Civil Procedure (Rules 62-71)

7/30/2019 Civil Procedure (Rules 62-71)

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Civil Procedure Rules 62 71 Rule 62 Interpleader

1. Interpleader

1. Original action2. Presupposes that the plaintiff has no interest in the subject matter of the action or has an

interest therein which, in whole or part, is not disputed by the other parties to the action;3. Complaint in interpleader must be answered 15 days from service of summons.

Rule 63 Declaratory Relief and Similar Remedies

1. Requisites for action for declaratory relief:

1. Subject matter of controversy is a deed, will, contract, or other written instrument, statute,executive order, or regulation, or ordinance;

Court may refuse to adjudicate where decision would not terminate the uncertainty orcontroversy which gave rise to the action OR where the declaration is not necessary and proper atthe time;

2. Terms and validity thereof are doubtful and require judicial construction;3. No breach of the document, otherwise ordinary civil action is the remedy;

Must be before breach is committed, as in the case where the petitioner paid under protest thefees imposed by an ordinance. Declaratory relief still proper because the applicability of theordinance to future transactions still remains to be resolved, although the matter could be

threshed out in an ordinary suit for the recovery of the fees paid.

4. There is an actual justiciable controversy between persons whose interests are adverse;5. The same is ripe for adjudication;6. Adequate relief is not available through other means or other forms of action or proceeding.

Rule 64 Review of Judgments and Final Orders or Resolutions of the Commission onElections and The Commission on Audit

For petition for review of judgments and final orders of the COMELEC and COA period to file is30 days to be counted from notice of the judgment or final order or resolution sought to bereviewed and not from the receipt of the denial of the Motion for Reconsideration; the period to

file petition is merely interrupted by the filing of the Motion for Reconsideration and continues torun again for the remaining period which shall not be less than 5 days from notice of denial. Rule 65 Certiorari, Prohibition and Mandamus

1. 1. Certiorari1. Purpose to correct an act performed by respondent;2. Act sought to be controlled discretionary acts;3. Respondent one who exercises judicial functions and acted with grave abuse of discretion or in

lack or excess of jurisdiction.
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4. Generally directed against an interlocutory order of the court prior to appeal from the judgmentin the main case;

5. Need merely be filed seasonably (within 60 days), without undue delay and before the act,order, or proceedings, sought to be reviewed or set aside has become fait accompli such thatany reversal thereof shall have become academic;

6. Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged order;7. Parties are the aggrieved parties against the lower court or quasi-judicial agency and the

prevailing parties;8. Motion for reconsideration is a condition precedent, subject to certain exceptions;9. Higher court exercises original jurisdiction under its power of control and supervision over the

orders of lower courts.

If CA reverses the judge, the latter may not go the SC via a petition for certiorari. He is merelya nominal party, and he should not seek the reversal of a decision that is unfavorable to theaction taken by him.

Professional Regulation Commission vs. CA It is well settled that the remedies of ordinaryappeal and certiorari are mutually exclusive, not alternative or successive. However, it has alsobeen held that after a judgment has been rendered and an appeal therefrom had been perfected,a petition for certiorari relating to certain incidents therein may prosper where the appeal doesnot appear to be a plain, speedy and adequate remedy. In this case, the SC noted that, whilepetitioners tried to justify their recourse to both an appeal and to a petition for certiorari byclaiming that their appeal would not constitute a plain, speedy and adequate remedy, they didnot see fit to withdraw or abandon said appeal after filing the petition. Thus, both the CA and SCare reviewing the same decision of the RTC at the same time. Such a situation would lead toabsurdity and confusion in the ultimate disposition of the case.

1. 2. Prohibition2. 3. Mandamus3. 4. When SC allows the writ of certiorari even when appeal is available and proper:4. 5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari:

1. 6. The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order, or resolution sought to be reviewed.

1. Purpose to prevent the commission or carrying out of an act;2. Act sought to be controlled discretionary and ministerial acts;3. Respondent one who exercises judicial or non-judicial functions.1. Purpose to compel the performance of the act desired;

2. Act sought to be controlled ministerial act;3. Respondent one who performs judicial or non-judicial functions.1. Appeal does not constitute a speedy and adequate remedy;2. Orders were issued either in excess of or without jurisdiction;3. For certain special considerations, such as public welfare or policy;4. Where in criminal actions, the court rejects rebuttal evidence for the prosecution, as in

acquittal;5. Where the order is a patent nullity;


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6. Where the decision in the certiorari case will avoid future litigation.1. Order is a patent nullity;2. Questions raised in the certiorari proceeding were duly raised and passed upon by the lower

court, or are the same as those raised and passed upon in the lower court;3. Urgent necessity for the resolution of the question and any further delay would prejudice the

interests of the government;4. Under the circumstances, a motion for recon would be useless;5. Petitioner was deprived of due process and there is extreme urgency for relief;6. Where in a criminal case, relief from order or arrest is urgent and the granting of such relief by

the trial court is improbable;7. Proceedings in the lower court are null for lack of due process;8. Proceeding was ex parte or in which petitioner had no opportunity to object;9. Issue raised is one purely of law or where public interest is involved.

In case a motion for reconsideration or new trial is timely filed, whether such motion isrequired or not, the 60-day period shall be counted from notice of the denial of said motion. (SCCircular 56-2000, effective September 1, 2000) No extension of time to file thepetition shall be granted except for compelling reason and in no case exceeding 15 days. (SCCircular 56-2000)

Rule 66 Quo Warranto 1. 1. Quo Warranto distinguished from Election Contest:

Quo Warranto Election Contest

Basis is that occupant is disqualified fromholding office by reason of ineligibility or

disloyalty

Challenge rights of a person to hold office onthe ground of irregularities in the conduct of

the election

If successful, respondent is ousted butpetitioner shall not automatically assumethe office vacated

Successful protestant will assume office if hehad obtained plurality of valid votes

Rule 67 Expropriation1. In expropriation, the complaint must be verified.2. The defendant can only file an answer instead of a motion to dismiss

1. The final order of expropriation is appealable, but the lower court may determine thejust compensation to be paid.

The power of eminent domain is exercised by the filing of a complaint which shall join asdefendants all persons owning or claiming to own, or occupying, any party of the expropriatedland or interest therein. If a known owner is not joined as defendant, he is entitled to intervenein the proceedings; or if he is joined but not served with process and the proceeding is already


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closed before he came to know of the condemnation, he may maintain an independent suit fordamages.

Rule 70 Forcible Entry and Unlawful Detainer 1. 1. Forcible entry distinguished from Unlawful detainer

Forcible entry Unlawful detainer

Possession of land is unlawful from thebeginning due to force, intimidation, threat,strategy or stealth

Possession of defendant is inceptively lawfulbut becomes illegal by reason of terminationof right of possession

No requirement of previous demand fordefendant to vacate premises Demand is jurisdictional

Plaintiff must prove that he was in priorphysical possession until he was deprivedthereof by defendant

Plaintiff need not have been in prior physicalpossession

1-year period counted from date of actualentry or when plaintiff learned thereof. 1-year period from date of last demand

2. When prior demand in unlawful detainer actions not required;

1. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract;

2. Purpose of suit is not for ejectment but for enforcement of terms of contract;3. When defendant is not a tenant but a pure intruder

In all other cases, there must be a demand:

1. To pay or to comply with the conditions of the lease; AND2. To vacate by written notice on the person in the premises or by posting such notice on the

premises if no person is found thereon and this is a condition precedent to the filing of the case;ORAL demand is not permitted.

1. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated bythe Rules.

3. When the defendant raises the issue of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the latter issue shall beresolved only to determine the issue of possession.


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A forcible entry/unlawful detainer action has an entirely different subject matter from that of an action for reconveyance. The former involves material possession, and the latter, ownership.Thus, the pendency of an action for reconveyance does not divest the MTC of its jurisdiction overan action for FE/UD, nor will it preclude execution of judgment in the ejectment case where theonly issue involved is material possession.

Rule 71 Contempt 1. 1. Criminal contempt2. 2. Civil Contempt3. 3. Direct Contempt (contempt in facie curiae )4. 4. Indirect Contempt1. Purpose is to vindicate public authority;2. Conduct directed against the dignity or authority of the court.1. Purpose is to protect and enforce civil rights and remedies for the litigants;2. Failure to do something ordered by the court for the benefit of a party.

1.

Committed in the presence of or so near a court or judge;2. Punished summarily without hearing;3. No appeal may be taken but the party adjudged in contempt may avail himself of actions of

certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixedby the court is filed.

1. Not committed in the presence of the court;2. Punished only after hearing complaint in writing or motion or party or order of court requiring

person to appear and explain, opportunity to appear and show cause.

Reference: Remedial Law (Civil Procedure) Memory Aid Ateneo Central Bar Operations 2001 Posted in Civil Procedure

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Tags: Civil Procedure - Rules 62 - 71

Civil Procedure Rules 51 60 DEC 19

Posted by Magz Rule 51 Judgment

1. Memorandum decisions are permitted in the CA.2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are

signed by the Justices taking part, they shall be delivered for filing to the clerk who shallindicate thereon the date of promulgation and cause true copies to be served upon parties orcounsel.

3. Date when judgment or final resolution becomes executory shall be deemed as date of entry.
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RULE 56 Procedure in the Supreme Court 1. 1. Original cases cognizable exclusive list:1. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus ;2. Disciplinary proceedings against judges and attorneys;3. Cases affecting ambassadors, other public ministers, and consuls.

2. An appeal to SC can only be taken by petition for review on certiorari, except in criminalcases where the penalty imposed is death, reclusion perpetua, or life imprisonment.

3. Grounds for dismissal of appeal by SC

1. Failure to take appeal within the reglementary period;2. Lack of merit in the petition;3. Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs;4. Failure to comply with the requirements regarding proof of service and contents of and the

documents which should accompany the petition;5. Failure to comply with any circular, directive or order of the SC without justifiable cause;6. Error in choice or mode of appeal7. Case is not appealable to the SC.1. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.2. General Rule: Appeal to SC by notice of appeal shall be dismissed.

Exception: In criminal cases where the penalty imposed is life imprisonment, or when a lesserpenalty is imposed but involving offenses committed on the same occasion or arising out of thesame occurrence which gave rise to the more serious offense for which the penalty of death or lifeimprisonment is imposed (Section 3, Rule 122)

1. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA fordecision or appropriate action, without prejudice to considerations on whether or not to give

due course to the appeal as provided in Rule 45.

Provisional Remedies

Provisional remedies (ancillary/auxiliary)

Writs and processes available during the pendency of the action which may be resorted to by alitigant to preserve and protect rights and interests therein pending rendition, and for the purposeof ultimately affecting a final judgment in the case.

PROVISIONAL constituting temporary measures availed of during the pendency of the action.

ANCILLIARY incidents in and dependent on the result of the main action.

Rule 57 Preliminary Attachment 1. 1. Preliminary Attachment


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1. Available even if the recovery of personal property is only an incidental relief sought in theaction;

2. May be resorted to even if the personal property is in the custody of a third person;3. Extends to all kinds of property, real or personal or incorporeal;4. To recover possession of personal property unjustly detained, presupposes that the same is being

concealed, removed, or disposed of to prevent its being found or taken by the applicant;5. Can still be resorted to even if the property is in custodia legis , as long as the property belongs

to the defendant, or is one in which he has proprietary interests, AND with permission of thecourt

2. Grounds

1. Recovery of specified amount of money and damages, except moral or exemplary, where party isabout to depart from the Phils with intent to defraud creditors;

2. Action for money or property embezzled or for willful violation of duty by public officers,officers of corporation, agent, or fiduciary;

3. Recovery of possession of property (both real and personal) unjustly detained, when theproperty is concealed or disposed of to prevent is being found or taken;

4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in theperformance thereof;

5. Action against party who is concealing or disposing of property, or is about to do so, with intentto defraud creditors;

6. Action against party who is not a resident of the Phils and cannot be found therein or upon whoservice by publication can be made.

3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

Enforcement of writ of preliminary attachment must be preceded by or simultaneouslyaccompanied by service of summons, copy of complaint, application and affidavits for theattachment and the bond upon the adverse party; BUT the requirement of prior orcontemporaneous service of summons shall not apply where the summons could not be serveddespite diligent efforts, or the defendant is a resident of the Phils temporarily absent therefrom,or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem .

1. 4. When preliminary attachment is discharged1. a. Debtor posts a counterbond or makes requisite cash deposit- if attachment to

be discharged is with respect to particular property, counterbond or deposit shall beequal to the value of the property as determined by the court; in all other cases, amount

of counterbond should be equal to the amount fixed in the order of attachment.

CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THATATTACHING PARTY MAY RECOVER

1. b. Applicants bond is insufficient or sureties fail to justify; 2. c. Attachment was improperly or irregularly issued;3. d. Property attached is exempt from execution;


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4. e. Judgment is rendered against attaching party;5. f. Attachment is excessive discharge is with respect to the excess

5. Application for discharge may only be filed with the court where the action is pending andmay be filed even before enforcement of the writ so long as there has been an order of

attachment.

6. When to apply for damages against the attachment bond

1. Before trial;2. Before appeal perfected;3. Before judgment becomes executory;4. In the appellate court for damages pending appeal, before judgment becomes executory.1. 7. When judgment becomes executory, sureties on counterbond to lift attachment are charged

and can be held liable for the amount of judgment and costs upon notice and summary hearing.There is no need to first execute judgment against the judgment obligor before proceeding

against sureties.2. 8. Claims for damages cannot be subject of independent action except :

1. a. When principal case is dismissed by the trial court for lack of jurisdictionwithout giving the claiming party opportunity to prove claim for damages;

2. b. When damages sustained by a third person not a party to the action.Rule 58 Preliminary Injunction

1. 1. Preliminary injunction distinguished from Prohibition

Preliminary Injunction Prohibition

Generally directed against party to theaction but may be against any person

Directed against a court, tribunal, or personexercising judicial powers

Does NOT involve the jurisdiction of thecourt

May be on the ground that the court againstwhom the writ is sought acted without or inexcess of jurisdiction;

May be main action itself or just aprovisional remedy in the main action

Always a main action

2. Grounds for Preliminary Injunction

1. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction);

2. The commission of acts or non-performance during pendency of litigation would probably workinjustice to the plaintiff;


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3. Defendant is doing or about to do an act violating plaintiffs rights respecting the subject of theaction and tending to render judgment ineffectual.

3. Injunction may be refused or dissolved when:

1.

Complaint is insufficient;2. Defendant is permitted to post a counterbond it appearing that he would sustain great andirreparable injury if injunction granted or continued while plaintiff can be fully compensated;

3. Plaintiffs bond is insufficient or defective

4. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverseparty and hearing.

5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:

When an application for a writ of preliminary injunction or a temporary restraining order is

included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shallbe raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to beenjoined. In any event, such notice shall be preceded, or contemporaneously accompanied byservice of summons, together with a copy of the complaint and the applicants affidavit and bond,upon the adverse party in the Phils; BUT the requirement of prior or contemporaneous service of summons shall NOT apply where the summons could not be served despite diligent efforts, or thedefendant is a resident of the Phils temporarily absent therefrom, or the defendant is a non-resident of the Phils

Difference with principle in preliminary attachment In attachment, the principle applies only

in the implementation of the writ, while in applications for injunction or TRO, this principleapplies before the raffle and issuance of the writs or TRO.

6. TRO good for only 20 days from service; 60 days for CA; until further orders from SC.

7. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer graveinjustice and irreparable injury. Good for 72 hours from issuance, within which judge mustcomply with service of summons, complaint, affidavit and bond, and hold summary hearing todetermine whether TRO should be extended for 20 days. In no case can TRO be longer than 20days including 72 hours.

8. No TRO, preliminary injunction or preliminary mandatory injunction may issue against thegovernment in cases involving implementation of government infrastructure projects. ( Garcia vs.Burgos , reiterated in Administrative Circular no. 7-99, promulgated June 25,1999)

Rule 59 Receivership 1. 1. When receiver may be appointed:2. 2. When receivership may be denied/lifted1. Party has an interest in the property or fund subject of the action and such is in danger of being

lost, removed, or materially injured;


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2. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wastedor materially injured and that its value is probably insufficient to discharge the mortgage debt,OR that the parties have stipulated in the contract of mortgage;

3. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it,or to aid in execution when execution has been returned unsatisfied or the judgment debtor

refuses to apply his property to satisfy judgment, or to carry out the judgment.4. When appointing one is the most convenient and feasible means to preserve, administer, or

dispose of the property in litigation.1. Appointment sought is without sufficient cause;2. Adverse party files sufficient bond for damages;3. Applicant or receivers bond is insufficient.

3. Both the applicant for the receivership and the receiver appointed must file separate bonds.

4. In claims against the bond, it shall be filed, ascertained and granted under the sameprocedure as Section 20, Rule 57, whether is be damages against the applicants bond for theunlawful appointment of the receiver or for enforcing the liability of the sureties of the receiversbond by reason of the receivers management (in the latter case, no longer need to file a separateaction).

Rule 60 Replevin 1. 1. Replevin2. 2. Defendant entitled to return of property taken under writ if:1. Available only where the principal relief sought in the action is the recovery of possession of

personal property;2. Can be sought only where the defendant is in the actual or constructive possession of thepersonal property involved.

3. Extends only to personal property capable of manual delivery;4. Available to recover personal property even if the same is NOT being concealed, removed, or

disposed of;5. Cannot be availed of if property is in custodia legis , as where is it under attachment, or was

seized under a search warrant or distrained for tax assessment.1. He seasonably posts redelivery bond2. Plaintiffs bond is insufficient or defective 3. Property is not delivered to plaintiff for any reason.

Replevin bond is only intended to indemnify defendant against any loss that he may suffer bybeing compelled to surrender the possession of the disputed property pending trial of the action.Thus, surety not liable for payment of judgment for damages rendered against plaintiff on acounterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffswhich are unconnected with the defendants deprivation of possession by the plaintiff.


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Special Civil Actions

1. Types of Special Civil Actions

1. Mandamus

2. Interpleader3. Certiorari4. Contempt5. Prohibition6. Eminent Domain7. Declaratory Relief 8. Quo warranto9. Partition of real estate10. Foreclosure of mortgage11. Unlawful detainer12. Forcible Entry


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Civil Procedure

Rules 41

50 DEC 19

Posted by Magz Rule 41 Appeal from the RTC

1. Appeal may be taken from a judgment or final order that completely disposes of the case or of aparticular matter therein.

2. No appeal may be taken from:1. Order denying a motion for new trial or recon;2. Order denying a petition for relief or any similar motion seeking relief from judgment;3. Interlocutory order;4. Order disallowing or dismissing an appeal;5. Order denying a motion to set aside a judgment by consent, confession, compromise on the

ground of fraud, mistake, or duress, or any other ground vitiating consent;6. Order of execution;

Not appealable because execution is only the result of the judgment. If order of execution isnot in accord with the dispositive portion, remedy is certiorari under Rule 65.


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7. Judgment or final order for or against one or more of several parties or in separate claims, whilethe main case is pending, unless the court allows an appeal therefrom;

8. Order dismissing an action without prejudice;

In all these cases, aggrieved party may file an appropriate civil action under Rule 65.

1. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal with the RTC within 15 days from notice of its judgment. Record on appeal required onlyfor special proceedings and where multiple appeals allowed filed within 30 days.

2. Motion for extension of time to file a motion for new trial or reconsideration is prohibited.3. Contents of Notice on appeal:1. Names of the parties to the appeal;2. Specify judgment or final order or part thereof appealed from;3. Court to which the appeal is being taken;4. Material dates showing timeliness of appeal;

6. Contents of Record on appeal:

1. Full names of all parties to the proceedings shall be stated in the caption;2. Include judgment or final order from which appeal taken;3. In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders

as are related to the appealed judgment;4. Data showing that appeal perfected in time material data rule;5. If an issue of fact is to be raised, include by reference all the evidence, oral or documentary,

taken upon the issues involved.

7. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA.

8. Where only questions of law are raised, by petition for review on certiorari with SC.

9. Notice of Appeal and Record of Appeal distinguished:

Notice of Appeal Record of Appeal

Partys appeal by notice of appeal deemedperfected as to him upon the filing of the

notice of appeal in due time

Deemed perfected as to appellant withrespect to the subject matter upon theapproval of the record on appeal filed in due

time

Court loses jurisdiction over case uponperfection of the appeals filed in due timeand expiration of time to appeal of otherparties

Court loses jurisdiction only over subjectmatter upon approval of records on appealfiled in due time and expiration of the timeto appeal of other parties.


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10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of

appeal.

11. General Rule: An ordinary appeal stays the execution of a judgment

Exceptions: a. Decisions of quasi-judicial body appealed to the CA

b. Executions pending appeal

c. Cases covered by Summary Procedure

Rule 42 Petition for Review from the RTC to the CA

1.

1. Form and contents of petition for review (from RTC to CA)

In 7 legible copies:

1. Full names of parties to case, without impleading the lower courts or judges thereof;2. Indicate specific material dates showing it was filed on time;3. Concise statement of matters involved, issues raised, specification of errors of fact or law, or

both allegedly committed by the RTC, and the reasons or arguments relied upon for theallowance of the appeal;

4. Accompanied by clearly legible duplicate originals or true copies of the judgments or final orderof both MTC and RTC;

5. Certification under oath of non-forum shopping.1. 2. Contents of comment

In 7 legible copies, accompanied by certified true copies of material portions of record and othersupporting papers:

1. State whether or not appellee accepts the statement of matters involved in the petition;2. Point out such insufficiencies or inaccuracies as he believes exists in petitioners statement of

matters;3. State reasons why petition should not be give due course.

3. CA may:

1. Require respondent to file a comment; or2. Dismiss the petition if it finds:1. Patently without merit2. Prosecuted manifestly for delay3. Questions raised are to insubstantial to require consideration

Rule 43 Appeals from the CTA and Quasi-Judicial Agencies to the CA


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1. 1. Appeals from judgments and final orders of the Court of Tax Appeals and quasi-judicialagencies in exercise of quasi-judicial functions (unless otherwise provided by law and the LaborCode [NLRC decisions]) shall be by petition for review to the CA, to be taken within 15 days fromnotice of award or judgment or from notice of the denial of the motion for reconsideration. Only1 Motion for reconsideration allowed

2. 2. Quasi-judicial agencies covered:1. Civil Service Commission;2. Central Board of Assessment Appeals;3. Securities and Exchange Commission;4. Office of the President;5. Land Registration Authority;6. Social Security Commission;7. Civil Aeronautics Board;8. Bureau of Patents, Trademarks and Technology Transfer;9. National Electrification Administration;10. Energy Regulatory Board;

11. National Telecommunications Commission;12. Department of Agrarian Reform under RA No. 6657;13. GSIS;14. Employees Compensation Commission;15. Agricultural Inventions Board;16. Insurance Commission;17. Construction Industry Arbitration Commission;18. Voluntary arbitrators

St. Martins Funeral Home vs. NLRC DECISIONS OF THE NLRC ORIGINAL ACTION FORCERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC

Fabian vs. Desierto Appeals from decisions of the Office of the Ombudsman in administrativedisciplinary cases should be taken to the CA under Rule 43. According to A.M. no. 99-2-02-SC ( promulgated February 9, 1999), any appeal by way of petition for review from a decision, final resolution or order of the Ombudsman, or special civilaction relative to such decision, filed with the SC after March 15, 1999 shall no longer be referredto the CA, but shall be dismissed.

Rule 45 Appeal by Certiorari to the Supreme Court

1. Question of Law exists when doubt or difference arises as to what the law is, based on acertain state of facts

Question of Fact exists when doubt or difference arises as to the truth or the falsehood of alleged facts

2. Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when:

1. The conclusion is a finding grounded entirely on speculations, surmises, or conjectures;2. The inference made is manifestly mistaken, absurd, or impossible;


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3. There is grave abuse of discretion;4. The judgment is based on misapprehension of facts;5. Findings of fact of trial court and CA are conflicting;6. The CA, in making its findings, went beyond the issues of the case and the same is contrary to

the admissions made;

7. CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion.

3. Certiorari as mode of appeal:

From judgment or final order of the CA, Sandiganbayan, RTC on pure questions of law, or othercourts whenever authorized by law, by filing a petition for review on certiorari with the SC within15 days from notice of judgment.

4. Rule 45 and Rule 65 distinguished:

Rule 45 Rule 65

No need for Motion for Recon Motion for Recon generally required

Relates to final judgments Applies to interlocutory orders rendered inexcess/lack of jurisdiction

An appeal Not an appeal in the strict sense

15 days from notice of judgment 60 days from notice of judgment

Kho vs. Camacho : An RTC judge has no right to disapprove a notice of appeal on the ground thatthe issues raised involve a pure question of law, and that the mode of appeal is erroneous. That isthe prerogative of the CA, not the RTC judge. A notice of appeal need not be approved by thejudge, unlike a record on appeal.Rule 47 Annulment of Judgments or Final Orders and Resolutions

1. Grounds for annulment of judgment of RTC in civil cases:1. Petition for annulment available only if ordinary remedies of new trial, appeal, petition

for relief or other appropriate remedies no longer available through no fault of thePetitioner.1. Extrinsic fraud not available as a ground if availed of earlier in a motion for new trial or

petition for relief 2. Lack of jurisdiction.

3. Periods:


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1. For extrinsic fraud four years from discovery;2. Lack of jurisdiction must be filed before action barred by laches.

4. Effects of judgment of annulment gives the CA authority to order the trial court on motion totry the case if the ground for annulment is extrinsic fraud, but not if it is lack of jurisdiction.

Prescriptive period for refiling the original action is suspended unless the extrinsic fraud isattributable to the plaintiff in the original action.

Rule 50 Dismissal of Appeal 1. 1. Grounds for dismissal of appeal by the CA:1. Failure of the record on appeal to show on its face that the appeal was taken within the

reglamentary period;2. Failure to file the notice of appeal or record on appeal within the period;3. Failure of the appellant to pay the docket and other lawful fees;4. Unauthorized alterations, omissions, or additions in the approved record on appeal;5. Failure of the appellant to serve and file the required number of copies of his brief or

memorandum within the time provided;6. Absence of specific assignment of errors in appellants brief or page references to the record;7. Failure of the appellant to take necessary steps for the completion or correction of the record

within the time limited by the order;8. Failure of appellant to appear at the preliminary conference or to comply with orders, circulars,

or directives of the court without justifiable cause9. Judgment or order appealed from is not appealable.


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Civil Procedure Rules 31 40 DEC 19

Posted by Magz Rule 31 Consolidation or Severance

1. 1. CONSOLIDATION the court may order a joint hearing or trial of any or all matters in issuewhen actions involving a common question of law or fact are pending before the court.

2. 2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in furtherance of convenience or in the interest of justice.

Rule 32 Trial by Commissioner


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Trial by commissioner:

1. 1. Reference by consent of both parties2. 2. Reference by motion of one of the parties or motu proprio :1. Trial requires examination of a long account of either side

2. Taking of an account is necessary for the information of the court before judgment or forcarrying a judgment order into effect

3. Question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the case.

Rule 33 Demurrer to Evidence

Demurrer to evidence is made by the defendant after the plaintiff has completed the presentationof his evidence where the defendant moves for dismissal on the ground that upon the facts andthe law the plaintiff has shown no right to relief.

1. 1. If motion denied defendant has the right to present evidence

2. If motion granted, but reversed on appeal defendant deemed to have waived the right topresent evidence.

Rule 34 Judgment on the Pleadings

1. Judgment on the Pleadings is proper:

1. If answer fails to tender an issue; or2. If answer otherwise admits the material allegations of the adverse partys pleading

Then court may, on motion of that party, direct judgment on the pleadings

2. However, the material facts alleged in the complaint shall always be proved in actions for:

1. Declaration of nullity of marriage2. Annulment of marriage3. Legal separation

Rule 35 Summary Judgments

Summary judgment:

1. 1. Proper if no genuine issue as to any material fact ( except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law

2. 2. Based not only on pleadings but also on affidavits, deposition, and admissions of the partiesshowing that, except as to the amount of damages, there is no genuine issue.

3. 3. Motion shall be served at least 10 days before the time specified for the hearing.1. 4. May be asked for by a party seeking to recover upon a claim, counterclaim, cross-

claim or to obtain a declaratory relief.


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5. Although Rule does not specifically provide, also unavailable in actions for annulment of anddeclaration of nullity of marriage, and for legal separation since Sec. 1 refers to actions torecover upon a claim, or to recover a debt or a liquidated demand for money, or to obtaindeclaratory relief.

6. Judgment on the pleadings and summary judgment distinguished:

Judgment on the Pleadings Summary judgment

Proper when there is no genuine issuebetween the parties

Proper even if there is an issue as to thedamages recoverable

Based exclusively on the pleadings without

introduction of evidence

Based not only on pleadings but also onaffidavits, depositions and admissions of the

parties

Available in any action, except the 3exceptions

Proper only in actions to recover a debt, orfor a liquidated sum of money, or fordeclaratory relief

Motions for summary judgment may be filed by the claimant or by the defending party. Thedefending party may file such motion, pursuant to Rule 35, 2at any time, as distinguished from1 where the claimant may file the motion at any time after the answer is filed.

Rule 36 Judgments, Final Orders and Entry Thereof 1. 1. The date of the finality of the judgment or final order shall be deemed to be the date of its

entry. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or consideration is filed within 15 days

2. 2. Several Judgments

In action against several defendants, the court may render judgment against one or more of them,leaving the action to proceed against the others.

1. 3. Separate judgments

Judgment rendered to dispose of one of the several claims for relief presented in an action, madeat any stage, upon a determination of the issues material to a particular claim and allcounterclaims arising out of the transaction or occurrence which is the subject matter of theclaim, which terminates such claim. Action shall proceed as to other claims

Rule 37 New Trial or Reconsideration


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1. 1. Motion for new trial or reconsideration filed within 15 days from notice of judgment andresolved by the court within 30 days from submission for resolution.

2. 2. Grounds: Motion for New Trial1. Fraud, accident, mistake, or excusable negligence;2. Newly discovered evidence

Requisites:

1. Discovered after trial2. Could not have been discovered and produced at trial despite the exercise of reasonable

diligence3. If presented, could probably alter the result of the action

3. Grounds: Motion for Reconsideration

1. Damages awarded are excessive

2.

Evidence is insufficient to justify the decision or final order3. Decision is contrary to law

4. Motion for new trial shall be in writing, and supported by affidavits of merit if the ground isFAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whomsuch evidence is expected to be given, or by duly authenticated documents to be introduced.

Motion for reconsideration shall specifically point out the findings or conclusions of the judgmentwhich are unsupported by evidence or contrary to law, with express reference to the testimonialor documentary evidence or the provisions of law alleged to be contrary to such findings.

5. Pro forma motion for new trial or reconsideration shall not toll the period for appeal.

6. No second motion for reconsideration allowed. Second motion for new trial must be based ona ground not existing or available when the first motion was made, which may be filed during theremainder of the 15-day period.

Rule 38 Relief From Judgments, Orders, or Other Proceedings 1. 1. Petition for relief from judgment filed within 60 days after learning of judgment and not

more than 6 months after such judgment

Must be supported by affidavit showing the FAME a nd the facts constituting the petitioners goodor substantial cause of action or defense

1. 2. Party who has filed a timely motion for new trial cannot file a petition for relief after theformer is denied. The two remedies are exclusive of one another.

2. 3. Grounds:1. Judgment or final order is rendered and party has been prevented by FAME from taking an

appeal


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1. Judgment or final order entered against a party by FAME; or

For fraud to be extrinsic, the losing party must never have had a chance to controvert theadverse partys evidence.

Uniform procedure for relief from judgments of MTC and RTC

1. 4. After petition is filed, court shall order adverse parties to answer within 15 days fromreceipt. After answer is filed or expiration of period therefor, court shall hear the petition.

2. 5. If granted, judgment set aside and court shall proceed as if timely motion for new trial hasbeen granted; if granted against denial of appeal, court shall give due course to appeal.

Rule 39 Execution, Satisfaction and Effect of Judgments 1. 1. Execution as a matter of right

On motion with notice, upon a judgment or order that disposes of the action or proceeding uponthe expiration of the period to appeal therefrom if no appeal has been duly perfected.

For so long as there is a certificate of entry of judgment, execution may already be issued bythe court of origin or directed to do so by the CA.

1. 2. Discretionary execution pending period to appeal or during appeal; may issue only upongood reasons to be stated in a special order after hearing.

1. By trial court even after the perfection of the appeal for so long as the motion for executionwas filed while the TC has jurisdiction over the case and is in possession or the records, uponmotion of the prevailing party with notice to the adverse party

2. Appellate court after the TC has lost jurisdiction

Example:

P receives judgment: June 3

D receives judgment: June 1

D files notice of appeal: June 5

When does trial court lose jurisdiction? June 18

BUT, if P also files a notice of appeal on June 10, trial court loses jurisdiction on that date.

Execution with respect to appealed cases- there is no need to await remand of the records.

Execution with respect to consequential and exemplary damages should be postponed until suchtime as the merits of the case have been finally determined in the regular appeal, as the amountsremain uncertain and indefinite pending resolution.


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3. a. Motion for execution of final and executory judgment should be served on adverse partyand set for hearing;

b. In case of appeal, motion is filed with court of origin supported by certified true copies of final judgment of appellate court.

3. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No.24-94, 4/18/94)

4. Judgments NOT stayed by appeal (immediately executory, unless court provides otherwise)

1. Actions for injunction2. Receivership3. Accounting4. Support5. Judgments declared immediately executory

5. A final and executory judgment may be executed on motion within 5 years from entry. May berevived and enforced by action after lapse of 5 years but before 10 years from entry. Revivedjudgment may be enforced by motion within 5 years from entry and thereafter by action beforebarred by statute of limitations file motion within 10 years from the finality of the revivedjudgment.

6. Execution in case of partys death:

1. Death of judgment obligee application of his executor or administrator or successor-in-interest2. Death of judgment obligor -1. Against his executor, etc. if the judgment be for recovery of real or personal property or the

enforcement of a lien thereon.2. If death after execution is actually levied upon his property, it may be sold for satisfaction of

the obligation.

If the judgment obligor dies after the entry but before levy, execution will issue if it be for therecovery of real or personal property. However, if judgment is for a sum of money, and thejudgment obligor dies before levy, such judgment cannot be enforced by writ of execution butmust be filed as a claim against his estate.

7. Writ of execution:

1. Shall issue in the name of the Republic of the Phils from court which granted the motion2. State the name of the court, case number and title, dispositive portion of the judgment order3. Require the sheriff or other proper officer to whom it is directed to enforce the writ according

to its terms

8. Manner of executing writ:


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1. If judgment against property of the judgment obligor out of real or personal property withinterest

2. If against his real or personal property in the hands of the personal representatives, heirs,devisees, legatees, tenants, or trustees of the judgment obligor out of that property, withinterest

3. If for sale of real or personal property to sell property, describing it and apply the proceeds inconformity with judgment.

4. If for delivery of possession of property deliver possession of the same to the party entitled toit, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment outof the personal property of the person against whom it was rendered, and out of real property if sufficient personal property cannot be found.

5. In all cases, writ of execution shall specifically state the amount of the interest, costs, damages,rents, or profits due as of date of issuance of writ, aside from principal obligation.

Judgment obligor is given option to choose which property may be levied on sufficient to satisfythe judgment.

9. Property exempt from execution

1. Family home as provided by law, homestead in which he resides, and land necessarily used inconnection therewith;

2. Tools and implements used in trade, employment, or livelihood;3. 3 horses, cows, or carabaos or other beasts of burden used in his ordinary occupation;4. Necessary clothing and articles for ordinary personal use, excluding jewelry;5. Household furniture and utensils necessary for housekeeping not exceeding P3,000;6. Professional libraries and equipment of judges, lawyers, physicians, etc. not exceeding

P300,000;7. One fishing boat and accessories not more than P100,000 owned by a fisherman and by which he

earns his living;8. Salaries, wages, or earnings for personal services within the 4 months preceding the levy which

are necessary for the support of the family;9. Lettered gravestones;10. Money, benefits, annuities accruing or in any manner growing out of any life insurance;11. Right to receive legal support or any pension or gratuity from the government;12. Properties especially exempted by law.

Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure

of mortgage.

Right of Exemption is a personal right granted to the judgment creditor. The sheriff may thusnot claim it.

10. Third party claims:


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1. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, notthe sheriff or officer;

2. Amount of bond not less than value of property levied on;3. Sheriff not liable for damages if bond is filed;4. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a

separate action.5. 3rd Party claimant may vindicate his claim to property levied in a separate action because

intervention is no longer allowed since judgment already executory; in preliminary attachmentand replevin, 3 rd party claimant may vindicate his claim to the property by intervention since theaction is still pending.

11. Who may redeem real property sold:

1. Judgment obligor or his successor in interest in the whole or any part of the property;2. Creditor having lien by virtue of an attachment, judgment, or mortgage on the property sold

subsequent to the lien under which the property was sold. (Redeeming creditor is termed a

redemptioner).

12. Judgment obligor has one year from the date of the registration of the certificate of sale toredeem property sold by paying the purchaser the amount of his purchase, with 1% per monthinterest plus any assessments or taxes which he may have paid thereon after purchase withinterest on said amount at 1% per month.

Redemptioners have one year to redeem from the date of registration of the certificate of sale.They may also redeem beyond one-year period within 60 days after the last redemption, with 2 %interest on the sum to be paid on the last redemption. The judgment obligors right to redeem

within 60 days from last redemption is limited to the one-year period, beyond which he can nolonger redeem.

Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuchas these belong to the judgment obligor until the expiration of the period of redemption.

13. Effect of judgment or final orders

1. In case of judgment against a specified thing, probate of will, or administration of estate orlegal condition or status, it is conclusive on the title or condition, status, relat ionship, will oradministration.

2. In other cases/matters directly adjudged, or matters relating thereto that could have beenraised subsequent to commencement of action, judgment is conclusive between parties andtheir successors in interest.

3. In any other litigation, that only is deemed to have been adjudged in a former judgment orwhich was actually and necessarily included therein.

14. Effect of foreign judgment


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1. Judgment upon a specific thing, conclusive upon title to the thing;2. If against a person, judgment is presumptive evidence of a right as between the parties and

their successors in interest;

15. When foreign judgment may be repelled

1. Evidence of want of jurisdiction2. Want of notice to party3. Collusion4. Fraud5. Clear mistake of law.

16. Requisites for res judicata 1. Final former judgment2. Judgment is on the merits3. Rendered by a court of competent jurisdiction4. Between first and second actions, identity of subject matter, parties and cause of action.

17. When quashal of writ of execution proper

1. Improperly issued2. Defective in substance3. Issued against the wrong party4. Judgment was already satisfied5. Issued without authority6. Change of the situation of the parties renders execution inequitable7. Controversy was never validly submitted to the court8. Writ varies the terms of the judgment

9. Writ sought to be enforced against property exempt from execution10. Ambiguity in the terms of the judgment

18. SPECIAL JUDGMENT requires the performance of any other act than the payment of money orthe sale or delivery of real or personal property.

19. Remedies against executory judgments or orders:

1. Petition for relief 2. Direct attack3. Collateral attack judgment is null on its face or court had no jurisdiction

20. When court may order execution even before an executory judgment and pending an appeal

1. a. Lapse of time would make the ultimate judgment ineffective;2. b. Appeal is clearly dilatory;3. c. Judgment is for support and the beneficiary is in need thereof;


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4. d. Articles subject of the case are perishable;5. e. Defendants are exhausting their income and have no other property aside from the

proceeds from the subdivision of lots subject of the action;6. f. Movants were in extreme need of the premises subject of the suit and the bond to

answer for damages in case of reversal on appeal ( supersedeas bond) was posted by them;

7. g. Judgment debtor is in imminent danger of insolvency;8. h. Prevailing party is of advanced age and in a precarious state of health and the right in

the judgment is non-transmissible being for support;9. i. Prevailing party posts sufficient bond to answer for damages in case of reversal of

judgment

But in most cases, the mere filing of a bond is not sufficient justification for discretionaryexecution.

21. Order granting writ of execution ONLY appealable when:

1. Order varies terms of the judgment2. When vague and court renders what is believed to be wrong interpretation.

22. Garnishment act of appropriation by the sheriff if the property involved is money, stocks, orother incorporeal property in the hands of third persons; merely sets apart such funds but doesnot constitute the creditor the owner of the garnished property.

23. Persons disqualified from participating in the execution sale:

1. Officer conducting the execution sale or his deputy;2. Guardian with respect to the property under his guardianship;3. Agents, the property entrusted to them, unless with principals consent; 4. Executors and administrators, the property of the estate under administration;5. Public officers and employees, the property of the State or any subdivision thereof, or any

GOCC, the administration of which has been entrusted to them;6. Justices, judges, prosecuting attorneys, clerks of courts, and other officers and employees

connected with the administration of justice, the property and rights in litigation or levied uponan execution before the court within whose jurisdiction or territory they exercise theirrespective functions;

7. Lawyers, the property and rights which may be the subject of litigation in which they take partby virtue of their profession;

8. Others specifically disqualified by law. ( e.g. seller of goods who exercise right of resale of

goods).Rule 40 Appeal from MTC to RTC

1. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area towhich MTC pertains. File notice of appeal with the MTC which rendered decision appealed fromwithin 15 days after notice of such judgment.

2. Record on appeal is filed within 30 days and required only for special proceedings3. Appellate docket fees paid to clerk of court of MTC payment not a condition precedent for

perfection of appeal but must nonetheless be paid within the period for taking appeal;


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4. Procedure for appeal from cases dismissed without trial for lack of jurisdiction:1. If affirmed because the MTC has no jurisdiction, RTC will try case on the merits as if it has

original jurisdiction;2. If reversed, the case shall be remanded to the MTC;3. If the first level court tried the case on the merits without jurisdiction, the RTC should not

dismiss the case but shall decide it in the exercise of original jurisdiction.


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Civil Procedure Rules 21-30DEC 19

Posted by Magz Rule 21 Subpoena

1. 1. Subpoena issued by:1. The court before whom witness is required to attend;2. The court of the place where the deposition is to be taken;3. The officer or body authorized by law to do so in connection with its investigations;4. Any Justice of the SC or CA in any case or investigation pending within the Phils

2. No prisoner sentenced to death, reclusion perpetua , or life imprisonment and who is confinedin any penal institution shall be brought outside said institution for appearance or attendance inany court unless authorized by the SC.

1. 3. Grounds for quashing subpoena duces tecum 2. 4. Ground for quashing subpoena ad testificandum 1. It is unreasonable or oppressive2. The articles sought to be produced do not appear to be relevant3. Person asking for subpoena does not advance cost of production1. The witness is not bound thereby if witness resides more than 100 km from the place where he

is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is

obtained from the court in which his case is pending This is known as the viatory right of the witness; NOTE , however, that the right is availableonly in CIVIL cases

2. Witness fees and kilometrage allowed by rules not tendered when subpoena served.1. 5. Service of subpoena made in the same manner as personal or substituted service of

summons.2. 6. Person present in court before a judicial officer may be required to testify as if he were in

attendance upon a subpoena.
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3. 7. Failure by any person without adequate cause to obey a subpoena served upon him shall bedeemed a contempt of the court from which subpoena issued.

Rule 22 Computation of Time 1. 1. Computing for any period of time: day of the act or event from which designated period of

time begins to run is to be excluded and the date of performance included.

2. 2. If last day of period falls on Saturday, Sunday or legal holiday in place where court sits, thetime shall not run until the next working day.

3. 3. If there is effective interruption of period, it shall start to run on the day after notice of thecessation of the cause of the interruption. The day of the act that caused the interruption isexcluded in the computation of the period.

Rule 23 Depositions Pending Action DEPOSITIONSDE BENE ESSE taken for purposes of pending action

1. 1. Depositions pending action1. 2. Scope of examination deponent may be examined regarding any matter not

privileged relevant to the subject of the action2. 3. Examination and cross-examination proceeds as in trials3. 4. Depositions and Affidavits distinguished

1. Taken by leave of court after court obtains jurisdiction over any defendant or property subjectof the action

2. Taken without leave after an answer has been served3. Upon the instance of any party4. May be deposition upon oral examination or written interrogatories

Depositions Affidavits

Written testimony of witness in course of

judicial proceedings, in advance of trial andhearing Mere sworn written statements

Opportunity for cross-examination No cross-examination

Can be competent testimonial evidence Little probative value (hearsay)

1. 5. Use of depositions

Any part or all of a deposition which is admissible in evidence may be used against any partywho was present or represented during the taking of the deposition or who had notice thereof asfollows:


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Deposition of May be used by Purpose

A witness Any party To contradict or impeach thedeponents testimony as a witness

Any party, or anyone who atthe time of taking thedeposition was an officer,director, or managing agentof a public or privatecorporation An adverse party For any purpose

Of any witness, whether aparty or not Any party

For any purpose, IF court finds that:

1. Witness is dead;2. b. Witness resides at a

distance more than 100 km fromplace of trial, UNLESS absenceprocured by party offering thedeposition

3. c. Witness is unable to testifybecause of age, sickness,infirmity, or imprisonment;

4. d. Party offering the

deposition has been unable toprocure the attendance of thewitness by subpoena; OR

5. e. Other exceptionalcircumstances make it desirableto allow deposition to be used.

Deponent is made the witness of the party offering the deposition.

If only part of the deposition is introduced, adverse party may require that all of it which isrelevant to the part introduced be introduced.

6. Persons before whom depositions may be taken

a. Within the Philippines

1. Judge2. Notary public3. Any person authorized to administer oaths if the parties so stipulate in writing


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b. In foreign countries

1. On notice, before a secretary of any embassy or legation, consul-general, consul, vice-consul,consular agent of the Phils

1. Before such person or officer as may be appointed by commission or under letters-

rogatories2. Any person authorized to administer oaths if the parties so stipulate.

Commission addressed to any authority in a foreign country authorized therein to take downdepositions; the taking of such depositions is subject to the rules laid down by the court issuingthe commissionLetters Rogatory addressed to judicial authority in the foreign country; the taking of thedepositions is subject to the rules laid down by such foreign judicial authority.

7. Persons disqualified to take depositions

1. Relative within 6 th degree of consanguinity or affinity of any party2. Employee of any party3. Counsel of any party4. Relative within the same degree of partys counsel 5. Employee of pa rtys counsel 6. Anyone financially interested in the action

8. Depositions upon written interrogatories

Party desiring to take such deposition shall serve them upon every other party with a noticestating the name and address of the person who is to answer them and the name and descriptive

title of the officer before whom the deposition is to be taken;

Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter

Re-direct interrogatories served within 5 days

Re-cross interrogatories served within 3 days

9. Effects of errors and irregularities in the depositions

1. As to notice waived unless written objection is promptly served upon the party giving the

notice2. As to disqualification of officer waived unless made before the taking of the deposition beginsor as soon thereafter as the disqualification becomes known or could be discovered withreasonable diligence

3. As to competency or relevancy of evidence NOT waived by failure to make them before orduring the taking of the deposition, unless ground is one which might have been obviated orremoved if presented at that time


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4. As to oral exam and other particulars Errors occurring at the oral exam in the manner of takingthe deposition, in the form of questions and answers, in oath or affirmation, or in conduct of parties, and errors of any kind which might be obviated, removed, cured if promptly prosecutedare waived unless reasonable objection is made at the taking of the deposition.

5. As to form of written interrogatories waived unless served in writing upon party propounding

them within the time allowed for serving succeeding cross or other interrogatories and within 3days after the service of the last interrogatories authorized.

6. As to manner of preparation errors as to manner in which the testimony is transcribed or thedeposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or otherwise dealtwith by the officer are waived unless a motion to suppress the deposition or some part of it ismade with reasonable promptness after such defect is, or with due diligence might have been,ascertained.

A deposition, in keeping with its nature as a mode of discovery, should be taken before and notduring trial. IN fact, the rules on criminal practice particularly on the defense of alibi statesthat when a person intends to rely on such a defense, that person must move for the taking of thedeposition of his witness within the time provided for filing a pre-trial motion.

Rule 24 Depositions Pending Action DEPOSITIONSIN PERPETUAM REI MEMORIAM taken to perpetuate evidence for purposes of ananticipated action or further proceedings in a case or appeal.

1. 1. Depositions before action

A person desiring to perpetuate his own testimony or that of another person regarding any matterthat may be cognizable in any court of the Phils may file a verified petition in the court of theplace of the residence of any expected adverse party, which petition shall be entitled in the name

of the petitioner and shall show:

1. That petitioner expects to be a party to an action in a court of the Phils but is presently unableto bring it or cause it to be brought;

2. The subject matter of the expected action and his interest therein;3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to

perpetuate it;4. The names or description of the persons he expects will be the adverse parties and their

addresses so far as known;5. The name and addresses of the persons to be examined and the substance of the testimony

which he expects to elicit from each.1. 2. Use of deposition

If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissiblein evidence may be used in any action involving the same subject matter subsequent brought inaccordance with the provisions of Rule 23.

Rule 25 Interrogatories to Parties


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1. Interrogatories and the answers thereto should be filed in court and served on adverse parties,so that the answers may constitute judicial admissions.

2. Effect of failure to serve written interrogatories a party not served with such may NOT becompelled by the adverse party to give testimony in open court or deposition pending appeal.

Rule 26 Admission by Adverse Party

1. 1. Request for admission

A written request for the admission of the other party of the genuineness of any material ordocument or request for the truth of any material and relevant matter of fact set forth in therequest may be filed and served upon the other party at any time after issues have been joined.

1. 2. Implied admission

Each of the matter requested to be admitted shall be deemed admitted within a perioddesignated in the request, which shall not be less than 15 days after service thereof or within suchfurther time as the court may allow on motion, UNLESS, party requested serves upon the partyrequesting a sworn statement either specifically denying or setting forth in detail the reasons whyhe cannot truthfully either admit or deny those matters.

1. 3. Effect of admission

Admission is only for the purpose of the pending action and shall NOT constitute an admission forany other person nor may it be used against him in any other proceeding.

1. 4. A party who fails to file and serve a request for admission on the adverse party of materialfacts within the personal knowledge of the latter shall not be permitted to present evidence

thereon, Rule 27 Production or Inspection of Documents or Things 1. Any party may move for the court in which the action is pending to order any party to:

1. Produce and permit the inspection and copying or photographing of any designateddocuments, papers, books, accounts, letters, photographs, objects or tangible things, notprivileged, which:

1. Constitute or contain evidence material to any matter involved in the action AND2. Are in his possession, custody or control.3. Permit entry upon designated land or other property in his possession or control for

the purpose of inspecting, measuring, surveying, or photographing the property orany designated relevant object or operation thereon.

2. The order:1. Shall specify the time, place and manner of making the inspection and taking copies AND2. May prescribe such terms and conditions which are just.

Rule 28 Physical and Mental Examination of Persons 1. If the mental or physical condition of a party is in controversy, the court may order him to

submit to a physical or mental examination by a physician.


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2. The party examined waives any privilege he may have in that action regarding the testimony of the person who has examined or may examine him with respect to that same mental or physicalexamination by:

1. Requesting and obtaining a report of the examination so ordered OR2. Taking the deposition of the examiner.

Rule 29 Refusal to Comply with the Modes of Discovery

1. If a party/deponent refused to answer:

1. The examination may be completed on other matters2. The examination may be adjourned3. The proponent may apply to the court for order to compel answer

The court may then order:

1. The refusing party or his counsel to pay the expenses incurred in obtaining the order, including

the attorneys fees (if it finds the refusal to answer without substantial justification) 2. The proponent or his counsel to pay the expenses incurred in opposing the application, including

attorneys fees (if it finds the application to be without substantial justification)

2. If a party/witness refuses to be sworn or to answer after being directed to do so by the court,the refusal may be considered contempt of that court.

1. If a party/officer or managing agent of a party refuses to obey an order requiring him:

a. To answer designated questions

b. To produce a thing for inspection or to permit entry upon property

1. To submit to a physical or mental examination

the court may order:

1. That the matters regarding which the questions were asked, or the character of the land or thething, or the physical and mental condition of the party be taken to be established.

2. The disallowance of the disobedient partys claims 3. The prohibition of the disobedient party to present evidence4. The striking out of the pleadings or parts thereof

5. The dismissal of the action or parts thereof 6. Rendering judgment by default against the disobedient party OR7. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental

examination.

4. If a party refuses to attend or serve answers, the court may:

1. Strike out all or any part of any pleading of that party.


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2. Dismiss the action or any part thereof.3. Enter a judgment by default against that party, OR/AND4. Order that party to pay reasonable expenses incurred, including attorneys fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorneys fees under

this Rule.

Rule 30 Trial 1. 1. Order of trial

Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

1. The plaintiff shall adduce evidence in support of his complaint;2. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and

third-party complaint;3. The 3 rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim,

and 4 th party complaint;4. The 4 th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;5. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce

evidence in support of their defense, in the order to be prescribed by the court;6. The parties may then respectively adduce rebutting evidence only, unless the court, for good

reasons and in the furtherance of justice, permits them to adduce evidence upon their originalcase; and

7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless thecourt directs the parties to argue or to submit their respective memoranda or any furtherpleadings.

1. 2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and inany case where the parties so agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk shall have no power to ruleon objections to any question or to the admission of exhibits, which objections shall be resolvedby the court upon submission of his report and the transcripts within 10 days from thetermination of the hearing.

Reference: Remedial Law (Civil Procedure) Memory Aid

Ateneo Central Bar Operations 2001 Posted in Civil Procedure

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Tags: Civil Procedure - Rules 21-30

Civil Procedure Rules 11-20DEC 19
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Posted by Magz Rule 11 When to File Responsive Pleadings

1. 1. Answer to complaint 15 days from service, unless different period fixed by the courts;2. 2. Answer of defendant foreign private juridical entity when service of summons is made on

the government official designated by law, answer to be filed within 30 days from receipt of summons by such entity.3. 3. Answer to amended complaint if amended as a matter of right, 15 days from being served

with copy thereof

If amended not as a matter of right, 10 days from notice of order admitting the same

Answer earlier filed may be answer to amended complaint, if no new answer is filed

Applicable to amended counterclaim, cross, third, etc,

1.

4. Answer to counterclaim or cross-claim within 10 days from service.2. 5. Answer to 3 rd party complaint 15 days from service3. 6. Reply may be filed within 10 days from service of the pleading responded to.

Rule 12 Bill of Particulars 1. 1. Bill of particulars1. Period of filing motion before responding to a pleading; if pleading is a reply, within 10 days

from service thereof;2. Order for bill must be complied with in 10 days from notice OR period fixed by court3. After service of bill or denial of motion party has balance of time he was entitled to file

responsive pleading, but not less than 5 days

Motion for Bill of Particulars may NOT call for matters which form part of the proof of thecomplaint. Thus, motion should not be granted if the complaint, while not very definite,nonetheless already states a sufficient cause of action.

Rule 13 Filing and Service of Pleadings, Judgments and Other Papers 1. 1. Kinds of service of pleadings:1. Personal service to be done whenever practicable (Most preferred mode)2. Service by mail (ordinary if no registered mail)3. Substituted service (delivering copy to clerk of court with proof of failure of 1 st 2 modes)

Except with respect to papers emanating from the court, a resort to other modes must be

accompanied by a written explanation why the service or filing was not done personally.

Violation of rule may be cause to consider the paper as not filed.

1. 2. Kinds of service of final orders:1. Personal2. Registered mail3. Publication (if summons by publication)
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3. Proof of personal service

1. Written admission of party served;2. Official return of the server; or3. Affidavit of party serving, containing a full statement of the date, place and manner of service.

Rule 14 Summons 1. 1. Contents of summons2. 2. Kinds of service of summons:3. Handing a copy to the defendant in person; OR

1. If he refuses to receive and sign for it, by tendering it to him2. Substituted:

1. Leave copies at his residence, with person of suitable age and discretion residingtherein; OR

2. Leave copies at defendants office/regular place of business, with competentperson in charge thereof.

3. 3. By whom served:4. 4. When extraterritorial service allowed:5. 5. Kinds of extra territorial service6. 6. When service by publication in a newspaper of general publication allowed:

1. Signed by the clerk under the seal of the court2. Name of the court and that parties to the action3. Direction that the defendant answer within the time fixed by these rules4. Notice that unless defendant so answers, plaintiff will take judgment by default1. Person

Civil Procedure (Rules 62-71)

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