify the time and date of the hearing of the motion.

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What are the prohibited pleadings?

The following are prohibited motions:

1. Motion to dismiss except on the following grounds:

a. the Court has no jurisdiction over the subject matter of the claim or an
action
b. there is another action pending between the same parties and for the same
cause
c. The cause of action is barred by prior judgment
d. The cause of action is barred by the statute of limitations

2. Motion to hear affirmative defenses

3. A motion for reconsideration of the Courts action on affirmative defenses

4. A motion to suspend proceedings if there is no temporary restraining order or

injunction issued by a higher Court.

5. A motion to file an extension of time to file pleadings, affidavits or any other

papers except the motion to file an extension is to file an answer then a one-time
motion is allowed;

6. Motion for postponement intended for delay;

If dismissal is with prejudice, the plaintiff cannot refile its complaint. Thus remedy is
appeal. However, if it is without prejudice, plaintiff cannot appeal but his remedy is to refile.

The dismissal is with prejudice when the case is dismissed because of an affirmative
defense. Therefore the refiling of the complaint or action is barred if the dismissal is based
on any of the following grounds:

1. that the cause of action is barred by prior judgment (res judicata)

2. The cause of action is barred by the statute of limitations (prescription)
3. That the claim or demand set forth in plaintiffs pleading or complaint has
been paid, waived, abandoned or otherwise extinguished
4. That the claim on which the action is founded is unenforceable under the
statute of frauds

If based on other grounds, then it is without prejudice

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Omnibus motion

- an omnibus motion is a motion that attacks a pleading, an order, a judgment or a

proceeding.

Ex.
1. A motion for reconsideration
2. A motion for new trial

What is the Omnibus Motion rule?

The omnibus motion rule is a rule that requires that a motion must state all the grounds or
objections then available and those grounds and objections not set up are deemed waived.

Except:

1. Those that are not deemed waived even if not set up as stated in section 1 rule 9

A motion for leave to file a pleading shall be accompanied by the pleading or motion sought
to be admitted. As to form, the motion must comply to the rules applicable to pleadings.

Module 13

Dismissal of Actions
Rule 17

Dismissal caused by the Plaintiff himself or due to the act of him

May the plaintiff himself dismiss his own complaint? How?

Yes, there are two ways:

1. By filing a Notice of dismissal – the plaintiff himself will file a notice of dismissal. It
should be confirmed by the Court.

2. Motion to dismiss – the plaintiff himself may file a motion to dismiss his own
complaint. This is not a prohibited motion, it is a motion authorized or allowed by Rule
17. It requires Court approval.

When may the plaintiff dismiss his own complaint by filing a notice of dismissal?

Must be filed before service upon him of the defendants answer or a motion for summary
judgment.

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Suppose the plaintiff files a notice of dismissal, what may the Court do?

The Court will issue an order confirming the dismissal

If plaintiff himself dismisses his own complaint, What is the nature/ effect of the dismissal?

If it is through filing a NoD and confirmed by the Court, The dismissal is without prejudice
to the refiling of the complaint. Thus, the plaintiff may refile the complaint by changing only the
date since it is without prejudice. Except:

1. If in the notice of dismissal, the plaintiff states that the dismissal is to be with
prejudice; or
2. The dismissal shall be considered as adjudication of the case on its merit if the
plaintiff has once dismissed his action based on or containing the same claim.

If it is through filing of MtD and approved by the court, the dismissal is without prejudice
to the refiling of the complaint. Unless, it is otherwise stated in the order approving the motion to
dismiss.

However, if defendant ascertained a counterclaim in his answer, before he was served with
a copy of plaintiff’s notice of motion to dismiss. The order issued by the Court is limited to the
complaint. It is without prejudice to the right of the defendant to prosecute his counterclaim in a
separate action. Unless within 15 calendar days from notice of the motion the defendant manifest
his preference to have his counter claim resolved or litigated in the same action.

The Two-dismissal rule

- it is the rule that bars the refiling of the complaint by the plaintiff who has once dismissed
an action based on or including the same claim.

- If the dismissal is silent whether the dismissal is with prejudice or without prejudice,
then the dismissal is said to be without prejudice.

Suppose the defendant has already filed an answer to the complaint or a motion for summary
judgment, may the plaintiff still dismiss his complaint?

Yes, not anymore by notice of dismissal but by motion to dismiss. The plaintiff himself
files a motion to dismiss. However, the MtD requires the approval of the court

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The Court may dismiss the complaint on its own or on its own motion or on motion of the
defendant. In the Following instances:

a.) If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint (not on rebuttal evidence);

b. Without any justifiable cause, the plaintiff fail to prosecute his action for an unreasonable
length of time; or

c. Without any justifiable cause, the plaintiff fails to comply with the RoC or any order of
the Court.

Then on motion of the defendant or upon the Court’s own motion the complaint may be
dismissed. The nature and effect is with prejudice unless

What is the remedy of the Plaintiff if his complaint is dismissed under Section 3 of Rule 17
(Court above)?

It will depend on the nature of dismissal. If the order is silent, then the dismissal is with
prejudice, then the remedy of the plaintiff is to appeal from the order of dismissal.

But if the order states that the dismissal is to be without prejudice, then the plaintiff’s
remedy is to refile his complaint.

MODULE 14

RULE 18
Pre-Trial

What is PreTrial?

A pre-trial is a procedural device intended to clarify and limit the basic issues between the
parties. Its main objective is to simplify, abbreviate and expedite the trial or even dispense with it.

The main objective is to determine what precisely the factual issues between or among the
parties and to limit the presentation of evidence on this factual issues.

In pre-trial, the parties have entered into stipulations of facts. They agreed on the facts to
be presented in the Court. There’s no dispute to the facts and all that the Court will resolve is a
question of law.

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When may the case be set for Pre-Trial? When is the case ripe for Pre-trial?

The case may be set for pre-trial after the last responsive pleading (includes answer to a
counterclaim and/ or third party complaint) has been served and filed.

Under the present rule, it is the duty of the Clerk of Court within 5 calendar days to issue a notice
of pre-trial, setting the case for pre-trial within 60 days from the date of the filing of the last
responsive pleading.

The last responsive pleading must be filed, thus, if the other party did not comply, then
there will be no pre-trial.

What is the last responsive pleading?

The last responsive pleading is determined by what pleadings are already been filed.

What must be included in the notice of pre-trial?

Aside from the directive for the parties to file their respective pre-trial briefs, it must
also include the dates of the pre-trial and of the Court annex mediation and the judicial dispute
resolution.

It direct the parties to file their respective pre-trial briefs in a manner as to insure the receipt
of the other party at least three days before the date of the pre-trial.

Upon whom should the notice of pre-trial be served?

It must be served upon the party if not represented by a counsel. If represented, the notice
must be served on his counsel and the counsel has a duty to notify his client of the date and time
of the pre-trial.

Suppose a pre-trial has been conducted even if one of the parties have not been served a
notice of pre-trial?

It is then INVALID

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What is the nature of pre-trial?

A pre-trial is mandatory both in a civil and criminal case.

*Settlement is not only the purpose of pre-trial, thus, it should be administered even if the counsel
requested the Court not to conduct such pre-trial due to the belief of non-settlement between
parties.

What are the matters to be taken up at the pre-trial? What are the purposes of Pre-trial?

The matters to be taken up at the pre-trial are the following:

a. The possibility of an amicable settlement or of a submission to alternative mode

of dispute resolution.

What are the alternative modes of dispute resolution:

a. Arbitration
b. Mediation
c. Conciliation
d. Early Neutral Evaluation:
e. Mini Trial; and
f. Any combination of the foregoing

b. Simplification of the issues

Factual issues (determined by the pleadings) and Legal issues.

c. The possibility of obtaining stipulation or admission of facts and of documents

to avoid unnecessary proof.

d. Limitation of the number and the identification of witnesses and setting of trial
dates

e. The advisability of a preliminary reference of issues to a commissioner;

f. 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;

Summary Judgment
- There is no genuine issue based on the material fact

g. The requirement for the parties to:

1. Mark their respective evidence if not yet marked in the judicial affidavits
of their witnesses;

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 Plaintiffs = A,B,C
Defendant = Exhibit 1, 2, 3

2. Examine and make comparisons of the adverse parties’ evidence vis-à-

vis the copies to be marked;

3. Manifest for the record stipulations regarding the faithfulness of the

reproductions and the genuineness and due execution of the adverse parties’
evidence;

4. Reserve evidence not available at the pre-trial but only in the following
manner:

i. For testimonial evidence, by giving the name or position and the

nature of the testimony of the proposed witness;

ii. For documentary evidence and the other object evidence, by

giving a particular description of the evidence.

No reservation shall be allowed if not made in the manner described above.

h. Such other matters as may aid in the prompt disposition of the action.

Whose presence is required in the pre-trial?

The party and counsel are required to appear at the pre-trial.

Effect of failure of the party and counsel to appear at the pre-trial?

The failure without just cause of a party and his counsel to appear at the pre-trial despite
notice shall result in a waiver of any objection to the faithfulness of the reproduction of
documentary evidence marked or their genuineness and due execution

When duly notified the failure of plaintiff and his counsel to appear without valid cause
shall cause the dismissal of the complaint. The dismissal shall be with prejudice unless otherwise
ordered by the Court.

Similar failure on the part of the defendant and counsel shall be a cause to allow the plaintiff
to present his evidence ex parte against the defendant. The presentation of the evidence ex parte
shall be within 10 calendar days from the termination of the pre-trial and the Court shall render
judgment based on the evidence presented.

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Failure to bring object evidence.

What is the effect of failure to bring to Court the evidence required?

That will be deemed a waiver of the presentation of such evidence.

Is there an instance when the non-appearance of the party or counsel at the pre-trial or Court
annexed mediation or Judicial dispute resolution despite notice will be excused?

Yes, if the non-appearance of the party and the counsel is caused by or due to:

1. Acts of God;
- events caused by forces of nature.

2. Force Majeure; or
- it is an extraordinary event beyond the control of the person who was
absent (War, Riot, Strike, Violent protest that block the streets)

3. Duly substantiated Physical Inability.

May a representative appear on behalf of such party during the pre-trial or Court annexed
mediation or Judicial dispute resolution?

Yes, if such representative is fully authorized in writing, usually in Special Power of

Attorney to: (Memorize)

1. Enter into an amicable settlement

2. Submit to alternative modes of dispute resolution
3. To enter into stipulations and admission of facts and documents

May there be a second pretrial?

A second pretrial may be held if both parties consent to the holding of a second pretrial.

What must the parties file before the pretrial?

The parties are required to file their respective PRETRIAL BRIEF.

What shall the pretrial brief contained?

It must contain the following:

1. A concise statement of the case and the reliefs prayed for.

2. A summary of admitted facts and proposed stipulation of facts;

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 3. State the main factual and legal issues to be tried or resolved;

4. The propriety of referral of factual issues to the commissioners;

5. The documents or other object evidence to be marked and the purpose of each
must be stated.

6. The names of the witnesses and the summary of their respective testimonies.

7. Brief statement of points of law and citation of authorities.

What will you do with the Pretrial brief?

Serve it to the other party and file it in court. The mode of service should be such as to
insure the receipt of the pretrial brief by the other party at least three (3) days before the pretrial.

Suppose a party fails to file a pretrial brief? What is the effect of his failure of such?

It will have the same effect as failure to appear at the pretrial.

Suppose the plaintiff is present in court, his counsel and the defendant and defendant’s
counsel is present, but then although the defendant submitted his pretrial brief the plaintiff
failed to file his pretrial brief, may the Court conduct pretrial?

No, the Court cannot conduct pretrial. Instead the Court should apply the rule on the effect
of failure to file a pretrial brief with the same effect of failure to appear.

What shall the Court do upon the termination of Pretrial?

The Court shall issue a pretrial order within ten calendar days from the termination of the
pretrial.

What shall be stated in the pretrial order?

The pretrial order shall recite in detail the matters taken up at the pretrial. It shall also state
the following:

1. An enumeration of the admitted facts;

2. The minutes of the pretrial conference;
3. The legal and factual issues to be tried.
4. Applicable law, rules and jurisprudence
5. The evidence marked by the parties
6. The specific trial dates for continues trial which shall be within the period
provided by the rules.
7. The case flowchart (determined by the Court and contained the different stages
of the proceedings up to the promulgation of the decision)

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 8. Statement that the one-day examination of witness rule and most important
witness rule will have to be followed.

One-day examination of witness rule

- provided for in AM No. 03-1-09-SC.
- requires that a witness has to be fully examined in one day only.
The direct examination and cross examination of the witness must
be conducted in one day.
- The rule says that this must be strictly adhered to subject to the
court’s discretion during the trial on whether to extend the direct or
cross examination for justifiable reason.

Most important witness rule

- at the pretrial, the Court shall determine the most important witness
to be heard and the Court will limit the number of witnesses.
- Presentation of Testimonies of other witnesses may be dispensed
by the Court on behalf of the most important witness/es

Is postponement of presentation of parties’ witnesses at scheduled date allowed?

No, it is not allowed based on the rules. Although the Court allow it anyway.

Except only if the failure of the witness to attend is caused by:

a. Acts of God;
b. Force Majeure; or
c. Physical inability of the witness to appear and testify.

But the party who caused the postponement may be warned by the Court that the
presentation of evidence must still be terminated within the remaining dates agreed upon. (No
replacement dates)

** The Presentation of the scheduled witnesses will proceed even if the other party is absent. The
absent party will be deemed to have waived the right to interpose any objection and to
conduct any cross examination.

** The Pretrial Order shall control the subsequent proceedings.

Is a Court Annex mediation mandatory?

Yes, a CAM is mandatory.

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When shall the Court refer the parties for a CAM?

After the Pretrial the Court shall refer the parties for a MANDATORY CAM. The period
shall not exceed 30 calendar days.

Is a Judicial Dispute Resolution Mandatory?

No it is not mandatory. But discretionary on the part of the Court.

The proceedings in CAM or JDR are confidential. Meaning, they cannot be used in a trial.

The Court after pretrial may render either a judgment on the pleading or a SUMMARY
JUDGMENT. Can be done upon motion of the party or motu proprio by the Court. The order of
the Court that the case will be submitted for a judgment on the pleading or a SUMMARY
JUDGMENT cannot be a subject of an appeal or petition of certiorari, although the judgments
themselves are appealable.

MODULE 15, 16 AND 17

RULE 19
INTERVENTION

In an intervention there must be a pending action. If there’s no pending action, no

intervention.

- The initiative to become a party to the pending case comes from the INTERVENOR.

- Should not be confused to a third party complaint, because the initiative to bring a person
who is not yet a party in the action comes from the defendant who is also known as third party
plaintiff. The party will be referred as third party defendant.

- merely collateral or ancillary to the principal action. Not an independent proceeding.

Thus, if the main action is dismissed, the complaint in intervention can no longer be acted upon.

Who may intervene in an action?

The person who intervenes must be one who has:

a. has legal interest in the matter in litigation;

* legal interest – material interest the intervenor stand to be injured or to be

benefitted by a judgment that may be rendered by the Court. (either gain or
loss).

b. has legal interest in the success of either party; or

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 c. has legal interest against both the parties

d. he is so situated as to be adversely affected by the disposition of a property or

the distribution of a property in the custody of the court or officer thereof.

When a supposed intervenor is a transferee pendent lite?

He cannot intervene because by means of the transfer pendent lite, he is a virtual party in
the case. That is, the judgment is still binding to him.

When may a person intervene?

At any time before rendition of judgment by the Trial Court.

As a rule, if the case is on appeal, a person can no longer intervene because there is already
a judgment rendered. However, if the person is an indispensable party, he may be allowed to
intervene even in appeal.

How can he intervene?

By filing a motion for leave of Court to intervene and he will attached in his motion his
supposed pleading in intervention which will be served on the original parties.

What do you call the pleading in intervention

The pleading in intervention is called as the complaint in intervention except only when the
intervenor unites with the defending party, in which case it will be called an answer in intervention.

If the motion to intervene is granted and the complaint in intervention is admitted then the
complaint in intervention may be answered and such may be filed within 15 calendar days from
notice of the order admitting the complaint in intervention

When may the Court refuse leave to intervene?

1. When it will unduly delay or prejudice the adjudication of the rights of the original
parties;

2. When the intervenors rights may be fully protected in a separate proceeding.

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Intervention is not allowed in the following:

Not allowed in two cases:

1. In land registration cases, because the remedy of the person adversely affected by the
land registration case is to file opposition.

2. Cases governed by the rules on summary procedure.

RULE 21
SUBPOENA

What IS Subponea (plural subpoenae)

is a process directed to a person requiring him to attend and testify at the hearing or trial of
the action or any investigation conducted by a competent authority or at the taking of his deposition
(MEMORIZE)

Kinds: (memorize)

Subpoena ad testificandum
- subpoena requiring a person to attend and testify
- subpoena only (refer to these kind)

Subpoena duces tecum

- subpoena requiring a person to produce and bring to court certain documents,
objects etc and to testify thereon.

Who may issue a subpoena?

The following may issue a subpoena:

a. The Court before whom the witness is required to attend and testify;
b. The Court where his deposition is to be taken;
c. The officer or body authorized by law to do so in connection with an investigation that
is being conducted;
d. Any justice of the Supreme Court and CA in any case or investigation pending within
the Philippines.

The prosecutor can also issue a subpoena.

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Does a request to issue a subpoena require a notice to the other party?

No it does not require a notice to the other party.

Absent any proceeding suit or action commenced or pending before a court or before any
officer authorize to conduct any investigation a subpoena CANNOT be issued. (pending
investigation)

When is a witness not bound by a subpoena?

The following are the instances:

1. When the witness resides more than 100 kilometers from his residence to the place
where he is to testify by ordinary course of travel. He can file a motion to quash a subpoena

The VIATORY right of the witness

- the right of witness not to be compelled to testify in a civil case if reside more
than 100 kms. From the place of trial.

- the remedy is to take the DEPOSITION in his place where he cannot invoke his
viatory right by filing a notice to the other party stating at the time and place and
name to be served on them, proof of service of notice shall be presented by the clerk
of the place where the deposition is to be taken. The Clerk will then issue a
subpoena to be served to the witness.

2. The witness is a prisoner.

Two kinds:
a. Detention prisoner – the prisoner is not bound by the subpoena if there
is no permission from the Court in which his case is pending.

b. Prisoner is serving sentence of reclusion perpetua or death confined in a

penal institution, - the prisoner is not bound unless there Is an authority of
the Supreme Court to bring out the prisoner.

What are the grounds to quash a subpoena?

If the subpoena is a subpoena duces tecum, the grounds are

a. it is unreasonable and oppressive;

b. the relevancy of the books documents or things do not appear;
c. The person in whose behalf the subpoena is issued fails to advance the reasonable
cause of the production thereof: and
d. The witness fee and kilometrage allowed by the rules were not tendered when
the subpoena was served

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 If the subpoena is a subpoena ad testificandum, the following are the grounds:

a. the witness is not bound by the subpoena; or

b. The witness fee and kilometrage allowed by the rules were not tendered when
the subpoena was served.

How is a subpoena served?

A subpoena is served in the same manner as personal or substituted service of summons.

However, at the time of service, the following must be tendered to the witness:
a. witness fee
b. Cost of the production of the documents;
c. Other materials subject of the subpoena

Can a person be compelled to appear and testify without a subpoena?

Yes, if the person is already present in Court. Then he can be compelled to testify.

What are the consequences of disobedience of a subpoena?

A person who disobeys a subpoena may be:

a. arrested and brought before the Court where his attendance is required
b. Citation in contempt of the Court from which the subpoena is issued.

RULE 22
COMPUTATION OF TIME

How do you compute time?

15 days = July 1 = July 16

You exclude the first and include the last. But if the last day fall on a Saturday, Sunday or
a legal holiday in the place where the Court sits, then the pleading or motion or notice may be
filed on the next business day.

The rule that “if the last day fall on a Saturday, Sunday or a legal holiday in the place
where the Court sits filed on the next business day” APPLIES ONLY TO FILING OF
PLEADINGS NOTICE OR MOTION AND NOT TO PRESCRIPTION OF OFFENSES OR
CAUSES OF ACTION.

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Module 18

RULES 23 TO 29
MODES OF DISCOVERY

- in a phishing expedition
- Resorted to by one party to unmask the other party, his opponent, for him to be able to know and
ascertain information or facts that are in the possession of the other party which are relevant to the
issues involved in the case.

What are the purposes of these modes of discovery?

1. Narrow down or clarify the basic issues between the parties;

2. To ascertain the facts that are relevant to the issues involved in the case.

What are the modes of discovery? (MEMORIZE)

1. Deposition pending action (Deposition de bene ese);

2. Deposition before action or pending appeal (Deposition in perpetuam rei memoriam);

3. Interrogatories to parties;

4. Request for admission;

5. Production or inspection of documents and things

6. Physical or mental examination of a party.

What should a party do if he wants to resort to these modes of discovery?

If deposition pending action, a party should file an ex parte motion in the Court where the
action is pending

Whose deposition may be taken,?

The deposition of the other party in the action or the deposition of another
who is not a party in the action

HOW is deposition taken?

Either upon oral examination or upon written interrogatories

If deposition before action, a party should file a verified petition in the Court of the
residence of any of the expected adverse parties.

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 If deposition pending appeal, a party should file a motion for leave to take the deposition
in the Court that rendered the judgment if an appeal has been taken from the judgment or within
the time for perfecting an appeal provided that period has not yet expired.

the Court in which the judgment has rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in the event of further proceedings in the
said court in such a case the party who desires to perpetuate his testimony should file a
motion in the said court for leave to take the deposition upon notice and service thereof as
if the action is pending in that court.

If it is interrogatories to parties, a party desiring to take the interrogatories of party should

file an ex parte motion with the Court where the case is pending.

If it is a request for admission by the adverse party at any time after issues have been joined,
a party may file and served upon the other party a written request for admission

If it is a production or inspection of documents and thing, it is upon motion of any party

with the Court where the case is pending.

If it is a physical or mental examination of a person, it should be upon notice upon the party
to be examined and to all the parties in an action in which the mental or physical condition of a
party is in controversy.

Deposition

What is a deposition?

- the taking of the testimony of any person whether a party to the action or not a party at
the instance of a party to the action.

Whose deposition may be taken?

The deposition of a party or a person not a party to the action.

Upon whose instance may the deposition be taken?

If Deposition before action at the instance of a party to the action.

DEPONENT
- the one who has given a deposition or whose deposition is taken.

Is leave of Court required if these modes are taken?

In deposition pending action, in interrogatories to parties or in requests for admission, if an

answer to the complaint has already been filed then leave of Court is not required. But if an answer

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has not yet been filed but the Court has already obtained jurisdiction over the person of the
defendant or over the subject matter of the action, then there must be leave of court.

On the other hand, for production and inspection of documents or things; or mental or
physical examination of parties, there must always be leave of court.

What is the scope of a deposition?

The deponent may be examined regarding any matter not privileged provided that it is
relevant to the subject of pending action whether it relates to a claim or defense of any party.

Before whom may depositions be taken?

If within the Philippines, the deposition may be taken before a judge or a notary public or
a person authorized to administer oath.

But if in a foreign party, the deposition may be taken before the secretary of an embassy
or the diplomatic minister or his staff, or the consul general, consul, vice consul or consular agent
of the republic of the Philippines, or before such person or officer as may be appointed by a
commission or letters rogatory.

What is a commission? What is Letters rogatory

- Commission is an instrument issued by a court of justice or any competent tribunal in a

foreign country to authorize person to take a deposition or to do any other act by authority of the
Court or tribunal that issued it.

- It is addressed to an officer designated by name or a descriptive title.

On the other hand, Letters rogatory is an instrument sent in the name or authority by a
judge or Court to another court or judge requesting the latter to cause to be examined upon
interrogatories filed in a case pending before the Court that issued it.

A witness who is within the jurisdiction of the judge or court is one to whom the letters of
rogatory are addressed.

Letters Rogatory are addressed to a judicial authority in a foreign country. It may be applied
for and issued only after a commission has been returned and executed.

May a deposition be used as evidence? For what purpose may a deposition be use?

1. If the deponent is a party to a case his deposition may be use for any purpose:
a. To establish a claim or a defense (Evidence)
b. For the purpose of contradicting or impeaching him if he testifies.

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 2. If the deponent is a person not a party to the case, then his deposition may only be use
for the purpose of contradicting him or impeaching him if he testifies. Except if the witness or
deponent is dead or resides more than 100 kilometers from the place of trial or the witness is unable
to attend or testify because of age or some other infirmity, or the party offering the deposition is
unable to procure the attendance of the witness or deponent by means of subpoena or such other
exceptional circumstances exist. (Inadmissible because it is hearsay if used)

CONDITIONAL EXAMINATION

If the witness is a prosecution witness his conditional examination may only be taken before the
Court where the case is pending

If the witness is a witness for the accuse, his conditional examination may be taken before a judge
or before a member of Philippine bar of good standing.

What are the consequences of refusal to comply with modes of discovery?

MODULE 19 & 19-A

Rule 30
TRIAL

After pre-trial, the Court will issue a pre-trial order which specify the dates of the trial.

What does the rule requires the party to do regarding the scheduled hearings as agreed upon
by them and set forth in the pre-trial order?

The rule requires the parties to strictly observe the scheduled hearings as agreed upon and
set forth in pretrial order.

The schedule of trial dates for both the plaintiffs and the defendant shall be continuous and
the initial presentation of the plaintiff’s evidence shall not be later than 30 days after the
termination of the pretrial, the plaintiff shall be allowed to complete the presentation of his
evidence within a period of 3 months or 90 calendar days which shall include the date of the
Judicial Dispute resolution (discretionary on the part of the Court) if one is conducted.

The initial presentation of the defendant’s evidence shall be not later than 30 calendar days
after the Court’s ruling on plaintiff’s formal offer of evidence.

What if there’s a third party complaint, counterclaim or cross claim?

The presentation of evidence of all the parties in such shall be determined by the Court.
But the total number of days shall in no case exceed 90 calendar days.

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 If they have rebuttal evidence, then the Court will also set the date for the presentation of
rebuttal evidence which shall be completed within the period of 30 calendar days.

Depending on the number of witnesses, the trial dates shall be shortened. But the rule states
that the total period for the presentation shall be within 10 months or 300 calendar days.

But if no third party complaint, counterclaim or cross claim, then the presentation of
all the parties shall be terminated within the period of 6 months or 180 calendar days.

Then the case will be submitted for the decision. Although the case will allow the submission of
memorandum or memoranda, then such will be submitted for decision. Then the rule tell us that
the Court shall decide the case and serve copies of the decision on all the parties within the period
not exceeding 90 calendar days from the submission of the case or decision with or without
memoranda.

May the trial be postponed?

YES The Court may adjourn a trial from day to day to any stated time or date as may be
convenient. But it shall have no power to adjourn and reset a case for a longer period than one
month for its adjournment.

ORDER OF TRIAL

The trial will be limited on the issues stated in the pretrial order. Subject to amendment to
conform to the evidence

The first one to present evidence is the plaintiff in support to his complaint. Then the plaintiff will
formally offer his evidence, assuming all his witness has testified, and will rest his case

Second defendant shall now present his evidence in support to his defense, counterclaim, cross-
claim or third party complaint if any, then he will now rest his case.

Then the third party defendant if any shall present his evidence on his defense, counterclaim, cross
claim or third party complaint if any.

Fourth, fourth party defendant same above

Fifth Then the party against whom any counterclaim or cross claim has been pleaded shall adduce
evidence in support to their defense.

Sixth Then the parties may respectively adduce rebutting evidence.

Seventh, Upon admission of evidence, the case is deemed submitted for decision unless the Court
directs the parties to argue and submit their respective memoranda.

The offer of evidence and the objection thereto by the other party shall be made orally in Court.

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Who will receive the evidence?

The judge will receive the evidence of the parties.

May the reception of evidence be delegated to the Clerk of Court?

Yes, but only if the clerk of court is a member of the Philippine Bar only in the following
instances:

1. In defeault or ex parte hearings; or

2. In any case in which the parties agree in writing.

Suppose the party can agree upon the facts, there is no dispute upon the facts, May the
parties agree upon the facts and submit the case for decision based on the facts without
introduction of evidence?

Yes, provided that the agreement of the parties must be in writing.

Suppose the parties can agree only on some facts?

Then the trial shall be held upon the disputed facts. But even so, if there is a partial
agreement on some facts, that partial agreement must be in writing.

But there cannot be a judgment based on stipulation of facts in the following

instances:

1. Legal separation;
2. Annulment of marriage;
3. Declaration of nullity of marriage.

In these cases, there cannot also be a judgment in default. There cannot also be a judgment
in the pleadings. There cannot also be a summary judgment and judgment upon
confession/compromise.

May an action be suspended? (Suspension of actions)

Yes, under the civil code, an action may be suspended if it is shown that the parties are
willing to discuss a compromise. Or if it appears that one of the parties before the commencement
of the action has offered to discuss a possible compromise but the other party refuse the offer.

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RULE 31
CONSOLIDATION OF CASES

When can there be a consolidation of cases? When can a consolidation of cases take place?
When actions involving a common question of law or a common question of fact are
pending before the same court, it may order a joint hearing or trial of any or all the matters in issue
in the action.

Why is a consolidation of action allowed?

To avoid the possibility of conflicting decisions being rendered;

In the interest of orderly administration of justice.

Suppose an action is pending on different Courts, may there be a consolidation?

Yes, there can be a consolidation. Like when there is a civil action and criminal action
pending in two different courts, they may be consolidated with the Court trying the criminal action.

When a criminal action is instituted, the civil action for the recovery of civil liability arising
from the offense charge is deemed instituted in the criminal action.

Subject to the following exceptions: Applicable only to civil action arising from the offense
charge (Civil liability ex-delicto)

1. The offended party waives the civil action

2. The offended party reserves the right to institute it separately;
3. The offended party institutes the civil action prior to the criminal action.

But if the civil action is independent civil action, then such will not apply.

Thus in trial, both civil and criminal aspects are tried. One exception is if the offended party
institutes the civil action prior to the criminal action. The Civil action then will be suspended in
whatever stage, before judgment on the merit. The only instance when the criminal action will be
suspended is if the civil action is a prejudicial question.

Consolidation is not automatic.

It must be upon motion of the offended party.

In what Court will a consolidated case be filed?

In the Court trying the criminal action. If the motion is granted, there will be a
consolidation.

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What case will be consolidated with what case?

It will be the civil action that will be consolidated with the criminal action. Then the two
cases will be tried jointly.

May a petition for issuance of writ of possession be consolidated with the action to annul the
foreclosure?

NO. Because, petition for issuance of writ of possession although denominated as a

petition, it is not a judicial process but a non-litigious process that is summary in nature. While an
action to foreclose is an ordinary civil action and is adversarial in character.

If there is a consolidation, the right of the petitioner in petition for issuance of writ of
possession will be prejudice by consolidation with the annulment of foreclosure case.

MODULE 20 and 20-A

TRIAL BY COMMISSIONER
RULE 32

Trial by Commissioner.

Who may be a Commissioner?

He may be an accountant, surveyor and examiner or anyone who may be appointed by the
Court by mean by an order known as order of reference – order appointing a commissioner.

When may the Court refer a case for trial by a commissioner?

Upon agreement of the parties in writing. The Commissioner is one agreed upon by parties.

Or if the parties do not agree, the Court may still refer the case for trial by a commissioner,
upon its own motion or motion of either party.

Does the commissioner HAS THE POWER TO ISSUE A SUBPOENA?

Yes, the commissioner has the power to issue a subpoena

Does he also have the power to rule upon the admissibility of evidence?

Yes, also. Unless that power is withheld by the Court from him. But if not otherwise
provided in the order appointing him as a commissioner, the commissioner has the power to rule
on admissibility of evidence.

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Suppose the commissioner issues a subpoena to a witness, but the witness refuses to obey the
subpoena?

Refusal of the witness to obey the subpoena will constitute a contempt of the Court that
appointed the Commissioner (Contempt of the appointing Court).

If the commissioner is appointed by the Court trial shall proceed before the commissioner as it
would be held in the Court. And after the trial the commissioner will submit his report to the Court.

OBJECTIONS BY A PARTY TO THE REPORT may NOT be raised before the Court that
appointed the Commissioner, unless the objections were made before the Commissioner during
the hearing. And so, objections to the report that were then available during the hearing shall not
be considered by the Court unless made by the Commissioner.

If the party will stipulate that the commissioner’s finding of facts will be final then all ONLY
QUESTIONS OF LAW shall be considered by THE COURT.

Are there instances when the commissioner is required to be appointed by the Court under
the Rules?

Yes, the following are the instances:

1. In expropriation cases to determine the just compensation of the property subject

of the expropriation case;

2. In partition, when the parties unable to agree as to the manner of partition.

DEMURRER TO EVIDENCE
RULE 33

Demurrer to evidence

- a motion to dismiss on the grounds of insufficiency of evidence

Who files a demurrer?

In a civil case, the one who files a demurrer is the DEFENDANT.

In a criminal case, the one who files a demurrer is the ACCUSED.

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May a defendant file a demurrer before the presentation of evidence by the plaintiff?

No, the time to file a demurrer is after the plaintiff has completed the presentation of his
evidence. Meaning, after the plaintiff has rested or completed the presentation of his evidence.

Upon what ground may the demurrer be filed?

On the ground that, upon the facts and the law, plaintiff has shown no right to relief.
Meaning, insufficiency of evidence to sustain a judgment in favor of the plaintiff.

The demurrer of evidence is in the nature of motion to dismiss on ground of insufficiency

of evidence.

Does the defendant need leave of Court to file demurrer, is it required?

In a civil action, it is not required. However, in a criminal action the accuse may file a
demurrer to evidence with leave of Court or without leave of Court.

In a criminal case, there is a distinction between an accuse filing a demurrer with leave of
Court and an accuse who files a demurer without leave of Court.

How may the Court resolve the demurrer to evidence?

The Court may deny the demurrer to the evidence. Because in the opinion of the Court the
plaintiff has presented sufficient evidence.

What is the remedy of the DEFENDANT whose demurrer to the evidence is denied by the
Court?

The remedy is to present his evidence. Because in civil case, a defendant whose demurrer
has been denied by the Court, does not lose his right to present evidence.

What if the Court finds indeed the evidence presented by the plaintiff is insufficient?

Then the Court may grant the demurrer to evidence.

What happens if the demurrer to evidence is granted by the Court? What happens to the
Case?

Then the Case will be dismissed. The order granting the demurrer to evidence is an order
of dismissal. The dismissal is based on the finding of the Court that plaintiff’s evidence is
insufficient and therefore the dismissal of the case constitutes an adjudication by the Court on the
merits of the case.

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What is the remedy of the plaintiff if his case is dismissed upon the demurrer of evidence
filed by the defendant?

His remedy is to appeal from the order of dismissal.

An order denying the demurrer to evidence is interlocutory. THUS THE ORDER DENYING THE
DEMURRER IS NOT APPEALABLE. But an ORDER GRANTING the demurrer dismisses the
case and so that is FINAL order as oppose to interlocutory, therefore appealable.

ORDER GRANTING – APPEALABLE (FINAL ORDER)

ORDER DENYING – NOT APPEALABLE (INTERLOCUTORY)

Suppose the plaintiff does not appeal?

When the plaintiff does not appeal within 15 days from notice of the order dismissing his
case, then the order dismissing his case will become final.

May the plaintiff refile his case after the finality of the order dismissing his case?

No, because the order dismissing his case constitutes adjudication of his case on its merits.

What may the Appellate Court do?

If the appellate Court finds that the order of dismissal is correct, because in the mind of the
appellate Court the plaintiffs evidence is indeed insufficient then it will simply sustains or affirms
the order of dismissal.

But if suppose the Court finds that the plaintiff’s evidence is sufficient then it will reverse
the order of dismissal.

If the appellate Court reverses the order of dismissal, should the appellate court set the case
for hearing so as to receive defendant’s evidence? Or should the appellate Court remand the
case to the trial Court?

No in both instances. The appellate Court should not receive defendants’ evidence. The
appellate Court should not remand the case to the trial Court for presentation of defendants
evidence. But should decide the case based on the evidence presented by the plaintiff. In which
event the defendant has loss or waived the right to present evidence.

If the motion is granted but on appeal, the order of dismissal is reversed the defendant shall
be deemed to have waived the right to present evidence.

If the defendant files a demurrer of evidence does he waived the right to present evidence?

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 If his demurrer is denied then defendant has the right to present evidence. But if his
demurrer is granted but on appeal, the order of dismissal is revered by the appellate court, then the
defendant shall be deemed to have waived the right to present evidence.

Distinctions of Demurrer of evidence in a civil case and demurrer in a criminal case.

The following are the distinctions:

In both civil and criminal cases the ground is insufficiency of evidence. In a civil case, the
quantum of evidence required is preponderance of evidence. In a criminal case, it is proof beyond
reasonable doubt.

Second, in a civil case, the demurrer to evidence is upon motion of the defendant. In a
criminal case, the demurrer to the evidence may be upon the motion of the accused or upon the
Court’s own initiative after giving the prosecution an opportunity to be heard.

In a civil case, leave of court is not required so that the defendant may file a demurrer to
evidence. But in criminal case, the accused may file the demurrer of evidence with leave of Court
or without leave of court.

In a criminal case, an accused who files a demurrer of evidence with leave of Court
does not waived his right to present his evidence in the event his demurrer is denied by the
Court. But an accused who files a demurrer to the evidence without leave of Court submits
the case for decision by the Court without presenting his evidence (waives his right to
present evidence).

In a civil action, if the demurrer to the evidence is granted, the plaintiff may appeal to the
order granting the demurrer. But in a criminal case if the demurrer to the evidence is granted and
therefore the case is dismiss on the ground of insufficiency of evidence, the state as the plaintiff
cannot appeal from the order dismissing the case because it amounts to an acquittal based upon
the finding of the Court that the evidence presented by the prosecution is insufficient to sustain a
judgment of conviction. Thus, placing the accused in double jeopardy.

Distinction between a motion to dismiss and demurrer to evidence

A motion to dismiss is usually filed before the filing of an answer. While a demurrer is
made after the plaintiff rest his case.

A motion to dismiss is based on the four grounds. While a demurrer is based only on
plaintiffs failure to show a right to relief, meaning insufficiency of his evidence.

Third, a denial on the motion to dismiss will require a subsequent filing of an answer. While
the denial of a demurrer requires a subsequent presentation of defendant’s evidence.

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Module 21and 21 A

MODULES 21
JUDGMENT ON THE PLEADINGS (RULE 34)

Judgment based on the Complaint and the answers. NO TRIAL

Who will move for judgment on the pleadings?

The plaintiff in the main case or in a counterclaim, crossclaim or third party complaint is
the one who can move for judgments on the pleadings.

When may the plaintiff moved for judgment on the pleadings?

After an answer has already been filed.

Supposed the defendant has not filed any answer yet, may the plaintiff move?

No, because theres only one pleading. So, if no answer has yet been filed, the motion of
the plaintiff may file is a motion to declare the defendant in default.

On what ground?

On the ground that the answer fails to tender an issue or it otherwise admits the material
allegations in the complaint.

When may it be said, that the answer fails to tender an issue?

If the denials are not in the form of a specific denial, then they amount to an admission.
Therefore, the answer fails to tender an issue.

Suppose the defendant files an answer, and the defendant pleads for the other party to wait
for him to pay?

It does not present an issue. Thus, the remedy of the plaintiff is to move for judgment on
the pleadings.

When is the answer admits the material allegations in the complaint?

1. When the answer itself expressly confesses the truthfulness of the allegation in the
complaint

2. When it fails to deal with it at all.

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When the answer raises factual issues involving damages --- it is not proper for the Court to
render a judgment on the pleading because this will require a presentation of evidence.

Suppose defendants answer fails to tender an issue or it otherwise admits the material
allegations in the complaint, may the Court motu proprio render a judgment on the
pleadings?

NO the Court without any motion being filed by the plaintiff the Court cannot render a
judgment on the pleadings.

There cannot be a judgment on the pleadings in the following cases:

1. Involving declaration of nullity of marriage;

2. Annulment of marriage
3. Legal Separation

Is a judgment on the pleadings appealable?

Yes, it is appealable. A party adversely affected, that is the defendant, by a judgment on

the pleadings can appeal on the judgments of the pleadings.

An order denying a motion for judgments on pleadings HOWEVER is NOT

APPEALABLE because that order is interlocutory.

MODULE 21-A
SUMMARY JUDGMENT (RULE 35)

Summary judgment

- also known as accelerated judgment

- device for weeding out sham claims or defenses at an early stage of the litigation thereby
avoiding the expense and lose of time involved in a trial.
- NO TRIAL

Who may move?

Either be the plaintiff or the defendant may move for summary judgment.

If the moving party is the plaintiff, when will he move?

At any time after an answer has been filed

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If the moving party is the defendant, when will he move?

But if it is the defendant who is moving, before or after he has filed an answer.

On what ground?

If it is the plaintiff who is moving for summary judgment, the ground is, although there is
an apparent issue, it can be shown that the issue is sham or false. And that there is no genuine issue
as to any material facts and the plaintiff is entitled to a judgment as a matter of law.

If it is the defendant who is filing for summary judgment, the ground is that plaintiff’s
claim against him is false, sham and not genuine. Although there is an apparent claim, it is not
genuine.

When is an issue sham or false?

An issue is sham or false if the issue is not genuine. An issue is said to be genuine when
the issue requires presentation of evidence. It must be accompanied by supporting affidavits,
depositions or admissions.

What are the procedures to follow?

The following are the procedures:

1. Plaintiff or the defendant serves on the other party a copy of the motion, the motion
should cite supporting affidavits, depositions or admissions and it must also cites the law
applicable and relied upon.

2. The adverse party files a comment and served upon the moving party opposing affidavits
depositions and admissions within a non-extendible period of five days from receipt of the
motion.

3. Unless the Court will set the case for hearing, the Court shall render a summary judgment
forthwith (at once). The hearing is optional.

What will be the judgment?

If the movant is the plaintiff and the Court finds that the motion is justified, therefore there
is really no genuine issue as to any material facts, then it will render a summary judgment for the
plaintiff. BUT if the Court finds that the motion is not justified, then it will deny the motion and
set the case for pretrial and then trial.

If the movant is the defendant, and the Court finds that the motion is justified, then the
Court shall issue an order dismissing the complaint. But if the Court finds that the motion is not
justified then the Court will issue an order for the filing of an answer, if an answer has not yet been
filed and then the case will be set for pretrial and then trial.

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Is a summary judgment appealable?

Yes, it is appealable. But if the Court denies the motion for summary judgment, the order
denying the motion is NOT APPEALABLE.

May a partial summary judgment be rendered?

Yes, there can be a partial summary judgment. Because it is interlocutory. Therefore the
partial summary judgment shall be taken together with the judgment that the trial court will render
after the trial.

May appeal be taken from a partial summary judgment?

NO, an appeal will not lie from a partial summary judgment because a partial summary
judgment is interlocutory.

When do we say that an order is interlocutory?

It is interlocutory if it does not put an end to the case. When something else is yet to be
done or happen.

A final order not appealed between 15 days from notice will ATTAIN FINALITY.

The distinctions between the JOTP and Summary Judgments

The following are the distinctions between a judgement on the pleadings and a summary
judgment:

1. A judgment on the pleadings is available or may be filed when there is no genuine issue
as the answer fails to tender an issue or it otherwise admits the material allegations in the
complaint. While a summary judgment is available or may be rendered when there is an
apparent issue but the issue is sham, false or fictitious.

2. A judgment on the pleadings is based exclusively on the pleadings (the complaint and
the answer). While in a summary judgment, the judgment is based not only on the pleadings
but also on affidavits, depositions and admissions showing that there is no genuine issue.

3. A judgment on the pleadings can be filed only after an answer has been filed. While in
Summary judgment, the motion may be filed even before an answer is file if it is the
defendant who is moving for summary judgment.

4. A judgment on the pleadings can only be had by the plaintiffs. While, in summary
judgment either the plaintiff or the defendant may file the motion for summary judgment.

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 5. A judgment on the pleadings is based on facts as pleaded by the parties. While a
summary judgment is a judgment based on facts as shown by the pleadings and ass
summarily proven by affidavits, depositions or admissions.

If an answer fails to tender an issue, what motion may be filed?

A MOTION for judgment of the pleadings. And the motion may only be filed by the
plaintiffs.

If an answer tenders an issue, may there be a summary judgment?

YES. If it is proven by affidavit, deposition or admission that the issue is sham or false.

If an answer tenders an issue, may there be a judgment on the pleadings?

NO. But there may still be a summary judgment if the issue is shown to be sham or false.

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MODULE 22 (LIVE DISCUSSION)
RULE 36
JUDGMENT

Judgment
- Final adjudication by the Court of the rights and obligations of parties.

What are the requisites of a valid judgment?

The following:

1. Must be in writing;
2. Must be directly and personally prepared by the judge;
3. State clearly and distinctly the facts and the law upon which it is based;

If the judgment is valid but wrong, remedy is appeal/

Void if it does not state the facts and law upon which it is basd

4. Signed by the judge (incumbent); and

Judgment must be promulgated during the incumbency of the judge

Not incumbent if (died, resign, dismissed or promoted)
5. Filed with the clerk of court.

When is there a rendition of judgment?

The filing of the final judgment or order with the clerk of court is what constitute a rendition
of judgment.

What are the parts of the decision?

1. Ratio decidendi – Body

2. Fallo – Dispositive portion
- Wherefore
- Prevail over the body of the decision

What is a memorandum decision?

A decision which adopts by reference the findings of fact and conclusion of law contained
in the decision of inferior court.

VALID decision

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What is sin perjuicio judgment? Is it valid?

A judgment without statements of the facts in support of its conclusion and is supplemented
later by final judgment

VOID because it fails to comply with the requisite of a valid judgment

Q: Suppose the judgment becomes final, what is the duty of the clerk of court?

A: The clerk of court has the duty to enter the judgment in the book of entries of judgment. The
date of the finality of judgment is presumed to be the date of entry.

NOTE: There can only be an entry of judgment when it has become final. If the judgment has
become final yet, there can be no entry of judgment.

Suppose the judgment is vague, what is the remedy?

The remedy of the person wanting to clarify is to file a motion for clarificatory judgment
– that is to clarify parts of the judgment.

Module 23

NEW TRIAL OR RECONSIDERATION

(RULE 37)

New trial is not the same as reconsideration.

When may a MNT or MR be filed?

The MNT or MR must be filed within the period for perfecting an appeal which is
usually 15 days from the notice of the judgment. However, it is not all the time (succeeding topic).

Who may file a motion for NT or MR?

It can be the plaintiff or the defendant.

What are the grounds to be set up for a MNT? FAME, NDE

1. Fraud, Accident Mistake and excusable negligence.

Fraud should be extrinsic or collateral fraud. These are fraud that prevented a
party from having his day in Court. Fraud committed outside the Court.

Accident is a fortuitous event or a fortuitous circumstance or happening that is

beyond the control of a party.

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 Ex. Sickness of a party
Lack of Notice because it was send to another address or person.

Mistake refers to mistake of facts not mistake of law.

Ex. Failure to answer because of the belief that it is not anymore necessary
as there is a pending discussion regarding settlement of the dispute.

Excusable negligence refers when there is an omission to do something which a

prudent person would have done under certain circumstances.

Ex. Failure to submit on time because of the distance involved.

2. Newly discovered evidence

NDE which the aggrieved party could not with reasonable diligence have
discovered or produces to trial and which if presented and admitted would probably altered the
result.

The requisites are as follows:

1. The evidence is discovered after trial

2. Such evidence could not have been discovered and produced in the trial
with reasonable negligence.
3. The Evidence is material and not merely cumulative or corroborative or
impeaching and is of such weight that if presented and admitted would
probably alter the result or judgment.

If the piece of evidence was always been there during the trial but the counsel representing the
party simply forgot about it and so it was not presented and then when there is a judgment adverse
to his client and he now remembers this evidence and present a MNT in Court alleging that this is
a NDE. IS THAT A NDE?

NO, it is a forgotten evidence but not a NDE.

What are the grounds to be set up for a MR?

The grounds are the following: AID

1. Award of Excessive damages

2. Insufficiency of evidence to justify the judgment

3. Decision is contrary to law and the evidence

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In what form should the motion be?

It must be in writing and follows the form of a pleading.

*If the MNT is based on FAME then there must be an AFFIDAVIT OF MERIT. The motion must
be supported by AOM.

The Affidavit of Merit should state facts constituting the FAME.

*If the MNT is based on NDE from witnesses.

If testimonial, affidavit of the witness/es by whom such evidence is expected to be given

If it is documentary evidence then by duly authenticated copy of the document

*If it is MR, then it should point out specifically the findings or the conclusions which are not
supported by evidence or which is alleged to be contrary to law.

*If you file a MR and the Court grants it then the Court will simply modify its
judgment. If the Court finds that indeed the amount of damages is excessive then the Court may
simply reduce the amount.

*But if it is a MNT, the Court may deny or grant the motion.

What are the effects of the order granting New trial?

The effects are the following:

1. The judgment is vacated or the judgment is set aside.

2. The Action shall stand for a trial de novo. Meaning, there will be a new trial.

3. The recorded evidence taken during the former trial, insofar as the same is
material and Competent to establish the issues shall be used at the new trial without
need for it to be retaken.

But if the motion is based on the ground of extrinsic fraud etc, the motion affected will
simply be set aside.

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If a MR is filed what comes or happens next?

The Court may deny the motion or the Court may grant the motion by amending the
judgment if it finds that excessive damages are awarded or that the decision is contrary to law or
evidence.

If denied, there can be no second MR. A second MR is not allowed.

*No second MR is not allowed if the MR is asking for the reconsideration of a judgment
or final order.

A second MR of a judgment or a final order is a prohibited motion. But suppose the MR is

directed against an interlocutory order, is MR allowed?

YES. What is prohibited is a second MR of a judgment

Within how many days should the Court resolved the MR?

If it is the MTC or RTC, 30 days from the time it is submitted for resolution to resolved
the motion.

If it is the CA, 60 days after it declares the motion submitted for resolution

If it is the Supreme Court, there’s no period prescribed.

To appeal for a judgment, should you first file a MR or MNT?

No, you can appeal from a judgment or a final order without filing for a MR or MNT.

But in four instances, the filing for a MR or MNT is a pre-condition to the perfection of
an appeal:

1. In habeas corpus in relation to custody of minors

2. Annulment of marriage
3. Declaration of nullity of marriage
4. Legal separation

Here, you cannot appeal unless you first file a Mr or MNT and the motion is denied, then
you can appeal.

Motion for reopening of TRIAL

Motion for reopening of a trial. It is not the same as MNT. It is also within the time of
perfecting an appeal but the ground is to prevent a miscarriage of justice.

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Rule 38
Relief from Judgment, Order or other proceeding

Petition for relief from judgment

- one of the remedies of a JUDGMENT that has become final (action for annulment and
petition for certiorari).
- it is an EQUITABLE REMEDY. A REMEDY IN EQUITY. Meaning, a party may resort
to this remedy ONLY IF THERE IS NO OTHER AVAILABLE REMEDY.
- NOT A SUBSTITUTE FOR APPEAL. Meaning, if the party has lost his remedy of appeal
thru his own NEGLECT, then he cannot take advantage of this petition.
- NOT ALLOWED if a case is governed by the RULES of summary procedure.

What are the grounds upon which a Petition for relief from Judgment may be filed?

The grounds would be that a judgment or final order is entered or a proceeding thereafter
taken through Fraud, Accident, Mistake and Excusable Negligence, these are the only grounds.

When may a party file a PRJ?

Within 60 days from the time he learns the judgment but not more than 6 months from
entry of judgment.

AFTER HE LEARNS of the Judgment.

- meaning AFTER the Notice of the Judgment or a Final Order.

What if a few days beyond 60 days, would that be fatal?

Not really, provided the petition is filed within 6 months before entry of judgment.

What if it is a judgment from or upon a compromise (settlement)?

A judgment upon compromise IS NOT APEALABLE because it is based on a compromise

agreement upon the parties. Thus, it is Final immediately and not appealable.

Thus, the 60 days and 6 months shall be reckoned on the rendition of judgment.

In what case and Court should the petition be filed?

The Petition for RJ, shall be filed in the SAME CASE and the SAME COURT. (NEW
RULE)

*** NOTE: Although it says in Rule 38 sec. 2 stating that it is IN ANY COURT, A PRJ may only
be filed if the judgment is a judgment of MTC OR RTC. It is not available for judgment of CA
or SC.

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What is the relief to be asked if one files a PRJ?

That the JUDGMENT be SET ASIDE.

Who may file?

It may be filed by the plaintiff or the defendant. The rules do not limit it to the defendant
alone.

What are the Steps or procedure to follow?

But first, THE PETITION MUST BE A VERIFIED PETITION

These are the following:

1. The filing of a VERIFIED petition in the same Court and in the same case;

The Petition should be accompanied by an affidavit of Merit. The

AOM must state facts and circumstances surrounding the FAME. And that,
the petitioner has a meritorious defense or cause of action

2. The Court will issue an order directing the respondent to file his answer within
15 days from the receipt (service) of the order.

3. The filing of an answer. But if the respondent does not file an answer he cannot
be declared in default.

4. With or without an answer, the Court will hear the petition. The purpose is to
determine if the allegations are true.

*** If the Court finds that the allegation of FAME is not true, then it will
issue an order denying the petition. These order is NOT
APPEALABLE. BUT if there is A CLEAR INDICATION that the Court
acted with grave abuse of discretion in issuing the order then A PETITION
for CERTIORARI may be filed.

*** But if the Court finds that the allegation is TRUE, then the Court will
issue an order GRANTING the Petition. Then the Next step ----

5. Hearing on the Case (If GRANTED ONLY). The effect of granting the petition
is as if A NEW TRIAL HAS been GRANTED.

6. The Court will render a Judgment. THIS JUDGMENT IS APPEALABLE.

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NOTICE OF APPEAL is too LATE. Thus, the Court dismissed the appeal. WHAT is now
the remedy?

Remedy is to file a P for relief on the same court that rendered the judgment.

If he can show that he was prevented from perfecting his appeal on time by FAME then
his remedy is to file a petition for relief asking the Court to give due course to his appeal. If the
Court finds that he is indeed prevented, then the Court will grant the petition, give due coure to the
appeal and issue and order for the case to be elevated to the appellate Court.

Suppose the Notice of appeal and the appellate court docket fees were paid on time, but still
the Court dismiss the appeal, what is now the Remedy?

The remedy is Petition for certiorari because the denial of his appeal is indeed a grave abuse
of discretion. It can even be MANDAMUS because appeal is a right provided it is exercise within
a certain period.

*** You file the NOTICE of APPEAL to the same COURT that rendered the judgment.

Distinctions of MNT and PRJ:

1. A motion for new trial must be filed before the judgment becomes final. While, a you
file a PRJ after the judgment becomes final.

2. A MNT is filed if a judgment or final order has been rendered. While a PRJ is filed if
a judgment or final ordered has become final or a proceeding has thereafter been taken.

3. In MNT, the grounds are not only FAME, it include NDE (newly discovered evidence).
In PRJ, the grounds are only FAME.

4. A MNT is filed during a period of perfecting an appeal. While a PRJ is filed within 60
days after he learns of the judgment but not beyond 6 months from entry of judgment.

5. MNT if denied, there can be an appeal on the judgment. But a PRJ if denied, the order
denying it is NOT APPEALABLE.

6. A MNT is a legal remedy. While a PRJ is an equitable remedy.

7. A MNT must be verified. While a PRJ requires no verification.

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RULE 39
EXECUTION OF JUDGMENT

*This is for enforcement of a judgment.

2 Kinds of Execution:

1. Compulsory Execution
- Execution as a matter of right
- what is to be executed is a Judgment or Final order that is final and executory
- one who is entitled for the execution is the PREVAILING PARTY (Winning
Party)

2. Execution pending appeal

- Discretionary execution or exceptional Execution
- Judgment that doesn’t attains finality yet.

What maybe or the subject of execution?

The subject is a JUDGMENT or a final order.

Not an interlocutory order – that is cannot be executed except AN ORDER OF SUPPORT

PENDENTE LITE.

Who are the Parties?

Judgment Obligee – the one entitled for the execution

Judgment obligor – the one directed the execution

How may the judgment be executed through COMPULSORY EXECUTION?

There are two (2) ways:

1. By means of a motion
- file a motion for issuance of a writ of execution
- WITHIN 5 YEARS FROM THE ENTRY OF JUDGMENT

- Date of finality is presumed to be the date of entry of judgment.

- then the Court will issue a writ of execution
- Since it is non-litigious motion, within 5 days from filing the Court will
resolve it.

*** Lifetime of a writ of execution – five years of entry of judgment.

Shall remain in effect all the time.

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 2. By means of an action
- a civil action or a case
- The action is an action to revive a judgement.
- AFTER FIVE YEARS, BUT WITHIN 10 YEARS FROM ENTRY OF
JUDGMENT, IT CAN BE ENFORCE THRU ACTION
- File an ACTION to revive the judgment because the judgment became
dormant (after 5 yers)

- After 10 years, the Judgment became STALE. Thus, cannot file the action
because the defendant may file a motion to dismiss on the ground that it has
already prescribed.

How will you enforce the revived judgment?

Same, within 5 years by means of motion and within 10 years by means of action.

WHAT IS THE REMEDY? If no justifiable reason to issue a writ of execution.

If by means of Motion and the RTC refused to issue the writ, the remedy is to FILE
MANDAMUS to the NEXT HIGHER COURT to compel the lower court to issue uch.

If RTC rendered a judgment appealed to the CA, and the CA decided such, the motion for
execution must be filed to the COURT OF ORIGIN WITH ALL ATTACHMENTS that is the
following:

1. Certified copy of the judgment of the appellate court

2. Certificate of entry of judgment.

Suppose the Court of Origin refuses to issue the writ?

The remedy is to file a motion with the appellate Court with the same case asking for an
order directing the Court of origin to issue a writ of execution.

If the Court of Origin refuses to issue a writ of execution, what is the remedy?

1. Petition for Mandamus to CA

2. File a petition to CA to order the RTC to grant the writ.

Dispositive portion is the subject of execution.

Suppose a writ of execution has been issued but it VARIED the judgment?

The writ of execution is void. The remedy is to file a motion to quash the writ of execution.

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Suppose the clerk of Court issued a writ of execution pursuant to the dispositive portion
stating that “let a writ of execution be issued for the enforcement of the judgment”. Would
that be valid?

No, it is not valid. Because the Court cannot order the issuance of writ of execution in the
judgment itself. Reason: it violates the rule that a judgment may be enforce by means of a motion.

What are the instances where the Court is justified not to issue the writ of execution?

1. Supervening event occurs after the finality of the judgment that makes execution of
judgment UNJUST or INEQUITABLE.

2. If the judgment become dormant for failure to execute it within 5 years of entry of
judgment.

*** The execution of judgment within 5 years or after 5 years but within 10 years rule DOES NOT
APPLY IN Land Registration cases and only applicable to CIVIL ACTIONS.

EXECUTION PENDING APPEAL

The judgment has not become FINAL yet. That is why it is Discretionary execution. The
execution depends on the sound DISCRETION of the COURT. (Exceptional execution)

- it is a litigious motion.

Exceptional in the sense that it can is issued only if there is a good reason for execution
pending appeal.

- Not applicable in mere posting of BONDS.

What are the requisites?

1. There must be a motion for execution pending appeal.

2. There must be a good reason for execution pending appeal

3. The good reason for execution pending appeal must be stated in a SPECIAL ORDER.

Suppose the Good reason is not stated in a Special Order?

Then the execution pending appeal is NOT VALID.

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What could be the examples of good reasons for execution pending appeal?

1. Old age of the judgment obligee.

2. The possible laws of the subject of the litigation, its deterioration.

What Court may issue the WRIT of execution pending appeal?

1. It is the Trial Court.

2. Appellate Court if the Trial Court has already lost the jurisdiction of the case, then it is
the Appellate Court.

3. Although the trial Court may have lost jurisdiction over the case, IT MAY STILL ISSUE
the Execution pending appeal provided the record of the CASE have not yet been
TRANSMITTED to the appellate Court. In exercise of RESIDUAL JURISDICTION

RESIDUAL JURISDICTION

- when the trial court loss jurisdiction over the case but the record of the
case is still in its possession. It is not yet transmitted to the appellate Court.
IT MAY STILL ISSUE THE WRIT OF EXECUTION in the exercise of its
RESIDUAL JURISDICTION.

Suppose the Court issues a writ of execution pending appeal, may the other party, the
judgment obligor, do something? What is his remedy so that there will be a STAY of
execution pending appeal?

What he can do to secure a STAY of execution pending appeal is to FILE A SUFFICIENT

SUPERSEDEAS BOND. There will be a stay of execution pending appeal upon the approval of
the Court of a Sufficient Supersedeas BOND.

What is the purpose of SUPERSEDEAS bond?

The Supursedeas bond is conditioned upon the performance of the judgment in case the
judgment is sustained on appeal.

HOWEVER, there are JUDGMENTS that are not stayed by appeal. Because they ARE
ENFORCEABLE UPON RENDITION. Subject to execution NOTWITHSTANDING that they
are not FINAL yet. These are:

1. Judgments in action for support;

2. Judgments in an action for injunction
3. Action for Receivership
4. Action for Accounting.

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 5. In an action for forcible entry or unlawful detainer if the judgment against the defendant,
the judgment is subject to IMMEDIATE EXECUTION. (Action interdictal. Ejectment
cases)

6. Judgment upon a compromise.

- It is not appealable because it is FINAL UPON rendition.

PROPERTIES EXEMPT FROM EXECUTION: (Section 13, among them are:)

1. Family Home.
2. Lettered gravestone
3. The right to receive legal support or money
4. Any pension or gratuity from the government.
5. Three horses or three cows or carabaos or other beasts of burden.

When a sheriff levies (enforce the writ of execution) on a Family Home, is the levy valid?

YES, because it is not for the sheriff to claim for the exemption. THE ONE WHO
SHOOULD CLAIM THE EXEMPTION is the Judgment OBLIGOR himself. If not claimed, then
it is VALID.

When may the Judgment obligor claim the exemption?

At the time of the levy or at least at the time of the SALE. But if he fails to do that, then
the levy would be valid and the sale would also be valid.

Family home levied and sold to execution sale, then the obligor file a case against the sheriff
and the buyer of the family home, may the sale be nullified on the allegation that it is a
FAMILY HOME? Assuming that indeed the judgment obligor now plaintiff proved it.

NO because, he did not claim the exemption at least at the time of the SALE.

Memorize section 13. (Property exempted from Execution)

RULE 39
LEC 2

Rule 39 section 10 (b)

Removal of improvements of a property subject of execution

What is needed to remove or dismantle the improvements in the property?

When the property subject for execution contains improvements, the officer SHALL NOT
destroy demolish or remove said improvement EXCEPT upon special order of the Court issued

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upon motion of judgment oblige upon due hearing and after the judgment obligor fails to remove
the same within a reasonable time fixed by Court.

The writ of execution is not sufficient.

May the officer destroy, demolish or remove such improvements?

YES, but there must be a special order issued by the Court for the demolition or removal
of such improvement and the special order shall be obtained by the judgment obligee by means of
a motion and there must be a hearing after the obligor failed to remove it after a reasonable time
fixed by the Court.

What is the effect of a levy on execution as to third person? (Section 12)

The levy on execution shall create a lien in favor of the judgment obligee over the right,
title and interest of the judgment obligor in such property at the time of the levy, subject to liens
and encumbrances then existing.

THIRD-PARTY CLAIMANT

- a person who has title to or right of possession over the property levied upon. He is not a
party to the case and his property has been levied upon by the sheriff.
- EITHER the person who owns the property or who has a right of possession over the
property.

Title to – ownership, or right of possession.

Is mortgagee a third-party claimant?

No, the property is owned by Y and mortgaged to Z.

Mortgagee – will not be given possession of the property mortgaged to him. The mortgagor
will continue to be in possession of the property.

What are the REMEDIES of a Third-party claimant?

The following are his remedies:

1. To file A THIRD PARTY CLAIM (Not the same to complaint)

- also known as TERCERIA
- execute an affidavit of TPC stating facts showing possession or right to ownership
of the property attached with pertinent documents
- Then serve on the sheriff and on the judgment oblige.
- Then the Sheriff MUST stop the proceedings.

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 What should the judgment oblige do, if he wants the sheriff to proceed with
his levy?
The Judgment oblige must file an indemnity bond. To protect the sheriff
from any liability in the event the third party claim is found to be tenable.

2. If an indemnity bond has been filed by the judgment oblige then one remedy available
to the third-party claimant is to FILE AN ACTION against the Bond WITHIN 120 days
from the filing of the bond.

3. File a separate action to vindicate his claim to the property.

The third-party claimant has a remedy of intervention in attachment or replevin, is this also
available as a remedy to a third-party claimant in an execution?

NO, it is only available as a remedy of the third-party claimant in attachment or replevin.

BECAUSE the time to intervene is at any time BEFORE RENDITION of judgment by the TRIAL
COURT.

These remedies are Cumulative- meaning, a third-party claimant may resort to ANY
of the remedies.

Suppose the third-party claimant files a third party claim, what will the Court do?

The Court will conduct a SUMMARY hearing on the Third party claim to determine if the
claim is tenable. After the summary hearing, if the Court finds that the claim is valid and the
property levied upon does not belong to the judgment obligor but to the TPC, then the Court may
order the release of the property to the third-party claimant because the levy is a mistaken levy. So
the Court will release the property from the mistaken levy and restore it to the Third-party claimant.

But if the Court finds that the claim is not tenable, there is no validity to it, it is pretended
or not genuine/ true, then the Court will deny the third party claim.

Is appeal the remedy against the denial of a third party claim?

NO, because the third-party claimant is not a party to the action.

REDEMPTION

Here the property is levied upon and after the levy on execution there will be a SALE on
EXECUTION.

So the property is sold in a sale on execution, is there a right of redemption? Who can
Exercise the right?

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 If what is levied upon and what is sold in the execution sale is a MOVABLE or
PERSONAL property, then there is no right of redemption.

BUT if what is sold is a REAL property or an immovable, then there is a RIGHT of

redemption.

Who can redeem? Who can exercise the right of R?

The following can redeem:

1. The judgment obligor

2. Redemptioner
- There can be REDEMPTIONS even among Redemptioner within a certain time.

- But if the only and last redemptioner is the Judgment obligor (the one who
redeem), then THERE CAN BE NO FURTHER redemption from him.

Who is a redemptioner?

A redemptioner is a CREDITOR who has a lien by virtue of a judgment, attachment or

mortgage on the property sold, subsequent to the lien under which the property was sold.

RULE 39 Lec 3

Remedies of Third-party claimant

1. File a third party claim (not complaint)

If a property is sold in an execution sale, is there a right of redemption and who can exercise
the right of redemption? Within what time?

If what is sold is a personal property or movable, there is no right of redemption. If what

is sold is a real property or immovable, then there is a right of redemption

It can be exercised by the judgment obligor or a redemptioner.

For a person to be a redemptioner, he must have a lien to the property. His lien should
be by virtue of a judgment attachment or a mortgage. And his lien should be subsequent to
the lien under which the property was sold.

A levy creates a lien to the property.

A real prop was sold in an execution sale. Then the sheriff will issue a certificate of
sale. The certificate of sale states the description of the property, the price and a statement

106
stating that the right of redemption will expire within one year from the date of registration
of the certificate of sale in the office of register of deeds.

If the judgment obligor redeems it within 1 year, then there can be no further
redemption from it. But if the one who redeems is a redemptioner then there can be a
redemption from it.

The property so redeemed may be redeemed within 60 days from the last
redemption. Except if the one who redeem is a judgment obligor.

Suppose the redemption from a redemptioner will go beyond 1 year from the date the
certificate is registered. Will that be alright?

Yes provided that the redemption from another redemption is within 60 days.

If one year has passed and no redemption is made, then his right as a purchaser is absolute
and he is now entitled for the possession of the property that was sold to him in the execution sale.

The CA has no authority to issue an execution pending appeal of its own decision. Execution
pending appeal applies only to judgment or final order of the Trial Court (MTC OR RTC)

The lifetime of a WRIT OF EXECUTION is five years from the date of entry of judgment.

Suppose the judgment obligor is still in possession of the property. What is the remedy of the
purchaser?

To file a Petition for the issuance of writ of possession.

Petition for the issuance of writ of possession

Although called a petition it is in fact a motion. It is a non-litigious motion

Suppose the judgment is now satisfied, what is to be done after?

There will be an entry of satisfaction of judgment by the clerk of Court in the Court docket
and execution book.

What is the Effects of judgments or final orders?

It may now constitute res judicata. Res judicata simply means a matter adjudged. Thus a
subsequent judgment will be barred by prior judgment.

What are the two aspects of Res Judicata?

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 1. Bar by prior judgment – parties should not be permitted to litigate a case with the
same issue more than once (The causes of action in the two cases should be the
same) (same parties, same cause of action)

2. Conclusiveness of judgment – immutability of judgment, preclusion of issues, or

collateral estoppel, it means that issues directly resolved in a former suit cannot
again be raised in any future case between the same parties involving different
cause of action (same parties, different cause of action). Thus once a case is decided
in finality, the controversy is settled and the matter is laid to rest.

Rule 40-56
Appeals

The remedy to obtain a reversal of a judgment of A LOWER COURT. Bringing it to the

higher Court by way of an appeal.

The Right to Appeal is not a part of due process. It is a mere statutory privilege. A privilege
granted by law. Thus, it must be exercise in a manner and in accordance with the requirement of
the rules. Thus, comply to the modes of appeal.

*** The moment you perfected your appeal, then in due time, you will receive a notice from the
appellate Court directing you to file your MEMORANDUM OF APPEAL (appeal
Memorandum) or Appellants brief within 15 days.

APPELLANT’S BRIEF OR APPEAL MEMORANDUM

- must contain what is known as assignment of ERRORS.

The Basic appellate rule is that the Court shall not consider any error unless
stated in the assignment of Errors. (General Rule)

However, the following are the exceptions:

1. An error that affects the jurisdiction of the lower Court over the subject
matter of the action

2. An error that affects the validity of the judgment being appealed from.

3. An error that affects the proceedings or trial itself.

4. An error closely related to or dependent on an assigned error.

5. Plain and clerical errors.

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 When it comes to the Supreme Court, the SC even if the errors is not assigned if it finds
that the consideration of the unassigned error is necessary in arriving at a just decision of the case
then the SC may consider it even if it is not assigned.

The payment of appellate Court’s docket fee is MANDATORY for the perfection of the
Appeal. The failure of payment is a ground of dismissal of the appeal. ALTHOUGH the
dismissal is not automatic, it is based on the sound discretion of the Court.

What is the proper subject of an appeal?

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.

What cannot be the subject of an appeal?

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. (n)

Suppose the Court renders a partial summary judgment, Is it appealable?

No, because a partial summary judgment is interlocutory.

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Suppose the Court dismisses a complaint, because of the fault of the plaintiff without any
justifiable cause within a reasonable time, what is the nature of the dismissal?

The dismissal is with prejudice. Meaning, it amounts to the adjudication of the case on its
merits. Thus, the remedy is APPEAL.

What if the third party complaint is dismissed and the dismissal is with prejudice, what is
the remedy?

The remedy is also APPEAL.

Case of Palma v. Galvez (March 2010)

X files a complaint against Y and Z. Y files a Motion to dismiss and Z files an answer. The Court
granted the Motion to dismiss. Thus, dismiss as against Y.

What is the remedy of plaintiff X against the order of the Court dismissing the complaint as
against Y. Is it also appeal?

No, it is not appeal because you cannot appeal when the main case is pending. Thus his
remedy is Petition for Certiorari.

*** Appeal is also not available as remedy if the judgment is FINAL and EXECUTORY.

1. Example a Judgment upon a Compromise (Not appealable), as it is Final upon rendition.

2. Cases governed by the Family code (Art. 247) or Judgment of the Court in summary
judicial proceedings.

Appeal from MTC – Taken to the RTC.

- RTC exercising jurisdiction over the area to which the MTC belongs.
- The title of the case in the Court below Remains but there will be the additional
designation that the party bringing the appeal shall be further designated as an appellant
(the one appealing) and the other party as appellee.

When can an appeal be taken? Period of perfecting the appeal.

If the appeal is an ordinary appeal or Appeal by writ of Error (By Notice of Appeal), 15
days from notice of the judgment or final order being appealed from. Subject to the Neypes Case.
(Fresh 15 days)

But if a record on appeal is required (By Notice of Appeal and Record of Appeal), the
time to appeal is 30 days from notice of the judgment or final order being appealed from. Also
subject to Neypes case. (Fresh 30 days)

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When is a record on appeal required?

Record on appeal is not required except in the following instances:

1. In Special Proceedings (involving settlement of estate of a deceased person).

2. Separate appeals (when permitted by the Court)

3. Multiple appeals

Multiple appeals is allowed / applied on the following cases:

a. In expropriation proceedings.

b. In Judicial Foreclosure of mortgage.

c. Judicial Partition.

Notice of appeal

- If the appeal is from MTC to RTC, the appeal should specify the following:

1. The names of the parties

2. The judgment or the final order or part thereof which is being appealed from
3. The material dates to show that the appeal is being perfected on time.

- If the appeal is from the RTC to a higher Court, the appeal should specify the following:

1. The names of the parties

2. The judgment or the final order or part thereof which is being appealed from
3. The material dates to show that the appeal is being perfected on time.
4. SPECIFY THE COURT FROM WHICH THE APPEAL IS BEING TAKEN.

If the appeal is by notice of Appeal, with what Court must the notice of appeal be filed?
Where to file the notice of appeal?

File it with the same court and in the same case.

General rule, the record of the CASE will be transmitted to the appellate court.

However, in Special Proceedings (involving settlement of estate of a deceased person),

Separate appeals (when permitted by the Court) or multiple appeals, the record of the case is not
transmitted to the appellate Court. What will be sent or transmitted IS THE RECORD ON
APPEAL

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 What remains to the trial Court is the transmittal letter. However, in the following
cases:

a. In expropriation proceedings.

b. In Judicial Foreclosure of mortgage.

c. Judicial Partition.

What will be transmitted to the appellate Court is NOT THE RECORD OF THE CASE
BUT THE RECORD ON APPEAL. Because the case is not yet finished, and the court still has to
try other aspects of the case.

Rule 40-56
Lec 3

Neypes v. CA (2005)

- laid down what come to be known as “Fresh 15-day period to appeal”.

- Means that if a party adversely affected by the judgment files a motion for new trial /
reconsideration but denied, then he will have another 15 days from the receipt of the order
denying his motion.

Is the filing of MNT/MR a pre-condition to the perfection of an appeal? Is it first required?

NO, one is not required to file a MNT or MR.

No, it is not pre-condition except in four cases namely:

1. Action FOR ANNULMENT OF MARRIAGE

2. Action for declaration of nullity of marriage

3. Action for legal separation

4. Habeas Corpus involving custody of a minor.

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What are the MODES of APPEAL?

I. Ordinary appeal (Appeal by Writ of Error)

a. Notice of appeal
b. Notice of appeal and Record of Appeal

II. Petition for Review

III. Petition for Review on Certiorari

What is Appeal by Writ of Error?

It is Ordinary Appeal.

DOES a notice of appeal require the approval of the Court?

NO, a notice of appeal does not require an approval of the Court.

DOES a record on appeal require the approval of the Court?

Yes, the Record on appeal must be approved by the trial Court before it is transmitted to
the appellate Court. Because it may not reflect accurately the pleadings filed in the case.

Parties can file a Joint Record on appeal.

MODES OF APPEAL

I. Case originates from MTC

SC (Petition for Review on Certioarari)

CA (Petition for Review)
RTC
MTC (Notice of appeal or N/a and R/a)

MTC to RTC – Rule 40

RTC to CA – Rule 42 (Questions of Fact, Questions of Law or Mixed)
CA to SC – Rule 45 (Pure questions of law, subject to some exceptions)

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II. Case originates from RTC

SC (Petition for Review on Certioarari)

CA
RTC (Notice of appeal or N/a and R/a)

RTC to CA - Rule 41 (Questions of Fact, or Mixed) (Cannot raised or No pure question of Law)
RTC to SC - Direct appeal to SC by Petition for Review on Certiorari

If appeal from judgment of RTC will raised only pure Question of Law?

Direct appeal to SC by Petition for Review on Certiorari

Rule 43
- Governs appeal from QUASI-JUDICIAL AGENCIES to the Court of Appeals. Like
Office of the President etc.

Rule 44
- Procedures in CA on ordinary appealed case under rule 41.

What are the THREE modes of appeal from a judgment of RTC?

The following:

1. Ordinary appeal or appeal by Writ of Error governed by Rule 41.

- RTC renders a judgment based on its ORIGINAL JURISDICTION
- Appeal from RTC to CA
- Questions of Facts or Mixed Questions of Fact and of Law. (No pure q of law)

2. Petition for Review governed by Rule 42

- Case from MTC appealed to the RTC and RTC rendered a judgment based ib its
APPELLATE JURISDICTION
- Questions of Fact, Questions of law or Mixed Questions of fact and of law.

3. Petition for Review on Certiorari Rule 45

- RTC exercising original jurisdiction
- Raising PURE question of law
- Direct appeal to the SC

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When can you a file a PETITION FOR REVIEW ON CERTIORARI with the Supreme
Court?

SC

CA SB CTA

RTC

There can be an appeal from RTC to SC, CA to SC, SB to SC and CTA to SC which will
raised only pure questions of law subject to some exceptions.

RULE 40
-Appeal from MTC to RTC

What happens if the MTC dismisses the case without trial and the ground for dismissal is
lack of jurisdiction? May the order of dismissal be appealed to the RTC?

Yes, the order of dismissal may be appealed to the RTC.

The RTC may either reverse the dismissal or affirm the dismissal. If the RTC reverses the
dismissal because in its opinion the MTC has jurisdiction then the RTC will simply REMAND the
case to the MTC.

But if the RTC affirms the dismissal because in its opinion the MTC really has no
jurisdiction, then what the RTC do if IT HAS JURISDICTION will try the case as if the case has
been originally filed with it. (Section 8)

Rule 40-56
Lecture 4

When is an ORDINARY APPEAL (Notice of appeal only) PERFECTED?

If the appeal is by Notice of appeal, it is perfected as to him (appellant) upon the filing of
the notice of appeal in due time (within the time of perfecting an appeal).

If the appeal is by Notice of appeal, when does the Court lose jurisdiction over the case?

The Court loses jurisdiction over the case upon perfection of the appeal and expiration of
the time to appeal by the other parties.

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What about if the appeal is by Notice of appeal and by record on Appeal is perfected?

The appeal if by Notice of appeal and record on appeal is perfected as to him (appellant)
with respect to the subject matter of the appeal upon the approval of the record on appeal
filed in due time.

When will the Court lose jurisdiction over the subject matter of the appeal?

Here the Court will lose jurisdiction not over the case but over the subject matter of the
appeal. (WHY? Because, notwithstanding the appeal, the case will go to the second stage)

The Court will lose jurisdiction over the subject matter of the appeal upon the approval of
the record on appeal filed in due time and expiration of the time of appeal of the other parties.

*** Before transmittal, of the Record of the case, if the appeal is an appeal by notice of appeal, or
transmittal of the record of appeal, if the appeal is an appeal by notice of appeal and record on
appeal, THE TRIAL COURT or the Court of origin may issue the following orders:

1. For the protection and preservation of the rights of the parties not involving any
matter litigated by the appeal.

2. Approved compromises.
- Notwithstanding that the trial Court lost jurisdiction over the case or over
the subject matter of the appeal, it can still approved compromises before the
transmittal of the record of the case or record on appeal to the appellate Court.

3. Permit appeals of indigent litigants.

4. Order execution pending appeal.

5. Allow withdrawal of the appeal.

Why can the Court still perform this function notwithstanding that it has lost jurisdiction?

BECAUSE, it still has RESIDUAL JURISDICTION or Retained Jurisdiction.

RESIDUAL JURISDICTION
-extension of the ORIGINAL jurisdiction of the Court for certain specific purposes after
the perfection of appeal BUT before the transmittal of the record of the case or record on appeal
to the appellate COURT.
- notwithstanding the lost of jurisdiction

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APPEAL FROM THE MTC to the RTC.

- The appeal is by NOTICE of APPEAL to be filed with the MTC.

- Here, the MTC will transmit to the RTC the RECORD OF THE CASE.
- Then the RTC will issue a NOTICE to the appellant copy furnished the appellee directing
the appellant to file his memorandum of appeal within 15 days from the receipt of the
NOTICE.

The party appealing will retain its designation in the case below but with the further
designation that he will also be referred to as he is appellant. Plaintiff-appellant /
Defendant-appellant

- Failure to file this MOA by the appellant within 15 days, will be a ground for the dismissal
of the appeal.

- From receipt of the MOA the appellee may also file his own memorandum within 15 days
from the recipt of the appellant’s memorandum.

What happens if the MTC dismisses the case without trial and the ground for dismissal is
lack of jurisdiction? May the order of dismissal be appealed to the RTC?

Yes, the order of dismissal may be appealed to the RTC.

The RTC may either reverse the dismissal or affirm the dismissal. If the RTC reverses the
dismissal because in its opinion the MTC has jurisdiction then the RTC will simply REMAND the
case to the MTC.

But if the RTC affirms the dismissal because in its opinion the MTC really has no
jurisdiction, then what the RTC do if IT HAS JURISDICTION will try the case as if the case has
been originally filed with it. (Section 8)

If the case was tried on the merits by the LOWER COURT without jurisdiction over
the SM of the case, the RTC on appeal shall not dismissed the case if it has original
jurisdiction thereof BUT shall decide the case based on the record of the case on the MTC
subject to the right of the parties to submit additional pleadings.

APPEAL from the RTC

What are the THREE modes of appeal from a judgment of RTC?

The following:

1. Ordinary appeal or appeal by Writ of Error governed by Rule 41.

- RTC renders a judgment based on its ORIGINAL JURISDICTION

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 - Appeal from RTC to CA
- Questions of Facts or Mixed Questions of Fact and of Law. (No pure q of law)

2. Petition for Review governed by Rule 42

- Case from MTC appealed to the RTC and RTC rendered a judgment based on its
APPELLATE JURISDICTION
- Questions of Fact, Questions of law or Mixed Questions of fact and of law.

3. Petition for Review on Certiorari Rule 45

- RTC exercising original jurisdiction
- Raising PURE question of law
- Direct appeal to the SC

Ordinary Appeal from RTC to CA (Rule 41)

- By Notice of appeal filed to the RTC

- The RTC within a certain time will transmit to the CA the record of the case or the record
on appeal.
- The moment the CA received such, then it will issue a notice to the appellant to file his
appellant’s brief within 45 days from the receipt of the notice

The appellant’s brief will contain the following:

1. Statement of the case

2. Statement of facts
3. Statement of the issues raised
4. Assignment of errors
5. Arguments on the assigned errors and the relief remanded.

*** If more than 20 pages, it must contain a subject index.

- Copy furnished with the appellee who will also have 45 days to file the appellee’s brief.
- Then the appellant may also file a reply brief within 20 days from the receipt of the
appellant’s brief

What is the period of perfecting an appeal for Habeas Corpus?

It is within 48 hours from the receipt of the judgment being appealed from.

*** But if it is Habeas Corpus involving the custody of minor/s, then it is 15 days. But the
filing of the motion for reconsideration or new trial is a precondition to the perfection of the appeal.

*** In writ of Kalikasan cases, it is 15 days and the appeal is to the SC and you may raise
question of fact or question of law or Mixed.

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 *** In writ of Amparo cases, the appeal is to the SC and within 5 working days and you
may raise question of fact or question of law or Mixed.

*** In Habeas Data cases, the appeal is to the SC and also within 5 working days from the
notice of the judgment appealed from and you may raise question of fact or question of law or
Mixed.

But if the RTC is sitting as SPECIAL AGRARIAN COURT

The mode of appeal is a PETITION FOR REVIEW (verified petition) under RULE 42

OR the RTC is sitting as SPECIAL COMMERCIAL COURT

The mode of appeal is by means of PETITION FOR REVIEW under RULE 43

Other instances when question of facts may be raised as an issue to the SC in a petition on
review of certiorari:

Aside from Habeas Corpus, writ of Kalikasan cases, writ of Amparo cases, and Habeas
Data cases.

1. When the conclusion is a finding grounded on conjecture or speculation

2. When there is a grave abuse of discretion in the appreciation of FACTS
3. When the Judgment is premise on misapprehension of facts
4. When the finding of facts are conflicting
5. When the findings of Facts are contrary to the admission of parties.

What if one take a wrong mode of appeal? Or raised question of facts when it should be
not, what happens to your appeal or petition?

It will be DISMISSED.

Lec 5

Annulment of judgment
- one of the remedies against a judgment that has become final and executory.
- available as a remedy ONLY IF the remedies of New trial, appeal, petition for relief and
other appropriate remedies are no longer available thru no fault of the petitioner.

If appeal has been availed of but because of neglect or petitioners fault he is not
able to appeal with the judgment, and the judgment become final, THEN PETITION FOR

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 ANNULMENT OF JUDGMENT IS NOT AVAILABLE. Because AJ may be resorted to
ONLY IF the ordinary remedies of NT, Appeal PR are no longer available thru no fault of
the petitioner.

- In AJ, the Correctness of the judgment is NOT AN ISSUE.

- this remedy may also be resorted to by a person who was NOT a party to the action.

Mention the remedies against a judgment that has become Final and Executory

1. Petition for relief from judgment

2. Annulment of Judgment
3. Petition for certiorari

What are the grounds of AJ, and within what time may the Petition be filed?

The grounds are:

1. Extrinsic fraud.
Fraud committed OUTSIDE the trial (or Court), which prevented the party
to present his cause of action or defense

- This is not a valid ground if this has been availed of or could have been
availed of in a MOTION for NT or Petition for relief

2. Lack of Jurisdiction
- Either over the SM, nature of the action or the person of the defendant.
- SM – can be waived, Person of the D – may be waived by the defendant
himself.

When may the Petition for the AJ be filed if the ground is LACK of
Jurisdiction?

It may be filed before it is barred by latches or estoppel.

3. Lack of DUE PROCESS

Jona v. Balangue (2013) Aside from Extrinsic Fraud and Lack of

Jurisdiction ANOTHER GROUND IS – LACK OF DUE PROCESS.

Where to file this petition for AJ?

If the judgment to be annulled is a judgment of the RTC, THEN the Court that can take
cognizance is the COURT OF APPEALS. Thus, it should be filed to the CA.

But if the judgment to be annulled is a judgment of MTC, it is the RTC who has jurisdiction.
Thus, should be filed with the RTC.

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 Then attach a certified copy of the judgment to the petition.

What will the Court do upon the filing of the Petition?

If the Court finds that there is no Substantial Merit in the petition, then the Court will
dismiss the petition outright. But the Court should give a specific reason/s for such dismissal.

But if the Court finds that there is a merit in the petition then the petition shall be given due
course and summons shall be given to the respondent.

Then the procedure in ordinary civil cases will be followed. There will be pre trial etc and
RECEPTION OF EVIDENCE. But the Reception of evidence may be referred to the member of
the Court or referred to the Court of Origin. If in CA, it may be assigned to a member of CA or to
the RTC.

What is the effect of a judgment in a Petition for annulment of judgment?

The following is the effects:

1. If the ground upon which the judgment is annulled is LACK of Jurisdiction then the
entire proceeding (including the judgment) in the Court below is SET ASIDE without prejudice to
the original action being filed in the proper Court. Thus, the original action may be filed to the
proper Court with jurisdiction.

If filed in RTC, annulled in CA (because RTC has no Jurisdiction), then the Case
may still be filed to the proper Court – that is MTC.

If filed in MTC, annulled in RTC, then the Case may be filed to the RTC.

2. If the ground is extrinsic fraud, then the lower Court (Court where the judgment
originated) may be ordered to TRY the case as if a timely motion for New trial has been granted.

In a MNT, if the Court issues an order granting a MNT, the effects are:

a. the judgment is vacated or set-aside

b. the case will stand for trial de nouvo
c. The recorded evidence not affected by extrinsic fraud shall be deemed
reproduce without prejudice to the party presenting additional evidence.

Santos v. Santos (2014)

Remedy of a wife declared presumptively dead by husband and remarried another is to file
a petition to the CA for the annulment of the judgment on the ground of Fraud. Since she was
not absent in the first place.

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 But if the wife cannot be located anymore thus no bad faith or fraud in the part of the
Husband in filing the petition to declare the W Presumptively dead, the remedy of the wife is to
file an AFFIDAVIT of Reappearance under ART 42 of the Family Code.

***THE GIVING OF FALSE TESTIMONY IN COURT is extrinsic fraud. Thus, Petition for
annulment of judgment with this in the case should be grounded to LACK OF JURISDICTION

THE FACT OF LOSS OF CERTIFICATE OF TITLE IS JURISDICTIONAL

In an action for annulment of J or in a Petition for the AJ, is Extraneous evidence (evidence
not found in the record of the case), admissible?

If the ground is lack of jurisdiction, only evidence found in the record will be considered.
Thus, extraneous evidence will not be admissible.

But if the ground is Extrinsic fraud, extraneous evidence is admissible.

Suppose the CA renders a judgment annulling the judgment of the RTC, and a party is
adversely affected by the judgment, what is the remedy?

Appeal to the Supreme Court. Petition for review of Certiorari to the Supreme Court.

Appellant’s brief

- you need to file appellant’s brief in ordinary appeals. Then the appellate court, the CA or
RTC will notify the appellant to file his appellant’s brief within 45 days from receipt of the notice.

- Failure to file this appellant’s brief or memorandum of appeal is a ground for dismissal.

Provisional Remedies
-Ancillary remedies
- The nature: it is only ancillary, in the sense that there must be a main action. And
so you cannot file an action merely for the attachment of the property.
- there is a main action called injunction but there’s no main action called
attachment
- These remedies are to be granted by the court where the principal action is pending

- A Municipal Trial Court has the power to grant a provisional remedy. Except
support pendente lite in an action for support because this is incapable of
pecuniary estimation and is thus within the jurisdiction of a Regional trial court.

-Support pendente lite is an ancillary remedy, the main action is support or legal
separation or acknowledgement of a child.

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 * Purposes of these Provisional Remedies

1. To preserve and protect the rights or interests of the litigant/s while the main action is
pending;
2. To secure a judgment that may be rendered by the court in the main action;
3. To preserve the status quo; and
4. To preserver the subject matter of the action.

* Provisional remedies (Rules of Court)

Rule 57, preliminary attachment;

Rule 58- preliminary injunction;
Rule 59 – receivership;
Rule 60 – replevin;
Rule 61 support pendente lite.

Q: Are the provisional remedies mentioned in the Rules of Court from rule 57 to 61, the
only provisional remedies available in this jurisdiction?

No, it is not exclusive as there is jurisprudence to allow the court to exercise its equity
jurisdiction when the law is silent, obscure or insufficient. In a proper case, the court may also
grant visitation rights, or a temporary custody of a child, or it may allow the deposit of a certain
amount to be paid in an action for rescission to prevent its dissipation.

I. Preliminary attachment (Rule 57)

SEC 1 (grounds)

May a writ of Preliminary attachment be issued EX PARTE (without notice to the defendant,
or the party whose property is to be attached)?

Yes, it may be issued ex parte, meaning no notice to the defendant. Or it may be issued
upon notice (notice + hearing) (Either.)

Q: What is the lifetime of a writ of preliminary attachment?

Once issued the writ of execution shall remain in effect during all the period that the
judgment may be enforced by a motion.

However, the rules do not provide for any definite lifetime for a writ of preliminary
attachment unlike a writ of execution. A writ of preliminary attachment has no definite
lifetime but of course the moment the main action is finished then there will be no more use for
the writ of preliminary attachment.

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Q: Define Preliminary Attachment

Preliminary Attachment is a provisional remedy issued upon order of the court where the
action is pending to levy upon the properties of the defendant therein. The same to be held
thereafter by the sheriff as security for the satisfaction of whatever judgment might be rendered
by the court in favor of the attaching creditor.

The definition includes the purpose of a writ of preliminary attachment.

Q: What is the purpose?

The purpose of a writ of preliminary attachment is to serve as security for the satisfaction
of whatever judgment might be rendered by the court in favor of the attaching creditor.

Q: May the writ be extended for a property of the defendant in the possession of a third
person?

Yes. It can also extend to a property of the defendant in the hands of a third person or
money owed by such third person to the defendant in which case it is known as garnishment, a
writ of garnishment.

The following are the kinds of attachment

1. Preliminary attachment
2. Garnishment
3. Final attachment (also known as levy on execution)

Grounds upon which a writ of preliminary attachment may be issued

Section 1 of Rule 57. Grounds upon which attachment may issue. – At the commencement of the
action or at any time before entry of judgment, a plaintiff or any proper party may have the
property of the adverse party attached as security for the satisfaction of any judgment that may
be recovered in the following cases:

(a) 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;

Note that the writ of preliminary attachment cannot be issued if the action is for the
recovery of an amount of money that is not specified. There must be a showing and it must be
alleged that party against whom the writ is being asked is about to depart from the Philippines
with intend to defraud his creditors.

He is not only about to depart from the Philippines, he is about to depart from the
Philippines and he is doing so with intend to defraud his creditors.

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If that is not the intention, then the writ of preliminary attachment cannot be issued.

(b) In an action for money or property embezzled or fraudulently misapplied or converted

to his own use by a public officer, or an officer of 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;

DEAN: In an action for money or property embezzled or fraudulently misapplied or converted to

his own use, meaning it is applied by an officer of a corporation for example or used for his
personal purpose or it should be converted to his own use.

(c) 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;

DEAN: So in c, the property mentioned in c may be a real property or a personal property but
take note that the property or any part of the property has been concealed removed or disposed of
to prevent its being found or taken by the applicant.

(d) 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;

DEAN: So the party against whom the writ is being asked or being demanded is guilty of fraud
in contracting the debt or incurring the obligation.

(e) In an action against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud his creditors; or

DEAN: in e, the mere removal is not a ground for the issuance of the writ of preliminary
attachment. The removal must be with intent to defraud his creditors.

(f) In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication.

Q: What is the remedy then?

So that you can maintain an action against the non-resident defendant who is
not in the Philippines, in the same action, you must demand, pray, ask for the
issuance of a writ of preliminary attachment so that the property of the defendant in
the Philippines will be levied upon

Q: Who may avail of these provisional remedy of preliminary attachment?

The rule says a plaintiff or any proper party.

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Q: When you say proper party like who? Who can be a proper party?

A third party plaintiff in a third party complaint may also be a proper party. Even the defendant
if he has a counter claim against the plaintiff and his counter claim is any mentioned in section 1,
then he can also ask for the issuance of a writ of preliminary attachment

When?

At the commencement of the action or at any time before entry of judgment.

What about if there is an appeal from a judgment and the appeal is still pending before the
appellate court, may a writ of preliminary attachment be still applied for even if the case is
already on appeal?

Yes, because if the judgment is brought to a higher court on appeal, then there is no entry
of judgment yet.

When can there be an entry of judgment?

If the judgment become final, then there will be an entry of judgment and as I have
mentioned to you long time ago, the date of finality of the judgment is presumed to be the date of
its entry

Why is it that if there is now an entry of judgment, the court will not anymore issue a writ
of preliminary attachment?

Because what the court will now issue after an entry of judgment is a writ of execution.

Not just a writ of preliminary attachment but already a writ of execution. This is now
what you call final attachment. It is a levy on execution.

Q: suppose you are the defendant in a case and your property, piece of land, was levied
upon on attachment or your property is attached, what is your remedy as a defendant?

You will file a motion for the discharge of the preliminary attachment so that the preliminary
attachment will be discharged but you will need the following grounds (grounds upon which the
writ of preliminary attachment may be discharged):

1. You will allege in your motion that your property that was attached is exempt from
execution because a property exempt from execution is also exempt from preliminary
attachment. So if let us say your family home was attached then you move for the
discharge of the attachment because your family home cannot be attached for the simple
reason that it is exempt from execution.
2. You make a cash deposit or you file a counter-bond in court.
3. The attachment is improperly or irregularly issued or enforced.
4. The attachment bond is insufficient.
5. The attachment affidavit is defective.

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 6. The attachment is excessive and so the attachment will be discharged as to the excess
7. The judgment in the main case is rendered against the attaching party. So meaning the
case is finally decided and the judgment is against the attaching party.

Q: when is discharge of attachment not allowed?

It is not allowed when the preliminary attachment is issued upon a ground that is at the
same time the plaintiffs’ or applicants’ cause of action.

Q: How may the plaintiff or proper party apply for the issuance of writ of preliminary
attachment? How applied for?

A: It may be applied for by way of a motion or the application for the issuance of a writ
of preliminary attachment may be incorporated in the complaint itself.

But the application must be accompanied by an affidavit containing the following: (the
affidavit of attachment must state the following)

(i) Who will execute the affidavit – the applicant himself, the plaintiff or proper party or
any person who has personal knowledge of the facts to be stated in the affidavit;
(ii) The affidavit must also show that there is a sufficient cause of action;
(iii) The affidavit must also state the ground/s as stated in section 1;
(iv) The affidavit must also state that there is no other sufficient security for the claims
sought to be enforced by the action;
(v) The affidavit must also state the amount due the applicant or the value of the property
that he is entitled to recover is as much as the sum for which the order is granted
above all legal counterclaims.

All these must be stated in the affidavit.

What is the purpose of this bond?

The purpose of this bond is to indemnify the defendant and to pay all damages that the
defendant may suffer or sustain as a result of the attachment if the court finally finds that the
plaintiff is not entitled to the attachment applied for.

What is the justification that a writ of preliminary attachment may be issued ex parte?

Because the defendant may abscond with his property or might conceal his property.
If let us say the defendant is notified of the application, then what is sought to be prevented
might yet happen. You are seeking to prevent the defendant from concealing his property.

May it also be issued on motion and after notice?

Yes. It may also be issued on motion and with notice to the adverse party.

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Problem in the bar exam:
The plaintiff files a complaint, an application for the issuance of writ of preliminary
attachment is incorporated in his complaint. There is also an affidavit of attachment, and
attachment bond fixed by the court and then the court issued the writ of preliminary
attachment against the defendant at a time when no summons has yet been served on the
defendant. When the defendant learned about the issuance of a writ of preliminary
attachment against him, he filed a motion to dissolve the writ of preliminary attachment
that was issued against him. His ground is that it was issued before summons could be
served upon him. It was issued when he was not yet summoned.

May the motion be granted?

No because a writ of preliminary attachment may be issued ex parte even before the
defendant is served with summons.

But although the writ can be issued ex parte, it cannot be enforced unless it is precedent
or contemporaneously accompanied by service of summons upon the defendant together with a
copy of complaint, order of attachment, writ of attachment, affidavit of attachment and so on.

NOTE: A third-party claimant may be entitled to damages due to MISTAKEN LEVY

ISSUANCE of the writ of preliminary attachment is NOT the same to its implementation or
enforcement.

PRIOR and CONTEMPORANEOUS RULE

The Court may issue the writ of attachment ex parte, meaning without notice. BUT it
cannot be enforced unless the enforcement or implementation is preceded by or
contemporaneous accompanied by service of summons upon the defendant together with the
copy of the complaint, application for attachment, affidavit of attachment, bond of attachment
and writ of preliminary attachment (Known as the Prior or Contemporaneous Rule)

However, the RULE does not apply on the following instances:

1. When the defendant cannot be served with summons personally or by substituted

service within a reasonable time despite efforts to serve the summons

2. The defendant is temporarily outside the Philippines;

3. The defendant is a non-resident defendant who is not in the Philippines;

4. The action is an action in rem or an action quasi- in rem.

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Distinguish preliminary attachment from garnishment

In a PA, there are only two parties involved: the attaching creditor and the defendant. But
in G, a third party is included called the garnishee.

There is a property in custodia legis (in custody of the court), may that property be attached?

YES, by giving a copy of the writ of attachment to the Court itself. Then a notice of the
attachment must be served to the custodian of the property.

Preliminary Injunction
RULE 58

What is a Preliminary Injunction?

A PI is an order granted at any stage of an action or proceeding prior to judgment or final

order requiring a party or a court or agency or a person to refrain from a particular act/s. It may
also require the performance of an act, in such a case it will be called preliminary mandatory
injunction

2 Kinds:

1. Preliminary Prohibitory Injunction

- if it prohibits the performance of an act.

2. Preliminary Mandatory Injunction

- if it requires the performance of an act.

NOTE: Injunction may also be the MAIN action, although it is a provisional remedy. It may also
be an independent action.

Is there a main action called injunction?

Yes, one can institute an action called injunction. Here one can also ask for the issuance of
a writ of preliminary attachment.

Is there a main action called attachment?

None.

What is the primary purpose of Injunction?

The primary purpose is to preserve the status quo.

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What is the Status quo?

The last actual peaceable uncontested status that preceded the controversy.

Who may grant the writ of preliminary Injunction?

The Court where the action is pending.

What are the grounds of PI?

Section 3, Rule 58, A preliminary injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or nonperformance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or
is procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual.

What are the requisites for the issuance of a writ of PI?

The following:

1. Existence of a right to be protected;

- there must be a clear legal right.

2. The acts against which the injunction to be directed are in violation of such right;

- these must be shown in the complaint or application for the issuance of the
writ. OTHERWISE, the application may just be DENIED on ground of its
insufficiency.

May an application for the issuance of a writ of Prel Inj., may it be denied outright?

YES. If the Court finds that it is insufficient on grounds of its insufficiency

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May a writ of PI, be issued EX parte?

NO. it cannot be issued ex parte. There must be:

1. A hearing. Evidence must be presented and received by the Court with an

opportunity for a cross examination by the other party.

2. There must be a finding that prohibited acts are threatened to be committed or

that irreparable injury will be inflicted upon the applicant

TEMPORARY RESTRAINING ORDER

Note: If grave or irreparable injury would result to the applicant before the matter could be
heard on notice, then the Court could issue a TEMPORARY RESTRAINING ORDER

Good for 20 DAYS from the date of its issuance. BUT TRO cannot be issued without a
summary hearing.

The SUMMARY HEARING could not be dispense with.

The 20 days applies if the TRO is issued by the MTC or the RTC. BUT if there is an
extreme urgency, (the house is about to collapse), then the Court may issue WITHOUT any
hearing the 72 hour TRO.

The 72 hours TRO (if there is an extreme urgency), if issued, that will be included in the
counting of the 20 day.

During the 72 hours, the Court must conduct a hearing to determine if the TRO good for
20 days will be issued. If issued, the 72 hrs would be included in the counting of the 20 days TRO

In the issuance of a TRO, is a summary hearing required?

Yes, it cannot be dispense with.

If the TRO is issued, is it good for 20 days?

Yes, even if the TRO itself does not say so.

What is the lifetime of a TRO?

If issued by the MTC or RTC, the lifetime is 20 days from the service of the TRO from the
party set to be enjoined.

But if the TRO is issued by the CA, it is 60 days.

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 If issued by the Supreme Court, it shall be effective until further order by the Supreme
Court.

Suppose the RTC issues a TRO good for 20 days, may it be extended?

NO, it cannot be extended.

May a second TRO be issued after the expiration of the 20 days?

NO, also.

A Status quo order is not the same as TRO.

A status quo order is more of the nature of a cease and desist order and no specific duration.
Also it does not specifically directs a party from performing an act. It will last until revoked by the
Court that issued it. BUT it may also be the subject of an agreement (thus it has no specified
duration) between the parties.

And it does not require the posting of the bond.

How will a party obtained a writ of preliminary Injunction or even a TRO?

There must be a main action. Then the following:

A. The application for the issuance of a writ of PI and must be in a VERIFIED

APPLICATION. Then the application must contain facts that may show that the applicant is
entitled by the relief demanded.

B. Unless exempted the applicant must file a bond in an amount to be fixed by the Court.

The application may be included in the complaint or initiatory pleading. And if included in
the complaint or initiatory pleading, the case if filed in multiple sala Court. If the Case is filed in
a multiple Sala Court, then it will be raffled among the different branches, and the raffle will take
place only after NOTICE to the party affected, usually the defendant, notice to be had in the
presence of the adverse party.

The notice should be preceded or contemporaneously accompanied by service of summons

together with a copy of the complaint or initiatory pleading on the defendant.

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Explain Prior or Contemporaneous Rule in PI v PA. When complied.

In attachment there is a rule of prior or contemporaneous rule, it is also applicable in

Injunction

In injunction, it is the service of the NOTICE for Raffle and along with the notice will be
served the summons together with the copy of the complaint.

In attachment, it is when the writ of attachment will be enforced by the sheriff and along
with it the service of the summons together with the copy of the complaint, application for
attachment, affidavit of attachment, bond, order of attachment and writ of preliminary attachment.

RULES 59-61

Receivership
Rule 59

- may be a principal action or may be an ancillary remedy.

When should a receivership be appointed?

There must be (Upon) a verified Application and one or more receivers of the property
subject of the action or proceeding may be appointed by the court where the action is pending, or
by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases:

(a) When it appears from the verified application, and such other proof as the court may require,
that the party applying for the appointment of a receiver has an interest in the property or fund
which is the subject of the action or proceeding, and that such property or fund is in danger of
being lost, removed, or materially injured unless a receiver be appointed to administer and preserve
it;

(b) When it appears in an action by the mortgagee 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;

(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise
to carry the judgment into effect;

(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient
and feasible means of preserving, administering, or disposing of the property in litigation.

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During the pendency of an appeal, the appellate court may allow an application for the appointment
of a receiver to be filed in and decided by the court of origin and the receiver appointed to be
subject to the control of said court. (1a)

Who will appoint the receiver?

It will be appointed by the Court where the action is pending.

Suppose there is a judgment and the judgment is brought to appeal to a higher Court, may
an application for the appointment of a receiver be filed with the appellate Court?

YES, but the appellate Court may allow the application for the appointment of a receiver
to be filed in the Court of origin.

Receiver

- not an agent or representative of any party in an action.

For whom should the receiver preserve the property under the receivership?

His duty is to preserve the property and not acting for the benefit of any party because the
RECEIVER IS AN OFFICER of the Court, exercising his function in the interest of neither the
plaintiff nor the defendant but for the common benefit of all the parties.

How applied for?

It should be by means of a VERIFIED application.

May the Court appoint more than one receiver?

YES. They can.

*** The application for the appointment of a receiver MAY BE DENIED. Or A receiver that
may be appointed may be DISCHARGE, When the Adverse party files a bond executed to the
applicant to the effect that such party will pay to the applicant all damages that he may suffer by
reason of the acts omissions or other matters specified as grounds in the application.

The application will state the grounds/reason why a receiver should be appointed.

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REPLEVIN
RULE 60

- Replevin is only when what is involved is a PERSONAL PROERTY or a MOVABLE.

- Replevin is a recovery of a personal property.
- may be a main/ principal action (An action to recover personal property)
- may also be a provisional remedy (you may file an action to recover personal property
and ask for the issuance of a writ of replevin in the same action.
- May also be a MIXED action in the sense that it is partly IN REM and partly in
PERSONAM.

When is it IN REM?

In so far as the claim for the recovery of the personal property that is an in rem action. BUT
as for the claim for damages that is IN PERSONAM

When may it be applied for? At what point in the proceedings, may replevin be applied for?

At the commencement of the action or at any time before the defendant files his answer.
Thus the application for the issuance of such may be incorporated in the complaint or it may
accompany the Complaint.

How to apply for the issuance of the writ of replevin? How applied for?

You must execute an affidavit. You must attach an affidavit to the complaint if done in the
commencement of the action. But if not in the commencement of the action, then before the
defendant files for an answer, one must apply for the issuance of the writ of replevin.

Who will execute the affidavit?

The applicant. The affidavit must contain the following:

a. That the applicant is the owner of the property claim, particularly describing it or if he
is not the owner he is a person entitled to the possession of the property.

b. That the property is wrongfully detained by the defendant, alleging the cause of the
detention according to the best of his knowledge, information or belief.

c. That the property has not been distained or taken for tax assessment or payment of fine
or ceased under execution, preliminary attachment or in custodia legis. Or if so seized it is exempt
from such seizure.

d. The actual market value as declared by the applicant. (Not the probable market value)

- if there is dispute as to the value, then it will be resort by the Court itself.

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Why is the affidavit state the actual market value of the property subject of the application?

Because the next requirement is that the applicant must file a bond.

What is the amount of the Bond?

The amount of the bond is double the value of the property. That is why the applicant must
state the actual market value of the property.

Upon filing of the affidavit and bond the Court shall issue the writ of replevin requiring the
Sheriff to take the property into his custody.

What will the sheriff do with the property?

He will deliver the property to the plaintiff/applicant. But the rule requires the sheriff to
keep the property FOR 5 DAYS in his custody after he has taken it to the defendant.

Suppose, without waiting for 5 days, he deliver the property?

The delivery is IRREGULAR.

Why should the sheriff keep the property in his custody for 5 days?

Because the defendant may require that the property be returned or Redilevered (the
REDELIVERY of the property) to him. KNOWN AS REDELIVERY.

May the defendant require the redelivery of the property to him by proving his title, by
showing that he is the owner of the property?

NO, the defendant or the adverse party cannot require the return or redelivery of the
property to him by proving his title or ownership.

What may the defendant do so that he may require the property to be returned to him?

The following:

a. Within 5 days from the time the property was seized from him, the adverse party may
object to the sufficiency of the bond; or

b. Within 5 days, the adverse party will file a bond, that is a counter bond, known as
REDELIVERY BOND (amount is double the actual market value of the property as stated
in the applicant’s affidavit.)

If the applicant will understate the value of the property that can work to the
advantage of the adverse party because he can require the return by simply filing a
redelivery bond.

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Suppose within 5 days, the defendant does not object to the bond or file for the redelivery
bond, what will the sheriff do with the property?

He will deliver the property to the plaintiff or the applicant.

Suppose the property is claimed by a third party? What are his remedies?

Then he will be called a third-party claimant. Same as the remedy of the third-party
claimant in an execution. When a property is levied upon in an execution and another person claims
the property, then the remedy is:

File a third party claim;

Action against the bond;
Separate action to litigate his claim of ownership and then

In replevin or attachment he may also intervene in the action. (additional

remedy)

Suppose the Court renders judgment:

The judgment shall include a determination who between or among the parties has a
BETTER RIGHT of possession. Then the value of the property and then render judgment in
alternative for the delivery of the property to the party entitled in its possession. OR to pay its
value in case delivery cannot be made. And also for damages as either party may prove.

In what area may the writ of replevin be enforced?

A writ of replevin whether issued by the MTC or the RTC may be served and is enforceable
anywhere in the Philippines.

SUPPORT PENDENTE LITE

When filed and How?

At the commencement of the proper action or proceeding or any time prior to a judgment
or a final order. In any proper action, can be in an action for support, in an action for legal
separation, or in an action for recognition or acknowledgment of a natural child.

The application must be a verified application. It must state the:

1. Grounds for the claim and

2. The financial conditions of both parties (applicant and defending party)
accompanied by affidavits, deposition or other authentic documents in support of
the application.

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Is it also available in a criminal case?

YES, there can be a support pendent lite. But there must be the following conditions or
requisites:

1. That a child is born (to the offended party) by reason of an offense.

2. The civil liability arising from the criminal action includes support for the child.
3. The civil action has not been waived, reserved or instituted prior to the filing of
the criminal action.

***What are the steps or procedure to be followed?

Upon the filing of the verified application, the application will be served to the
adverse party and the adverse party shall have 5 days to comment on the application unless
a different period is fixed by the Court.

What if there is an order issued by the Court directing the defendant to give support
pendente lite?

If the adverse party fails to comply the Court shall motu proprio or upon motion
issue an order of execution and this is without prejudice to the liability of the adverse
party or the defendant in contempt.

May interlocutory order enforced by execution?

NO, with the SINGLE EXEPTION OF an ORDER OF SUPPORT PENDENTE LITE

(Interlocutory order)

Suppose the adverse party/ defendant has been giving support to the applicant/ plaintiff, but
then in the judgment of the Curt in the main case, the Court finds that he is not liable to give
support? What is the remedy?

If the Court finds that the person who has been providing support is not after all liable to
give support, it shall order the recipient to RETURN the amounts paid plus interest from dates of
actual payment.

**Suppose he cannot return it anymore?

If the recipient fails to return, the person who provided for the support may file a
separate action and seek reimbursement from the person who is really obliged to give
support to the applicant.

***Suppose he cannot also reimburse?

NOBODY TOLD US THAT LIFE IS FAIR. Hahahaha. Charge it to

experience. XD

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SPECIAL CIVIL ACTIONS
Rules 62-65

Civil Actions may either be ORDINARY or SPECIAL.

1. Interpleader (Rule 62)

- also referred as an Interpleading action.

- there are several claimants with conflicting claims over the same subject matter.
- they will be known as CONFLICTING claimants.
- Example is WAREHOUSE man,
PURPOSE: to compel conflicting claimants to interplead and litigate their claims between
themselves.

When is Interpleader proper?

Whenever conflicting claims upon the same subject matter are made against a person who
claims no interest whatever in the subject matter. He may bring an action against the conflicting
claimants to compel them to interplead and litigate their claims among themselves.

What would be the remedy of a warehouseman so that he will not be liable to any one of
them?

To protect himself, he may institute an INTERPLEADER to compel them to interplead

and litigate their claims between themselves.

What are the steps?

A complaint will be filed by X against the claimants.

Upon the filing of the complaint the Court shall issue an order requiring a defendant to
interplead to one another.

Then the Court may order that the subject matter to be paid or to be delivered to the Court.

Then summonses shall be issued to the claimant with the copy of the order and the
complaint.

Then there will be a pretrial, presentation of evidence etc.

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2. Declaratory Relief and similar remedies (RULE 63)

Declaratory Relief

- a special civil action brought before the RTC by a person who is interested with a deed,
will, contract or other written instrument OR whose rights are affected by a statute, EO, regulation
or ordinance or any other government regulation before the BREACH or violation thereof, Asking
the Court to determine any question of construction or validity arising therefrom and for
declaration of his rights and duties thereunder.

Statute and contract is very clear (no doubt) but still a petition was still filed to construe the
statute, what will happen?

The Court WILL refuse to act if the contract or statute is clear and there is no doubt as to
its meaning. No need for construction or declaration of rights.

What similar remedies may be brought under Rule 63 as a civil actions for Declaratory
relief?

. The following may be brought as similar remedies under rule 63 as civil actions for
declaratory relief:

1. An action for reformation of instruments

2. An action to quiet title or remove clouds from a real property
3. An action to consolidate ownership under ART. 1607 of the CC

HOWEVER, though it is stated that it should be filed to the RTC, the law that will govern
is still the Law in Jurisdiction in these 3 cases.

Appropriate Regional Trial Court.

An action for quieting of title to a real property is a real action, although it is a

REMEDY that may be filed under the RULE 63, and the assessed value of the land is 10,000
(jurisdiction of the MTC) filed in the RTC. RTC Dismiss

Is the dismissal of the RTC correct?

YES because what will govern should be the LAW in JURISDICTION.

Before Breach or violation thereof

The contract or statute must not yet be violated. If so, a petition for declaratory relief can
no longer be filed.

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NOTE:

Different from ordinary Civil Action because in OCA, there must be a cause of
action, and there can only be such if the plaintiff has a right to be respected and the
defendant violates that right.

Here, in DR, the concept of cause of action I not applicable, because for a petitioner
to be able to maintain an action for DR, he must show that there was no violation of a
contract or a statute.

If there is no violation of the contract yet, and then a petition for DR was filed asking the Court to
determine the validity of the Contract and for the court to declare your rights and obligations under
the Contract THEN, DURING THE PENDENCY OF THE ACTION IN COURT, A VIOLATION
OCCURS -----

Then the Action for DR, is automatically converted into an ordinary civil action.

WHO ARE the Parties in Petition for DR?

All persons who have or claim an interest which would have be affected by the declaration
shall be made parties.

If it involves the validity of statutes, EO or regulations or any other reg, then the Solicitor
General shall be notified and is entitled to be heard upon such question.

If a local ordinance is involved, then the corresponding city or municipal attorney shall be
notified, and if it alleged in the petition that the ordinance is unconstitutional, then the Solicitor
General shall also be notified and heard.

What is the purpose of the remedy DR?

The purpose of the remedy of declaratory relief is for the Court to interpret or determine
the validity of a written instrument and seek for a judicial declaration of the parties’ rights and
obligations thereunder.

What are the requisites?

The following are the requisites:

1. There must be a justiciable controversy

2. The controversy is between two person whose interest are adverse.

3. The party seeking the relief has a legal interest in the controversy.

4. The issue is ripe for judicial determination.

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 When do you say that the issue is ripe for judicial determination?

When a litigation involving a statute, or a written contract is

INEVITABLE.

Violation of the Rent is a violation of the LEASE contract. If lessor files a Declaratory relief.
May an action for declaratory relief be filed?

NO, because the contract has already been violated.

An action for reformation of a lease contract cannot be filed.

What then is the remedy of the lessor?

His remedy is Either an action for Specific performance or an action for rescission.

Galicto v. Pres. Aquino (2012)

Assailing the Validity of an Executive Order. Galicto files a petition for certiorari to assail
the validity of the EO. It was held in this case that a petition for certiorari IS NOT the proper
Remedy.

INSTEAD IT SHOULD BE A PETITION FOR DECLARATORY RELIEF TO ASSAIL

THE VALIDITY OF AN EXECUTIVE ORDER. And it should be filed with the RTC and not the
SC.

In Liga ng Brgy National v. City Mayor of Manila (Cited in Galicto Case)

In a petition for DR, is a third party complaint allowed?

NO.

Is a Compulsory counterclaim allowed?

YES.

HOWEVER, if a petition for DR, is filed and is pending in Court, and while it is pending, violation
of the contract is committed, then the action / petition is now converted into an ORDINARY CIVIL
ACTION and therefore a third party complaint is now allowed.

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3. Review of judgments or final order of the COMELEC and Commission on Audit
(Rule 64)

- the party aggrieved by the judgment may bring a petition with the supreme court to review
the judgment of the Comelec or COA (file a petition to SC)
- The final judgment of COMELEC or COA is REVIEWABLE by the SUPREME COURT
under RULE 65 (certiorari). BUT the period of filing it is only 30 days from notice of
judgment or final order sought to be reviewed. BUT when it comes to the COMELEC what
may be brought thru Certiorari to the SC is the judgment or final order issued by the
COMELEC En Banc.

4. Certiorari (Rule 65)

What is a certiorari?

It is a special civil action against a tribunal, board or officer, exercising judicial or quasi-
judicial function which is alleged in a verified petition filed by an aggrieved party to have acted
without jurisdiction or in excess of its jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction and there is no appeal or any plain speedy and adequate remedy in
the ordinary course of law praying for a judgment annulling, setting aside or modifying the
proceedings of such tribunal Board or officer.

Here, Certiorari as a special civil action may be brought by means of a VERIFIED Petition
against a tribunal or an officer exercising JUDICIAL or Quasi-Judicial functions.

** Thus, if the body is exercising a legislative function or executive function, then

this petition may not be tenable or filed.

That is why, in Certiorari as a special civil action it is required subject to some exceptions
that a motion for reconsideration should be filed. BECAUSE a MR has been said to be a SPEEDY,
PLAIN AND ADEQUATE REMEDY. (Ground prematurity of filing)

RULE 62-65 LEC 2

Certiorari, Prohibition and Mandamus

RULE 65

What is the Relief demanded in a petition for certiorari?

It is to annul, or set aside the proceeding of the respondent tribunal.

Here, it is important to show that there is no appeal or any plain or speedy and adequate
remedy in the ordinary course of law.

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NOTE:

Certiorari may still prosper notwithstanding the presence of an appeal when appeal is not
an adequate remedy. As when the public welfare and the advancement of public policy so
dictates it. When the broader interest of justice requires it or when the writs issued are null
and the question order amounts to an oppressive exercise of a judicial authority.

Petition for Review on Certiorari v. Petition for Certiorari

These are not the same.

A petition for review on Certiorari is a MODE OF APPEAL. While a petition for certiorari
is a SPECIAL CIVIL ACTION.

A PFROC is governed by Rule 45. A PFC is governed by Rule 65.

What are the distinctions between PFROC and PFC?

The following are the distinctions:

1. In a Certiorari, the issue is whether the respondent lower Court or Tribunal acted
without or in excess or with grave abuse of discretion. The issue is Jurisdictional.
While in a PFROC, the issue is based on a question of law.

In Certiorari, what is involved is a jurisdictional issue or an issue on

jurisdiction. While in a PFROC, the question presented is a question of law.

2. Certiorari addresses an interlocutory order prior to appeal, or even a final order or

judgment. While in PFROC, what is involved is a judgment or final order.

3. Certiorari is filed not later than 60 days from notice of the Judgment or resolution sought
to be assailed or denial of a motion for reconsideration if one is filed. While in PFROC,
the period of filing is 15 days from notice of the judgment subject of the petition.

4. A PFROC stays the judgment or Final order which is the subject of the petition, while a
certiorari does not stays the order, resolution which is the subject of the petition, unless a
TRO or a preliminary Injunction is Issued.

Why in Certiorari?

Because that is the effect of an appeal.

5. In a PFROC, the petitioner responded are the original parties in the case, and the lower
Court is not impleaded. Here, the parties in the Court below will be the same parties in the
petition and the Court issuing the decision is not impleaded as a respondent. While in

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 Certiorari. The tribunal or Court whose order or proceeding is being assailed is impleaded
as a respondent.

6. A PFROC does not require the filing of a motion for reconsideration prior to the filing
of the petition itself. But in Certiorari, a motion for reconsideration must be filed prior to
the filing of the petition itself.

Why is it require?

Because a MR may be deemed as plain, adequate, speedy remedy.

7. In PFROC, the Court in which the petition is filed is exercising appellate Jurisdiction.
While in Certiorari, the Court where petition is filed is exercising ORIGINAL jurisdiction.

8. A PFROC may only be filed in the SUPREME COURT under RULE 45. While a
Certiorari may be filed with the SC, CA or the RTC..

What are the instances when you may file a Petition for Certiorari even without first filing a
MR?

These are the exceptions to the requirement of MR:

1. When the order subject of the petition is a Patent nullity because the Court that
issued it has no jurisdiction.

2. The questions presented in the petition has been raised and pass upon by the
lower Court or tribunal.

3. There is an urgent necessity for a resolution.

4. Where a MR will be useless.

5. When the Petitioner is deprived of due process and there is an extreme urgency
for relief.

In Criminal cases, relief from order of arrest is URGENT and grant of relief
by trial Court is not probable.

6. The proceedings in the lower Court are a nullity for lack of due process.

7. The issue is purely of law and public interest is involved.

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*** PROHIBITION

Prohibition is a Special Civil Action against a tribunal, Corporation, Board or Person

exercising judicial, quasi-judicial and ministerial functions which alleged by an aggrieved party in
a verified petition to be acting or is about to act without jurisdiction or in excess of its jurisdiction
or with grave abuse of discretion amounting to lack or excess of jurisdiction.

There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law
PRAYING that judgment be rendered commanding the respondent to desist from further
proceeding in an action.

How do you distinguish Prohibition from Certiorari?

The following are the distinctions:

1. In Certiorari, the object/ purpose is to correct the respondent’s act by annulling the
proceedings. While the purpose of prohibition is to prevent the Commission of an act by
stopping the proceeding to prevent the respondent from committing an act complained of
by stopping the proceeding.

2. In a Certiorari, the assailed acts have already been done. But in a prohibition, the assailed
acts are about to be done or are being done.

3. In a certiorari, the respondent tribunal performs judicial or quasi-judicial functions.

While in a prohibition the respondent tribunal performs JUDICIAL OR quasi-judicial or
MINISTERIAL functions.

What do you mean by judicial function?

Judicial function is to determine WHAT THE LAW IS. As well as to determine what are
the legal rights of parties with respect to the matter in controversy. (INTERPRET the Law)

What is quasi-judicial function?

If the judicial act or the duty of determining what the law is, is PERFORMED BY ONE
who is NOT A JUDGE.

A quasi-judicial act or function is a JUDICIAL ACT or function performed by one who is

not a judge.

What do you mean by “GRAVE abuse of discretion”?

When it is a capricious or whimsical exercise of judgment as may amount to lack or excess

of jurisdiction.

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***MANDAMUS

Mandamus is a special civil action against a tribunal, corpo, board or officer, alleged in a
verified petition, filed by an aggrieved party to have unlawfully neglected the performance of an
act, which the law specifically enjoins as a duty and enjoyment of a right or office to which the
other is entitled.

There is no plain speedy or adequate remedy in the ordinary course of law. And the
RELIEF DEMANDED is to command respondent to do the act required to be done to protect the
rights of the petitioner.

Two ASPECTS of MANDAMUS:

1. The respondent unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, station or trust.

2. The respondent unlawfully excludes another from the use or enjoyment of a right
or office to which such other is entitled.

MANDAMUS IS AVAILABLE only to COMPEL the PERFORMANCE OF A MINISTERIAL

DUTY. But NOT to compel the performance of a discretionary duty.

When is an act said to be MINISTERIAL?

When an officer or tribunal performs an act in a given prescribed manner in obedience to

the mandate of legal authority without regard to the exercise of his own judgment.

But if the officer is given the authority of HOW and WHEN to act, he has to exercise his
judgment when and how to act on a certain matter, then the act is DISCRETIONARY.

Suppose there is a contract to the City Government, who fails to perform obligation arising
to the contract that is to pay you, can you compel the City government to pay you by way of
mandamus? Can you compel the City Government by Mandamus on its CONTRACTUAL
OBLIGATION TO PAY YOU?

NO, because mandamus is not available as a remedy to enforce CONTRACTUAL

OBLIGATION.

Then what is your REMEDY in Contractual obligation?

File an action for SPECIFIC PERFORMANCE. Because this is an obligation to DO.

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CONTINUING MANDAMUS

- incorporated in the rules of procedure in environmental cases

- DIRECTS the respondent to perform an act or series of acts until the judgment is fully
satisfied.

- Why do we have it?

To see to it that the judgment that a Court renders in an environmental case will not
become useless. Because a mandamus commanded to do an act or series of acts until the
judgment is fully satisfied.

MMDA v. The concerned citizens of Manila Bay.

How does Mandamus differs from Certiorari and Prohibition?

In mandamus, the respondent is exercising MINISTERIAL FUNCTION and he has

unlawfully neglected to perform this duty. OR the respondent excluded a party from occupying or
enjoying a privilege or a right to which that party is lawfully entitled, and the purpose is to compel
the respondent to perform an act.

In Certiorari, the respondent is exercising judicial, or quasi-judicial function.

In prohibition, the respondent is exercising, judicial, quasi-judicial or ministerial functions.

When to file?

60 days from notice of the assailed judgment or resolution but If a MR is filed and is denied
then the 60 days shall be counted from the notice of denial of the MR.

EFFECT

If the Court finds the petition to be sufficient in form or substance, then it will issue an
order directing the respondent to file his comment and NOT a Motion to dismiss.

RULE 66-67

QUO WARRANTO
Rule 66

- Literally means “by what authority”

- Quo Warranto is a special civil action to determine the right to the use and exercise of a
public office or franchise, and to oust the holder of its enjoyment if his claim is not well founded
or if he has forfeited his right to enjoy the privilege.

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 - The action may be commence for the government by the Solicitor General or by a public
prosecutor, or by a person claiming to be entitled to the public office or public position alleged to
be usurped or unlawfully held or exercise by another person.

- Where a PRIVATE person files the action, HE MUST PROVED that he is entitled to the
position being contested otherwise the respondent has a right to the undisturbed possession of his
office.

By what means and against whom?

- Quo warranto is brought by means of a VERIFIED petition in the name of the Republic
of the Philippines against:

1. a person who usurps, intrudes into or unlawfully holds or exercise a public office position
or franchise.

2. Or against a public officer who performs an act that constitute a ground for forfeiture of
his office.

3. Or against an association that acts as a corporation within the Philippines without being
legally incorporated or without a lawful authority to act.

Who can institute such?

1. An individual can bring the action in his name, when he is claiming to be entitled to a
public office or position alleged to be usurped or exercised by another.

2. May be commenced by the SOLICITOR GENERAL or a PUBLIC PROSECUTOR

when directed by the President or upon a complaint or otherwise he has good reason to
believe that a cause can be established by proof if by a complaint a request for indemnity
for expenses and cost may be required to be deposited.

In what Court may it be filed?

In the RTC or before the CA or SC.

If brought before the RTC, the RTC must be exercising jurisdiction over the area where
the respondent resides. BUT if the SOLGEN commences the action he may bring it before the
RTC in Manila or the CA or the SC.

When? filed within one year of the accrual of the cause of action arising from an ouster or
right to hold position. Although, it has been said that this 1 year does not run against the
government.

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Who will be parties? And what should be alleged?

When the action is against a person for usurping a public office, position or franchise, the
petition shall set forth the name of the person who claims to be entitled thereto, with the averment
of his right to the same and that the respondent is unlawfully in possession thereof.

ALL PERSONS who claim to be entitled to the position may be made parties and their
respective rights may be determine in the same action.

What will be the judgment?

A judgment where the respondent is found guilty of usurping, intruding into or unlawfully
holding or exercising a public office, position or franchise shall STATE that he be ousted and all
together excluded from that office and that the right of the petitioner may be determine as justice
require.

What is the distinction between Mandamus and Quo warranto?

Mandamus – if y unlawfully excluded X from enjoyment of the office. Does not cliam the
office, No intuition or usurpation (Remedy is Petition for Mandamus against Y)
BUT
Quo warranto – if Y intruded, usurp the Public office and claims the office (File a petition
for Quo Warranto)

This will depend on whether there was usurpation or not. Quo warranto if there is.

How will you distinguish a Quo warranto from an election protest?

1. In Quo warranto the issue is the disqualification or ineligibility of the proclaimed

candidate. (He is not qualified because not a Filipino citizen). In election protest, the issue is the
irregularity in an election. (There was votes that are not valid)

2. In QW, if the respondent is found to be ineligible, the petitioner does not occupy the
position. In EP, the petitioner will be sitted/ occupy the position.

Distinction between QW involving an elective position and QW involving an appointive

position?

1. In qw involving elective position, the issue is the eligibility or qualification of the

candidate elected. In qw involving appointive position, the issue is the legality of the appointment.

2. In qw involving ep, if the respondent is found to be ineligible or not qualified the second
highest vote geter, even if eligible cannot be declared elected. While in qw involving ap, the
resolution or decision shall determine who between the two of them is legally appointed and will
be declare to occupy the office.

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What are the distinction of Quo Warranto and Impeachment?

1. Quo warranto grants the relief of ouster (will be ousted). In impeachment the official
subject of the impeachment proceeding will be remove from office.

2. Quo warranto is the remedy to determine a person’s right or title to a public office and
to oust him from its enjoyment. Impeachment is the process to determine whether the public officer
committed any impeachable offense like culpable violation of the constitution, treason, bribery,
graft and corruption, betrayal of public trust or other high crimes.

3. Quo warranto is a judicial proceeding. Impeachment is a political process undertaken by

the legislature.

Impeachment will apply only to limited number of officials (impeachable under

constitution). Quo warranto will apply to anyone.

EXPROPRIATION

- Expropriation is the taking of private property for public use or purpose upon the payment
of just compensation. It is the way the power of eminent domain may be exercised.

How is the power of eminent domain exercised?

Thru Expropriation.

What is public purpose?

Generally means such activity which will serve as convenience, safety, welfare, advantage
or benefit to the entire community and not to a particular individual or class or group of person.

How is EXPROPRIATION exercise?

By filing a VERIFIED complaint stating with certainty the right and purpose of
expropriation describing the property sought to be expropriated and joining or impleading as
defendants all persons claiming ownership or possession over the property or any part thereof.

What can be expropriated?

All properties, real or personal may be expropriated, EXCEPT MONEY.

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May a local government unit (LGU) exercise expropriation?

Yes, but subject to the following requisites:

1. An ordinance must be enacted authorizing the Local Chief executive to exercise

the power of eminent domain. (not resolution)

2. The purpose is for public use, or welfare or for the benefit of the poor and the
landless.

3. There is a payment of just compensation.

4. A valid and definite offer was previously made to the owner but the offer was
not accepted.

Where to file the verified complaint?

With the RTC regardless of the assessed value or value of the property being expropriated.
Because an action for expropriation is incapable of pecuniary estimation.

*** After filing of a complaint summons will be served on the defendant, then the defendant may
file a manifestation stating that HE has NO OBJECTION or he has no defense to the action. OR
he may file an answer stating all objections and defenses to the taking of his property.

*** In action of expropriation, counterclaim, cross-claim, third party complaint is NOT allowed
in an answer or any subsequent pleading.

Suppose the defendant does not file an answer, may he be declare in default?

NO. There is no default in expropriation. The non-filing of an answer does not result to
default. And it does not bar him from presenting evidence regarding the just compensation for his
property.

Suppose the plaintiff would like to take possession of the property IMMEDIATELY, is it
possible?

Yes. If he deposit with an authorized government depositary an amount equal to the

assessed value of the property for purposes of taxation.

But if the one seeking to expropriate or the plaintiff is a Local Government Unit, then the
LGU may take possession if he deposit with the Court an amount equivalent to 15% of the Fair
Market Value of the property based on the current tax declaration.

If the expropriation involves Government infrastructure project under RA 8974 or “RIGHT

OF WAY” then the plaintiff seeking to expropriate may take immediate possession upon payment

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to the property owner or upon filing of the complaint of an amount equivalent to 100% of the value
of the property based on the Zonal value.

NOW, if the Court finds that the plaintiff has the right to expropriate, then the Court shall issue an
order of Expropriation, otherwise the Court will dismiss the case.

An order of dismissal or even an order of expropriation IS APPEALABLE (note)

IS IT THE END OF PROCEEDINGS?

NO, the moment the Court issues the order of expropriation, then the order will go to the
second stage.

Will it go to the second stage notwithstanding an appeal?

YES.

What is the second stage?

The determination of JUST COMPENSATION.

*** The order of expropriation is appealable but the appeal shall not prevent the determination of
JUST COMPENSATION.

Is it the Court that will determine Just compensation?

NO, because the Court is directed by the rules to appoint NOT more than 3 Commissioners
who will determine just compensation.

Suppose the Court issues an order of Expropriation, then the plaintiff discontinue the
proceedings because he does not need it anymore. Can the plaintiff dismiss the complaint
now?

NO, the plaintiff cannot dismiss or discontinue the case EXCEPT on terms that the Court
deems just and equitable.

What if plaintiff files a complaint for Expropriation, D does not file any answer at all, then
the Court finds that indeed the plaintiff is entitled to expropriate and so it issued an order of
expropriation, and then the plaintiff dismisses his complaint, Can he do it?

NO, if an order of expropriation is issued the plaintiff cannot dismiss or discontinue the
case EXCEPT on terms that the Court deems just and equitable.

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Suppose the plaintiff has made the deposit or the payment, so he is now entitled to enter upon
the property and take possession thereof. But the defendant appeals to the order of the
expropriation, May the right of the plaintiff to enter upon and take possession of the property
be delayed by an APPEAL?

NO. the right of the plaintiff to enter upon the property cannot be delayed by an appeal.

But if on appeal, the appellate Court determines that no right of expropriation exists then
it shall order the RTC to enforce restoration of the property and determine the damages that the
defendant has sustained.

Rule 68 & 69 Lec 1

What is just compensation?

Just Compensation is the full and fair equivalent of the property sought to be expropriated
considering the cost of the acquisition, current value of the properties actual and potential uses,
and in case of land, their size, shape and location.

Suppose if the public use is abandoned, shall the land be reverted to the owner?

The land that was expropriated shall not revert to the owner if the acquisition is in fee
simple and unconditional but if the land is subject to a condition that if the public use is abandon
the title will be reverted, then the former owner will reacquire the land.

Thus, it will depend on the condition of the expropriation.

FORECLOSURE OF REAL ESTATE

Rule 68

- Applicable also to foreclosure of chattel mortgage.

- it is a real action. Thus the venue is where the land is situated but if the foreclosure action
involves several parcels of land located in different provinces but there is only one
mortgage contract, then the foreclosure may be instituted/ filed in any place where one of
the parcels of land is located. And the judgment that the Court will render may be executed
in any provinces.

What will happen?

The plaintiff/mortgagee will file a complaint to foreclose the real estate mortgage. Then
the action will proceed like in a case of ordinary civil action.

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Against whom should the complaint be filed?

The defendants should be the debtor, the mortgagor (if the debtor is not the mortgagor
himself), (Indispensable party)

And all persons claiming an interest on the property that was mortgaged. Subordinate in
right to the mortgagee such as the second mortgagee, the subsequent attaching creditor, the
subsequent purchaser if any (they are merely necessary parties, they may or may not be
impleaded). However, if not impleaded, their equity of redemption shall remain and foreclosed.
So, they can exercise their equity of redemption even after the confirmation of the sale.

If it finds for the plaintiff/mortgagee, What will the Court do?

1. The Court will ascertain the amount due the plaintiff. (NOT DUE TO)

2. The Court will render judgment called Judgment on Foreclosure, for the sum so found
due. And it will order that the amount so found due shall be paid by the adverse party, the
mortgagor/debtor to the Court or to the judgment obligee, meaning the mortgagee. Within a period
not less than 90 days nor more than 120 days from entry of judgment (finality of judgment). It is
Appealable. (If appealed, no finality yet)

In case of failure to pay, the property will be sold to a public auction (foreclosure sale)

What do you call the period of not less than 90 days nor more than 120 days from entry of
judgment within which the mortgagor/debtor will pay into the Court or to the judgment
obligee the amount so found due?

It is the Mortgagor’s equity of redemption. He can exercise such within the period of not
less than 90 days nor more than 120 days from entry of judgment. But if not exercise, there will
be a sale, but he can still exercise such even beyond 120 days provided the Sale has not yet been
confirmed.

Assuming the mortgagor exercised his equity of redemption by paying to the Court or to the
Judgment obligee, what will happen to the proceedings?

The proceedings will come to an end. The foreclosure will end. End of the case.

But suppose he does not exercise his equity of redemption, fails to pay?

Then the judgment obligee should file for a motion for the sale of the mortgaged
property.

Then if the Court grants such, then the Court issues an order for the sale of the mortgaged
property in the manner and under the provisions stated under rule 39. (Foreclosure Sale)

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 Then the properties sold, same way as one conduct execution under rule 39. After the ale,
the judgment obligee Should file a motion in Court for the confirmation of the Sale.

Then if granted, the Court will issue an order confirming the sale. (This is a litigable
motion). The Court will not issue an order confirming the sale if the judgment obligee will not file
a motion.

Then if the Court issues an order confirming the sale, it is appealable but if the order
becomes final then it will now be registered in the office of the Register of deeds.

And the purchaser, from the foreclosure sale may now take possession.

If there are occupants, his remedy is to obtain a writ of possession.

EQUITY OF REDEMPTION

- period of not less than 90 days nor more than 120 days from entry of judgment. (Period
to exercise the equity of redemption before it will be sold)

May the mortgagor still exercise his EQUITY of REDEMPTION despite the sale of the
property?

Yes, provided the Court has not yet issue an order confirming the sale.

But then if the Sale has been confirmed, (Court issue an order confirming the sale), then
the mortgagor may no longer exercise his equity of redemption.

But what about those holding second mortgage (THE NECESSARY PARTY,
SUBSEQUENT…)?

If they were not impleaded as a party, then they will not bound to the judgment so they can
exercised the equity of redemption even after the finality of order confirming the sale BECAUSE
their Equity of Redemption remains and foreclosed.

What are the distinctions between EQUITY OF REDEMPTION and RIGHT OF

REDEMPTION?

The following:

1. The equity of redemption is the equitable right of the mortgagor to redeem the property
that was mortgaged. While Right of redemption is the statutory right of the mortgagor to redeem.

2. ER is available before the auction sale or foreclosure sale. While the right of redemption
is available after the foreclosure sale.

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 3. ER is available only in JUDICIAL foreclosure of mortgage. While RR, is available only
in EXTRAJUDICIAL foreclosure, but as an exemption, right of foreclosure is allowed in judicial
foreclosure when the mortgagee is a Philippine National Bank or a banking institution.

4. In ER, the period for it to be exercised is within 90 days but not more than 120 days
from entry of foreclosure judgment. While in RR, the right should be exercised within 1 year from
the date of registration of the sheriff’s certificate of sale.

But if the mortgagor is a juridical person, the right to redeem must be exercised until but
not after the registration of the certificate of sale which is in no case shall be more than 3 months
after the foreclosure, whichever is earlier.

But Sect. 47 of the Philippine General Banking Law, allows 1 year period of redemption.

** The Confirmation of the Sale shall operate to divest the right in the property of all the
parties to the action and to vest the rights to the purchaser, subject to such rights of
redemption as may be allowed by law if there is a right of redemption.

Upon finality of the order of confirmation OR upon expiration of the period of redemption if
allowed by law, The purchaser is entitled to POSSESSION, and may secure a writ of possession
from the Court ordering the sale.

So what is the remedy of the purchaser to obtain possession of the property?

File a petition for the issuance of a writ of possession.

What is to be registered is the order of CONFIRMATION, once it has attained finality. But
if it is right of redemption, the ANNOTATION in the registration is to await a final certificate
of sale to be executed by the sheriff.

NOTE:
If it is an extrajudicial foreclosure, the sheriff will issue a certificate of sale and then that
certificate of sale will be registered. And then from the time of its registration the mortgagor will
have one year to exercise his right of redemption. If the right of redemption is not exercise then
the sheriff will issue/ execute a final certificate of sale and that is what will be registered at the
office of Register of deeds.

BUT in a JUDICIAL foreclosure, what will be registered shall be the order of confirmation.

Suppose at the foreclosure, there is deficiency judgment, the proceeds of the sale would not
be enough to satisfy the judgment obligation, what is the remedy?

The mortgagee will file a motion for the Court to render Deficiency Judgment.

Upon filing of the motion, the Court shall render a judgment against the defendant for the
balance which then may be the subject of the execution.

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PARTITION
RULE 69

- there must be a coownership by two or more co-owners.

- The object of the partition is to divide and assign a thing that is held in common among
those to whom it may belong.
- The remedy of partition may be availed of regardless whether it involves real property,
personal or both.
- In an action for partition, all persons who claim to be co-owners must be impleaded and
join BECAUSE they are ALL INDISPENSABLE parties.

- IN THE NATURE OF QUASI IN REM ACTION

Who may file the action?

A person who claims to have an interest over a real property (he claims to be a coowner).
He may file an action for partition and in his complaint he may set forth the nature and extent of
his ownership and the description of the property. Joining as defendants all other persons who
claim to be co-owners of the property.

What are the steps in this action?

A person claiming to be a co-owner may file an action for partition. But if they can do the
partitioning themselves, then they can simply enter into EXTRAJUDICIAL PARTITION.

But if not, because one or some do not want a partition, or they cannot agree how, then the
only way is by means of a JUDICIAL PARTITION.

Who may be the plaintiffs?

Those who want partition.

1. Complaint will be filed and there will be a pretrial, then trial, then after trial, if the Court
finds that indeed the plaintiff is entitled to a partition, then it will issue an ORDER OF
PARTITION. Directing the parties to partition and divide the property. IT is APPEALABLE.

What are the actions where you can have MULTIPLE APPEALS?

1. Expropriation
2. Judicial Foreclosure of Mortgage
3. Partition

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 2. IF no appeal has been taken on the ORDER of partition and the parties can agree as to
how to partition, then the parties themselves may undertake the partition among themselves. They
can execute a PROJECT of PARTITION and then submit it to the Court for confirmation or
approval.

But if they fail to agree on how to partition, the Court shall appoint not more than
3 commissioners commanding them to partition the property among the parties.

Suppose the property is not capable of physical division?

If the property cannot be divided, the Court may order it to be assigned to one of the parties
willing to take the same. Provided he pays the other parties such amount as may be determined by
the commissioners although the property may also be sold and the proceeds of the sale will be
divided among the parties.

3. Then the commissioners will submit their report to the Court and the parties will have
10 days within which they have to file their objections to the findings of the commissioners. Then
at a later time the Court may approved the report of the commissioners and the Court will render
a judgment based on these report and the judgment will be called a JUDGMENT OF PARTITION.

And this judgment of partition may also be appealed.

Within what time may a party appeal from the ORDER or Judgment of Partition?

They have 30 days. And there should be a record on appeal.

When can be record of appeal? (DISCUSSED)

Multiple appeal / Separate Appeal

NOTE:

Equity of Redemption (When, distinctions to Right of Redemptions)

What are the steps, what happens if the mortgagor pays? Etc

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RULE 70 LEC. 1

1991 Revised Rules on Summary Procedure and RULE 70

Forcible Entry and Unlawful Detainer

- These are the 2 ejectment cases. (What is the two ejectment cases?)

What are the cases governed by the rule on summary procedure?

The following are the civil cases:

1. All cases of forcible entry and unlawful detainer

2. All other civil cases except probate proceeding where the total amount of the
plaintiff’s claim does not exceed 100 K pesos or 200 K pesos in Metro Manila, exclusive
of interest and cost.

If a complaint is filed with the MTC, what will the Court do?

It shall issue an order declaring whether or not the case shall be governed by the rule on
summary procedure.

If the Court declares that the case is governed by ROSP, then it will examine the complaint
and it will dismiss the complaint outright on any ground that is apparent therefrom. But if there’s
no ground is found apparent by the Court it shall issue summons that will state that the Rule on
summary procedure will apply and directing the defendant to file his answer within 10 days from
service of summons (PERIOD OF FILING).

*** Thus it is possible that the defendant win a case without even knowing it. Because the
case is dismissed even before he was served with summons.

What are the pleadings allowed?

The following are the only pleadings allowed:

1. The Complaint
2. The Compulsory Counterclaim which will be pleaded in an answer
3. The Cross claim which will be pleaded in an answer and
4. The answer thereto.

ALL PLEADINGS must be verified.

The defendant can file only counterclaim if he filed an answer to the complaint

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What are the prohibited motions or pleadings?

The following:

1. Motion to dismiss (except ---

1. Lack of jurisdiction over the subject matter or failure to comply with the
requirement of prior referral of the dispute to the Lupon]

2. Motion of a bill of particulars

3. Motion for New Trial or Motion for Reconsideration or Motion for reopening of
trial
But in MR, this is an MR of a judgment or a final order NOT MR OF
AN INTERLOCUTORY ORDER

4. Petition for relief of judgment

5. Motion for extension.

Suppose he fails to file an answer, and files a Motion for Extension, is

that allowed?

NO, it is a prohibited motion.

6. Memoranda / Memorandum

7. A petition for certiorari, prohibition or mandamus against an interlocutory order

8. A motion to declare defendant in default

** If a case is governed by the ROSP, a defendant cannot be declared in

default if doesn’t file an answer.

The case is governed by ROSP, Suppose MTC renders a judgment, the defendant receives a
copy of the judgment on July 1, on July 10 the defendant files a MR. Now, Aug 1, the MR
has not been resolved yet. Pending MR, has the judgment became Final?

YES, because the MR is a prohibited motion. And because it is a prohibited Motion it does
not suspend the period of perfecting an appeal.

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But suppose, the case is governed by ROSP, MTC renders a judgment adverse to the
defendant. The defendant file an appeal within the period of perfecting an appeal, thus the
case is now before RTC as an appellate Court, the RTC renders a judgment still adverse to
the defendant. The defendant files a MR asking the RTC to reconsider its judgment. Is the
MR a prohibited motion?

No, because a MR of a judgment is prohibited motion ONLY IF the ROSP is applicable.

The moment the case is brought on appeal to the RTC the ROSP no longer applies. Thus, the MR
of the judgment of the RTC is not a prohibited motion.

A case is governed by ROSP, parties are notified of a preliminary conference to be conducted

on a particular date stated on the notice on that day, the plaintiff fails to appear despite
notice to him and so the court dismiss his complaint, is the Court correct?

YES,

The plaintiff receives a copy of an order dismissing his complaint on a particular date. The
next day the plaintiff files a MR of the order dismissing his complaint. Is this MR
prohibited?

No, because it is a MR of an order that did not disposed of the case on its merit.

What if despite service of summons, the defendant does not file his answer within 10 days
from service?

Since no default, then the Court will render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for therein.

The Court will render a judgment …..

(May be dismiss, depending on the facts)

Suppose the defendant files an answer, may there be an instance on which although he filed
an answer the Court may still render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein?

YES, if although the defendant filed an answer, he fails to appear at the preliminary
conference despite notice, then the Court may render judgment as may be warranted by the facts
alleged in the complaint and is limited to what is prayed for therein.

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What are the instances wherein the Court may render judgment as may be warranted by the
facts alleged in the complaint and is limited to what is prayed for therein?

The following:

1. The defendant fails to file his answer within 10 days from service of summons
upon him

2. He files an answer, but he fails to appear at the preliminary conference despite

notice

Here, the Court on motion of the plaintiff or motu proprio shall render judgment as may be
warranted by the facts alleged in the complaint and is limited to what is prayed for therein

Suppose the plaintiff doesn’t file a motion?

The Court still directed to render a judgment although the plaintiff has not filed a motion.

Suppose the Court neglects to file a judgment, and when asked by SC to explain, his reason
is that no motion was filed, is it a justification?

No because even if no motion filed, still the Court has the duty to render the judgment. (on
motion or Motu proprio)

Suppose RTC affirmed a judgment of MTC, is the judgment of the RTC immediately
executory (the appealed case)?

YES, the rule says that the judgment of the RTC is immediately executory without
prejudice to any further appeal that the other party may take.

So the case is governed by ROSP, complaint is filed to MTC, will there be a hearing?

Hearing is not required if the case is governed by ROSP, and the MTC should not conduct
a hearing, instead the MTC shall decide the case on the basis of the position papers, affidavits by
the parties and their witnesses and other evidence submitted by the parties.

What are the procedures?

1. The filing of a verified complaint.

2. The Mtc issues an order declaring a case to be governed by ROSP

3. If so declared that the case is governed by the ROSP, then the Court may dismissed the
complaint on any ground that is apparent therefrom.

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 4. If the case is dismiss then that is the end of the proceedings before the MTC, but if not
dismiss, the Court will issue summons.

5. If no answer is filed, the Court shall render a judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for therein.

6. If answer is filed, then preliminary conference shall be conducted not later than 30 days
after the last answer is filed.

7. Within 5 days after the termination of the preliminary conference, the MTC shall issue
a preliminary conference order stating the matters taken up.

8. Within 10 days from receipt of the party of the preliminary conference order, the party
shall submit their respective position papers, their affidavits and that of its witnesses, and oter
evidence.

9. Within 30 days from receipt of the last position paper, affidavits and other evidence, the
MTC, the Court, shall render a judgment. But if the Court needs to clarify certain matters that are
not clear to the Court, then the court shall issue an order specifying the matters that need to be
clarified and require the parties to submit affidavits on those matters within 10 days from receipt
of the order.

10. Then the Court shall render judgment within 15 days from receipt of the last
clarificatory affidavit.

What are the 2 kinds of ejectment case or suit?

Forcible entry and unlawful detainer.

What is forcible entry?

Forcible entry is an action brought when a person is deprived of possession of a land or

building by force intimidation, stealth, strategy or threat. (FISTS)

What is Unlawful detainer?

Unlawful Detainer is an action brought by a lessor, vendor, vendee or any other person
against whom possession of a land or a building is unlawfully withheld after expiration or
termination of the right to hold possession by virtue of a contract express or implied.

** BOTH are called accions INTERDICTAL

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What are the actions to recover possession or ownership over a real property?

Then you have the following:

1. Accion interdictal

2. Accion publciana

3. Accion reivindicatoria

How do you distinguish Accion interdictal or forcible entry from Action publiciana?

The following are the distinction:

1. Accion interdictal/ Forcible entry is to be filed within 1 year from unlawful

dispossession of real property. While accion publiciana is filed a year after such
unlawful dispossession.

2. Accion interdictal is concerned with the issue of physical possession, possession

de facto or material possession of the real property. While, accion publiciana is
concerned with the issue of better right of possession, legal possession or
possession de jure over the real property.

3. Accion Interdictal is filed with the MTC regardless of the amount of the unpaid
rent or reasonable rental value thereof. While Accion Publiciana may be filed with
the MTC or the RTC depending on the assessed value of the real property involved,
if the assessed value does not exceed 20,000 pesos or 50,000 in Metro Manila, file
it with the MTC, if it exceeds, file it with the RTC.

Distinguish Accion interdictal from Accion Reivindicatoria.

The only distinction is Accion interdictal involves Physical possession of real property.
While Accion reivindicatoria involves ownership (recover ownership) (it includes possession).

What is Force in FISTS?

Force is implied from unlawful entry into a property. It is implied and it does not mean
that the trespasser has to institute a state of war.

Present whenever a defendant unlawfully enter a property.

What is stealth?

Stealth is the clandestine act to avoid discovery or to gain entry into a real property.

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RULE 70 LEC. 2

What are the Distinctions between forcible entry and unlawful detainer?

1. In FE, possession of the real property by the defendant is unlawful from the start
(beginning) (because of FISTS). On the other hand, in UD, defendant’s possession of the property
is inceptively lawful, that is lawful from the beginning and becoming unlawful at a later time.

2. In FE, previous demand to vacate is not required, In UD, demand to vacate, which is
jurisdictional, is required except if the ground is Expiration of the term of the lease. But the same
thing cannot be said if the ground is non-payment of rent.

What if it is demand to vacate and pay?

Yes it is sufficient.

If it is demand to pay, it does not convert the possession of the lessee from lawful
to unlawful,

3. In FE, plaintiff must alleged and proved that he was in prior physical possession until he
was deprive of possession by the defendant by means of FISTS. In UD, plaintiff need not be in
prior physical possession.

4. In Fe, the one year period to institute the action is counted from the date of actual entry
by the defendant into the property. In UD, the 1 year period is counted from the last demand to
vacate (Within the one year period).

Reiteration of demand to vacate – Not a Demand of vacate. Mere reiteration is not

included. Like Reiterating my demand to vacate dated July 16. The one year period
will be counted from july 16 and not from reiteration.

When is an action forcible entry and when is it unlawful detainer?

If at the start, defendants entry is unlawful because of by means of FISTS then the action
is an action for FE. But if the entry was at plaintiff’s TOLERANCE, then the case is a case of
UD and it should be instituted from the moment Demand to vacate is made.

Tolerance, like D enter a property and the owner knows about it but tolerated it. The
defendant did not use FISTS. Then D is possessing the property with the implied promise that he
will vacate upon demand. Thus, it is UD.

Where should the complaint be filed?

It shall be filed in the MTC of the city or municipality where the property is situated. It is
the MTC that have the exclusive original jurisdiction over the case of UD and FE

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What if in the complaint for UD, the plaintiff is also demanding the payment of unpaid rent
in the amount of 750,000 pesos. Will it still be MTC even with the amount of rent?

YES, because the claim for unpaid rent is merely incidental to the main cause of action
which is UD. The same thing if it is a case of FE, and the plaintiff is demanding the payment of
reasonable rental value beyond the jurisdictional amount of the MTC.

BUT if the Plaintiff files an action for collection of the unpaid rent worth 750,000 where
should it be filed?

Then this time, since it is purely an action for collection of that amount then it should be
filed to the RTC. NO UD or FE is filed.

*** Now the Judgment of the MTC if in favor of the plaintiff shall include RESTITUTION of the
property to the plaintiff and also the sum due as rent or reasonable rental value for the use of the
property. And it may also include payment of attorney’s fees and costs.

BUT if the Court finds that allegations in the complaint are not true, then it shall render judgment
for the defendant.

If the judgment of the Court is against the defendant, then the judgment is subject to
immediate execution. Execution shall issue immediately upon motion. The judgment will
become final after 15 days from receipt of the copy of the judgment by the party.

The rule is, even if the judgment is not yet final , because it is within the period of perfecting
appeal, yet the judgment is Already subject to immediate execution upon motion by the plaintiff,
notwithstanding that it is not yet final.. In both UD and FE

May the Defendant obtain a stay of execution? What should he do to have a stay of execution?

YES. Within the time for perfecting an appeal which is 15 days from notice of the
judgment, if the defendant wants a stay of execution. The defendant may stay execution by doing
all the following:

1. He must appeal;
2. He must post a supersedeas bond;
3. He must also make a periodic deposit of the monthly rental or of the reasonable
rental value of the property during the pendency of the appeal.

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Suppose the defendant appeals but he does not file a supersedeas bond, can he obtain stay of
execution?

NO. ALL SHOULD BE DONE.

IF not done, the judgment will now become subject to immediate execution.

What is the amount of the Supersedeas bond?

Is equivalent to the amount of rents, damages and costs accruing down from the time of
the judgment appealed from.

Where to file the supersedeas bond?

File it with the MTC as a rule. Since the rule requires that it be approved by the MTC. But
if the record of the case was forwarded to the RTC within the period of perfecting an appeal then
it may be filed with the RTC.

But to the RTC if appealed and the record of the case was no longer in the MTC. Although
this ordinarily do not happen.

What is the purpose of the supersedeas bond?

To assure the plaintiff that the judgment will be satisfied if it turns out that defendant’s
appeal is without merit

What is the purpose of the periodic deposit?

The purpose is while the appeal is pending, the defendant would be paying the rent that
would fall due during the pendency of the appeal. So that if the RTC will decide the case against
the defendant then the plaintiff has the assurance that all the unpaid rents and rents that became
due while on appeal will be paid.

But suppose the judgment of the MTC did not require the payment of the unpaid rent, which
is not correct, it simply requires the payment of attorney’s fees and litigation expenses,
should there be a supersedeas bond?

NO, because the supersedeas bond is intended to cover the unpaid rents, damages and cost
accruing down from the time of the judgment appealed from.

Suppose RTC rendered judgment against defendant in the appealed case and the defendant
would like to appeal to CA. May the defendant still obtains a stay of execution of the RTC
judgment by filing a supersedeas bond?

NO, the RTC judgment is IMMEDIATELY EXECUTORY and cannot be stayed by

supersedeas bond on appeal to the CA.

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 Suppose, the case was decided by the MTC against the defendant, the defendant appealed
to the RTC, where the defendant obtained a stay of execution of the MTC judgment while
on appeal to RTC. Then the RTC rendered a judgment on the appealed case, judgment is
IMMEDIATELY EXECUTORY even appealed to CA. ----

Suppose the RTC refuses to issue the writ of execution, upon plaintiff’s motion. What is the
remedy to compel them?

The remedy is MANDAMUS.

NOTE: in FE and UD the following provisional remedies are available:

1. Preliminary prohibitory injunction – to prevent the defendant from committing further

acts of dispossession against the plaintiff

2. Preliminary mandatory injunction – to restore plaintiff in his possession. But plaintiff

must file his motion for the issuance of the writ of Preliminary mandatory injunction within 5 days
from filing of his complaint. Then a PMI to restore plaintiff in his possession if the MTC has
already rendered a judgment. Plaintiff must file this motion within 10 days from perfection of
appeal and RTC will issue the writ if it is satisfied that defendant’s appeal is frivolous and dilatory
or plaintiff’s appeal is prima facie meritorious.

RULE 71 LEC 1

CONTEMPT

2 KINDS:

May either be:

1. Direct Contempt or Indirect Contempt

2. Criminal Contempt or Civil Contempt

When a person is adjudged in DIRECT contempt by any court. What is his remedy?

His remedy is either Certiorari or Prohibition.

This person adjudged in direct contempt cannot appeal in the order finding him guilty of
DIRECT CONTEMPT PENDING the resolution of his petition for Certiorari or Prohibition. The
Execution of the judgment is suspended provided he files a Bond fixed by the Court who rendered
the judgment. And conditioned that he will abide by the judgment should his petition be decided
against him.

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If a person is adjudged in INDIRECT CONTEMPT?

His remedy is Appeal from the judgment or final order finding him guilty of indirect
contempt.

The Execution of judgment may also be suspended provided he files a bond.

What is the penalty for DIRECT Contempt?

Rule 71 (sec. 1) SECTION 1. Direct contempt punished summarily.— A person guilty of

misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before
the same, including disrespect toward the court, offensive personalities toward others, or refusal
to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully
required to do so, MAY BE SUMMARILY ADJUDGED in contempt by such court and
punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a
fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if
it be a lower court. (1a)

What constitute Direct contempt?

Misbehavior in the presence of or so near a court as to obstruct or interrupt the

proceedings before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or
deposition when lawfully required to do so,

Distinguish Direct from Indirect Contempt.

Direct contempt may be punished summarily. But Indirect contempt cannot be punished
summarily, there must be a charge against the person alleged to have been committed a
contemptuous conduct.

What are the acts punishable by indirect contempt?

Sec. 3 After charge in writing has been filed, and an opportunity given to the respondent
to comment thereon within such period as may be fixed by the court and to be following acts may
be punished for indirect contempt:

(a) Misbehavior of an officer of a court in the performance of his official duties or in his
official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,

including the act of a person who, after being dispossessed or ejected from any real property by
the judgment or process of any court of competent jurisdiction, enters or attempts or induces

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another to enter into or upon such real property, for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession given to the person adjudged to be entitled
thereto;

- liked there is a judgment it became final, judgment directs the defendant to vacate
a real property subject of the case. Then a writ of execution was implemented, the plaintiff
is now restored in possession. THEN, after few days or weeks the defendant attempts to
retake the possession of the property or tell another to do so..

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court
not constituting direct contempt under section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

- Not simply pretend BUT ACT as a lawyer.

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by
virtue of an order or process of a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process
to bring the respondent into court, or from holding him in custody pending such proceedings. (3a)

If it is Indirect Contempt, how may the proceeding initiated or commenced?

It may be commenced either:

1. motu proprio by the Court. HOW? – The Court will issue an order or any formal
charge requiring the respondent to show cause why he should not be punished by
contempt. OR

2. By filing a VERIFIED petition against the respondent. A petition for contempt.

It must comply to all the requirements of an INITIATORY PLEADING like certification
of non-forum shopping and there will be payment of docket fees or filing fees and it will
be docketed like a in any civil action. BECAUSE, CONTEMPT is a special civil action.

When may the proceedings for indirect contempt be commenced motu proprio by the Court
or by a Verified Petition?

If the act constituting Indirect Contempt is within the knowledge of the Court, then the
proceeding may be commenced MOTU PROPRIO by the Court. The Court will simply issue an

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order or any formal charge requiring the respondent to show cause why he should not be punished
in contempt if it is within the knowledge of the Court. LIKE failure to obey subpoena duly served.

BUT if the Court has no Knowledge of the Misbehavior constituting indirect contempt then
it should be initiated by means of a VERIFIED PETITION not by a mere motion.

*** The submission of a false certification on non-forum shopping will constitute Indirect
Contempt of Court. Suppose it is discovered or shown that the certification on non-forum shopping
submitted by a party is false, may the party be punished Indirect contempt immediately?

NO, because if it is indirect contempt there must be a FORMAL CHARGE.

THE REVISED KATARUNGAN PAMBARANGAY LAW Lec 1

- PD 1508 is now incorporated in Local Government Code

* Local Government Code

- Creates the Lupon Tagapamayapa and the Pangkat Tagapagkasundo

Lupon Tagapamayapa (Lupon)

- members are PERSONS in AUTHORITY

* LGC allows the creation in each barangay a Lupon Tagapamayapa and the Pangkat
Tagapagkasundo.

A dispute is first referred to the LUPON

Every Barangay have a LUPON

- Chairman is the Barangay Captain
- has a standing membership from 10-20 members

* If a dispute is not settled by or in the LUPON, then the dispute MAY BE referred to the
Pangkat tagapagkasundo (PANGKAT). And the parties of the dispute will choose the
members of the pangkat from among the members of the Lupon. The members of the
Pangkat shall be 3 chosen from the members of the lupon.

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ALL DISPUTES shall require conciliation before the LUPON

- in a civil case, all disputes must be referred before the Lupon before you can file
an action in Court.

But the following are the exceptions (referral to the lupon is not needed):

1. Where one party is the government or any subdivision or instrumentality thereof;

2. Where one party is a public officer or an employee and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding 5,000
pesos.
4. Offenses where there is no private offended party
- like illegal possession of firearm
5. Where the dispute is brought by or against a corporation, a partnership or a
juridical entity.
6. Where the dispute involves real properties located in different cities or
municipalities. UNLESS, the parties agree to submit their defenses to amicable
settlement by an appropriate Lupon.
7. Where the dispute involves parties who actually reside in a different cities or
municipalities.
8. Such other classes of disputes which the President may determine in the interest
of justice or upon the recommendation by the Secretary of Justice.
9. Disputes arising from the implementation of the CARP.
10. Employer-Employee disputes.
11. An action to annul a judgment upon a compromise.

In addition to this, a party may file his case directly in Court in the following:

1. The accuse is under detention

2. A person have been deprived of personal liberty calling for Habeas Corpus
proceeding.

3, When an action is coupled with a provisional remedy.

- like a complaint with application of TRO or writ of replevin etc..

4. Where the action may otherwise be barred by prescription.

- ALL DIRECTLY IN COURT WITHOU GOING THRU LUPON

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What is the Venue for conciliation?

The following would be the venue:

1. If the dispute is between persons actually residing in the same barangay, then
the venue is the LUPON of the said Barangay.

- not the place of residence, where he actually resides

2. If between actual residence of different barangays but within the same City or
Municipality, the Lupon where the respondent resides. If there be several
respondents before the Lupon anyone of them resides at the election of the
Complainants.

3. If the dispute involves Real Property or any interest therein the venue shall be
the Lupon of the barangay where the property or a larger portion of the property
is located

4. If the dispute is one that arises in the workplace where the contending parties are
employed, or in the institution where such parties are enrolled for study then the
venue for conciliation shall be the lupon of the barangay where the workplace or
institution is located.

But suppose the dispute was referred to the wrong Lupon, the Lupon of the Barangay is NOT the
correct venue. Thus, an improper venue.

Then, the law tells us that any objection to venue shall be raised before the Punong
Barangay. Otherwise the objection is waived.

So what are the steps or the procedure for conciliation for settlement before the lupon?

1. The filing of the complaint. Maybe oral or written. Filed with the Lupon chairman of the
Barangay (Kapitan)

2. Mediation by the lupon chairman on the next working day from the receipt of the
complaint. If mediation fails, within 15 days from the first meeting, the chairman of the lupon
shall set the date for the constitution of the PANGKAT.

Three to be selected by the parties themselves from the Lupon members.

The 3 members will select their chairman.

3. Then, the Pangkat shall convene not later than 3 days from constitution. To hear the
parties and explore the possibility of an amicable settlement within 15 days from the day it
convenes.

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 4. Then, if no settlement is arrived at, the purpose is to get the parties agree to settle, but if
none, or there is a failure of settlement/conciliation, THEN a certification to FILE AN ACTION
will be issued. Then the complainant may now go to court.

5. BUT, if they are able to agree to a settlement, then the next step shall be that the amicable
settlement shall be put into writing and it shall be in the language r dialect known by the parties,
signed by them and attested by the Lupon or the Pangkat chairman.

What is the effect of an amicable settlement?

From the date of the amicable settlement any party may REPUDIATE the amicable
settlement within 10 days from the date of such.

If not repudiated, it has the effect of a final judgment.

Who and When may a party repudiate?

Any party may REPUDIATE the amicable settlement within 10 days from the date of the
amicable settlement.

How to repudiate?

By filing a statement of repudiation with the Lupon Chairman.

On what ground for repuiation?

That the consent of the party repudiating was vitiated by fraud, violence or intimidation.

What happens if the amicable settlement is repudiated?

The repudiation will be a sufficient basis for the issuance of a certification to file action.

*The certification to file action shall be attached with the complaint that will be filed in Court.

How will the amicable settlement be enforced?

If the party who has an obligation under the amicable settlement does not comply the terms
or disregards such, and the other party wants to enforce it, it must be BY MEANS of MOTION
(Motion of execution) within 6 months from the date of the settlement. He will file it to the
Lupon because there is no action in court.

After 6 months, such may be enforced by an Action (Civil action/case) in the appropriate
MTC.

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What are the option of the party if the compromise is not complied with?

1. Enforce the AS by execution or by action.

2. Regard the compromise agreement as rescinded and insist upon his original demand
(Art. 2041)

May the parties submit the dispute for arbitration?

Arbitration is the process of resolving the dispute OUTSIDE the Court system by
presenting it to a third party called “Arbitrator” or a panel of As. Here the arbitrator can render a
decision.

YES, they can. But they have to execute and sign a written agreement to arbitrate. Stating
that they shall abide to the arbitration award (ARBITRAL AWARD).

May the written agreement to arbitrate be repudiated?

YES, within 5 days from the date of the written agreement to arbitrate. After 5 days if not
repudiated, but within 10 days, the Lupon Chairman or the Pangkat chairman shall make an
arbitration award. The arbitration award shall be in writin in the language or dialect known to the
parties.

Are the parties bound by the arbitration award?

YES.

Can they repudiate an arbitration award?

No, An AW cannot be repudiated. But the remedy against an arbitration award is a

petition for its nullification within 10 days from the award.

If no petition for nullification is filed within 10 days, then it shall have the effect of a final
judgment. Then it can be enforced just like that of an Amicable settlement.

NOTE:

The appearance of a LAWYER before the Lupon or the PANGKAT is PROHIBITTED.

Suppose one of the parties is a minor or incapacitated, then the law says that he shall be or may be
represented by his next of KIN who is NOT A LAWYER.

REACTION on CLEP SEMINAR.

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