Jurisdiction and Civ Pro

REMEDIAL NOTES 2004 - SIGMA RHO - CALLANTA & PARTNERSPersonal copy of ATTY. RENE CALLANTA,Jr.

REMEDIAL LAW

INTRODUCTION*** The Supreme Court has the inherent power to suspend or to exempt a particular case from the operation of said rules whenever the interest of justice so requires. (Republic vs. CA, 107 SCRA 504)

SUBSTANTIVE LAW REMEDIAL LAWcreates, defines and regulates rights provides for the manner in which said right

may be enforced, protected or redressedmakes vested rights possible no vested rights

prospective application retroactive: governs acts and transactions which took place

cannot be made by the Supreme Court SC is expressly empowered to promulgate procedural rules

JURISDICTION VENUEthe authority to hear and determine a case the place or geographic location where the

case is to be heard or tried / deals with locality

matter of substantive law

matter of procedural law

fixed by law and cannot be conferred by the parties

may be conferred or agreed upon by the parties

cannot be waived except jurisdiction over the person

waivable

establishes a relation between the court and the subject matter

establishes a relation between the plaintiff and the defendant

limitation on the plaintiff limitation on the courtdeals w/ substance deals w/ convenience

*** Jurisdiction is determined by the law in force at the time of commencement of action

CLASSIFICATION OF JURISDICTION

1) GENERAL JURISDICTION > The power to adjudicate all controversies, except those expressly withheld from the plenary

powers of the court

2) SPECIAL JURISDICTION > Which restricts the court’s jurisdiction only to particular cases and subject to such limitations

as may be provided by the governing law

3) ORIGINAL JURISDICTION > The power of the court to take judicial cognizance of a case instituted for judicial action for the

first time under conditions provided by law;

4) APPELLATE JURISDICTION > The authority of the court higher in rank to re-examine the final order, judgment or a lower

court which tried the case now elevated for judicial review

5) EXCLUSIVE JURISDICTION > Power to adjudicate a case or proceeding to the exclusion of other courts at that stage

6) CONCURRENT JURISDICTION > Sometimes referred to as the coordinate jurisdiction which is the power conferred upon

different courts whether of the same or different ranks, to take cognizance at the state of the same case in the same or different judicial territories

7) DELEGATED JURISDICTION

Sigma Rho ( ΣΡ ) reviewers 1


> The grant of authority to inferior courts to hear and determine cadastral and registration cases under certain conditions

8) 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. “Interlocutory jurisdiction”

9) TERRITORIAL JURISDICTION > Refers to the geographical area within which its powers can be exercised: MTC – within the municipality or city where it is located as may be defined by the SC RTC – within the region or province where it is located SC & CA – within the Philippine territory (nationwide)

CLASSIFICATION OF THE COURT ACCORDING TO JURISDICTION> In the Philippines, our courts are “both courts of law and of equity”

1) COURT OF GENERAL JURISDICTION > Those competent to decide their own jurisdiction and to take cognizance of all kinds of cases

except those expressly withheld from the plenary powers of the court

2) COURT OF SPECIAL OR LIMITED JURISDICTION > Those which have no power to decide their own jurisdiction and only try cases permitted by the

statute

3) COURT OF ORIGINAL JURISDICTION > Those which under the law, actions or proceedings may originally be commenced

4) COURT OF APPELLATE JURISDICTION > Those which have the power to review on appeal the decisions or orders of a lower court

5) SUPERIOR COURTS > Those which have the power of review and supervision over another or lower court

6) INFERIOR COURTS > Those which, in relation to another court, are lower in rank and subject to review and supervision

by the latter > As used in the 1987 Constitution, the term “inferior courts” refer to all courts lower than the

Supreme Court

7) COURTS OF RECORD > Those whose proceedings are enrolled and which are bound to keep a written record of all trials

and proceedings handled by them > RA 6031 mandates to all MTC to be a court of record. Thus, Courts not of record, no longer exist

8) CONSTITUTIONAL COURTS > Those which owe their creation and existence to the constitution and therefore cannot be legislated

out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution.

Ex. SC & Sandiganbayan

9) STATUTORY COURTS > Those created, organized and with jurisdiction exclusively determined by law. Ex. CTA

GENERAL RULE: Jurisdiction, once acquired, continues until the case is finally terminated.EXCEPTIONS: 1) When a subsequent law provides a prohibition for the continued exercise of jurisdiction;2) Where the law penalizing an act as punishable is repealed by a subsequent law;3) When the accused is deprived of his constitutional rights such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right;4) Where the statute expressly provides, or is construed to the effect that it intended to operate as to actions pending before its enactment;5) When the proceedings in the court acquiring jurisdiction is terminated, abandoned or declared void;



6) Once appeal has been perfected.

JURISDICTION vs. EXERCISE OF JURISDICTIONJurisdiction > Pertains to the authority to hear and decide cases

Exercise of jurisdiction > Any act of the court pursuant to such authority including the decision and its consequences. Thus decision is but a mere exercise of jurisdiction.

Authority to decide and not the decision that makes up jurisdiction (de la cruz vs. moir)To distinguish jurisdiction and exercise of jurisdiction, the authority to decide a case at all and not the

decision rendered therein is what makes jurisdiction. Where there is jurisdiction, the decision of all questions arising in the case is but an exercise of jurisdiction

REQUISITES FOR VALID EXERCISE OF JURISDICTION. 1. Jurisdiction over the Person >If this requisite is acquired, the person concerned shall be bound by the decision of the court

a. Over Plaintiff or Petitioner: 1. Filing the complaint or petition 2. Filing of initiatory pleadings before the court by the plaintiff or petitioner

b. Over Defendant or Respondent 1. Voluntary appearance by the defendant in court 2. Submission by the defendant to the court

i.e. Any overt act by which the defendant acknowledges the authority of the court over his person which is equivalent to summons, such as the filing of a responsive pleading

3. Coercive process issued by the court to him generally by the service of summons

2. Jurisdiction Over the Subject Matter*** This requisite is conferred by law providing the class of cases which the concerned may only

take cognizance of and cannot be conferred on the court by the voluntary act or agreement of the parties

3. Jurisdiction Over the Issues of the CaseThis requisite is either determined or conferred by:

a. The pleadings filed in the case by the parties or b. Their agreement in pre-trial order or by stipulation or c. Their implied consent in case of failure by the parties to object to evidence on an issue not

covered by the pleadings

4. Jurisdiction Over the Res or Thing Subject of Litigation*** This requisite is acquired by the actual or constructive seizure by the court of the thing in

question thus placing it in custodia legis or by provision of law

*** As a general rule, questions of lack of jurisdiction may be raised for the first time on appeal even if such issue was not raised in the lower court.

DOCTRINE OF EQUITABLE ESTOPPEL (tijam vs. sibonghanoy)*** By way of an exception, where the defendant never raised the issue of jurisdiction on lower court

despite several opportunities to do so and only after obtaining unfavorable decision therein, it is too late for the loser to question the jurisdiction of the court. Based on equity and fair play, it is not right for a party who has affirmed and invoked the jurisdiction of court in a particular matter to secure an affirmative relief, to afterwards deny the same jurisdiction.

*** It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape penalty. We frown upon the “undesirable practice” of a party submitting his case for decision and then accepting the judgment only if favorable, and attacking it for lack of jurisdiction when adverse.

*** A party is estopped from assailing the jurisdiction of the court after submitting himself to its jurisdiction> REMEDY: MR or Motion to set aside order of default

*** Jurisdictional issues in a case can be raised only during proceedings in said case and during appeal of said case NOT in a proceeding in another case and another court.



*** The jurisdiction of a court is determined by the allegations in the complaint or information and not by the evidence presented

NOTE: The increase in the jurisdictional amounts from P100T - P200T to P200-P400T under RA 7691 interests, costs and damages of whatever kind are not included in the determination of jurisdiction except when the main action or one of the causes of action is purely for damages, the amount of such claim shall be considered in determining the jurisdiction of the court ( Circular 09-94).

ERRORS in the EXERCISE of JURISDICTION1. LACK OF JURISDICTION – this case is not within the class of cases covered by the law granting jurisdiction

2. EXCESS OF JURISDICTION – the act was made outside of the limitations set by the rules or law within which jurisdiction should be exercised

ERRORS IN THE EXERCISE OF JURISDICTION vs. ERRORS OF JUDGMENT1. As to Nature:

Errors in the exercise of jurisdiction pertains to acts of the court with grave abuse of discretion amounting to excess or lack of jurisdiction

Errors of Judgment is an act of court arising from its decision of a case which does not amount to excess or lack of jurisdiction.

2. As to Remedy Available: Errors in the exercise of jurisdiction is correctible by petition for certiorari as special civil action under Rule 65

Errors of Judgment is correctible by an ordinary appeal

3. As to Effect:Errors in the exercise of jurisdiction makes the decision of the court void or voidable and causes loss of jurisdiction

Errors of Judgment makes the decision of the court reversible if prejudice has been caused thereby but does not lose jurisdiction

SEC jurisdiction over cases falling under PD 902-A, Sec. 5 was expressly transferred to the RTC by the Securities Regulation Code.

Actions involving marriage and marital relations are now with the Family Court under RA 8364.

Jurisdiction of Sandiganbayan under RA 8249 depends on the nature of the position and nature of the offense, but not on the penalty. (Salary Grade 27 up)

Expanded jurisdiction of the Court of Appeals under RA7902 includes appeal from all quasi-judicial bodies, including final resolutions of the Civil Service Commission (Revised Admin. Circular 1-95) and the NLRC ( St. Martin Funeral Homes vs. NLRC)

DOCTRINE OF JUDICIAL STABILITY- no court has the authority to interfere by injunction with the judgment of another court of coordinate jurisdiction or to pass upon or scrutinize and much less declare as unjust a judgment of another court (Industrial Enterprises Inc. vs. CA 184 SCRA 426)

RULE OF ADHERENCE TO JURISDICTION – jurisdiction once it attaches cannot be ousted by the happening of a subsequent event although of such character which could have prevented jurisdiction from attaching in the first place

Jurisdiction may be lost upon the passage of curative statute (atlas fertilizer vs. Navarro)*** By way of an exception, jurisdiction may be lost in the event of the passage of a new law treating the

subject proceeding and its flaws where the subject law is curative statute.

*** Parties to a compromise agreement even if non-parties in the action cannot question jurisdiction of the court over their person (Dagupan electric vs.Pano)

*** The jurisdiction of the court is determined by the value of the demand made in the complaint and not the value of the transaction out of which the demand arose. (Cruz vs. Tan)

*** Jurisdiction cannot be presumed. The averments of the complaint, takes as a whole, are what determine the nature of the action and therefore, the court’s jurisdiction. It cannot be fixed by the agreement of the parties; it cannot be acquired through or waived, enlarged or diminished by, any act of omission of the parties; neither it can be conferred by acquiescence of the court.(De Jesus vs. Garcia)



*** Although a foreign corporation is not doing business here in the Philippines they may be sued for acts done against persons in the Philippines. By alleging non-jurisdictional grounds in its pleadings, the corporation deemed to have waived lack of jurisdiction and deemed to have submitted itself to the jurisdiction of the court where it appeared. (Wang Laboratories Inc. vs. Mendoza, 156 SCRA 44)

Jurisdiction of Court in Partition of Land*** As a general rule, MTC has jurisdiction if the title is clear but in the case of Russel vs. Bistil (304

SCRA), where partition is dependent upon the annulment of declaration of heirs, said action is considered incapable of pecuniary estimation and jurisdiction falls within RTC.

Jurisdiction of Court in Expropriation of Land*** Where there is a question of the right to expropriate before determining just compensation, it is

considered an action incapable of pecuniary estimation and jurisdiction falls within the RTC.

Jurisdiction of Court in Foreclosure of Mortgage Involving Land*** As a rule in chattel mortgage, MTC has jurisdiction over it if the amount of property and amount of

mortgage debt falls within its jurisdictional amount. By analogy, if value of land subject of mortgage and mortgage debt falls within MTC jurisdictional amount, it can take cognizance of case.

JURISDICTION OF THE COURTS

JURISDICTION OF THE SUPREME COURT

1. ORIGINAL jurisdiction over cases involving ambassadors, other public ministers and consuls; petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus (concurrent with RTC).

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, final judgments of lower courts in: A) Cases in which the constitutionality or validity of any treaty, international or executive

agreement, law, decree, proclamation, order, instruction, ordinance or regulation is in question; B) Cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed

thereto; C) Cases involving the jurisdiction of lower courts; D) All criminal cases in which the penalty imposed is reclusion perpetua or higher; E) All cases in which only an error or question of law is involved.

*** The SC is a court of last resort and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition.

*** Doctrine of Hierarchy of Courts must always be observed

JURISDICTION OF THE COURT OF APPEALS

1. ORIGINAL jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction (concurrent with SC and RTCs)

2. EXCLUSIVE original jurisdiction over actions for annulment of judgments of RTCs.

3. EXCLUSIVE appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of RTCs and quasi-judicial agencies, bodies, or commissions,

EXCEPT those which fall within the appellate jurisdiction of the SC, namely:a. COMELEC;b. Commission on Audit;c. Sandiganbayan.

POWER of the CA to Receive evidence limited only to 1. Original actions

Ex: Annulment of judgment, certiorari, prohibition2. Appealed cases but limited only to Motion for New Trial on the ground of newly discovered evidence3. When provisional remedies are granted

> Could receive evidence on the damages arising from the commission of an offense

JURISDICTION OF THE REGIONAL TRIAL COURTS

I. EXCLUSIVE ORIGINAL



A. CIVIL CASES

1) Cases where the subject of the litigation is incapable of pecuniary estimation; 2) Involving the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds P20,000/ P50,000, EXCEPT actions for forcible entry and unlawful detainer;3) All actions in admiralty and maritime jurisdiction where the demand or claim exceeds

P200,000/P400,000; 4) Probate proceedings, both testate and intestate, where the gross value of the estate

P200,000/P400,000;5) In all actions involving the contract of marriage and marital relations; 6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising

jurisdiction; 7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a

Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and

8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds P200,000/P400,000;

*** GROSS VALUE means the value of the assets without deducting the liabilities

Test: Actions Incapable of Pecuniary Estimation

In determining whether an action is one of the subject matter of which is not capable of pecuniary estimation this court has adopted the criterion of ascertaining the nature of the principal action/remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation and whether jurisdiction is in the Municipal Courts (now MTC) or in the CFI (now RTC) would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money; where the money claim is purely incidental to, or a consequence of the principal relief sought, this court has considered such action as cases where the subject of the litigation may not be estimated in terms of money and cognizable exclusively by the RTC. RAYMUNDO vs. COURT OF APPEALS(213 SCRA 457)

CRITERION:> If it is primarily for the recovery of a sum of money, claim is considered capable of pecuniary estimation

HOWEVER, where the basic issue is something other than the right to recover a sum or money or where the money claimed is purely incidental to or a consequence of the principal relief sought, then it is not capable of pecuniary estimation. Examples:

1. Specific performance2. Actions for support3. Annulment of judgment4. Foreclosure of mortgage5. Annulment of a document6. Action to question the validity of mortgage

*** An action for annulment or rescission of a contract is not susceptible of pecuniary estimation*** Alternative prayer of specific performance or sum of money is an action capable of pecuniary estimation*** Breach of contract with prayer for sum of money as damages is an action incapable of pecuniary estimation*** Right to expropriate is not capable of pecuniary estimation even if the value of the property is less than P 20T

or P 50T*** Since the right of support is not capable of pecuniary estimation, it is not within the jurisdiction of the MTC *** MTC cannot grant support pendente lite, except criminal cases (6 yrs below)

B. CRIMINAL CASES

All criminal cases not within the exclusive jurisdiction of any court, tribunal, or body EXCEPT those within the jurisdiction of the Sandiganbayan.

N.B. RTC has jurisdiction over criminal cases where the penalty imposable: 1. Exceeds 4 years 2 mos 1 day imprisonment, irrespective of fine

2. Exceeds fine of P4000, if only a fine is imposable Manzano vs. Valera

Libel is punishable by prision correcional in its minimum and medium periods. R.A. 7691 places jurisdiction over criminal cases where the penalty is 6 years or less with the MTCs. However, Art. 360 of the RPC gives jurisdiction over libel cases to the RTC. Special law (RPC) must prevail over general laws (RA 7691). Also, from the provisions of R.A. 7691, there is no manifest intent to repeal or alter the jurisdiction in libel cases.



II. ORIGINAL

A) Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions (concurrent with SC and CA).

B) In actions affecting ambassadors and other public ministers and consuls (concurrent with SC).C) Over offenses committed NOT in relation with public office with imprisonment exceeding 6 years

committed by public officers classified as salary grade 27 or higherD) Over election contests for municipal offices.

III. APPELLATE

All cases decided by the lower courts (MTCs) in their respective territorial jurisdictions.

NOTE: no trial de novo; case is decided on the basis of decision and supporting affidavits.

*** Even when the issue raised on appeal is a pure question of law, one must appeal from the MTC to the RTC in both civil and criminal cases

> Then to CA

*** BUT, if one is going to raise only questions of law, from the judgment of the RTC in the exercise of its Original jurisdiction go straight to the SC (Rule 45)

*** However, if both questions of law & question of fact – to CA

JURISDICTION OF THE FAMILY COURTS (R.A. 8369)

Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:1) Criminal cases where:

A) One or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age, OR

B) One or more of the victims is a minor at the time of the commission of the offense.

Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to the "Child and Youth Welfare Code";

2) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;3) Petitions for adoption of children and the revocation thereof;4) Complaints [for]:

A) Annulment of marriage B) Declaration of nullity of marriage C) Those relating to marital status and property relations of:

I) Husband and wife OR II) Those living together under different status and agreements, AND

5) Petitions for dissolution of conjugal partnership of gains; 6) Petitions for support and/or acknowledgment;7) Summary judicial proceedings brought under the provisions of the "Family Code of the Philippines";8) Petitions for:

A) Declaration of status of children as I) Abandoned II) Dependent OR III) Neglected children

B) Voluntary or involuntary commitment of children; C) The suspension, termination, or restoration of parental authority and other cases cognizable under "Child and Youth Welfare Code", Executive Order No. 56, (Series of 1986), and other related laws;

9) Petitions for the constitution of the family home;10) Cases against minors cognizable under the Dangerous Drugs Act, as amended;Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and11) Cases of domestic violence against:

Women



Acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom of movement; AND

Children Includes the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and

discrimination and all other conditions prejudicial to their development.

*** If an act constitutes a criminal offense, the accused shall be subject to criminal proceedings and the corresponding penalties.

*** If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court.

*** Decisions and orders of the court shall be appealed in the same manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts.

JURISDICTION OF THE MUNICIPAL TRIAL COURTS, METROPOLITAN TRIAL COURTS AND THE MUNICIPAL CIRCUIT TRIAL COURTS

A. EXCLUSIVE ORIGINAL

1. CIVIL CASES

1) Civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies where the demand, exclusive of interest, damages, attorney’s fees and costs, does not exceed P100,000/200,000.

2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer; issue of ownership resolved only to determine issue of possession.

After lapse of 1 year, MTC loses jurisdiction, and case becomes one for recovery of possession de jure (accion publicicana), although MTC may still have jurisdiction if value of property does not exceed P20,000/50,000.

3) Actions involving personal property valued at not more than P100,000/200,000. 4) Actions involving title or possession of real property where the assessed value does not

exceed P20,000/50,000.

2. CRIMINAL CASES

1) Violations of city or municipal ordinances. 2) All offenses punishable with not more than 4 years 2 mos 1 day imprisonment, irrespective

of fine. 3) All offenses punishable by only a fine of not more than P4,000. 4) Offenses involving damage to property through criminal negligence. 3. ELECTION CASES

1) Offense of failure to register or failure to vote.2) Election contests for barangay offices.

B. DELEGATED JURISDICTION in cadastral and land registration cases covering:1. Lots where there is no controversy or opposition; OR2. Contested lots the value of which does not exceed P100,000.

decisions of the MTC in these cases are appealable to the CA

JURISDICTION OF THE HOUSING AND LAND USE REGULATORY BOARD (HLURB)

EXCLUSIVE jurisdiction over1) Unsound real estate business practices2) Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer

against the project owner, developer, dealer, broker, or salesman3) Cases involving specific performance of contractual and statutory obligations filed by buyers of

subdivision lots or condominium units against the owner, developer, dealer, broker, or salesman

JURISDICTION OF THE KATARUNGANG PAMBARANGAY (UNDER THE LOCAL GOVERNMENT CODE OF 1991)



1. No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless:

A) There has been a confrontation between the parties before the lupon chairman or pangkat, ANDB) That no conciliation or settlement has been reached as certified by the lupon/pangkat secretary as attested to by lupon chairman or pangkat chairman, or unless such settlement has been repudiated by the parties thereto

2. Disputes subject to Conciliation Requirement: All disputes between parties actually residing in the same city or municipality

HOWEVER, the court in which non-criminal cases not falling within the authority of the Lupon may, at any time before trial, refer the case to the lupon for amicable settlement.

*** Katarungang Pambarangay hears the case only for mediation and conciliation but they will not resolve the same. Hence, failure of the Katarungang Pambarangay to obtain settlement or agreement from the contesting parties, they shall certify the same and refer it to court for resolution.

3. EXCEPTIONS TO CONCILIATION REQUIREMENT (SC Circular 14-93)

A) Where one party is the government, or any subdivision or instrumentality thereof; B) Where one party is a public officer or employee, and the dispute relates to the performance of

his official functions; C) Where the dispute involves real properties located in different cities and municipalities, unless

the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon;

D) Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);

E) Disputes involving parties who actually reside in barangays of different cities or municipalities, EXCEPT: 1) Where such barangay units adjoin each other, AND

2) The parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon;

F) Offenses for which the law prescribes a maximum penalty of imprisonment exceeding one (1) year or a fine over five thousand pesos (P5,000.00);

G) Offenses where there is no private offended party; H) Disputes where urgent legal action is necessary to prevent injustice from being committed or

further continued, specifically the following:1) Criminal cases where accused is under police custody or detention; 2) Petitions for habeas corpus by a person illegally deprived of his rightful custody over

another or a person illegally deprived of his liberty or one acting in his behalf;3) Actions coupled with provisional remedies such as preliminary injunction, attachment,

delivery of personal property and support during the pendency of the action; AND4) Actions which may be barred by the Statute of Limitations.

I) Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice;

J) Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Sections. 46 & 47, R.A. 6657);

K) Labor disputes or controversies arising from employer-employee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment);

L) Actions to annul judgment upon a compromise, which may be filed directly in court.

VENUE OF PROCEEDINGS: Situation Venue

Parties reside in same barangay That barangayParties reside in different barangays Barangay where respondent, or any of the

respondents, actually resides, at the option of the complainant

Disputes involving real property or interest therein

Barangay where property is situated

Disputes arising at the workplace where the contending parties are employed, or at

Barangay where such workplace or institution is located



the institution where such parties are enrolled for study

**** Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, they are deemed waived. Legal questions that might arise in resolving such objections before the punong barangay are to be submitted to the Secretary of the DOJ, whose ruling shall be binding.

*** Residence alone without membership in the barangay would not be an accurate and reliable criterion in applying the KP Law. Such residence may be actual but only transient or merely temporary such as a guest. While membership alone, without actual residence in a barangay will also not serve the avowed purpose of KP Law for lack of common bond and sense of belonging fostered in member of an identified aggroupment. Thus, it only applies to members who actually reside therein.

5. EFFECT OF NON-COMPLIANCE: A) Dismissal upon motion of defendants for failure to state cause of action or prematurity; OR B) Suspension of proceedings upon petition and referral of case motu proprio to appropriate

barangay authority.

*** Refusal or willful failure to appear shall bar complainant from seeking judicial recourse for the same course of action, and the respondent from filing any counterclaim.

*** Failure of a party to specifically allege the fact that there was no compliance with the barangay conciliation procedure constitutes a waiver of that defense

*** Brgy. Conciliation is not applicable to corporations, partnerships, estates or intestate estates

FERNANDEZ vs. MILITANTE (161 SCRA 695) This Court has repeatedly ruled that the conciliation process at the Barangay level is a condition precedent for filing of actions before the regular trial courts and ordinarily, non-compliance therewith could affect the sufficiency of plaintiff’s cause of action and make his complaint vulnerable to dismissal on the ground of lack of cause of action or prematurity. Failure to raise it as a defense in the answer or in a timely motion to dismiss is deemed a waiver of such precondition.

*** Conciliation process in KP Law is mandatory and a pre-condition for the filing of a case in court, but it is not a jurisdictional requirement so that non-compliance therewith cannot affect the jurisdiction already acquired by the court.( royales vs. IAC)

6. PROCEDURE FOR AMICABLE SETTLEMENT:

A) Complainant pays appropriate filing fees, and shall complain, orally or in writing, to the lupon chairman of the barangay;B) Lupon chairman shall make attempts at mediation; if he fails within 15 days from date of first meeting, he shall set a date for the constitution of a pangkat ng tagapagsundo (3 members; chosen by the parties from the list of the members of the lupon) C) Pangkat shall have power to issue summons, and shall hear both parties and their witnesses, and attempt to arrive at an amicable settlement. Within 15 days from the day it convenes, it shall arrive at said settlement or resolution of the dispute.

During the 15-day period when the dispute is under mediation, the prescriptive periods for offenses, and for causes of action shall be interrupted upon filing of the complaint with the punong barangay. Said interruption shall not exceed 60 days from said filing.

In all proceedings, parties must appear in person without the assistance of counsel or representatives, EXCEPT for minors and incompetents who may be assisted by their next-of-kin who are not lawyers.

*** Lawyers cannot appear for and behalf of the parties unless they are party to the dispute

7. Amicable settlement shall have the force and effect of a final judgment upon the expiration of 10 days from date of amicable settlement, unless:

a. It is repudiated, or

*** Repudiation must be done within 10 days, by filing a sworn statement with the lupon chairman;

*** An award or settlement may be repudiated by a sworn statement that consent was obtained by fraud, violence or intimidation

> There is no need to prove fraud, violence or intimidation



> The affidavit would be enough to set it aside

*** Such repudiation is a sufficient basis for the issuance of a certification for filing a complaint with the court.

b. A petition to nullify the settlement is filed in the proper city or municipal court The settlement agreed upon does not have the force and effect of a final judgment when the

dispute is not within jurisdiction of the lupon but submitted to it. In this case, the compromise agreed upon by the parties before the lupon/pangkat chair shall be submitted to the court and upon approval thereof, shall have the force and effect of a judgment of said court.

CONCILIATION PROCEEDINGS: Katarungang Pambarangay vs. Pre-TrialKP: Lawyers are prohibited from appearingPT: Lawyers are allowed to appear and represent

KP: A party who does not appear durng the barangay conciliation proceedings may be subject to arrestPT: No arrest, but may be declared “as in default”

8. EXECUTION OF AMICABLE SETTLEMENT:a. Within 6 months from date of settlement: by the lupon.b. Thereafter, by action in the appropriate city of municipal court

9. CERTIFICATION OF BARANGAY AUTHORITIES (for filing a complaint in court) shall be issued only upon complying with the following requirements:

a) Issued by lupon secretary and attested by lupon chairman/ punong barangay, that confrontation took place and conciliation settlement was reached, but subsequently repudiated.

b) Issued by pangkat secretary and attested by pangkat chairman, that: i) There was a confrontation but no settlement; OR

ii) There was no personal confrontation without any fault on the part of the complainant.

**** Issued by the Punong Barangay, as requested by the proper party, on the ground of failure of settlement, where the dispute involves members of the same indigenous cultural community, which shall be settled in accordance with the customs and traditions of that particular cultural community, or where one or more of the parties to the aforesaid dispute belong to the minority and the parties mutually agreed to submit their dispute to the indigenous system of amicable settlement, and there has been no settlement as certified by the datu or tribal leader or elder, to the Punong Barangay of the place of settlement.

If mediation or conciliation proved unsuccessful before punong barangay there having been no agreement reached to conciliate, OR respondent failed to appear before punong barangay, Punong Barangay shall not issue the certification (because now mandatory for him to constitute the Pangkat before whom mediation, conciliation, or arbitration proceedings shall be held.)

JURISDICTION OF THE SANDIGANBAYAN

A. ORIGINAL

Violations of: 1) “Anti-Graft and Corrupt Practices Act”;

2) R.A. 1379 (“An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired By Any Public Officer or Employee and Providing for the Proceedings Therefor”); or

3) Title VII, Chapter II, § 2 of the RPC (i.e., Articles 210-212 of RPC)

Where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

A) Officials of executive branch occupying positions classified as Grade 27 or higher, specifically including:

1) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads;



2) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers and other city department heads;

3) Officials of the diplomatic service occupying the position of consul and higher;

4) Philippine army and air force colonels, naval captains, and all officers of higher rank;

5) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;

6) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

7) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

B) Members of Congress and officials thereof classified as Grade 27 or higherC) Members of the Judiciary, without prejudice to the provisions of the Constitution (on impeachment)D) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the ConstitutionE) All other national and local officials classified as Grade 27 or higher; orOther offenses or felonies, committed by public officials and employees mentioned in #1, in relation to their office, whether simple or complexed with other crimes

F) Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A series of 1986.

REPUBLIC vs. ASUNCION (231 SCRA 211)For the Sandiganbayan to have exclusive jurisdiction over the offense, there must be an allegation that

the accused or one of the accused has a salary range of at least 27 and that he committed the crime in relation to office. If there is no such allegation, the RTC/MTC has exclusive jurisdiction over the offense. However, if in the course of the trial, it is discovered that the accused has a salary range of 27 and that he committed the crime in relation to his office, the case should be transferred to the Sandiganbayan. It does not matter whether the case has already been submitted for decision of the court or not.

*** Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions and other ancillary writs and processes in aid of its appellate jurisdiction: provided, that the jurisdiction over these petitions shall not be exclusive of the Supreme Court and over petitions of similar nature, including quo warranto, arising or that may arise in cases failed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A (concurrent with SC)

**** The power of the Sandiganbayan to issue writs of Certiorari, Prohibition and Mandamus is only in aid of its appellate jurisdiction

> That is if the case is appealable to the SB for review

If the last element, namely, “in relation to his office” is absent or is not alleged in the information, the crime committed falls within the exclusive original jurisdiction of ordinary courts and not the SB.

SANCHEZ vs. DEMETRIOU (G.R. No. 111771-77 November 9, 1992)A crime or offense is said to have been committed in relation to the office of the offender where: (a) there

is a direct relation between the commission of the crime and the office of the accused such that the public office is an essential element of the crime charged. In fine, the offense cannot stand independently of the office; (b) the commission of the crime was intimately connected with the performance of the official functions of the accused and perpetrated while in the performance of though improper or irregular of his official functions.

A crime is committed in relation to office if the offense is intimately connected with the office of the offender and perpetrated while he was in the performance of his official functions. The intimate relation between the offense charged and the discharge of official functions must be alleged in the information.

B. EXCLUSIVE APPELLATE If none of the principal accused are occupying positions of grade 27 or higher, original jurisdiction will be with either the MTC or RTC; SB will exercise exclusive appellate jurisdiction on said cases.

The procedure prescribed in BP Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals shall apply to appeals and petitions for review filed with the Sandiganbayan.



C. NOTES:

*** Private individuals charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in GOCCs, shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

*** Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability arising from the offense charged shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate court, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized.

Decisions of the Sandiganbayan:

a. Appealable to the SC by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court;

b. If SB imposes penalty of reclusion perpetua or higher, the decision shall be appealable to the SC by Notice of Appeal;

c. If penalty imposed is death, review by the Supreme Court shall be automatic, whether or not the accused filed an appeal.

JURISDICTION OF THE COURT OF TAX APPEALS

EXCLUSIVE APPELLATE JURISDICTION over:

1) Decisions of the Collector of Internal Revenue in cases involving disputed assessments, refunds of taxes, fees or other charges, penalties imposed in relation thereto, or other matters arising under the NIRC;

2) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges; seizure, detention or release of property affected; fines, forfeitures, or other matters arising penalties imposed in relation thereto; and other matters arising under the Customs Law; and

3) Decisions of provincial or city Boards of Assessment Appeals in cases involving the assessment and taxation of real property or other matters arising under the Assessment Law. Jao v. CA (reiterated in Bureau of Customs v. Ogario, March 2000)

RTCs are devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through petitions of certiorari, prohibition or mandamus. The proper remedy is to appeal to the Commissioner of Customs and thereafter to the Court of Tax Appeals.

RULES ON SUMMARY PROCEDURECases Applicable

A. CIVIL CASES

1) All cases of forcible entry and unlawful detainer irrespective of amount of damages or unpaid rentals; without question of ownership; attorney’s fees not exceeding P20,000 if quieting of ownership; resolved to determine question of possession.2) Other civil cases EXCEPT probate proceedings, where the total amount of the claim does not exceed P10,000, exclusive of interest and cost.

SUMMARY PROCEDURE IN CIVIL CASES



* The Court should not dismiss complaint or counterclaim if they are not verified. The requirement is merely a formal one, and not jurisdictional. It should therefore simply direct the party concerned to have it verified.

B. CRIMINAL CASES

1) Violation of traffic laws, rules, regulations2) Violation of rental laws3) Violations of city or municipality ordinances4) All other criminal cases where the penalty does not exceed 6 months or a fine of P1000 or both, irrespective of other imposable penalties or of the amount of civil liability5) Damage to property through criminal negligence where the fine does not exceed P10,000.

Summary Procedure in Criminal Cases


Filing of verified complaint with the MTC

Court summons defendant Court may dismiss

the case outright

Within 10 days from receipt of summon, defendant answers, may be compulsory counterclaim or crossclaim, and serves a copy on plaintiff

Answer to counterclaim and cross-claim within 10 days

Preliminary conference within 30 days after last answer is filed

Within 5 days after conference, court issues order of record of the preliminary conference

Within 10 days from receipt of order, submission by parties of affidavits and position papers

Rendition of judgment within 30 days after receipt of last affidavit, or within 15 days after last clarificatory paper

Defendant fails to answer in 10 days court, motu propio or on plaintiff’s motion, may render judgment based on facts alleged in the complaint w/o prejudice to R9 S3(c)

Plaintiff fails to appear in prelim. Con., complaint may be dismissed. Defendant entitled to decision based on his counterclaim. All cross-claim dismissed.

Sole defendant fails to appear, plaintiff entitled to judgment based on complaint and what is proved therein

Summary Procedure in Civil Case1) Filing of the complaint which must be

verified, allowed only are compulsory, counterclaim, cross-claim, and answer thereto;

2) Examination by the Court of allegation to dismiss and if not issue summons with the order that it will be tried under Summary Procedure;

3) Answer within 10 days from service of summons;

> Affirmative/negative defense not pleaded waived except lack of jurisdiction and premature filing

> Compulsory counterclaim and cross-claim not set-up is barred

4) Failure to Answer, Court motu proprio or upon motion render judgment and award limited to prayer or reduce damages or attorneys fees;

5) Pre-Trial Conference within 30 days from last answer;

6) Pre-Trial Order within 5 days from termination of pre-trial

> Without this, the 10-day period to file position paper which will be the basis on judgment will not run

7) Position Paper with law and facts relied upon, affidavit of witness, other evidences submitted within 10 days from receipt of order;

8) Clarificatory Papers or evidence must be submitted within 10 days from receipt of order to clarify

9) Judgment must be rendered within: > 30 days after submission of last affidavit

or > 15 days after submission of last

clarificatory affidavit or upon expiration of the period for filing the same.


1) Filing of Complaint or information with affidavit of witness2) Court order the accused to submit counter affidavit & affidavit of his witness within 10

days from receipt of order3) Arraignment by the court

-If in custody, arraign immediately-If not in custody, within 30 days from filing (Speedy Trial Act)-If pleads guilty and in custody or not – immediate sentencing

4) Preliminary conference (optional) to accused before trial5) Submit additional affidavit6) Trial with the cross-examination of witnesses by the parties7) Judgment rendered within 30 days after termination of trial

DISTINCTION IN PROCEDURE

CIVIL CRIMINAL1. No trial involved

2. Requires appearnce in the pre-trial conference

3. Judgment rendered based solely on affidavits and evidences (allows parties to stipulate facts)

4. Judgment after expiration of period to file position papers

1. With trial through cross examination of witnesses

2. Requires appearance in the pre-trial conference but does not require to stipulate facts

3. Judgment rendered based on affidavits and evidences as well as oral testimonies of witness.

4. Judgment after termination of trial

PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE. (1) Motion to dismiss the complaint or to quash the complaint or information except on the ground of

lack of jurisdiction over the subject matter or failure to comply with prior section (referral to the Lupon)

(2) Motion for a bill of particulars(3) Motion for a new trial or for reconsideration of a judgment or for reopening of trial(4) Petition for a relief from judgment(5) Motion for extension of time to file pleadings, affidavits, or any other paper(6) Memoranda(7) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court(8) Motion to declare defendant in default(9) Dilatory motions for postponement(10) Reply(11) Third party complaints(12) Interventions

*** The filing of a prohibited pleading will not suspend the period to file an answer or to appeal.

*** Although a motion to dismiss is a prohibited pleading, its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay.

*** The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten-day period to submit the affidavits and other evidence.

TRIAL PROCEDURE

No trial date is set. No testimonial evidence is required nor cross-examination of witnesses allowed. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order, they shall submit (1) the affidavits of their witnesses (2) and other evidence on the factual issues set forth in the pre-trial order, TOGETHER WITH THEIR POSITION PAPERS SETTING FORTH THE LAW AND THE FACTS RELIED UPON BY THEM.



*** Non-referral to Lupon, action shall be dismissed without prejudice and may be revived only upon compliance therewith EXCEPT to criminal cases where the accused was arrested without a warrant

*** Witness in criminal cases cannot be cross-examined without first submitting their affidavits EXCEPT in rebuttal and sur-rebuttal

*** Judgment in summary procedure are immediately executory. CAVEAT: but such judgment must first be served to losing party before the same may be immediately executory.

RULES OF COURT

CIVIL PROCEDURE

RULE 1GENERAL PROVISIONS

*** Rules of court have the force and effect of law

*** In the interest of just and expeditious proceedings, the SC may suspend the application of the Rules of Court and exempt a case from their operation because the rules were precisely adopted with the primary objective of enhancing fair trial and expeditious justice.

*** Statutes regulating the procedure of courts may be made applicable to cases pending at the time of their passage and are retroactive in that sense.

Section 3. Cases governed.

Civil action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong; may be ordinary or special

Criminal action – one by which the state prosecutes a person for an act or omission punishable by law

Special proceeding – remedy by which a party seeks to establish a status, a right, or a particular fact

*** In all these actions, the SC is not absolutely adhering to state decisis since it may abandon an doctrine not in accord with law, justice or equity.

Moreso, SC has inherent jurisdiction that it can always exercise in settings attended by the unusual circumstances to prevent manifest injustice that could result to bare technical adherence to the law and unprecise jurisprudence

ACTION CLAIM an ordinary suit in a court of justice a right possessed by one against another

one party prosecutes another for the enforcement or protection of a right or the protection or redress of a wrong.

the moment said claim is filed before a court, the claim is converted into an action or

suit.

CLASSIFICATION OF ACTIONS.(a)

ORDINARY CIVIL ACTION SPECIAL CIVIL ACTIONgoverned by ordinary rules governed by special rules (Rules 62 to 71),

i.e., Interpleader (62), etc,

(b) Classification of Action as to binding effect



ACTION IN REM ACTION IN PERSONAM ACTION QUASI IN REMdirected against the thing itself

directed against particular persons

directed against particular persons

judgment is binding on the whole world

judgment is binding only upon parties impleaded or their successors in interest

judgment binding upon particular persons, but the real motive is to deal with real property or to subject said property to certain claims.

ex. Land registration case; probate proceedings for allowance of a will.

ex. action to recover damages; action for breach of contract

ex. unlawful detainer or forcible entry; judicial foreclosure of mortgage.

REAL ACTION PERSONAL ACTION MIXED ACTIONownership or possession of real property is involved

personal property is sought to be recovered or where damages for breach of contract are sought

both real and personal properties are involved

founded on privity of estate

founded on privity of contract

founded on both

ex. Accion reinvidicatoria

ex. action for a sum of money

ex. accion publiciana with a claim for damages

(d) Classification of Action for purposes of venue

LOCAL ACTION TRANSITORY ACTIONmust be brought in a particular place, in the absence of an agreement to the contrary

generally, must be brought where the party resides regardless of where the cause of action arose

ex. Action to recover real property ex. action to recover sum of money

IN REM vs. IN PERSONAM An action to redeem, or to recover title to or possession of, real property is not an action in rem or an

action against the whole world, like a land registration proceeding or the probate of a will; it is an action in personam, so that a judgment therein is binding only upon the parties properly impleaded and duly heard or given an opportunity to be heard. Actions in personam and actions in rem differ in that the former are directed against specific persons and seek personal judgments, while the latter are directed against the thing or property or the whole world. An action to recover a parcel of land is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing.

CHING vs. COURT OF APPEALS(181 SCRA 9)*** An action in personam is an action against a person on the basis of his personal liability, while an action in rem is an action against the thing itself, instead of against the person. Hence, a real action may at the same time be an action in personam and not necessarily an action in rem.

*** Consequently, the distinction between an action in personam and an action in rem for purposes of determining venue is irrelevant. Instead, it is imperative to find out if the action filed is a personal action or a real action. After all, personal actions may be instituted in the Regional Trial Court where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff. On the other hand, real actions should be brought before the Regional Trial Court having jurisdiction over the territory in which the subject property or part thereof lies. PADERANGGA vs. BUISAN(226 SCRA 188)

Section 4. Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory character, and whenever practicable and convenient1) Election cases;2) Land registration;3) Cadastral proceedings;4) Naturalization proceedings; and 5) Insolvency proceedings

Section 5. Commencement of action.



> An action is commenced by the filing of the complaint and the payment of the requisite docket fees within the prescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period.

Requistes for the Commencement of Action:

1) FILING OF THE COMPLAINT > If filed personally with docket fees, then on the date of actual receipt of the clerk of court > If filed by registered mail together with the docket fees, then on the date of the mailing of the

complaint > If filed by registered mail and docket fees are subsequently paid, then on the date of payment of

the fees

*** Filing of a complaint by mail other than by registry service is not authorized

2) PAYMENT OF THE DOCKET FEES

Assessment of Docket feesGEN. RULE: Complaints or petitions must specify the amount of damages being prayed for in the body and the prayer of the said initiatory pleading because such amount shall be assessed for filing fees

Effect of Failure to State the Amount of Damages Resulting to Underpayemnt of Docket Fees

a. Shall not be accepted for filing b. Shall be expunged from the record of the Court c. Cannot be cured by amendment such as reducing the claim in the compliant since there is no

original complaint over which the court has acquired jurisdiction

MODIFICATION OF THE GENERAL RULE: (Sun Insurance Office Ltd. Vs. Asuncion, 170 SCRA 234) *** If filing of complaint or petition is not accompanied by the payment of the docket fees the court

may allow the payment of the fee within a reasonable period but not beyond the applicable prescriptive period or reglementary period

>BUT court only acquires jurisdiction only upon full payment

*** Same rules apply to permissive counterlaims, 3rd party claims and similar pleadings

*** When the trial court acquires jurisdiction over a claim by the filing of the pleadings and docket fees, the judgment awards a claim not specified in the pleadings or if specified, the same has been left to the determination of the court. The additional filing fee shall constitute a lien on the judgment.

EXCEPTION:

1. Even if the body of the complaint is silent as to the exact amount of damages, the prayer did specify the amount, these amounts are definite enough for the clerk of court to compute the docket fees payable. The amount claimed need not be initially stated with mathematical precision.(Ng Soon vs. Alday)

2. In an action involving real property with related claims for damages where the fees have been paid but the claim for related damages is unspecified in the complaint, the same will not be dismissed by the court but the court can simply expunge the claim for related damages or on motion, allow the exact amount and complete and pay the difference in the fees. (Tacay vs. RTC of Tagum)

3. Damages should arise after the filing of the complaint which although not specified because the plaintiff cannot speculate thereof, the same has been left for determination by the court. (Ayala corp. vs. Madayag)

*** Where the court awards claims not specified in the pleadings such as damages arising after the filing of the complaint, the additional filing fees therefor shall constitute a lien on the judgment

Actual payment of Docket Fees:



GEN. RULE: The case is deemed filed only upon payment of the docket fees and the court acquires jurisdiction over the case upon full payment thereof.

EXCEPTION: Where there is an under assessment of docket fees to be paid due to an initially honest difference of opinion as to the nature of action, plaintiff was permitted to subsequently complete the payment by paying the difference.(Magaspi vs. Ramolete)

*** If the case is dismissed, the plaintiff cannot recover docket fee

TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE(180 SCRA 433)The requirement in Circular 7 that complaints, petitions, answers and similar pleadings should specify the

amount of damages being prayed for not only in the body of the pleading but also in the prayer, has not been altered.

Two situations may arise. 1) One is where the complaint or similar pleading sets out a claim purely for money or damages and there is no precise statements of the amount being claimed. In this event, the rule is that the pleading will “not be accepted nor admitted, or shall otherwise be expunged from the record.” In other words, the complaint or pleading may be dismissed, or the claims as to which the amounts are unspecified may be expunged, although as aforestated the Court may, on motion permit the amendment on the complaint and payment of the fees permit the claim has not in the meantime become timebarred. 2) The other is where the pleading does specify the amount of every claim, but the fees paid are insufficient, and there again, the rule now is that the court may allow a reasonable time for the payment of the prescribed fees or the balance thereof, and upon such payment, the defect is cured and the court may properly take cognizance of the action, unless in the meantime prescription has set in and consequently barred the right action.

*** An action can be commenced by filing the complaint by registered mail. It is the date of mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court.

*** When the pleading is amended, the original pleading is deemed abandoned. The original ceased to perform any function as the pleading and the case stands for trial on the amended pleading only. The additional docket fees should be based on the petitioner’s amended complaint.

Additional defendant*** It is the date of the filing of the amended complaint joining the additional defendant, which is the date of the commencement of the action with regard to such additional defendant.

*** If Answer is already filed & served, there is a need for a MOTION

*** The amount of damages in the body or prayer of the pleading must enable the clerk of court to compute the docket fees required. They need not be mathematically precise, and can be appraised ‘more or less.’ The party is allowed to make an initial payment of the filing fees corresponding to the estimated amount of the claim subject to adjustment as to that may later be proved.

*** Even if the value of a property is immaterial in the determination of the courts jurisdiction, it should however be considered in the determination of the amount of docket fee

Section 6. Construction.

GENERAL RULE: Liberal construction .EXCEPTIONS: a. reglementary periods b. rule on forum shoppingEXCEPTION TO THE EXCEPTION:*** The SC in some cases liberally gave due course to appeal perfected out of time only to serve the demands of

substantial justice and in the exercise of the equity jurisdiction of the SC.

RULE 2 CAUSE OF ACTION

Section 2. Cause of Action, defined.

REQUISITES OF CAUSE OF ACTION1. Right of the plaintiff2. Violation of the right by the defendant3. Injury suffered by the plaintiff

CAUSE OF ACTION RIGHT OF ACTION delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff

remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him



the reason for the action the remedy or means afforded or the consequent relief

the formal statement of alleged facts

right that is given – the right to litigate because of the occurrence of the alleged facts

determined by facts as alleged in the complaint and not the prayer therein

determined by substantive law

not affected by prescription, estoppel, etc.

may be taken away by prescription, estoppel, etc.

*** The cause of action is determined by the averments in the pleadings*** The right of action is determined by the substantive law*** There can be no right of action without a cause of action because the former is the operative facts which give

rise to the latter*** But there can be a cause of action without the right of action as in the case of prescription, though the former

is present but the right of action already prescribed by statute of limitations

How Right of Action Lost1. Estoppel2. Laches3. Prescription

RELIEF REMEDY SUBJECT MATTERthe redress, protection, award or coercive measure which the plaintiff prays the court to render in his favor as a consequence of the delict committed by the defendant.

the procedure or type of action which may be availed of by the plaintiff as the means to obtain the desired relief

the thing, wrongful act, contract or property which is directly involved in the action, concerning which the wrong has been done and with respect to which the controversy has arisen.

*** A party may not institute more than one suit for a single cause of action

*** Recovery of ownership of and income from the same land is considered one and the same

CAUSE OF ACTION vs. ACTION

DE GUZMAN vs. COURT OF APPEALS(192 SCRA 507)A cause of action is the fact or combination of facts which affords a party a right to judicial interference in

his behalf. An action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement pr protection of a right, or the prosecution or redress of a wrong.

The cause of action must always consist of two elements: (1) the plaintiff’s primary right and the defendant’s corresponding primary duty, whatever may be the subject to which they relate-person, character, property or contract; and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged.

The term right of action is the right to commence and maintain an action. In the law on pleadings, right of action is distinguished from cause of action in that the former is a remedial right belonging to some persons, while the latter is a formal statement of the operative facts that give rise to such remedial right. The former is a matter of right and depends on the substantive law, while the latter is a matter of statement and is governed by the law of procedure.

The right of action springs from the cause of action, but does not accrue until all the facts which constitute the cause of action have occurred. When there is an invasion of primary rights, then and not until then does the adjective or remedial law become operative, and under it arise rights of action. There can be no right of action until there has been a wrong - a violation of a legal right - and it is then given by the adjective law.

It must be remembered that when a party files a motion to dismiss the complaint for lack of cause of action, he is deemed to hypothetically admit the allegations thereof.

Sec. 3. One suit for a single cause of action

*** The singleness of a cause of action is determined by the number of delicts or wrongs committed by the defendant> Where there is only one delict or wrong, there is but a single cause of action, regardless of the number of rights that may have been violated

Section 4. Splitting a single cause of action, effect of.



SPLITTING OF CAUSE OF ACTION – is the practice of dividing one cause of action into different parts and making each part subject of a separate complaint.

REMEDY/EFFECTS OF SPLITTING OF CAUSE OF ACTION1) Dismissal of action under Rule 16 sec. 1e on the ground of litis pendencia2) Dismissal of action under Rule 16 sec. 1f on the ground of res judicata3) Criminal action for false public document for submitting a certification of non-forum shopping4) Contempt and /or administrative charges provided for by Rule 7, sec. 5 for wilfully submitting a false

certification of non-forum shopping

RUBIO DE LARENA vs. VILLANUEVA (53 PHIL 925)When a contract of lease provides for the payment of the rent in separate installments, each installment

may be considered an independent cause of action, but in an action upon such a lease for the recovery of rent, the installments due at the time the action was brought must be included in the complaint, and failure to do so constitute a bar to a subsequent action for such overdue rent.

The principle is well established that a party will not be permitted to split a cause of action and make it the basis of several suits, but that rule applies only to cases where the cause is in existence at the time the action is brought.

BLOSSOM & CO. vs. MANILA GAS CORPORATION (55 PHIL 226)As a general rule, a contract to do several things at several times is divisible, and a judgment for a single

breach of a continuing contract is not a bar to a suit for a subsequent breach. But where the contract is entire, and the breach total, there can only be one action in which the plaintiff must recover all damages.

*** A contract embraces only one cause of action because it may be violated only once even it contains several stipulations. Thus, non-payment of a loan secured by mortgage constitutes a single cause of action. The creditor cannot split up this single cause of action in two separate complaints, one for payment of the debt and another for the foreclosure of the mortgage. (Quiogue vs. Bautista)

Action for Payment of overdue Rent under A Lease Contract Constitute Only One Cause of Action> When a contract of lease provides for the payment of the rent in separate installments, each installment may be considered an independent cause of action, but in an action upon such a lease for the recovery of rent, the installments due at the time the action was brought must be included in the complaint and failure to do so constitutes a bar to a subsequent action for such overdue rent.

> The principle is well established that a party will not be permitted to split a cause of action and make it the basis of several suits, but that rule applies only to cases where the cause is in existence at the time the action is brought. (Larena vs. Villanueva)

*** General Rule, a contract to do several things at several times is divisible and a judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. But where the contract is entire and the breach is total, there can be only one action in which plaintiff must recover all damages . (Blossom & co. vs. Manila gas)

Section 5. Joinder of causes of action. > Rule in this section is PERMISSIVE and the plaintiff can always file separate actions for each cause of action.

JOINDER – test of jurisdiction is totality of demand against each defendant.

Par. (b) requires that: only civil actions may be joined, obviously because they are subject to the same rules.

THE FOLLOWING CAUSES OF ACTION MAY BE JOINED:1. Arising out of the same contract, transaction or relation between the parties;2. Demands for money; and 3. Same nature and character

REQUISITES OF JOINDER OF CAUSES OF ACTION:1) The party joining the causes of action shall comply with the rules on joinder of parties;2) The joinder shall NOT include special civil action or actions governed by special rules;3) Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of the RTC and the venue lies therein;

RULES OF JOINDER OF PARTIESRule 3 Section 6 which provides that it is necessary that the right to relief from said cause of action should:



1) Arise out of the same transaction or series of transactions 2) A question of facts and law are common to all plaintiffs or defendants may arise in the action

No Inclusion of Special Civil Actions: Hence, a case for reconveyance of title with damages in the RTC cannot be joined with the case of ejectment in the MTC because the latter case involves the rule on summary procedure which is a special rule. However, a case in RTC for an election protest and disqualification and a quo warranto proceeding may be joined in view of the importance of resolving the title to the office at the earliest possible case.

*** There is no relation between an ordinary action and a special civil action, nor are they of the same nature or character, much less do they present any common question of fact or law, which conjointly could warrant their joinder

> The 2 actions do not rightly meet the underlying test of conceptual unity demanded to sanction their joinder under the rules.

Pars. (d) embodies the TOTALITY RULE

"Section 33 BP129, as amended by RA 7691 - Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of actions, irrespective of whether the causes of action arose out of the same or different transactions.

*** For as long as one cause of action falls within the jurisdiction of the RTC, the case can be filed there even if the MTC has jurisdiction over the others.

*** In case the obligation is by installments, each installment constitutes 1 cause of action. HOWEVER, if at the time of bringing the suit several installments are already due, all installments due must be included otherwise, those excluded will be barred.

*** Where two or more plaintiffs sue one defendant in a single complaint or one plaintiff sues several defendants in a single complaint, based on several causes of action for or against each, respectively, the totality rule applies only where (a) the causes of action arose from the same series of transactions; and (b) there is a common question of fact or law among them. (FLORES vs. MALLARE)

*** A real action and a personal action may be joined either in the RTC of the place where the real property is located or where the parties reside.

RULES ON ALTERNATIVE CAUSES OF ACTION OR DEFENSES 1) When a person has one claim or one defense he can state than one claim or one defense in two or more

statements either hypothetically or in the alternative

2) Where two or more statements of a claim or defense are made & one is made independently of the other which is sufficient

*** The pleading is not made insufficient by the insufficiency of the other statement of the claim or other defenses.

CLASS SUIT VS. PERMISSIVE JOINDER OF PARTIES

RE: REQUEST OF THE HEIRS OF THE PASSENGERS OF DOÑA PAZWhat is contemplated, as will be noted, is that (a) the subject matter of the controversy is of common or

general interest to many persons, and (b) those persons are so numerous as to make it impracticable to bring them all before the court. Illustrative of the rule is the so-called derivative suit brought in behalf of numerous stockholders of a corporation to perpetually enjoin or nullify what is claimed to be a breach of trust or an ultra vires act of the company’s board of directors. In such a suit, there is one, single right of action pertaining to numerous stockholders, not multiple rights belonging separately to several, distinct persons.

On the other hand, of there are many persons who have distinct, separate rights against the same party or group of parties, but those rights arise from the same transactions or series of transactions and there are common questions of fact or law resulting therefrom, the former may join as plaintiffs in one action against the same defendant. This is authorized by the above mentioned joinder of parties rule on Section 5 of Rule 3.

The other factor that serves to distinguish the rule on class suits from that of permissive joinder of parties is, of course, the numerous of parties involved in the former. The rule is that for a class suit to be allowed, it is needful inter alia that the parties be so numerous that it would be impracticable to bring them all before the court.

Be all this as it may, as regards the computation of the amount involved in the action for purposes of determining the original jurisdiction over it, and the correlative matter of the amount of filing fees to be paid, it is immaterial whether the rule applied to be that one class suits or permissive joinder of parties. For in either case, it



is the totality of the amounts claimed by or against the parties that determines the jurisdiction, exclusively only of interest and costs.

Section 6. Misjoinder of causes of action.

*** Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion or motu proprio, be severed and proceeded with separately.

There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action.

RULE 3PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties; plaintiff and defendant.

PLAINTIFFS- Those having an interest in the subject matter of the action or in obtaining the relief demanded.

DEFENDANTS:(a) persons who claim an interest in the controversy or the subject thereof adverse to the plaintiff; or(b) who are necessary to a complete determination or settlement of the questions involved therein; or(c) all those who ordinarily should be joined as plaintiffs but who do not consent thereto, the reason

therefore being stated in the complaint.

PARTIES TO AN ACTION1) Natural persons2) Persons with juridical personality3) Entities authorized by law

~ Necessary that the party be likewise a party in interest and have legal capacity to sue

PERSONS WHO CAN SUE:1. Natural persons with legal capacity under the Civil Code2. Juridical persons such as public and private corporation duly registered may be parties to a suit as provided for

in Art. 44 of the Civil Code3. Estate of the deceased for purposes of settling the case4. Political party duly registered with the Comelec5. Labor Union duly incorporated in the SEC and registered with BLR-DOLE6. Roman catholic church which is considered a corporation by prescription7. Non-resident alien may sue and be a party in an action

REQUISITES FOR SUING OR BEING SUED1) Natural person or juridical person2) Entity authorized by law to sue & be sued3) Must be the real party in interest4) Must have capacity to sue & be sued*** An indispensable party ought to be impleaded either as a plaintiff or defendant in order to terminate the

subject of the case.

*** If the suit is not brought in the name of or against the real party in interest, file a MOTION TO DISMISS on the ground that the COMPLAINT STATES NO CAUSE OF ACTION.

ISOLATED JURISDICTION RULE - only foreign corporations and not just any business organization or entity can avail themselves of the privilege of suing before Philippine courts even without a license ( Comm. of Customs vs. KMK 182 SCRA 591)

Sec. 2. PARTIES IN INTEREST

REAL PARTY IN INTEREST> The party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit

*** REAL PARTY-IN-INTEREST PLAINTIFF is one who has a legal right while a REAL PARTY-IN-INTEREST DEFENDANT is one who has a correlative legal obligation whose act or omission violates the legal right of the former



GENERAL RULE: Every action must be prosecuted or defended in the name of the real party in interest

REMEDY: If the action is not filed or defended by a person not a real party in interest, it can be dismissed on motion on the ground that it has no cause of action.

EXCEPTION: An action brought by parties not really affected or no direct interest therein may proceed if the matters to be litigated upon would involve one of transcendental importance. It is because the rule on parties is a procedural and technical matter which can be brushed aside to subserve the end of justice. (Kilosbayan vs. Guigona)

*** INTEREST within the meaning of the rule means material interest, an interest in issue and to be affected by the decree as distinguished from mere incidental interest. Consequently, a person who is not a party to a contract and for whose benefit it was not expressly made cannot maintain an action thereon, notwithstanding that the contract, if performed by the parties to it, would incidentally inure to his benefit. (HBTAI vs.IAC)

*** The owner is a real-party-in-interest in bringing an action for damages for his car whether or not he is the driver at the time it occurred. (Dilson vs. IAC)

*** The parents of the victim in a vehicular accident is not real party in interest in compromising or releasing the claims fro damages against the common carrier. In an action for breach of contract, persons not parties to contract are not real parties in interest. In the absence of any contract of carriage between Baliwag and George’s parents, the latter are not real parties-in-interest in an action for breach of that contract. (Pioneer Insurance vs. CA)

Section 3. Representatives as parties.

*** Impleading the beneficiary as a party in the suit is now mandatory > The beneficiary shall be included in the title and shall be deemed to be the real party in interest

CLASSIFICATION OF PARTIES IN INTEREST.

(1) Indispensable parties – those without whom no final determination can be had of an action. (must be joined)

(2) Necessary (or proper) parties – those who are not indispensable but ought to be parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (may or may not be joined)

(3) Representative parties – those referred to in sec. 3 of this rule (trustee, guardian, executor or administrator, or an authorized party by law of these Rules). An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal

(4) Pro forma parties – those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule.

(5) Quasi parties – those in whose behalf a class or representative suit is brought. Example of Representative Parties:1. Express trustee2. Guardian3. Executor/administrator4. Party authorized by law5. Agent of an undisclosed principal involving things belonging to the latter

*** An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal, EXCEPT when the contract involves things belonging to the principal

CO-OWNERSHIP*** Any co-owner may maintain an action for ejectment while other co-owners are mere proper not

indispensable parties BUT, in an action by tenant for security of tenure, all co-owners are indispensable parties, ALSO, in an action for ejectment against the co-owners, all the co-owners are indispensable party defendants.

Section 4. Spouses as parties.

GENERAL RULE: Spouses are sued jointlyEXCEPTIONS:

1) Abandons or fails to comply with marital obligation



2) Spouses dispose exclusive property 3) Regime of complete separation of property

*** In case husband is not joined, the complaint may be ordered amended to join husband unless wife is the real party in interest.

*** Joinder of husband does not necessarily make him solidarily liable with the wife.

*** The propriety of suits by or against spouses should now take into account the provisions of the Family Code.

Sec. 5. Minor or Incompetent person

*** A minor or incompetent person may sue or be sued, with the assistance of his father, mother or if he has none, a guardian ad litem

*** Minority is one of the limitations of legal capacity. Take note that when a minor enters in a transaction, the cause of action may be affected by action misrepresentation and passive misrepresentation.

> If there is an active misrepresentation, the minor is estopped from using his limited capacity to escape penalty but not in passive misrepresentation.

The following order must be observed in providing assistance to the minor:1. Father, in the absence thereof2. Mother, in the absence thereof3. Guardian, or if he has none—4. A guardian ad litem usually appointed by the court or DSWD

Section 6. Permissive joinder of parties.

COMPULSORY JOINDER – in the case of :1. indispensable parties 2. necessary parties

*** The misjoinder of an indispensable or a necessary party is NOT by itself ipso facto a ground for the dismissal of an action

*** Court shall order joinder *** Non-compliance is a ground for dismissal

*** If the court does not order the joinder of an indispensable party, the validity of judgment may be questioned on appeal or certiorari.

PERMISSIVE JOINDER – parties can either be joined in single complaint or may themselves maintain or be sued in separate suits. This rule also applies to counterclaims.

Requisites of PERMISSIVE JOINDER OF PARTIES.(1) right to relief arises out of the same transaction or series of transactions;(2) there is a question of law or fact common to all the plaintiffs or defendants; and(3) such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.SERIES OF TRANSACTIONS – separate dealings with the parties but all of which dealings are directly connected with the same type of subject matter of the suit. JURISDICTIONAL LIMITATION – PJP (TOTALITY RULE)*** Where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action s irrespective of whether the cause of action arose out of the same or different transactions.

Section 7. Compulsory Joinder of Indispensable Parties. > Dismissal of the suit against the indispensable party will entail the dismissal of the entire action

*** Dismissal of an action against an indispensable defendant applies also to a co-defendant

*** The evident aim and intent of the Rules regarding the joinder of indispensable parties is a complete determination of all possible issues, not only between the parties themselves but also as regards to other persons who may be affected by the judgment. A valid judgment cannot be rendered where there is want of indispensable parties (Director of lands vs. CA)

Section 8. Necessary Party.



JOINT DEBTORS – indispensable party with respect to own share and a necessary party with respect to the share of the others.

SOLIDARY CO - DEBTORS – are not indispensable but may be necessary parties.

*** When a party is a necessary party but he is not impleaded, the reason why he is not impleaded should be stated in the complaint

*** Court may order inclusion of necessary party *** If plaintiff defies order of court to implead a necessary party, failure to comply operates as a

waiver of his right against the necessary party.

*** In an action for PARTITION: All co-owners are indispensable parties > Whoever does not join as party plaintiff, should be joint as party defendant

DISTINCTION BETWEEN INDISPENSABLE PARTIES AND NECESSARY PARTIES

POINTS INDISPENSABLE PARTY NECESSARY PARTY1) As Party Those with such an interest

in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence

Those whose presence is necessary to adjudicate the whole controversy but whose interest are so far separable that a final decree can be made without them

2) As to Effects of Non-Joinder

Action cannot proceed unless they are joined

Action can proceed even if they are absent

3) As to the Effect in Judgment

Judgment without joining indispensable parties will have no effect

Judgment without joining necessary parties have effects to those who are present but the whole controversy is not resolved

Section 9. Non-joinder of necessary parties to be pleaded.

Effects of Non-Joinder of Necessary Parties:1) The pleader must provide for name, if known, and shall state why he is omitted2) If the reason for the omission is unmeritorious, court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.3) Failure to include without justifiable cause shall be deemed a waiver of the claim against such party. > Action cannot be dismissed on mere non-joinder of necessary parties *** Sec. 3 Rule 17 provides that failure to comply without justifiable cause in the order of the court causes

dismissal of the action will not apply here as an exception was may in Sec. 9, Rule 3.4) The non-inclusion of a necessary party does not prevent the court from proceeding in the action and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

*** The non-inclusion of a necessary party may be excused only on meritorious grounds, absent which, the court shall order him to be impleaded if jurisdiction over his person can be obtained, subject to the sanction under the 2nd paragraph of this section.

*** If the court orders the inclusion, the plaintiff shall be ordered to file an amended complaint impleading the necessary party therein as a co-defendant. Where the plaintiff unjustifiably fails or refuses to do so, plaintiff shall be deemed to have waived his claim against said party. Except that the plaintiff may not be compelled to amend the complaint to include the necessary party if jurisdiction over his person cannot be obtained.

Sec. 10. UNWILLING CO-PLAINTIFF

*** If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made a defendant and the reason thereof shall be stated in the complaint.

*** Effect of non-joinder of unwilling co-plaintiff does not make the action susceptible to dismissal since the joinder of unwilling parties is not mandatory and not a ground for dismissal

Section 11. Misjoinder and non-joinder of parties.



Misjoinder of parties – inclusion of parties not related to the issue of the controversy

Remedy in Misjoinder:1. Parties may be dropped upon MOTION by any party to the action or by the court motu proprio2. Misjoined parties may be proceeded separately

Objection to misjoinder: Cannot be raised for the first time on appeal

Non-Joinder of parties – exclusion of parties related to the issue of the controversy

Remedy in Non-Joinder: Parties may be added upon motion by any party to the action or by the court motu proprio

*** Objections to defects in parties should be made at the earliest opportunity – the moment such defect becomes apparent – by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded.

*** If there is misjoinder, a separate action should be brought against the party misjoined.

*** There can be misjoinder of parties even if there is only one cause of action common to them, and there can be misjoinder of causes of action even if there is only one plaintiff.

Section 12. Class suit.

CLASS SUIT, DEFINED.—an action brought by persons in behalf of numerous persons, all involved in a controversy which is one of common or general controversy which is one of common or general interest to that many persons that it is impracticable to join them all as parties.

REQUISITES OF A CLASS /REPRESENTATIVE SUIT.(a) subject matter of the controversy is one of common or general interest to many persons;(b) parties affected are so numerous that it is impracticable to bring them all before the court;(c) parties bringing the class suit are sufficiently numerous or representative of the class and can fully

protect the interests of all concerned.

Incidental Effects of Class Suits1) The complaint must specially state that the same is being brought in behalf of the others with whom the parties

share common interest2) It must be alleged in the pleading that existence of a common interest, existence of a class and the number of

persons appearing in the records3) Conflict of interest by the parties bringing the suit and the parties being represented, the action will not prosper4) The parties brining the suit must have legal capacity to sue5) The member of the class is bound by the judgment of the class suit. If he wants to protect his individual

interest, he may intervene6) The parties brining the class suit have the burden of proof to show the sufficiency of the representative

character which they claim7) Failure to show the sufficiency of the representative character of the suit makes the action susceptible to

dismissal for lack of capacity to sue or no representation at all

The parties who brought the class suit have the following rights:1) Control over the case2) Right to compromise with the approval of the court3) Right of dismissal of the case with the approval of the court

CLASS SUIT vs. JOINDER OF PARTIES

Points of Comparison CLASS SUIT JOINDER OF PARTIES1) Number of persons involved

Number of persons required must be so numerous

Does not require number of persons involved

2) Relief involved Relief being sought is common to all

Involves individual relief

3) Number of causes of action

There is only ONE cause of action

May involve as many causes of action

Other species of Class Suits:1. Taxpayer’s suit – where there is an illegal appropriation of taxpayer’s money2. Derivative suit – where the directors or officers fails or refuse to sue, the stockholders may file it subject to the conditions laid down by the Corporation Code

Dona Paz doctrine



*** A class suit is not proper if the plaintiffs each have a material interest only in the damages properly due to him, not in those payable to others, although there rights thereto arise form the same transaction, one had a right, if any, only to his respective portion. The applicable rule is that concerning permissive jointer of parties.

*** An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or not a class suit depends upon the attending facts, and the complaint, or other pleading initiating the class action should allege the existence of the necessary facts, to wit, the existence of a subject matter of common interest, and the existence of a class and the number of persons in the alleged class, in order that the court might be enabled to determine whether the members of the class are so numerous as to make it impracticable to bring them all before the court. (Mathay vs. Consolidated Bank)

*** Complaint of Class suit must specially state that it is brought as a class suit (Borlasa vs. Polistico)

Action for recovery of land by several persons is a not class suit (Sulo ng Bayan vs. Araneta)*** Class suit requires that the person who sues must have an interest in the controversy common with

those for whom he sues. There must be that unity of interest between him and all such other persons that would entitle them to maintain the action of suit that was brought by them jointly. As to what constitutes common interest in the subject matter of the controversy, is not only an interest in the question, but one in common in the subject matter of the suit.

*** A class suit does not lie in actions for the recovery of property where several persons claim ownership of their respective portions of the property as each one could allege and prove his respective right in a different way for each portion of the land, so that they cannot all be held to have identical title through acquisitive prescription

*** If it arises out of the same transaction or series of transaction and there is a common question of law and fact, it may proceed under Permissive Joinder of parties.

*** By the nature of the crime of libel, the person imputed must be identifiable. Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping all all-embracing as to apply to every individual in that group or class or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him so that he can bring the action separately, if need be. (Newsweek vs.IAC)

*** Action for enforcement of Constitutional right to healthful ecology, a class suit. (Oposa vs. Factoran)> This is a class suit because of the common interest of not only the petitioners but also of future

inhabitants of this earth.

Sec. 13. ALTERNATIVE DEFENDANTS

*** When the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right of relief against one may be inconsistent with the right of relief against the other.

*** Alternative defendants are usually used in admiralty and maritime cases> In an action arising from damages in the shipment of goods, the plaintiff who is not sure who is liable,

may sue as alternative defendants—the seller, ship/carrier, arrastre and the trucking. NB: The obligations arising from the alternative defendants came from different sources such as the seller

(contract), carrier (admiralty), arrastre (tort).Section 14. Unknown identity or name of defendant.

Requisites:(1) there is a defendant(2) his identity or name is unknown(3) fictitious name may be used because of ignorance of defendant’s true name and said ignorance is

alleged in the complaint(4) identifying description may be used: sued as unknown owner, heir, devisee, or other designation(5) amendment to the pleading when identity or true name is discovered(6) defendant is the defendant being sued, not a mere additional defendant

*** This rule pre-supposes that diligent inquiry must first be made before suing him as unknown defendant> In this regard, service of summons by publication in a newspaper of general publication must be made

in order that jurisdiction can be acquired

Section 15. Entity without juridical personality as defendant.

*** Parties organized without juridical personality may be sued under common name BUT in their answer they must be individually named

*** Judgment for or against the parties organized without juridical personality shall set out their individual name



Section 16. Death of party; duty of counsel.

CLAIMS THAT SURVIVE THE DEATH OF A PARTY:1) Actions to recover real and personal property against the estate;2) Actions to enforce liens thereon;3) Actions to recover for injury to persons or property by reason of tort;4) Actions to recover money arising from contract, express or implied.

*** Personal action which involves the rights and obligations not transmissible are therefore extinguished upon the death of the party and no substitution can be made.

DUTY & OBLIGATIONS OF THE COUNSEL1) To inform the court within 30 days after such death of the fact thereof2) This duty of the counsel is only limited to the death of the party not incompetency since the court can order the

appointment of a guardian ad litem3) This duty of the counsel once complied with, he no longer has the right to appear save in cases in order to

protect the interest of his clients unless his services are further retained by the heirs4) To give the name and address of his legal representative/s5) Failure of counsel to comply with his duty shall be a ground for disciplinary action

*** If there is failure to notify the fact of death: the case may continue and proceedings will be held valid, and judgment will bind the successors in interest.

*** The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. Otherwise, the entire proceeding is null and void; the court would have no jurisdiction over the estate, the heirs and the executors or administrators( Lawas vs. CA 146 SCRA 173)

Effect of Death of Litigant1) The heirs may be allowed to be substituted for the deceased and to appear within a period of 30 days from notice of order2) No summons required to be served to the heirs but the order of substitution must be served. Otherwise, no

jurisdiction will be acquired3) Such substitution does not require the appointment of an executor or administrator4) The court may appoint a guardian ad litem for the minor heirs

*** The death of the client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, or even the appointment of an executor or administrator, but this time, by a court of probate jurisdiction.

In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources.

Effects of Failure of Legal Representative to Appear 1) The court order the opposing party, within a specified time to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased2) The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as cost.

Effect of Non-Substitution1) Judgment in the case without substitution is VOID because jurisdiction not acquired and the death occurred when the case is in its trial stage where evidence is being presented2) Judgment is valid when death occurred pending appeal and due to failure to inform by counsel and there absence of substitution.

*** The continuance of a proceeding when a party dies without a valid substitution amounted to lack of jurisdiction and that the need of substitution is based on the right of a party to due process.

HOWEVER, if there is no notice of death of party and the court has no knowledge thereof, the proceedings are not set aside.

*** These provisions apply where the claim survives and regardless of whether either the plaintiff or the defendant dies or whether the case is in the trial or appellate courts. No summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties substituted in the action, otherwise the court does not acquire jurisdiction over the substitute party.



CLAIMS THAT DO NOT SURVIVE*** These are the claims which cannot be instituted against the executor or administrator or any legal representative of the deceased> These claims could however be prosecuted in the estate proceedings of the deceased

*** In money claims, where the defendant dies during the pendency of his appeal from the judgment rendered against him, the appeal should not be dismissed, it should continue but the deceased defendant should be substituted by his legal representative, namely, the executor or administrator of the estate.

> If the judgment of the lower court is affirmed, the plaintiff must afterwards go to the probate court for an order directing the executor or administrator to satisfy the judgment (Pp vs. Sendaydiego)

Death of the accused in criminal case: Criminal and civil liability extinguished, but not civil liability independently arising therefrom. (Pp vs. Bayotas)

*** Death extinguishes the crime, and corollarily, all its consequences. The dismissal of an appeal in criminal case by reason of appellant’s death, amounts to his acquittal and carries with it exemption from or extinction of the civil liability as if the court had held that the action from which the civil action might arise did not exist. But this does not exonerate the estate from another kind of civil liability for indemnity, restitution or repatriation for under the pertinent provisions of Human Relations of the Civil Code.

Section 17. Death or separation of a party who is a public officer.

*** The action contemplated therein is one brought against the public officer in his official capacity.

Section 18. Incompetence or incapacity.

*** In case of supervening incapacity or incompetency of a party, the action shall continue to be prosecuted by or against him personally assisted by the corresponding guardian.

*** This rule does not really provide for a substitution of his representatives since the rule provides that the case may be proceeded personally but only with the assistance of the legal guardian

Section 19. Transfer of interest.

*** Substitution of parties in this section is not mandatory, it being permissible to continue the action by or against the original party in case of transfer of interest pendente lite. Unless the substitution by or the joinder of the transferee is required by the court, failure to do so does not warrant the dismissal of the case. A transferee pendente lite is a proper, and not an indispensable party.

*** This Court has declared in a number of decisions that a transferee pendente lite stands in exactly the same position as its predecessor-in-interest, the original defendant, and is bound by the proceedings had in the case before the property was transferred to it. It is a proper but not an indispensable party as it would in any event be bound by the judgment against his predecessor. This would follow even if it is not formally included as a defendant through an amendment of the complaint.(jocson vs. CA 183 scra 589)*** Effect if interest of plaintiff is transferred to defendant: case is dismissed, unless there are several plaintiffs. Remaining plaintiffs can proceed with their own cause of action. Action may be continued by or against the original party, unless the court, on motion, directs the

transferee to be substituted in the action or joined with the original party; however, if transfer is made before commencement of the action, the transferee must necessarily be the party, since only he is the real party in interest.

*** The original party is bound by the judgment of the court unless the court ordered the inclusion of the transferee.

Section 20. Action on contractual money claims.

Requisites: (1) The action must primarily be for recovery of money, debt, or interest thereon, and not where the

money sought therein is merely incidental thereto.(2) The claim, subject of the action, arose from a contract, express or implied, entered into by the

decedent in his lifetime or the liability for which had been assumed by or is imputable to him.

Death of defendant in action on contractual money claims before judgment of RTC NOT ground for dismissal. Action continues until entry of final judgment. Any judgment against estate of deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved.



It is necessary that a legal representative appear and be a substitute, if the court has not yet acquired jurisdiction, amend to implead the heirs.

*** Once a final judgment is entered against the Estate of the deceased it shall be enforced as a money claim without need of proving the same.

Section 21. Indigent party.

INDIGENT – one who has no property or income sufficient for his support aside from his labor, even if he is self-supporting when able to work and in employment.

PROCEDURE:1) Filing of an ex-parte application that one party is litigating as an indigent party2) Conduct a hearing to show satisfactory proof that said applicant is one3) The order of the court granting the applicant shall serve as an exemption from payment of docket and other

lawful fees, and of transcripts of stenographic notes which the court may order to be furnished to him4) Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial

court

Effect of Grant of Indigent Litigant: The amount of docket and other lawful fees which the indigent was exempted from paying shall be lien on any judgment in the case favorable to him unless the court otherwise provides.

Effect of Findings as Non-Indigent Litigant After Grant: If the court after hearing found that the party is not indigent but has sufficient income or property, the proper docket and lawful fees shall be assessed and collected by the clerk of court. If not made within the time fixed by the court, execution shall issue on the payment thereof, without prejudice to such other sanctions as the court may impose.

Sec. 22. Notice to the Solicitor General

*** Notice to the OSG is required in order for the government to defend the constitutionality or validity of the law which the Executive Department is enforcing

*** Request for appearance of OSG or its representative is not mandatory but only directory as a sign of respect to a co-ordinate department.

RULE 4VENUE OF ACTIONS

VENUE – the place where an action must be instituted and tried.

VENUE OF ACTION depend upon—1) Nature of the action2) Residence of the parties3) Stipulation of the parties4) Law

TEST TO DETERMINE NATURE OF ACTION1) Allegations of the complaint2) Character of the relief3) Purpose and prime objective

GENERAL RULE ON VENUE: Venue can be subject to agreement in writing by the parties and can be waived (civil case)

EXCEPTION: However, in criminal cases, venue cannot be waived because the venue of the crime goes into the territorial jurisdiction of the court and the jurisdiction and venue goes within the essence of the criminal action. Thus, filing of criminal action in different venue may be quashed not for improper venue but lack of jurisdiction.



EXCEPTION TO EXCEPTION: SC can transfer venue of civil or criminal case in order to prevent miscarriage of justice.

*** A court cannot declare improper venue motu proprio, there is a need for a Motion > Except in Summary procedure

* Uniform rule on venue in RTC and MTC

1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein real property involved or a portion thereof is situated.

2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the real property or a portion thereof is situated.

3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

NOTE: “residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.

*** The term domicile is not exactly synonymous in legal contemplation with the term residence for it is an established principle in the Conflict of Laws that domicile refers to the relatively more permanent abode of a person in a given place. The rule on venue of personal actions speak of “actual residence” not synonymous with domicile. (Koh vs. CA)

*** The term ‘resides’ connotes ‘actual residence’ as distinguished from ‘legal residence or domicile’

REAL ACTIONS 1) Action for the annulment or rescission of a sale & the return of realty 2) To compel the vendor to accept payment of the purchased piece of land 3) To compel the vendor to deliver the certificate of title of the land

PERSONAL ACTIONS 1) Action to recover the purchase price of the land 2) An action to compel the mortgage to accept payment & for the consequent cancellation of a real estate

mortgage 3) Action to annul the cancellation of award of land in favor of the plaintiff

*** Plaintiff’s action to declare null and void the cancellation of the award of a lot and house originally given in his favor does not involve title and ownership over said properties for it merely seeks to compel defendant to recognize that the award is valid and subsisting one which defendant cannot unilaterally cancel. Such an action is not a real but a personal action which may be properly be brought by plaintiff in his residence. (Hernandez vs. DBP)

*** An action filed by the husband against the wife for recovery of damages and of his share in the fruits of the conjugal partnership properties is purely personal and therefore may be filed in the place where plaintiff resides. The fact that real properties belonging to the conjugal partnership are mentioned in the complaint, or that plaintiff has asked for the issuance of a writ of preliminary injunction to restrain the wife from selling certain parcels of land belonging to the conjugal partnership does not make the case a real action. (De Guzman vs. Genato)

*** The prevalent doctrine is that an action for the annulment or rescission of a sale of real property does not operate to efface the fundamental and prime objective and nature of the case, which is to recover said real property, it is a real action. (Punzalan vs. Lacsamana)

*** An action for injunction is a personal action because it does not affect the title to or possession of real property, nor asks for the partition condemnation or foreclosure of mortgage on real property. As such, it may be commenced and tried where the defendant or nay of the defendants resides or may be found, or where the plaintiffs or any of the plaintiffs resides, at the election of the plaintiff. (Notre Dame vs. Mallare- Phillips)

When the defendant is a non-resident - Venue may also be at the place where he can be found

*** Unlike jurisdiction which cannot be the subject of stipulation, venue can be subject to stipulation

Rules on Venue shall NOT apply:



1) In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article 360 of RPC provides specific rules on venue); OR

LIBEL – where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should likewise be filed in the SAME court where the criminal case is pending.

2) Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.

In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved.

*** Subject to the rules on jurisdiction, VENUE may be the subject of a valid agreement if the agreement states that the case can “only” or “exclusively” be filed in the place agreed upon. Otherwise the same becomes optional.

Requisites for venue to be exclusive:(a) A valid written agreement(b) Executed by the parties before the filing of the action; and(c) Agreement to the exclusive nature of the venue.

*** In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule (Polytrade Corp. vs. Blanco 30 SCRA 187)

RESTRICTIVE WORDS:1. must2. only3. exclusively4. solely5. in no other court6. particularly7. nowhere else but

IMPROPER VENUE

RULE: It must be alleged in a Motion to Dismiss > However, if MTD was not filed, it may still be alleged as an affirmative defense in the answer. > But if MTD is filed, and there was no allegation of such ground, it is deemed WAIVED.

*** It is only when a MTD was not filed that one can assert that ground as an affirmative defense in the answer

Means of waiving venue:1) failure to object by means of motion to dismiss(2) affirmative relief sought in the court where the case is filed(3) voluntary submission to the court where the case is filed(4) laches

IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES: file one case in either place at the option of the plaintiff.

IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES: (a) If the properties are the object of the same transaction, file it in any of the two places.(b) If they are the subjects of two distinct transactions, separate actions should be filed in each place.

ALTERNATIVE RELIEF IS SOUGHT-venue would depend on the primary object of the action.

SPECIFIC RULES ON VENUE1) Settlement of estate - If inhabitant (citizen/alien) > RTC, province of residence

- If non-inhabitant > RTC, where estate is located2) Escheat proceedings - RTC last resided or where estate is located in case of non-resident



3) Adoption/custody - RTC – residence 4) Hospitalization of insane person - RTC where insane is found5) Change of name - RTC – residence 6) Voluntary dissolution of corporation - RTC – principal office7) Guardianship - RTC/MTC – residence of insane or minor; if non-resident- where property is situated8) Voluntary recognition - RTC – residence of child 9) Appointment of absentee’s representative - RTC where absentee last resided before disappearance10) Correction of entries in civil registrar - RTC - civil registry is located11) Petition for deposition before action - Court of residence of expected adverse party

Section 3. Venue of actions against non-residents.RULE:(a) NON-RESIDENT FOUND IN THE PHIL. – for personal actions – where the plaintiff resides; and for

real actions – where the property is.

(b) NON RESIDENT NOT FOUND IN THE PHIL. – only when it involves:i. Personal status of plaintiff – venue: where plaintiff resides; orii. Any property of said defendant located in the Phil. – venue: where the property or any portion

thereof is situated or found.

EXCEPTION TO THE EXCEPTION: the Supreme Court has the power to order a change of venue to prevent a miscarriage of justice.

VENUE JURISDICTION1. place where the action is instituted 1. power of the court to hear and decide a

case2. may be waived 2. jurisdiction over the subject matter and

over the nature of the action is conferred by law and cannot be waived

3.procedural 3.substantive4.may be changed by the written agreement of the parties

4. cannot be the subject of the agreement of the parties

RULE 5UNIFORM PROCEDURE IN TRIAL COURTS

1. The procedure in the MTCs shall be the same as that in the RTC.

2. Uniform Procedure shall NOT be applicable:

A) Where a particular provision expressly or impliedly applies only to either of said courts.

B) In civil cases governed by the Rule on Summary Procedure.

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6KINDS OF PLEADINGS

Section 1. Pleadings defined.

PLEADINGS – the written allegations of the parties of their respective claims and defenses submitted to the court for appropriate judgment.



> A motion to dismiss is NOT a pleading.

> Averments in the pleading determine the jurisdiction of the court and the nature of the action.

PLEADINGS as distinguished from a MOTION

PLEADING MOTIONIt relates to the cause of action; interested in the matters to be included in the judgment.

An application for an order not included in the judgment

*** Pleadings are always submitted to the court for judgment unlike Motion which generally pertain to the asking of resolutions, orders or to other interlocutory action of the court not necessarily a judgment or not-included therein

GENERAL RULE: Motion generally pertains to the asking of resolutions, orders or other interlocutory action of the court not necessarily a judgment or not included therein

EXCEPTIONS: 1. Motion to dismiss 2. Motion for demurrer to evidence 3. Motion for judgment on the pleading

> These are motions but have the effect of judgments

KINDS OF PLEADINGS:1) Initiatory Pleadings – those papers filed in the court to commence the action or proceedings such as complaint or petition2) Responsive Pleadings – those papers filed in the court as answer to the initiatory pleadings such as answers

Section 3. Complaint.

COMPLAINT – is a concise statement of the ultimate facts constituting the plaintiff’s cause or causes of action, with a specification of the relief sought, but it may add a general prayer for such further relief as may be deemed just or equitable.

ULTIMATE FACTS- The ultimate & substantial fact that either directly form the basis of the plaintiffs primary right or duty or directly make up the wrongful acts or omissions of the defendant

*** A fact is ESSENTIAL if it cannot be stricken out without making the statement of the cause of action or defense insufficient

*** Conclusions, influences, presumptions & details with probative value should not be alleged

EVIDENTIARY FACTS - Those which are necessary to prove the ultimate fact or which furnish evidence with the existence of some

other fact *** Not proper as allegation in the pleadings, as they may only result in confusing the cause of action or

defense

TEST OF SUFFICIENCY: if upon admission or proof of the facts being alleged, a judgment may be properly given. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.

*** If a plaintiff’s right of action depends upon a condition precedent, he must allege and prove the fulfillment of the condition or the legal excuse for its non-fulfillment

*** Exhibits attached to a complaint do not take place of allegations

ANSWER – the pleading where the defendant sets forth his affirmative or negative defenses.

*** Unlike the complaint which alleges only ultimate facts, the Answer may cite legal provisions relied upon for defense

2 kinds of defenses that may be set forth in the answer1. Negative Defense – specific denial of the material fact or facts alleged in the pleading of the

claimant essential to his cause of action.

2. Affirmative defense – an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Includes:

Fraud



Statute of limitationsReleasePaymentIllegalityStatue of fraudsEstoppelFormer recoveryDischarge in bankruptcyAny other matter by way of confession or avoidance.

COUNTERCLAIM – a new suit in which the party named as the defendant is the plaintiff and the plaintiff becomes the defendant.; a cross-petition.

CLASSIFICATIONS:COMPULSORY COUNTERCLAIM PERMISSIVE COUNTERCLAIM

(1) One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim.

(1) It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim.

(2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

(2) It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

(3) It is barred if not set up in the action.

(3) It is NOT barred even if not set up in the action.

(4) Need not be answered; no default. (4) Must be answered, otherwise, the defendant can be declared in default.

REQUISITES OF COMPULSORY COUNTERCLAIM:1) Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim;

2) Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; and

3) Must be within the jurisdiction of the court both as to the nature and the amount, except that in an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the amount.

RULES ON COUNTERCLAIM

*** A counterclaim before the MTC must be within the jurisdiction of said court, both as to the amount and nature thereof (De Chua vs. IAC). In an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6 )

*** If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived (Agustin vs. Bacalan). In Calo vs. Ajax Int’l, the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance.

*** In the RTC, as long as the counterclaim is money, irrespective of the amount, it is always compulsory

*** RTC may entertain a counterclaim for an amount below its jurisdiction if it arises out of the same transaction (compulsory)

*** When a counterclaim is compulsory, it must be pleaded in the answer, otherwise, it is barred.

AFTER ACQUIRED COUNTERCLAIM > One that matures after the filing of the original complaint > Not considered compulsory even if it arose out of the same transaction > If not alleged in the answer, can file a separate action

*** Wright & Miller in their Federal Practice and Procedure summarizes as follows certain criteria or tests issues of fact and law by which the compulsory or permissive nature of specific counterclaims can be determined: (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? (3) Will substantially the same



evidence support or refute plaintiff’s claim as well as defendant’s counterclaim? and (4) Is there any logical relation between the claim and the counterclaim?

The fourth test – the logical relationship between the claim and counterclaim – has been called “the one compelling test of compulsoriness.” Under this test, any claim a party has against an opposing party that is logically related to the claim being asserted by the opposing party and that is not within the exceptions to the rule is a compulsory counterclaim. Its outstanding quality is its flexibility.

The phrase “logical relationship” is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party’s claim where separate trials of each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual issues, or the same factual and legal issues, or where they are off-shoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaim be permitted to maintain his cause of action.( NMC vs. FUNDI, 49 SCRA 238)

Section 8. Cross-claim

RULE ON CROSS CLAIMS

GENERAL RULE – If not set up in the action, it is barredEXCEPTION – 1) If it is outside the jurisdiction of the court 2) If the court cannot acquire jurisdiction over 3rd parties whose presence is necessary for the adjudication of said

cross-claim

*** If plaintiff appeals, cross-claimant, must also appeal otherwise, claim is not recognized by the appellate court

PERMISSIVE CROSS-CLAIM1. outside the jurisdiction of the court, or 2. the court cannot acquire jurisdiction over the parties whose presence is necessary for the

adjudication of said cross-claim

CROSS-CLAIMfiled against a co-party

Always arises out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.

If it is not set up in the action, it is barred, except when it is outside the jurisdiction of the court or if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim.* The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking affirmative relief.

Section 10. Reply.

REPLY - the response of the plaintiff to the defendant’s answer.

GENERAL RULE: Filing of reply is optional and will not affect one’s cause of actionEXCEPTION: Defense of Usury or answer is based on actionable documents, reply under oath or need

EFFECT OF FAILURE TO REPLY: new facts that were alleged in the answers are deemed controverted. Hence, the filing of the reply is optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer.

*** A party cannot, in his reply, amend his cause of action nor introduce therein new or additional causes of action

Section 11. Third (fourth, etc.) – party complaint.

THIRD-PARTY COMPLAINT CROSS-CLAIM

seeks to recover from a non-litigant some relief in respect to the opposing party’s claim

claim by a party against a co-party.



Third party is not yet impleaded. Cross-defendant is a co-party.

THIRD-PARTY COMPLAINT COMPLAINT IN INTERVENTION brings into the action a third person who was not originally a party.

same

initiative is with the person already a party to the action.

initiative is with a non-party who seeks to join the action.

TEST to determine whether the third-party complaint is in respect of plaintiff’s claim:

(a) Where it arises out of the same transaction on which the plaintiff’s claim is based, or, although arising out of another or different transaction, is connected with the plaintiff’s claim;

(b) Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff’s claim against the original defendant; and

(c) Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim.

RULE 7PARTS OF A PLEADING

Section 3. Signature and address.

The signature of the counsel is a certification that:(a) There is good ground to support the pleading(b) It is not interposed for delay

If he deliberately:(a) Files an unsigned pleading, or(b) Signs it even if it be without ground or only to delay, or(c) Alleges scandalous or indecent material, or (d) Fails to report a change of address, he shall be subject to disciplinary action.

> Only the original copies must be signed.> UNSIGNED PLEADING may be stricken out as sham and false, and the action may proceed as though the pleading has not been served.

Section 4. Verification.*** As a rule, pleadings need not be verified except if provided by the Rules and jurisprudence, or statute.

HOW A PLEADING IS VERIFIED: By an affidavit stating that:

1) Affiant (person verifying) has read the pleading2) Allegations therein are true and correct as of his personal knowledge or based on authentic

records. (SC Circular 48-2000, effective May 1, 2000)

*** A verification must now be based on personal knowledge or based on authentic records.

A pleading required to be verified which:1) Contains a verification based on “information and belief”, OR 2) Contains a verification based on “knowledge, information and belief,” OR3) Lacks a proper verification

Shall be treated as an unsigned pleading.

Section 5. Certification against forum shopping.

FORUM SHOPPING – the filing of two or more cases based on the same cause of action in different courts for the purpose of obtaining a favorable decision in either.



Plaintiff or principal party shall certify under oath in the complaint or other initiatory

pleading or in a sworn certification annexed and filed therewith:1) That he has not commenced any action or filed any claim involving the same issues in any

court, tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or action pending;

2) If there is such other pending action, a complete statement of the present status thereof;3) If he should thereafter learn that same or similar action or claim is filed or pending, he shall

report the same within 5 days therefrom to the court where he filed his complaint.

NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT. For Forum-Shopping to exist, there must be:

1) Same transactions involved;2) Same essential facts and circumstances; and3) Actions raise identical cause of action, subject matter, and issues

Effects of Violation of this Rule1) Failure to comply with the foregoing requirements: > Not curable by mere amendment of the complaint or other initiatory pleading > Dismissal of the case without prejudice unless otherwise provided upon motion and after hearing

2) Submission of a false certification or non-compliance with the undertakings therein: > Constitute indirect contempt or court > Corresponding administrative and criminal sanctions

3) Willful and deliberate forum shopping > Summary dismissal with prejudice > Constitute direct contempt > Administrative sanctions

2 FORMS OF FORUM-SHOPPING 1) Where a party files the same action involving the same issues either simultaneously or successively in

more than on court

2) Where a party files 2 or more actions in different courts, the other action filed in another court not being the result of an appeal or a petition for certiorari

TEST to determine whether there is forum shopping1) Where the elements of litis pendencia are present2) Where a final judgment in one case will amount to res judicata3) Whether in the 2 cases, there is identity of parties, rights or causes of action and reliefs sought

Certification against forum shopping is required only in: 1) Compliant 2) Other initiatory pleading [i.e. permissive counter-claim]

*** The C.A.F.S should be signed by the party NOT the counsel *** Applies to cases commenced in courts in anticipation of an unfavorable administrative ruling

*** Where the judgment has already become final and executory, res judicata should be pleaded as a defense > Forum shopping applies only when 2 or more cases are still pending

RULE 8MANNER OF MAKING ALLEGATIONS IN A PLEADING

GENERAL RULE: No evidentiary facts should be alleged in the pleadingsEXCEPTION: Answer, which may invoke pertinent legal provisions as the basis of the defense

S3.R8*** In any pleading a general averment of the performance or occurrence of all conditions precedent shall be

sufficient



Section 4. Capacity. ALLEGATIONS OF CAPACITY

1) Capacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association that is made a party must be averred;

2) To raise an issue as to the legal existence of a party or the capacity of a party in a representative capacity, do so by specific denial, including such supporting particulars as are peculiarly within the pleader’s knowledge.

*** Capacity to sue and be sued either personally or in representative capacity must be specifically averred by the party suing or being sued, and specifically denied by the party questioning such capacity. Capacity is challenged by specific denial, motion to dismiss or bill of particulars.

*** A guardian not appointed by the court has no capacity.

*** Foreign corporations have the capacity to sue or be sued if it is doing business in the Philippines.

If it is an unlicensed foreign corporation, it may only BE SUED on any valid cause of action, but it CANNOT SUE. However, the Supreme Court has allowed foreign corporations to file an action on certain isolated transactions.

Section 5. Fraud, mistake, condition of the mind.

FACTS THAT MAY BE AVERRED GENERALLY:1. Conditions precedent (BUT there must still be an allegation that the specific condition precedent has

been complied with, otherwise, it will be dismissed for failure to state a cause of action)2. Malice, intent, knowledge, or other condition of the mind3. Judgments of foreign courts, tribunals, boards, or officers (no need to show jurisdiction)

FACTS THAT MUST BE AVERRED PARTICULARLY:(a) Circumstances showing fraud or mistake in all averments of fraud or mistake(b) Capacity

Section 7. Action or defense based on document.Section 8. How to contest such documents.

ACTIONABLE DOCUMENT – when it is the basis of a claim or a defense., e.g. receipt

TWO PERMISSIBLE WAYS OF PLEADING AN ACTIONABLE DOCUMENT:(a) By setting forth the substance of such document in the pleading and attaching said document

thereto as an annex (contents of the document annexed are controlling, in case of variance in the substance of the document set forth in the pleading and in the document attached); or

(b) By setting forth said document verbatim in the pleading.

How to contest actionable document: Genuineness and due execution of instrument deemed admitted unless adverse party: 1) Specifically denies them under oath; 2) Sets forth what he claims to be the facts.

Requirement of an oath does NOT apply:1) When diverse party does not appear to be a party to the instrument; or2) When compliance with an order for an inspection of the original instrument is refused.

Where the actionable document is properly alleged, the failure to deny under oath the same results in:1. The implied admission of the genuineness and due execution of said document, except: a. When the adverse party was not a party to the instrument; and b. When an order for the inspection of the document was not complied with.2. The document need not be formally offered in evidence.



GENUINENESS – that the document is not spurious, counterfeit, or of different import on its face from the one executed by the party, or that the party whose signature it bears has signed it and that at the time it was signed it was in words and figures exactly as set out in the pleadings.

DUE EXECUTION – that the document was signed voluntarily and knowingly by the party whose signature appears thereon.

Defenses that the opposing party may set up even after failure to deny under oath:1. Mistake;2. fraud; 3. compromise;4. payment;5. prescription;6. want or illegality of consideration; or7. estoppel

BUT the following defenses are waived:(a) forgery in the signature;(b) want of authority of an agent or corporation;(c) want of delivery; or(d) the party charged signed the instrument in some other capacity

Section 10. Specific denial.

THREE WAYS OF MAKING A SPECIFIC DENIAL:1) By specifically denying each material allegation of the other party and, whenever possible, setting forth the substance of the matters relied upon for such denial;

2) Past admission or past denial;

3) By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading

*** A denial cannot be general. A general denial is regarded as an admission of the facts stated in the complaint.

*** A negative defense must be a specific denial. Otherwise, the denial will be deemed as an admission and entitles plaintiff to a judgment on the pleadings.

NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing party.

It is in effect of an admission of the averment to which it is directed.

It is said to be a denial pregnant with an admission of the substantial facts in the pleading responded to.

PARTIAL SPECIFIC DENIAL

*** Where a defendant desires to deny only a part of an averment, he shall specify so much of it as it is true and material and shall deny only the remainder

*** While a specific denial puts in issue the allegations of the complaint, an affirmative defense raises new issues which were not raised in the complaint

Section 11. Allegation not specifically denied deemed admitted.

Averments in the complaint NOT deemed admitted even if NOT specifically denied:(a) Allegations as to the amount of damages(b) Immaterial allegations;(c) Incorrect conclusions of fact; and

Averments deemed admitted if not specifically denied under oath:1. Allegations as to usury in the complaint2. The authenticity and due execution of actionable documents thereto.



*** If the damages alleged are liquidated or stipulated, they are deemed submitted when not specifically denied.

IMPLIED WAIVER. Continued into trial & presented evidence

RULE 9EFFECT OF FAILURE TO PLEAD

Section 1. Defenses and objections not pleaded.

GENERAL RULE: Defenses and objections that are not pleaded in a MOTION TO DISMISS or in the answer are deemed waived.

EXCEPTIONS (not waived even if not raised):(a) Lack of jurisdiction over the subject matter(b) Litis pendentia (c) Res judicata(d) Prescription of the action The presence of these grounds authorizes the court to motu proprio dismiss the claims. These grounds must, however, appear from the pleadings or the evidence on record.

RULES ON JURISDICTION1) Jurisdiction over the person must be reasonably raised2) Where the court itself clearly has no jurisdiction over the subject matter or the nature of the action, the

invocation of this defense may be done at any time

Sec 2.*** A compulsory counterclaim or a cross claim, not set up shall be barred*** A supplemental answer is proper if the counterclaim or cross claim matures or is acquired after the

answer is filed [with leave of court]

Section 3. Default, declaration of.


After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default

Motion denied:Defendant allowed to file an answer

Defendant answers and case set for PT pretrial pre-trialpre-trial

Motion granted:court issues order of default and renders judgment, orrequire plaintiff to submit evidence ex parte

Before judgment of default is rendered:defendant may move to set aside the order of defaulta.FAME b. he has a meritorious defense

COURT MAINTAINS ORDER OF DEFAULT

Court sets aside order of default and defendant is allowed to file his answer

Presentation of plaintiff’s evidence ex parte


There is no default in special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed

DEFAULT – the failure of the defendant to answer within the proper period. It is not his failure to appear nor failure to present evidence.

*** The court cannot motu proprio declare a defendant in default.

ORDER OF DEFAULT JUDGMENT BY DEFAULT issued by the court, on plaintiff’s motion for failure of the defendant to file his responsive pleading seasonably.

rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence.

- Interlocutory - not appealable - Final - appealable

For defendant to be declared in default, the plaintiff must:(a) File a MOTION to declare defendant in default(b) Prove that summons have been properly served on the defendant(c) Prove that the defendant really failed to answer within the proper period. CAUSES FOR DEFAULT1) Failure to answer within the proper period2) Non-compliance for bill of particulars3) Disobedient party – modes of discovery4) Failure to furnish the plaintiff a copy of his answer

*** If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint, hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default.

EFFECT OF ORDER OF DEFAULT: 1) While the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings. (cannot file answer)2) He may still be called on as a witness, in behalf of the non-defaulting defendants.3) Cannot present evidence on his behalf4) Cannot cross-examine witnesses5) Cannot object to presentation evidences

*** Defendant entitled to notice of motion to declare him in default and of order of default;

*** Motion to set aside order of default may be filed after notice and before judgment;

*** Order of default is interlocutory, not appealable > But if with Grave abuse of Discretion, CERTIORARI

*** In cases where reception of evidence is delegated to the clerk of court, the court may: 1. Render judgment granting the reliefs prayed for as established by the evidence 2. May also award unliquidated damages without exceeding the amounts prayed for.

*** Partial default – if several defending parties and not all in default, the court shall try the case against all upon the answers thus filed and evidence presented;

GENERAL RULE:> A favorable judgment obtained by a non-defaulting party shall inure to the benefit of the defaulting party

EXCEPTION: 1. If the defense is personal to the non-defaulting party


Case set for pre-trial.

Plaintiff proves his allegations, judgment by default

Plaintiff fails to prove his allegations, case is dismissed


2. Liability is “joint”, not solidary

*** Judgment against party in default shall not exceed the amount or differ in kind from that prayed for nor award unliquidated damages;

*** Judgment by default may not award unliquidated damages UNLESS alleged and supported by evidence

LIMITATIONS ON THE COURT IN CASE OF JUDGMENT BY DEFAULT1) The judgment cannot award an amount to the plaintiff in excess of what was claimed in the complaint2) The judgment that the court may render can never be different from the judgment prayed for in the complaint

CASES WHERE DEFENDANT COULD NOT BE DECLARED IN DEFAULT1) Declaration of nullity of marriage2) Annulment of marriage3) Legal separation

REMEDY OR RELIEF FROM ORDER OF DEFAULT 1) Anytime After Notice Thereof and Before Judgment

a. Motion under oath to set aside the order of default due to FAME AND that he has a meritorious defense

b. Petition for Certiorari under Rule 65

2) After Judgment But Before Finalitya. Motion for Reconsideration under Rule 37 Sec. 1b. Motion for New Trial under Rule 37 Sec. 1c. Appeal under Rule 41, Section 1.

3) After Finality of Judgmenta. Petition for relief from judgment 60 days from notice of judgment not to exceed 6 months from

entry thereof under Rule 38 Sec.1b. Petition for Certiorari under Rule 45c. Petition for annulment of judgment within 4 years under Rule 47

RULE 10AMENDED AND SUPPLEMENTAL PLEADINGS

Section 1. Amendments in general.

Amendments in General1. By adding or striking out an allegation or the name of any party2. By correcting a mistake in the name of a party or a mistaken or inadequate allegaiton or description in

any other respect3. By filing a new copy of the entire pleading incorporating the amendments, which shall be indicated by

appropriate marks.

When the complaint is amended, 2 situations may arise:

1. if the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint;

2. if the amended complaint alleges a new cause of action, then that newly alleged cause of action is deemed commenced upon the filing of the amended complaint.

KINDS OF AMENDMENT:1) AS A MATTER OF RIGHT: Substantial and formal amendments can be made at any time before a responsive pleading is served OR in the case of a reply, at any time within 10 days after it is served. 2) BY LEAVE OF COURT: Substantial amendments may be made only (a) upon leave of court, and (b) after notice to the adverse party, and an (c) opportunity to be heard, and may be refused if it was made with intent to delay

3) BY COURT ITSELF: Defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion provided no prejudice is caused thereby to the adverse party

Section 2. Amendments as a matter of right.



*** Amendment for the first time is a matter of right before a responsive pleading is filed, or in case of a Reply, within 10 days after it was served.

*** Defendant can amend his answer once as a matter of right if it contains affirmative defenses, before service of reply.

*** Since a motion to dismiss is NOT a responsive pleading, an amendment may be had even if an order of dismissal has been issued as long as the amendment is made before dismissal order became final.

*** As long as the plaintiff has not been served with a copy of the defendant’s answer, he could amend his complaint as a MATTER OF RIGHT without leave of court.

> This applies also to counterclaim and crossclaim and 3rd party complaint

Section 3. Amendments by Leave of Court.

*** A motion for admission of the amended complaint is necessary ONLY if the answer to the original complaint has been served upon the plaintiff.

Instances when amendment by leave of court not allowed:1. when cause of action, defense or theory of the case is changed;2. amendment is intended to confer jurisdiction to the court;3. amendment to cure a premature or non-existing cause of action;amendment for purposes of delay

*** Substantial amendments may be made only with leave of court, except as provided above.

INSTANCES when pleadings may be amended to conform to the evidence:1) When issues not raised in the pleading or the pre-trial order are tried with the consent of the parties2) Where an issue not raised in the pleading or the pre-trial order, is tried to be proven by a party & is

objected to by a party

*** The court may allow the issue to be tried if by the presentation of the merits, the case and substantial ends of justice is subserved

*** Whether the pleadings have been amended or not, to conform with the evidence, the court can still rule on the issue that was impliedly or expressly agreed upon to be tried by the parties

Section 6. Supplemental pleadings.

SUPPLEMENTAL PLEADING – a pleading filed by a party, upon motion with reasonable notice and upon such terms as are just, setting forth Transactions, Occurrences, or Events (TOE) which have happened since the date of the pleadings sought to be supplemented and may answer thereto within 10 days from notice of order admitting the same.

Amended Pleadings Supplemental Pleadings1) Refer to facts existing at the commencement of action

1) Refer to facts arising after the commencement of action

2) Results in the withdrawal of the original pleading

2) Merely additional and does not result in the withdrawal of the original pleading

3) Can be made as a matter of right or with leave of court

3) Can only be made and always with leave of court

4) Facts added are required to be marked 4) Facts added not required to be marked

*** Unlike an amended pleading which SUPERSEDES the original pleading, a supplemental pleading does NOT put out of existence the original pleading

SUPPLEMENTAL PLEADING RETROACTS > An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after the service of the original complaint.

*** The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed

Section 7. Filing of amended pleadings.



*** An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered)

An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after service of the original complaint.

*** The filing of amended pleading does not retroact to the date of filing of the original because the original is superseded by the amended pleadings. HENCE, the statute of limitations runs until the submission of the amendment.

Section 8. Effect of amended pleading.

EFFECT OF AMENDED PLEADINGS:1. Amended pleading supersedes the pleading that it amends;2. Admissions in superseded pleadings may be received in evidence against the pleader3. Admission in old pleading not reproduced in the amended pleading no longer judicial admissions but may be

used as extrajudicial admissions4. Claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

*** The amended or superseded, original pleading is not expunged but remains on the record although the admission of the amended pleading amounts to withdrawal of the original pleading.

RULE 11WHEN TO FILE RESPONSIVE PLEADINGS

PERIOD WITHIN WHICH A PLEADING MAYBE ANSWERED1) COMPLAINT - 15 days after service of summons - 30 days if foreign corporation - 60 if through extra-territorial service2) COUNTERCLAIM - 10 days from service3) THIRD PARTY COMPLAINT - 15 days after service of summons4) COMPLAINT IN INTERVENTION - 15 days from notice of the order admitting intervention5) ANSWER - Incase motion to dismiss is denied, BALANCE the period required but NOT LESS THAN 5 DAYS from

receipt of the notice of denial6) BILL OF PARTICULARS - Within 10 days from the notice of the order7) SUPPLEMENTAL PLEADING - Within 10 days from service

Section 1. Answer to the complaint. > 15 days from service, unless different period fixed by the courts;

*** The granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. They may extend the time to file the pleadings but may not shorten them.

*** The 15-day period begins to run from receipt of summons.

Section 2. Answer of a 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.



*** In the case of a nonresident defendant on whom extraterritorial service of summons is made, the period on which he must answer should be at least 60 days.

Section 3. Answer to amended complaint.

*** If the filing of an amended complaint is a matter of right, the 15-day period to answer is counted from service of the amended complaint.

*** If the filing of the amended complaint is NOT a matter of right, then leave of court is required, hence, the 10-day period to answer runs from notice of the court order granting the same.

*** If no new answer is filed by the defendant in case an amendment has been made after he had filed his answer, the original answer of the defendant may serve as the answer to the amended complaint, and hence, cannot be declared in default. Section 4. Answer to counterclaim or cross-claim.– within 10 days from service.

Section 5. Answer to third (fourth, etc.) - party complaint.

*** The third-party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer just like the original defendant.

Section 7. Answer to supplemental complaint.

*** Leave of court is required in filing, the court may fix a different period for answering the supplemental complaint in lieu of the reglementary 10-day period.

Reply – may be filed within 10 days from service of the pleading responded to

RULE 12BILL OF PARTICULARS

Section 1. When applied for; purpose.

BILL OF PARTICULARS- is a more definite statement of any matter which appears vague or obscure in a pleading.

PURPOSE: to aid in the preparation of a responsive pleading.*** The purpose of the Bill of Particulars is to enable the party to prepare the responsive pleading, not to prepare

for trial

Period of filing motion – before responding to a pleading; if pleading is a reply, within 10 days from service thereof;

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

ACTION BY THE COURT – the clerk of court must immediately bring it to the attention of the court which may either:

1. DENY IT – after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion which shall not be less than 5 days in any event.2. GRANT IT – compliance therewith must be affected within 10 days from notice of the order, unless a different period is fixed by the court which may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party.3. ORDER AMENDMENT – court may order the amendment of pleadings for a more clear presentation of the pleading

*** The court need not wait for the date set for hearing of the motion *** Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which

may either grant or deny it or hold a hearing thereon.

Section 3. Compliance with order.

*** A bill of particulars may be filed either in a separate or an amended pleading.



*** Grant of motion to stay the period to file responsive pleading*** Order for bill must be complied with in 10 days from notice OR period fixed by court

*** The motion of a bill of particulars may be granted in whole or in part as not all the allegations questioned by the movant are necessarily so ambiguous as to require clarification.

Effect of Non-Compliance – If the order is not obeyed, or in case of insufficient compliance therewith, the court may ANY order the following:

1. Striking out of the pleading 2. Striking the portions thereof to which the order was directed 3. Dismiss the case for refusal to obey the court order 4. Make such other order as it deems just

SANCTIONS IF PLAINTIFF fails to file a bill of particulars as ordered by the Court1) The court may order the “striking off “ of the pleading to which the bill of particulars refers… OR—2) The court, under Sec. 3, Rule 17, may dismiss the action for failure to comply with the order

If DEFENDANT : declared “in default”

*** The court can resolve the motion for a bill of particulars ex parte or with notice to the adverse party.

Section 5. Stay of period to file responsive pleading.Section 6. Bill a part of pleading.

*** Motion for bill of particulars must be filed within the reglementary period for the filing of a responsive pleading to the pleading sought to be clarified.

*** The filing of a motion for a bill of particulars interrupts the time to plead, but only if it is sufficient in form and substance.

*** If the motion is granted, the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading.

*** If his motion is denied, he will still have such balance of the reglementary period to do so, counted from service of the order denying his motion.

*** In either case, he will have at least 5 days to file his responsive pleading.

RULE 13FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Section 2. Filing and service defined.

FILING - Act of presenting the pleading to the clerk of courtSERVICE - Act of providing a party with a copy of the pleading

*** Notice given to a party who is duly represented by counsel is a nullity, unless service thereof on the party himself was ordered by the court or the technical defect was waived.

*** Where one counsel appears for several parties he shall only be entitled to one copy of any paper served upon him by the opposite side.

*** All pleadings, including which can be heard ex-parte shall be furnished to the adverse party

Section 3. Manner of filing.*** Filing by mail should be through the registry service which is made by deposit of the pleading in the post office, and not through other means of transmission. if registry service is not available in the locality of either sender or addressee, service may be done by ordinary mail.

SERVICE BY REGISTERED MAILMANNER:1. By depositing the copy in the post office, in a sealed envelop



2. Plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known3. With postage, fully paid4. With instructions to the Postmaster to return the mail to the sender after 10 days if undelivered.

COMPLETENESS: > Complete upon actual receipt by the addressee; or after five (5) days from the date he received the FIRST notice of the postmaster, whichever date is earlier.

PROOF OF SERVICE: > Proved by affidavit of the mailer and the registry receipt issued by the mailing office and registry return card filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

SERVICE BY ORDINARY MAIL – If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.

COMPLETENESS > Complete upon the expiration of 10 days after mailing, unless the court otherwise provides.

PROOF OF SERVICE > Proved by an affidavit of the person mailing of facts showing compliance with section.

*** If a private carrier is availed of by the party, the date of actual receipt by the court of such pleading and not the date of delivery to the carrier, is deemed to be the date of the filing of that pleading.

NOTE: PERSONAL and SUBSTITUTED service as applied to pleadings have a different meaning compared to summons under Rule 14.

Section 9. Service of judgments, final orders or resolutions.

MODES OF SERVICE :A. JUDGMENTS, FINAL ORDERS, AND RESOLUTIONS(a) By personal service; or(b) By service by registered mail; (c) By service by publication, if party is summoned by publication and has

failed to appear in the action, judgment, final order or resolution.

They can be served only under the three modes. They CANNOT be served by substituted service.B. PLEADINGS

1. personal service(a) Delivering personally a copy to the party or his counsel or;(b) Leaving a copy in counsel’s office with his clerk or with a person having

charge thereof or;(c) Leaving the copy between 8 a.m. and 6 p.m. at the party’s or counsel’s

residence, if known, with a person of sufficient age and discretion residing therein---if no person found in his office, or if his office is unknown, or if he has no office.

2. service by mail(a) If no registry service is available in the locality, of either sender or

addressee, service may be done by ordinary mail.

3. substituted service(a) Delivering the copy to the clerk of court(b) With proof of failure of both personal and service by mail.

*** It is only when the defendant cannot be served personally within a reasonable time that substituted service may be resorted to and such impossibility of prompt service should be shown by stating that efforts have been made personally and that such efforts have failed.

*** Service made on the party who is not authorized by the lawyer to receive any document is not a valid service and the period to file an appeal or MR will not start to rum until service is made on the lawyer himself.



Section 10. Completeness of service.1. Personal service-by handling a copy to defendant; or-tendering him copy if he refuses-complete upon actual delivery2. Service by ordinary mail: Complete upon expiration of 10 days after mailing, unless the court provides otherwise.

3. service by registered mail: (a) Complete upon actual receipt by the addressee; or(b) After 5 days from the date he received the 1st notice of the postmaster,

whichever date is earlier.

*** In case of registered mail, in the absence of notice given by the postmaster to the addressee, the service is deemed complete upon actual receipt

Section 11. Priorities in modes of service and filing.

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.

Section 12. Proof of filing.

*** Filing is proved by its existence in the record of the case. If it is not in the record, and:

If filed personally: proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; or

If filed by registered mail: proved by -(a) the registry receipt and(b) The affidavit of the person who did the mailing.

Section 13. Proof of service.

Proof of personal service: (a) Written admission of the party served; or(b) Official return of the server; or(c) Affidavit of the party serving

Proof of service by ordinary mail:Affidavit of the person mailing

Proof of service by registered mail:(a) Affidavit, and(b) Registry receipt issued by the mailing office.

Section 14. Notice of lis pendens.

NOTICE OF LIS PENDENS1. Applicability – applies to actions affecting the title or the right of possession of real property2. Manner – done by recording in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action3. Effect – from the time of filing such notice for record, a purchaser, or encumbrancer of the property deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names4. Grounds for Cancellation – upon upon order of the court, after proper showing that: a. For the purpose of molesting the adverse party OR b. That it is not necessary to protect the rights of the party who caused it to be recorded.

*** Notice of lis pendens cannot be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated.



*** Once a notice of lis pendens has been duly registered, any cancellation or issuance of the title of the land involved as well as any subsequent transfer or transactin affecting the same would have to be subject to the out come of the litigation.

*** An action for recovery of sum of money cannot be annotated as a notice of lis pendens because it does not affect the property

*** A Bond cannot be substituted for a notice of lis pendens

RULE 14SUMMONS

Section 1. Clerk to issue summons.Section 2. Contents.

SUMMONS - Compulsory process issued by the court notifying the defendant that a case has been filed against him & requiring him to file an answer within the reglementary period, otherwise judgment may be rendered against him on the basis of the plaintiffs evidence only

PURPOSE OF SUMMONS: to acquire jurisdiction over the person of the defendant, and to give notice to the defendant that an action has been commenced against him.

EFFECT ON NON-SERVICE: Unless there is waiver, non-service or irregular service renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution.

*** Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment.

COURT ACQUIRES JURISDICTION OVER:1. Plaintiff > Filing of the compliant2. Defendant a. Voluntary submission b. Service of summons with a copy of the complaint

Section 5. Issuance of alias summons. ALIAS SUMMONS – is a writ issued by the court upon demand by the plaintiff when the original summon was not

served or have been lost

Summons may be served by:(a) Sheriff(b) Sheriff’s deputy, or(c) Other proper court officers, or(d) For justifiable reasons, by any suitable person authorized by the court issuing the summons.*** Enumeration in section 3 is exclusive.

Section 6. Service in person on defendant.

KINDS OF SERVICE OF SUMMONS: (1) PERSONAL:

A) Handing a copy to the defendant in person; ORB) If he refuses to receive and sign for it, by tendering it to him

(2) SUBSTITUTED:

A) Leave copies at his residence, with person of suitable age and discretion residing therein; ORB) Leave copies at defendant’s office/regular place of business, with competent person in charge thereof.



(3) By publication

(4) any other form of service as the courts deemed sufficient

*** The substituted service should be availed of only when defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service.(Arevalo vs. Quilatan)

When service by publication in a newspaper of general publication allowed: 1) Identity of defendant unknown 2) Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry

(a) and (b), applies to ANY action, even actions in personam 3) Defendant is non-resident and the suit is quasi in rem 4) Defendant is temporarily out of the country and the suit is quasi in rem

Newspaper of general circulation (RA 4883, PD 1079) 1) Published for the dissemination of local news and general information 2) Has a bona fide subscription list of subscribers 3) Published at regular intervals 4) Not published for nor devoted to the interest of a particular group of persons 5) Must have been regularly published for at least 2 years before the date of the publication in question.

SERVICE OF SUMMONS ON DIFFERENT ENTITIES

A. SERVICE ON ENTITY WITHOUT JURIDICALPERSONALITY

-upon any or all defendants being sued under common name; or-person in charge of office

B. SERVICE UPONMINORS ANDINCOMPETENTS

-serve personally and on guardian or any person exercising parental authority over him; HOW. In case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians

IN ANY EVENT, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad litem for him.

C. SERVICE UPONPRISONER

- serve on officer having management of the jail or prison

D. SERVICE UPONDOMESTIC PRIVATEJURIDICAL ENTITY

-To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

* Service upon a person other than those mentioned is invalid and does not bind the corporation.

-

E. SERVICE UPONFOREIGN PRIVATEJURIDICAL ENTITY

- serve on resident agent ; or if none;- gov’t official designated by law; or- on any officer or agent of the corporation within the Philippines.

F. SERVICE UPON - in case defendant is the Republic of the Philippines - by



PUBLIC CORPORA-TIONS

serving upon the Solicitor General - in case of a province, city or municipality, or like public corporations – by serving on its executive head, or on such other officer or officers as the law or the court may direct.

G. EXTRA-TERRITO-RIAL SERVICE

Requisites1. defendant does not reside or is not found within the Phil.2. the action either: a. affects the status of plaintiff; b. relates to or the subject of which is property within the Philippines in which defendant has a lien or interest; c. demands a relief which consists wholly or in part in

excluding the defendant from any interest in any property within the Phil; or

d. property of defendant has been attached in the Phil.

Mode of servicea. with leave of court served outside the Phil. By personal service; orb. with leave of court serve by publication in a newspaperof general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; orc. any other manner the court deem sufficient.

H. SERVICE UPONRESIDENTTEMPORARILY OUTOF THE PHIL

Substituted service or with leave of court, personal service out of the Phil. as under extraterritorial service

E.B. VILLAROSA & PARTNER CO. vs. HERMINIO I. BENITO: G.R. NO. 136426 August 6, 1999The designation of persons or officers who are authorized to accept summons for a domestic corporation

or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states “general manager” instead of only “manager”; “corporate secretary” instead of “secretary”; and “treasurer” instead of “cashier.” The phrase “agent, or any of its directors” is conspicuously deleted in the new rule.

A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient.

MILLENIUM INDUSTRIAL COM. CORP. vs. TAN [G.R. No. 131724. February 28, 2000.] Summons is the means by which the defendant in a case is notified of the existence of an action against him and, thereby, the court is conferred jurisdiction over the person of the defendant. If the defendant is a corporation, Rule 14, §13 require that service of summons be made upon the corporation's president, manager, secretary, cashier, agent, or any of its directors. The rationale of the rule is that service must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he will realize his responsibilities and know what he should do with any legal papers received by him.

Petitioner contends that the enumeration in Rule 14, §13 is exclusive and that service of summons upon one who is not enumerated therein is invalid. This is the general rule. 13 However, it is settled that substantial compliance by serving summons on persons other than those mentioned in the above rule may be justified. In G & G Trading Corporation v. Court of Appeals, we ruled that although the service of summons was made on a person not enumerated in Rule 14, §13, if it appears that the summons and complaint were in fact received by the corporation, there is substantial compliance with the rule as its purpose has been attained.

In Porac Trucking, Inc. v. Court of Appeals, this Court enumerated the requisites for the application of the doctrine of substantial compliance, to wit: (a) there must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the sheriff to the person served ;(b) the person served must sign a receipt or the sheriff's return; and (c) there must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained.

Note: Receipt of summons cannot be inferred from the fact that the corporation filed a motion to dismiss

*** Where the defendant is not a resident and the action is in personam, summons by publication is invalid or being violative of the due process clause.



> Plaintiffs’ recourse, where personal service fails is to ATTACH properties of the defendant, THUS, converting the suit to one IN REM or QUASI-IN REM, and summons by publication will be valid.

*** Where the plaintiffs fails to serve personally the summons, the court should not dismiss the action but should order the case to be archived, so that the action will not prescribe until such time as the plaintiff succeeds in ascertaining the defendants whereabouts or his property.

*** Service of summons on husband is not binding on wife who is a non-resident

*** The extra-territorial service of summons is not for the purpose of acquiring jurisdiction over the person of the defendants who is a non-resident not found in the Philippines, but merely to comply with the requirements of due process and fair play.

Section 12. Service upon foreign private juridical entity.

*** A foreign corporation, even if it is NOT doing business in the Philippines, may be sued for acts done against persons in this country under the rationale that if it is not doing business here, it is also not barred from seeking redress from Philippine courts.

*** Section 12 merely requires that the foreign corporation HAS TRANSACTED business here.

*** Where the defendant is a resident and the action is in personam, summons by publication is invalid as being violative of the due process clause.

*** Plaintiff’s recourse, where personal service fails, is to attach properties of the defendant under Rule 57, sec. 1 (f), thus, converting the suit to one in rem or quasi in rem, and summons by publication will be valid.

> Where plaintiff fails to or cannot do so, the court should not dismiss the action but should order the case to be archived, so that the action will not prescribe until such time as the plaintiff succeeds in ascertaining the defendant’s whereabouts or his properties.

CITIZENS SURETY vs. HERRERA (36 SCRA 369)The action of petitioner being in personam, the court could not validly acquire jurisdiction on a non-

appearing defendant absent a personal service of summons within the forum. Due process of law requires personal service to support a personal judgment and when the proceeding is strictly in perrsonam, personal service within the state or voluntary appearance is essential to the acquisition of jurisdiction as to constitute compliance with the constitutional requirements of due process. The proper recourse for the creditor in this situation is to locate the property of the resident defendant debtor with unknown address and cause them to be attached, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then be deemed valid and effective

RETURN OF SUMMONS

1.IF COMPLETE SERVICE –within 5 days serve a copy of the return, personally or by registered mail, to: a. The plaintiff’s counsel and b. To the clerk of court who issued it, accompanied with proof of service

2. IF WITHOUT BEING SERVED ON ANY OR ALL OF THE DEFENDANTS – within 5 days, server shall also serve a copy of the return to: a. The plaintiff’s counsel stating the reasons for the failure of service b. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias

summons.

Section 20. Voluntary appearance.

*** Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant.

*** Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

RULE 15MOTIONS



Section 1. Motion defined.

MOTION – is an application for relief other than by a pleading.

*** If you want your pleading to be admitted, attach it to your Motion

Section 2. Motions must be in writing.

All motions must be in writing except:1) Those made in open court; OR2) Those made in the course of a hearing or trial.

KINDS OF MOTIONS:

a.motion ex parte- made without the presence of a notification to the other party because the question generally presented is not debatable.

b.motion of course – where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court.

c.litigated motion – one made with notice to the adverse party to give an opportunity to oppose.

d.special motion- motion addressed to the discretion of the courtLitigated Motion Ex-Parte Motion

1) Must be decided upon hearing of both parties

1) Need not hear the other party or upon the exercise of discretion based on the facts appearing in the record.

2) Notice and hearing necessary 2) Notice of motion necessary

OMNIBUS MOTION RULE: A motion attacking a pleading, order, judgment, or proceedings shall include all objections then available and all objections not so included shall be deemed waived.

EXCEPT:1. Lack of jurisdiction over subject matter2. Litis pendencia3. Res judicata4. Prescription

GENERAL RULE: A motion cannot pray for judgment. EXCEPTIONS:1. Motion for judgment on the pleadings2. Motion for summary judgment3. Motion for judgment on demurrer to evidence.

Section 4. Hearing on motion.

GENERAL RULE: All motions must be furnished to the adverse partyEXCEPTIONS: 1. Writ of preliminary attachment 2. Restraining order to be issued by executive judge 3. Delivery of personal property

Second paragraph: 3-day notice rule

EXCEPTIONS to the three-day notice rule:(a) Ex parte motions(b) Urgent motions(c) Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties,

and(d) Motions for summary judgment which must be served at least 10 days before its hearing

EXCEPTIONS from the requirement of a hearing – non-litigated motions, that is, those which may be acted upon by the court without prejudicing the rights of the adverse party.

*** Service of the copy of motions should be made in such a manner as shall ensure its receipt at least 3 days before the hearing.



Sec 5. - A motion must be set for hearing not later than 10 days from the date of its filing

Section 6. Proof of service necessary.

NOTICE OF HEARING shall:(a) Be addressed to all parties concerned(b) Specify the time and date of the hearing which must not be later than 10 days after the filing of the

motion

REQUISITES FOR MOTIONS1) Notice of hearing – not later than 10 days from filing2) Observe 3-day notice rule3) Proof of service

*** Failure to comply with requisites, Motion shall be treated as “mere scrap of paper”

*** Any motion that does not comply with Sections 4, 5 and 6 of this Rule is a mere scrap of paper , should not be accepted for filing and, if filed, is not entitled to judicial cognizance and does not affect any reglementary period involved for the filing of the requisite pleading.

Section 9. Motion for leave. *** Such pleading or motion sought to be admitted is now required to be attached to the motion for leave of court, otherwise the latter will be denied.

RULE 16MOTION TO DISMISS

GROUNDS:(a) No jurisdiction over the person of the defending party(b) No jurisdiction over the subject matter of the claim(c) Improper venue(d) No legal capacity to sue(e) Litis pendentia(f) Res judicata(g) Prescription(h) States no cause of action(i) Claim or demand has been paid, waived, abandoned, or otherwise extinguished(j) Claim is unenforceable under the Statute of Frauds(k) Non-compliance with a condition precedent for filing claim

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

RULE: All the grounds available to the parties under Rule 16 should be averred in the Motion to Dismiss (omnibus motion rule), those not averred are deemed waived—

EXCEPT: 1. Lack of jurisdiction2. Litis pendencia3. Res judicata4. Prescription

MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence)

grounded on preliminary objections. based on insufficiency of evidence. may be filed by any defending party against whom a claim is asserted in the action.

may be filed only by the defendant against the complaint of the plaintiff.

should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him.

may be filed only after the plaintiff has completed the presentation of his evidence.



Effect of motion to dismiss: A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. However, such admission is limited only to all material and relevant facts which are well pleaded in the complaint.

*** An action cannot be dismissed on a ground not alleged in the motion even if said ground is provided for in Rule 16. EXCEPT:(a) Those cases where the court may dismiss a case motu proprio(b) Fact of such ground appears in the allegations of the complaint or in plaintiff’s evidence

GENERAL RULE: All grounds of Motion to Dismiss may raise questions of fact or lawEXCEPTION: Pleading does not state a cause of action

HOW JURISDICTIONS over the PERSON ACQUIRED:1) Valid service of summons2) Voluntary appearance

ESTOPPEL by LACHES in JURISDICTION*** Where a court does not have jurisdiction but it can decide validly the case as when no one

raised the question of the lack of jurisdiction of the Court

REQUISITES OF LITIS PENDENTIA:(a) Parties to the action are the same(b) There is substantial identity in the cause of action and relief sought(c) The result of the first action is determinative of the second in any event and regardless of which

party is successful Motion to dismiss may be filed in either suit, not necessarily in the one instituted first.

Rule To Determine What Action Should Be Dismissed/Retained1) As to the date of filing, the first action filed is to be retained2) As to purpose, whether the action is merely to pre-empt the later action3) As to desirability, whether the action is the appropriate vehicle for litigating the issues between parties

* Lis Pendens and Res Judicata as ground for Motion To DismissLIS PENDENS: there is no judgment yet, as both of the cases are still pendingRES JUDICATA: there is already a judgment on the first case

REQUISITES OF RES JUDICATA:(a) Previous final judgment (b) In a case prosecuted between same parties(c) Involving the same subject matter (d) And same cause of action

TWO ASPECTS OF RES JUDICATA:

1) BAR BY FORMER JUDGMENT – when the identity of the parties, subject matter and cause of action between 1st and 2nd actions, judgment on the first may be invoked in the second

2) CONCLUSIVENESS OF JUDGMENT – when there is identity of parties but not cause of action, the judgment being conclusive in the second case only as to matters actually and directly controverted and determined and not as to matters invoked thereon.

DECISIONAL RULES – RES JUDICATA*** A judicial compromise has the effect of res judicata and is immediately executory and not appealable

*** The ultimate test in ascertaining the identity of causes of actions is said to be to look into whether or not the same evidence fully supports and establishes both the present cause of action and the former cause of action.

*** Only substantial and not absolute identity of parties is required in res judicata



What Interrupts the Period of Prescription 1) Filing of an action 2) Written extra-judicial demand 3) Acknowledgment of debt

*** If case is dismissed, without prejudice, the prescriptive period is renewed, from the time of dismissal

ACTIONS THAT DO NOT PRESCRIBE1. Between co-owners unless one repudiates2. Recover movables possessed through a crime3. Demand right away4. Abate a public or private nuisance5. Inexistence of a contract6. Enforce express trust7. Recover property covered by the Torrens system8. Quiet title9. Annul a void judgment10.Special proceeding for probate

DECISIONAL RULES – PRESCRIPTION

*** Prescription and estoppel cannot be invoked against the State*** Prescription cannot be invoked as a ground if the contract is alleged to be void ab initio, BUT where

prescription depends on whether contract is void or voidable, there must be a hearing.

*** When the ground for dismissal is that the complaint states no cause of action, such fact can be determined only from the facts alleged in the complaint.

DECISIONAL RULES – STATUTE OF FRAUDS*** A Motion to Dismiss invoking statute of frauds may be filed even if the same does not appear on the

face of the complaint

*** If a plaintiff’s right of action depends upon a condition precedent, he must allege and prove the fulfillment of the condition or the legal excuse for its non-filing

*** Where the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action.

*** Non-compliance with P.D. 1508 (Katarungang Pambarangay Law) only results in lack of cause of action or prematurity.

E-COMMERCE LAW*** Where the law requires a writing or document, that requirement is met by an electronic document

which maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference.

*** An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery.

*** The filing of a Motion to dismiss is an implied waiver of a compulsory counterclaim, if granted

RULE: Where the defendant alleges as affirmative defenses the grounds for motion to dismiss in his Answer and such was granted

> The counterclaim pleaded in the answer is not dismissed > Dismissal is limited to the complaint only

GENERAL TYPES OF A MOTION TO DISMISS1.motion to dismiss before answer under Rule 262.motion to dismiss under Rule !7 a. upon notice by plaintiff b. upon motion of plaintiff c. due to fault of plaintiff3.motion to dismiss on demurrer to evidence after plaintiff has rested his case under Rule 334.motion to dismiss the appeal filed either on the lower court ( Rule 41, Sec. 13 ) or in the appellate

court ( Rule 50, Sec. 1 )

Section 2. Hearing of motion.



HEARING OF MOTION

> Parties shall submit their arguments on the questions of law > Evidence on the questions of fact which shall automatically be part of the evidence of the party

presenting the same should the case go to trial

*** The evidence presented shall automatically constitute part of the evidence at the trial of the party who presented the same.

Section 3. Resolution of motion.

> Court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable

> The resolution shall state clearly and distinctly the reasons therefor

> COURT MAY EITHER:1) Dismiss the action or claim and shall bar the refiling of same action or claim if based on:

a. Res judicata or prescription b. Claim has been paid, waived, abandoned, or otherwise extinguished, or c. Claim on which the action is founded is Unenforceable under the statute of fraud

As to Plaintiff, it is final and appealable but if there is grave abuse of discretion, prohibition or certiorari will lie;

As to Defendant, without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.

2) Deny the Motion – movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial.

As to Defendant, it is interlocutory and not appealable but if there is grave abuse of discretion, prohibition or certiorari will lie.

3) Order the Amendment of Pleading – he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period.

*** The resolution on the motion shall clearly and distinctly state the reasons therefor.

Section 4. Time to plead.

*** Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss, counted from his receipt of the denial order, but not less than 5 days in any event. *** The same rule of granting only the balance of the period is followed where the court, instead of denying the motion to dismiss, orders the amendment of the pleading challenged by the motion, in which case, the balance of the period to answer runs from his receipt of the amended pleading.

Section 5. Effect of dismissal.

RULE: - Where the defendant alleged as defenses in his answer grounds for a motion to dismiss & the counterclaim pleaded in the answer is not dismissed.

*** Dismissal is limited to the complaint

*** The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.

A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. The demurrer does not admit the truth of mere epithets charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law; nor matters of evidence; nor to legally impossible facts.

The action cannot be refiled if it was dismissed on any of these grounds:1. Res judicata



2. Prescription3. Extinguishment of the claim or demand4. Unenforceability under the Statute of Frauds

Section 6. Pleading grounds as affirmative defenses.

*** If no motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16, INCLUDING IMPROPER VENUE, may be pleaded as affirmative defenses and preliminarily heard in the discretion of the court. *** Dismissal under this section – WITHOUT prejudice to the prosecution in the same or separate action of a COUNTERCLAIM pleaded in the answer

RULE:- Evidence received in a hearing of the Motion to Dismiss, shall automatically reproduced in the trial

RULE 17DISMISSAL OF ACTIONS

Section 1. Dismissal upon notice by plaintiff.

*** Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the defendant has answered or moved for a summary judgment.

*** Court must still issue an order confirming the dismissal

*** The court is not required to issue an order of dismissal BUT is required only to issue an order confirming the fact that the plaintiff dismissed the complaint

Such dismissal is WITHOUT PREJUDICE, EXCEPT:(a) Where the notice of dismissal so provides;(b) Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction

(two-dismissal rule);(c) Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the

fact of payment by the defendant of the claim involved

*** If without prejudice, the plaintiff can refile the case

2-DISMISSAL RULE (with prejudice) - The second notice of dismissal operates as an adjudication on the merits, when filed by a plaintiff who

had once dismissed in a competent court an action based on or including the same claim

TWO DISMISSAL RULE – REQUISITES 1) It is an action based on or including the same claim 2) There have been 2 dismissals before a court of competent jurisdiction

*** Cause of loss by plaintiff of the right to effect dismissal of the action by mere notice---not the filing of defendant’s answer BUT the SERVICE on the plaintiff of said answer or of a motion for summary judgment.

Section 2. Dismissal upon motion of plaintiff.

*** If answer or motion for summary judgment already served, dismissal by a Motion for Dismissal, which shall require approval of the court; shall be without prejudice unless otherwise specified by the court

*** Where the plaintiff moves for the dismissal of his complaint to which a counterclaim has been interposed, the dismissal shall be limited to the complaint.

Such dismissal shall be without prejudice to the right of the defendant to either:(a) Prosecute his counterclaim in a separate action, or



In this case, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint.

(b) To have the same resolved in the same action.

In such case, defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss.

*** These alternative remedies of the defendant are available to him REGARDLESS OF WHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE.

Dismissal under this rule is WITHOUT PREJUDICE, EXCEPT:(a) When otherwise stated in the motion to dismiss;(b) When stated to be with prejudice in the order of the court.

*** A class suit shall not be dismissed or compromised without the approval of the court

Section 3. Dismissal due to fault of plaintiff.

CAUSES FOR DISMISSAL:(a) Plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint REQUISITES: 1. failure to appear is without justifiable cause, and 2. absence is limited to the date or dates when the presentation of his evidence in chief on the

complaint was scheduled or expected.(b) Plaintiff fails to prosecute his action for an unreasonable length of time(c) Plaintiff fails to comply with these Rules or any order of the court

Complaint may be dismissed:(a) Upon motion of the defendant, or (b) Upon court’s own motion.

*** Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (WITH PREJUDICE), unless otherwise declared by the court.

*** Unjustifiable inaction on the part of plaintiff to have the case set for trial is a ground for dismissal for failure to prosecute.

*** It is plaintiff’s failure to appear at the trial, and not the absence of his lawyer, which warrants dismissal.

*** The defendant may prosecute his counterclaim in the same or in a separate action

*** The unreasonable length of time in failure to prosecute is addressed to the sound discretion of the court

*** A motion of reconsideration of an order dismissing the case for failure to prosecute need not be accompanied by affidavits or merits

SECTION 2 SECTION 31.dismissal is at the instance of the plaintiff;

1.dismissal is not procured by plaintiff though justified by causes imputable to him;

2. dismissal is a matter of procedure, without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint;

2.dismissal is a matter of evidence, an adjudication on the merits;

3. dismissal is without prejudice to the right of the defendant to prosecute hi counterclaim in a separate action unless 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action

3. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action.

Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint.



Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must be made by claimant before a responsive pleading or a motion for summary judgment is served, or if there is none, before the introduction of evidence.

When voluntary dismissal applicable1) Before any responsive pleading is served2) Before motion of summary judgment is served3) If none, before introduction of evidence at trial or hearing

RULE 18PRE-TRIAL

Section 1. When conducted.

PRE-TRIAL- a mandatory conference and personal confrontation before the judge between the parties litigant and their respective counsel, called by the court after the last pleading has been filed and before trial for the purposes mentioned in Rule 18 Section 2.

*** The plaintiff must promptly move ex parte that the case be set for pre-trial , and this he must do upon the service and filing of the last pleading

*** Pre-trial may be held upon the filing of the last pleading OR upon the expiration of the period for the filing of the last pleading without the last pleading having been filed

*** The pre-trial and trial on the merits of the case must be held on separate dates.

Section 2. Nature and purpose.

*** Pre-trial is mandatory.

What to consider in pre-trial (with notice to counsel or party without counsel) 1) Possibility of amicable settlement or arbitration 2) Simplification of the issues 3) Amendments to the pleadings 4) Stipulations or admissions of facts and documents 5) Limitation of number of witnesses 6) Preliminary reference of issues to a commissioner 7) Propriety of judgment on the pleadings, summary judgments, or dismissal of action 8) Other matters for the prompt disposition of the action

Sec 3. NOTICE OF PRE-TRIAL*** Served on counsel, if none, to the party*** Counsel has duty of notifying the party he represents

Section 4. Appearance of parties.*** It is the absence of the parties, not the counsels that may give rise to the corresponding sanction against

the absent party.

When non-appearance of a party may be excused:(a) If a valid cause is shown therefor(b) If a representative shall appear in his behalf fully authorized in writing to:

1. Enter into an amicable settlement2. Submit to alternative modes of dispute resolution3. Enter into stipulations or admissions of facts and of documents



*** A special authority for an attorney to compromise is required under Sec. 23, Rule 138. Under Art. 1878 (c) of the Civil Code, a special power of attorney is required.

*** If a party is a corporation such authority to appear must be made with an appropriate Resolution by the BODs

*** SPA is not sufficient, it must be accompanied by a showing of a valid cause for non-appearance of the party himself

Section 5. Effect of failure to appear.

EFFECT OF NON-APPEARANCE OF PLAINTIFF: - cause for dismissal of the action, with prejudice, unless otherwise ordered by the court.

*** If plaintiff declared as non-suited, the dismissal shall have the effect of adjudication on the merits

*** There must be a NOTICE of Pre-Trial or else it would violate the due process clause

*** Dismissal is always with prejudice UNLESS the order says otherwise.EFFECT OF NON-APPEARANCE OF DEFENDANT:- cause to allow the plaintiff to present evidence ex parte and the court to render judgment on the basis thereof.

*** During the pre-trial, the rendition of a summary judgment or judgment on the pleadings is proper - There is a need for a MOTION

Effect Order of Default vs. Effect of Non-Appearance in Pre-Trial

Rule 9 “In Default” Rule 18 “As in Default”1) Judgment is by default 1) Ordinary judgment2) No award of liquidated damages

2) Allows award of unliquidated damages

3) Remedy is Motion to set aside default based on FAME

4) Remedy is Motion for Reconsideration. (for defendant) OR appeal (for plaintiff)

Section 6. Pre-trial brief.

*** It is the mandatory duty of the parties to seasonably file their trial briefs under the conditions and with the sanctions provided therein.

*** Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial. -- Failure to file brief has same effects as failure to appear at pre-trial.

MATTERS REQUIRED TO BE SPECIFIED IN THE PRE-TRIAL BRIEF1) The names & numbers of witnesses2) The gist of the proposed testimony of a witness3) Copies of documents that may be offered for admissions4) Purpose of which the documents are offered

Section 7. Record of pre-trial.

*** The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice.

CONTENTS OF ORDER1) Matters taken up in the pre-trial2) Defines and limit the issues to be tried3) Control the course of action in trial

*** The pre-trial order governs the subsequent course of the trial, so that, the trial will be limited to the issues raised in the pre-trial order.

*** Under Rule 30, the presentation of evidence of the party is limited to the issues raised in the pre-trial order

EXCEPTION: Amendment to the pleadings 1) If the opposing party does not object



2) Court allows such presentation of evidence (when merits of the case be best subserved)

*** Pre-trial order may be modified when necessary to avoid injustice being committed if trial is limited to what is stated in the pre-trial order.

RULE 19INTERVENTION

Section 1. Who may intervene.

INTERVENOR (3RD PARTY) - Not an original party to a suit *** Right to intervene is not an absolute right, it is subject to the sound discretion of the court

Who may intervene:(a) One who has legal interest in the matter in litigation(b) One who has legal interest in the success of either of the parties, (c) One who has an interest against both parties(d) One who is so situated as to be adversely affected by a distribution or other disposition of property

in the custody of the court or of an officer thereof

TYPES1) Complaint in intervention (joins plaintiff)2) Answer in intervention (joins defendant)1) Complaint in intervention vs. both

- (must be attached to the Motion)

FACTORS TO BE CONSIDERED BY THE COURT:(a) Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the

original parties(b) Whether or not the intervenor’s rights may be fully protected in a separate proceeding

IMPROPER DENIAL - Appeal - If with grave abuse of discretion, MANDAMUS

IMPROPER GRANTING - Certiorari & prohibition

INTERVENTION INTERPLEADER an ancillary action. an original action. proper in any of the four situations mentioned in this Rule.

presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein, which in whole or in part, is not disputed by the other parties to the action.

defendants are already original parties to the pending suit

defendants are being sued precisely to implead them

*** The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

BATAMA FARMER’S COOPERATIVE MARKETING ASSOCIATION, INC. vs. ROSAL(42 SCRA 408)*** The fact that the separate, distinct and independent contracts of two different persons with the same association contain the same identical terms and conditions does not create in favor of one a legal interest in the contract of the other and vice versa.

A mere collateral interest in the subject matter of the litigation cannot justify intervention. The remedy is to file a separate civil suit which the court may hear jointly with the other case should it and the parties deem it convenient.

Section 2. Time to intervene.

WHEN TO FILE: at any time before rendition of judgment by the trial court.



JUSTIFICATION: Before judgment is rendered, the court, for good cause shown, may still allow the introduction of additional evidence and that is still within the liberal interpretation of the period for trial Since no judgment has yet been rendered, the matter subject of the intervention may still be readily resolved and integrated in the judgment disposing of all claims in the case.

*** Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.

*** Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed if main action is dismissed.

*** A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The petition will be preserved and heard regardless of the disposition of the main action.

RULE 20CALENDAR OF CASES

*** Calendar of cases to be kept by clerk of court for cases set for pre-trial, trial, those whose trials adjourned or postponed and those with motions set for hearings.*** Preference given to habeas corpus, election cases, special civil actions and those so required by law.

Assignment of Cases: (ORA) 1. Open session2. Raffle3. Adequate notice given to afford interested parties to be present

RULE 21SUBPOENA

SUBPOENA SUMMONS an order to appear and testify or to produce books and documents

order to answer complaint

may be served to a non-party served on the defendant needs tender of kilometrage, attendance fee and reasonable cost of production fee

does not need tender of kilometrage and other fees

SUBPOENA AD TESTIFICANDUM – a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.

SUBPOENA DUCES TECUM – a process directed to a person requiring him to bring with him books, documents, or other things under his control. Section 3. By whom issued.

Who may issue:(a) Court before whom the witness is required to attend(b) Court of the place where the deposition is to be taken(c) Officer or body authorized by law to do so in connection with investigations conducted by said

officer or body(d) Any Justice of the SC or of the CA in any case or investigation pending within the Philippines

*** The clerk of court shall issue under the authority of the judge*** No prisoner sentenced to Death, RP, or Life Imprisonment shall be brought out of a penal institution

UNLESS authorized by the SC



*** Service of a subpoena shall be made in the same manner as personal or substituted services of summons + tendering to him the fees for one day’s attendance and the kilometrage allowed or reasonable cost for production except if issued or on behalf of the Republic of the Philippines.

*** Person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena.

Section 4. Quashing a subpoena.

GROUNDS FOR QUASHING SUBPOENA:

(A) Subpoena ad testificandum 1. Witness is not bound thereby 2. Witness fees and kilometrage not tendered 3. Witness resides more than 100 km from his residence to the place he is to testify by the ordinary course of travel (only in civil cases) 4. Witness is a prisoner and no permission was obtained from the appropriate court;

(B) Subpoena duces tecum 1. Witness is not bound thereby 2. If unreasonable and oppressive (no reasonable description ) 3. If irrelevant or relevancy of the same does not appear 4. If failed to advance reasonable cost for its production

*** If without reasonable description of books and documents, violation of the right against unreasonable searches and seizure.

Consequences of an unjustifiable refusal to obey a subpoena:a. The court which issued the subpoena may issue a warrant for the arrest of the witness and make

him pay the cost of such warrant and seizure, if the court should determine that this disobedience was willful and without just cause;

b. The refusal to obey a subpoena shall be deemed a contempt of the court issuing it.

Section 10. Exceptions.

*** When provisions of Sec. 8 (issuance of warrant of arrest to bring witness to court or officer, and payment by witness of the cost of such warrant and seizure, if his failure was willful and without just excuse) and Sec. 9 (Contempt), not applicable: a. Witness resides more than 100 km from his residence to the place where he is to testify by the

ordinary course of travel (generally, by overland transportation) [VIATORY RIGHT]b. Permission of the court in which the detention prisoner’s case is pending was not obtained.

*** Viatory Right is a right not to be compelled to attend upon a subpoena by reason of the distance of the residence of the witness to the place where he is required to testify.

- This right is available only in civil case not in criminal case (People vs Montejo 97 SCRA 722)

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

RULE 22COMPUTATION OF TIME

*** 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.

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

NOT APPLICABLE:1) Provided by contract2) Specific date set by court3) Prescriptive period set by the RPC



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

MODES OF DISCOVERY

Rules 23-28 provide for the DIFFERENT MODES OF DISCOVERY.

DISCOVERY - is the procedure by which one party in an action is enabled to obtain before trial knowledge of relevant facts and of material evidence in the possession of the adverse party or of a witness.

*** Rationale of discovery: to enable the parties to obtain the fullest possible knowledge of the issues and evidence long before the trial to prevent such trial from being carried on in the dark.

*** Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and 26.KIND of

DISCOVERYMANNER &

TIMETO/BY WHOM& PURPOSE

1) Deposition pending action upon oral or written interrogatories

a) by leave of court after jurisdiction obtained over the person or subject.

b) without leave after answer have been served.

To any person whether a party or not at the instance of any party.

Purpose: to get oral or written admissions from a witness.

2) Deposition before action a) by a verified petition in the court of the place of residence of any expected adverse party/

By any person who desires to perpetuate his own testimony or that of another.

Purpose: future action3) Deposition pending appeal

By leave of court if an appeal has been taken or before taking it before expiration period

By appelle or appellant

Purpose: for appeal or future proceedings

4) Interrogatories a) by leave of court after jurisdiction obtained over the person or subject

b) without leave after answer have been served

By and to any party desiring to elicit material and relevant facts

Purpose: to elicit material and relevant facts

5) Request for Admission By a written request for admission after issues have been joined

By any party filed and served upon adverse party

Purpose: for admission of:

a) Genuineness of any material documents

b) Truth of material facts 6) Production or inspection of documents or things

Upon motion to the court and showing good cause with notice to all

By and to any party for

Purposes:a) Produce, inspect and copy documents, objects or things not privilege and material evidence to a case

b) Entry and inspection of place. 7) Physical and mental examination

Upon motion to the court and showing good cause with notice to all mental or physical condition of a party is in controversy.

By any party against the party whose mental or physical condition is in controversy

Purposes: Ascertain the physical or mental condition of a party material to the action

*** The various modes of discovery are clearly intended to be cumulative, and not alternative or mutually exclusive

*** Fishing expeditions are allowed in discovery, EXCEPT in motions for productions of documents



PRINCIPAL BENEFITS IN MODES OF DISCOVERY1. Great assistance in ascertaining the truth and preventing injury because the witness is not coached and memory still fresh;2. Effective in detecting fake, fraudulent or sham claims;3. Simple, convenient and inexpensive way of obtaining facts;4. Educates the parties of the real values of their claims thereby encouraging settlements;5. Expedite proceedings and helps unclog court dockets;6. Safeguard against surprise trials;7. Facilitates preparation and trial of cases.

RULE 23DEPOSITIONS PENDING ACTION

DASMARIÑAS GARMENTS vs. REYES (5 SCRA 623) Depositions are principally made available by law to the parties as a means of informing themselves of all the relevant facts, they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at the trial or hearing. This is a requirement of the Rules of Evidence. (Section 1, Rule 132 of the Rules of Court)

Any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay: the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing.

However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24 (now Section 2, Rule 23 of the Revised Rules of Court) of the Rules of Court.

Section 1. Depositions pending action, when may be taken.

DEPOSITION – is a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination.

*** Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person, which are relevant in a suit/proceeding.

DEPOSITIONS AFFIDAVITS

Written testimony of witness in course of judicial proceedings, in advance of trial and hearing

Mere sworn written statements

Opportunity for cross-examination No cross-examinationCan be competent testimonial evidence Little probative value (hearsay)

CLASSIFICATIONS OF DEPOSITIONS:(a) Depositions on ORAL EXAMINATION and Depositions upon WRITTEN INTERROGATORIES (b) Depositions DE BENE ESSE

(those taken for purposes of a pending action); and,(c) Depositions IN PERPETUAM REI MEMORIAM (Rule 24)

(those taken to perpetuate evidence for purposes of anticipated action, or in the event of further proceedings in a case on appeal, and to preserve it against danger of loss.)

*** This Rule regulates depositions de bene esse

LIMITATIONS:(a) examination is conducted in bad faith(b) examination is conducted in such a manner as to annoy, embarrass or oppress the person subject

to the inquiry(c) when the inquiry touches upon irrelevant or encroaches upon the recognized domains of privilege.WHEN TAKEN:

WITH LEAVE OF COURTafter jurisdiction has been obtained over any defendant or over the property which is the subject of the action and BEFORE answer.Deposition of a person confined in prison.



WITHOUT LEAVE OF COURT-(a) AFTER answer and deponent is not confined in prison.

Section 3. Examination and cross-examination.Section 4. Use of depositions.

*** Where the witness is available to testify and the situation is not one of those excepted under Sec. 4, his deposition is inadmissible in evidence (Hearsay) and he should be made to testify.

* It can be used as evidence by a party for any purpose under the specific conditions in Sec. 4.

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

*** A party who takes the deposition of another does not make that party his witness*** Any deposition may be used by any party, for the purpose of contradicting or impeaching the testimony of

the deponent as a witness

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

*** The depositions cannot be considered as evidence until they are formally offered under sec 35 Rule 132

DEPOSITION OF MAY BE USED BY PURPOSE

A witness Any party To contradict or impeach the deponent’s testimony as a witness

Any party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation

An adverse party For any purpose

Of any witness, whether a party or not

Any party For any purpose, IF court finds that:1) Witness is dead;2) Witness resides at a distance

more than 100 km from place of trial, UNLESS absence procured by party offering the deposition

3) Witness is unable to testify because of age, sickness, infirmity, or imprisonment;

4) Party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR

5)Other exceptional circumstances make it desirable to allow deposition to be used.

SCOPE OF INQUIRY IN DEPOSITIONS:1. Matter which is relevant to the subject of the pending action;2. Not privileged3. Not restricted by a protective order 4. Existence, description, custody, condition, of any books, documents, or other Things and5. Identify and location of Persons having knowledge of relevant facts.

RULE ON SELF-INCRIMINATING QUESTIONS > Deponent may refuse to answerREMEDY > File motion in court to compel deponent to answerIF ORDERED TO ANSWER AND STILL REFUSES- deponent not a party

> Contempt of court - deponent a party to the case

1. The questions asked to him shall be deemed to be answered in accordance with the claim of the party asking the question.



2. Not be allowed to present evidence on his issues 3. If plaintiff – dismissal of the case 4. If defendant – answer stricken out and therefore can be declared in default 5. Arrested

Section 10. Persons before whom depositions may be taken within the Philippines.Section 11. Persons before whom depositions may be taken in foreign countries.

Persons before whom depositions may be take: WITHIN THE PHILIPPINES:(a) judge(b) notary public(c) any person authorized to administer oaths, as stipulated by the parties in writing OUTSIDE THE PHILIPPINES:(a) on notice, before a secretary of embassy or legation, consul general, consul, vice-consul, or

consular agent of the Phil.(b) before such person or officer as may be appointed by commission or letters rogatory(c) any person authorized to administer oaths, as stipulated by the parties in writing

Persons disqualified to take depositions(disqualification by interest)1) Relative within 6th degree of consanguinity or affinity of any party2) Employee of any party3) Counsel of any party4) Relative within the same degree of party’s counsel5) Employee of party’s counsel6) Anyone financially interested in the action

Section 12. Commission or letters rogatory.

COMMISSION LETTERS ROGATORY issued to a non-judicial foreign officer

who will directly take the testimony issued to the appropriate judicial officer of

the foreign country who will direct somebody in said foreign country to take down testimony

applicable rules of procedure are those of the requesting court

applicable rules of procedure are those of the foreign court requested to act

resorted to if permission of the foreign country is given

resorted to if the execution of the commission is refused in the foreign country

leave of court is not necessary leave of court is necessary

Section 18. Motion to terminate or limit examination.

WHEN TO FILE:

(a) any time during the taking of the deposition(b) on motion or petition of any party or of the deponent; or(c) upon showing that the examination is conducted in bad faith in such manner as unreasonably to

annoy, embarrass, or oppress the deponent or party

SEC 25. Depositions upon written interrogatories Party desiring to take such deposition shall serve them upon every other party with a notice

stating 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

SEC 29. Effects of errors and irregularities in the depositions1) As to notice – waived unless written objection is promptly served upon the party giving the

notice

2) As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence



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

4) As to oral exam and other particulars - Errors occurring at the oral exam in the manner of taking the 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 prosecuted are 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 3 days 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 the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

RULE 24DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Section 1. Depositions before action; petition.A person desiring to perpetuate his own testimony or that of another person regarding any

matter that may be cognizable in any court of the Phils may file a verified petition in the court of the place 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 unable

to 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.

*** This Rule regulates the taking of depositions in perpetuam rei memoriam.

*** Depositions under this Rule are also taken conditionally, to be used at the trial only in case the deponent is not available.

*** Depositions under this Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.

Section 6. Use of deposition.*** If deposition is taken under this Rule, it may be used in any action involving the SAME SUBJECT MATTER subsequently brought.

Section 7. Depositions pending appeal.*** Sec. 7 is the procedure in perpetuating testimony AFTER JUDGMENT IN THE RTC and DURING THE PENDENCY OF AN APPEAL.

*** Deposition pending appeal – a case is dismissed by the TC before witnesses could be presented and the party desiring it, expects the dismissal to be reversed on appeal.

RULE 25INTERROGATORIES TO PARTIES



Section 1. Interrogatories to parties; service thereof.

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

PURPOSE of Written Interrogatories: to elicit facts from any adverse party (answers may also be used as admissions of the adverse party)

*** Written interrogatories and the answers thereto must both be FILED and SERVED.

Section 5. Scope and use of interrogatories.

A party may serve written interrogatories:

WITHOUT LEAVE OF COURT – after answer has been served, for the first set of interrogatories.

WITH LEAVE OF COURT – before answer has been served (reason: at that time, the issues are not yet joined and the disputed facts are not yet clear, when more than one set of interrogatories is to be served.)

*** A judgment by default may be rendered against a party who fails to answer written interrogatories

*** The various modes of discovery are clearly intended to be cumulative, and not alternative or mutually exclusive.

Section 6. Effect of failure to serve written interrogatories.

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

*** The justification for this provision is that the party in need of relevant facts having foregone the opportunity to inquire into the same from the other party through means available to him, he should not thereafter be permitted to unduly burden the latter with courtroom appearances or other cumbersome processes.

*** Unless a party had been served written interrogatories, he may not be compelled by the adverse party: (a) to give testimony in open court, or (b) give a deposition pending appeal. The only exception is when the court allows it for GOOD CAUSE

shown and to prevent a failure of justice.

Depositions Upon Written Interrogatories to Parties under Rule

23 Sec. 25

Interrogatories to Parties under Rule 25

As to Deponent1. party or ordinary witness 1. party onlyAs to Procedure2. with intervention of the officer authorized by the Court to take deposition

2.no intervention. Written interrogatories are directed to the party himself

As to Scope3. direct, cross, redirect, re-cross 3. only one set of interrogatoriesInterrogatories4. no fixed time 4. 15 days to answer unless extended or

reduced by the court

RULE 26ADMISSION BY ADVERSE PARTY

Section 1. Request for admission.



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

*** PURPOSE OF written request for admission is to expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry.

Section 2. Implied Admission.

*** The effect of a failure to make a reply to a request for admission is that each of the matters of which an admission is requested is deemed admitted.*** Each matter must be denied SPECIFICALLY under oath setting forth in detail the reason why he cannot truthfully admit or deny.

*** The answer to a request for admission under this rule may be made by the lawyer of the party and not necessarily the party himself.

Section 3. Effect of admission.

USE: An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings.

BAYVIEW HOTEL vs. KER & COMPANY, LTD. (16 SCRA 327)Admission is in the nature of evidence and its legal effects were already part of the records of the case

and therefore could be availed of by any party even by one subsequently impleaded. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment. If a fact is admitted to be true at any stage of the proceedings, it is not stricken out through the amendment of complaint. To allow a party to alter the legal effects of the request for admission by the mere amendment of a pleading would constitute a dangerous and undesirable precedent.

SEC 5. Effect of failure to file and serve request for admission

*** A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon,

RULE 27PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

Section 1. Motion for production or inspection; order.

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 designated documents,

papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which: A) Constitute or contain evidence material to any matter involved in the action AND B) Are in his possession, custody or control. 2) Permit entry upon designated land or other property in his possession or control for the purpose

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

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

*** Production of documents affords more opportunity for discovery than a subpoena duces tecum because in the latter, the documents are brought to the court for the first time on the date of the scheduled trial wherein such documents are required to be produced.

*** The test to be applied in determining the relevancy of the document and the sufficiency of their description is one of reasonableness and practicality.



PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

SUBPOENA DUCES TECUM

essentially a mode of discovery means of compelling production of evidence

the Rules is limited to the parties to the action

may be directed to a person whether a party or not

the order under this Rule is issued only upon motion with notice to the adverse party

may be issued upon an ex parte application.

RULE 28PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Section 1. When examination may be ordered.*** The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an imbecile or insane person, while the physical condition of the party is generally involved in PHYSICAL INJURIES cases.

*** Since the results of the examination are intended to be made public, the same are not covered by the physician-patient privilege.

Section 4. Waiver of privilege.

Where the party examined requests and obtains a report on the results of the examination the consequences are:(a) he has to furnish the other party a copy of the report of any previous or subsequent examination of

the same physical and mental condition, AND(b) he waives any privilege he may have in that action or any other involving the same controversy

regarding the testimony of any other person who has so examined him or may thereafter examine him.

RULE 29REFUSAL TO COMPLY WITH MODES OF DISCOVERY

SANCTIONS:1. Contempt;2. Payment of reasonable fees;3. The matters regarding which the questions were asked, character or description of land et al., be

taken to be in accordance with the claim of party obtaining the order;4. Prohibiting the refusing party to produce evidence or support or oppose designated claims or

defenses;5. To strike out pleadings, order the dismissal of the action or stay the action until compliance or to

render judgment by default.6. Order the arrest of the refusing party except in cases of physical or mental examination.

Effects of refusal to comply1. If a party/deponent refused to answer:

A) The examination may be completed on other mattersB) The examination may be adjournedC) 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 attorney’s 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 attorney’s 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 a contempt of that court.

3. 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 propertyc. 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 the thing, or the physical and mental condition of the party be taken to be established.2) The disallowance of the disobedient party’s claims3) The prohibition of the disobedient party to present evidence4) The striking out of the pleadings or parts thereof5) The dismissal of the action or parts thereof6) 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:a) Strike out all or any part of any pleading of that party.b) Dismiss the action or any part thereof.c) Enter a judgment by default against that party, OR/ANDd) Order that party to pay reasonable expenses incurred, including attorney’s fees.

5. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule.

RULE 30TRIAL

Sec. 3 Requisites of motion to postpone trial for absence of evidence.

NOTICE OF TRIAL - Upon entry of case in trial calendar - Clerk of court notifies parties at least 5 days before trial

LIMITATIONS ON ADJOURNMENTS 1) One month for each adjournment 2) 3 months over all

EXCEPTION: Authorized by the court administrator of SC

*** In CONTINUOUS TRIAL CASES, the trial shall be terminated within 90days from initial hearing

POSTPONEMENT DUE TO ILLNESS - Need for notarized medical certificate

POSTPONEMENT DUE TO LACK OF EVIDENCE:There must be an affidavit showing:(1) materiality or relevance of such evidence; and(2) due diligence in procuring it.

If the adverse party admits the facts for which evidence is to be presented, the trial will not be postponed.

Section 5. Order of trial.


Plaintiff presents evidence

Defendant presents evidence to support his defense/counterclaim/cross-claim/third party complaint

Defendant files: demurrer to evidence

Third party defendant presents evidence, if any

Court grants motion: renders dismissal

Court denies motion, continues with hearing

After presentation of evidence;1.oral arguments;2.submission of memoranda


*** Unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order.

Section 6. Agreed Statements Of Facts.

> This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. The parties may also stipulate verbally in open court. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown, such as error or fraud. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation.

*** Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION.

Section 8. Suspension of actions.

Art. 2030 of the Civil Code. Every civil action or proceeding shall be suspended1. If willingness to discuss a possible compromise is expressed by one or both parties; OR2. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer.

Section 9. Judge to receive evidence; delegation to clerk of court.

AS A GENERAL RULE: the judge must himself personally receive and resolve the evidence of the parties.

However, the reception of such evidence may be delegated under the following conditions:(a) The delegation may be made only in defaults or ex parte hearings, or an agreement in writing by

the parties.(b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar.(c) Said clerk shall have no power to rule on objections to any question or to admission of evidence or

exhibits; and(d) He shall submit his report and transcripts of the proceedings, together with the objections to be

resolved by the court, within 10 days from the termination of the hearing.

RULE 31CONSOLIDATION OR SEVERANCE

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

*** 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.

PURPOSE: to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the Trial Court and save unnecessary costs and expenses.

GENERAL RULE: Consolidation is discretionary with the Trial Court. EXCEPTIONS: (when consolidation is a matter of duty) 1) When tried before the same judge 2) If filed with different branches of the same court having jurisdiction and one of such cases has not been partially tried

3 WAYS OF CONSOLIDATING CASES:


Rebuttal evidence by parties

DECISION


1. by RECASTING THE CASES ALREADY INSTITUTED, conducting only one hearing and rendering only one decision;2. by CONSOLIDATING THE EXISTING CASES and holding only one hearing and rendering only one decision; and3. by HEARING ONLY THE PRINCIPAL CASE and suspending the hearing on the others until judgment has been rendered in the principal case. (Test-case method).

*** Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Generally, the case which was appealed later and bearing the higher docket no. is consolidated with the case having the lower docket no.

Section2. Separate trials.

*** When the separate trial of claims is conducted by the court under this section, it may render separate judgments on each claim.

RULE OF DECISIONS OF SEPARATE TRIALS - Said decisions can be subject to enforcement or can be subject of an appeal, but the court can suspend

the enforcement pending the disposition of the other causes of actions

RULE 32TRIAL BY COMMISSIONER

COMMISSIONER- a person to whom a cause pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered.

TRIAL BY COMMISSIONER 1) Written consent by both parties 2) Court order a) Upon motion of either party b) Moto proprio

WHEN ALLOWED (even if without written consent)1) Examination of long account2) Taking of an account is necessary3) New question of fact arises at any stage of trial (not in the pleadings)

ORDER OF REFERENCE - May specify or limit the powers of the commissioner

POWERS OF THE COMMISSIONER1) Regulate the proceedings2) To do all acts for the efficient performance of his duties3) May issue— a) Subpoena ad testificandum b) Subpoena duces tecum4) Swear in witness5) Rule upon admissibility of evidence unless otherwise provided by the order

Refusal of witness to testify or give evidence: Deemed indirect contempt of the court which appointed the commissioner

REPORT OF THE COMMISSIONER- Filed in court, set for hearing- Clerk notifies the parties

Contents: 1) Findings of fact & conclusions of law 2) Shall attach all exhibits, affidavits, depositions, papers & transcripts of testimonies taken

*** The report of the commissioners is not binding upon the court, merely RECOMMENDATORY

OBJECTIONS TO THE REPORT- 10 days from filing of the report



*** objections available to the parties during the hearing on trial by the commissioner shall not be considered if not raised before the commissioner

COURT ACTIONS1) Adopt, Modify, or Reject the report in whole or in part2) Recommitting it back to the commissioner with instructions for the parties to submit more

evidence

*** If the parties so stipulate as to findings of facts, the court shall only consider questions of law

*** Compensation of commissioner shall be either taxed as cost against the defendant party or apportioned between them.

RULE 33DEMURRER TO EVIDENCE

DEMURRER TO EVIDENCE MOTION TO DISMISS it is presented after the plaintiff has

rested his case presented before a responsive pleading

(answer) is made by the defendant

the ground is based on insufficiency of evidence

it may be based on any of those enumerated in Rule 16

2 Scenarios

MOTION DENIED MOTION GRANTED BUT REVERSED ON APPEAL

movant shall have the right to present his evidence

movant is deemed to have waived his right to present evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence.

denial is INTERLOCUTORY. Sec. 1 , Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based), will not apply.

order of the court is an ADJUDICATION ON THE MERITS, hence, the requirement in Sec. 1, Rule 36 should be complied with.

CIVIL CASES CRIMINAL CASES1. defendant need not ask for leave of

court;1. leave of court is necessary so that the

accused could present his evidence if the demurrer is denied

2. if the court finds plaintiff’s evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence no res judicata in dismissal due to demurrer

2. if the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appeallable ;double jeopardy sets-in

3. if court denies demurrer, defendant will present his evidence

3. if court denies the demurrer: a. if demurrer was with leave, accused may

present his evidence b. if the demurrer was without leave,



accused can no longer present his evidence and submits the case for decision based on the pr1osecution’s evidence

RULE 34JUDGMENT ON THE PLEADINGS

Section 1. Judgment on the pleadings. > A judgment on the pleadings must be on motion of the claimant. However, if at the pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio.

JUDGMENT ON THE PLEADINGS IS PROPER: 1) If answer fails to tender an issue; or

*** The answer makes only general denials, not specific denials2) If answer otherwise admits the material allegations of the adverse party’s pleading

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

WHAT CASES NOT APPLICABLE: 1) Declaration of nullity of marriage 2) Annulment of marriage 3) Legal separation

*** Material facts of the complaint shall always be proved

*** Judgment is based exclusively upon the allegations appearing in the pleadings of the parties without consideration of any evidence

*** Presupposes that there is no CONTROVERTED issue whatsoever between the parties.

LIMITATION - There can be no award of damages or attorney’s fees in said judgment in the absence of proof.

- Damages not liquidated

FALCASANTOS vs. HOW SUY CHING (1 PHIL 456)One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations,

and without giving the opposing party an opportunity to introduce evidence, must be understood to admit the truth of all the material and relevant allegations of the opposing party, and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings.

Section 1 of Rule 11 of the Rules of Court providing that if the plaintiff fails to make a reply, all the new matters alleged in the answer are deemed controverted, is not applicable to a case submitted on the pleadings.

RULE 35SUMMARY JUDGMENTS

SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS

JUDGMENT BY DEFAULT (Rule 9)

based on the pleadings, depositions, admissions and affidavits

based solely on the pleadings.

based on the complaint and evidence, if presentation is required.

available to both plaintiff and defendant

generally available only to the plaintiff, unless the defendant presents a counterclaim.

available to plaintiff.

there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant

there is no issue or there is an admission of material allegations.

no issues as no answer is filed by the defending party.

10-day notice required 3-day notice required 3-day notice rule applies.



May be interlocutory or on the merits

On the merits On the merits

SUMMARY JUDGMENT - Specially applicable to the special civil action for declaratory relief

PROPER ONLY IN ACTIONS 1) To recover a debt 2) For a liquidated sum of money 3) For declaratory relief

WHEN TO FILE MOTION CLAIMANT - Any time after answer is served DEFENDANT - At any time

WHEN SUMMARY JUDGMENT IS ISSUEDRequisites:

1) There is no genuine issue as any material fact 2) That the moving party is entitled to a judgment as a matter of law

No question of fact - If there is any question or controversy upon any question of fact, there should be trial on the merits

*** Judgment is rendered on the basis of evidence which is not received in manner that evidences is received under Rule 30 (trial)

- Not formally offered in evidence*** Issues raised by the defendants are not substantial but are merely a “sham”

GALICIA vs. POLO (179 SCRA 371)Summary judgment is a device for weeding out sham claims or defenses at early stage of litigation,

thereby avoiding the expense and loss of time involved in a trial. The very object is “to separate what is formal or pretended in denial or averment from what genuine and substantial, so that only the latter may subject a suitor to the burden of trial. The test, therefore, for a motion for summary judgment is – whether the pleading, affidavits, exhibits in support of the motion are sufficient to overcome the opposing papers and to justify a finding as a matter of law that there is no defense to the action or the claim is clearly meritorious.”

RULE 36JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF

Section 1. Rendition of judgments and final orders.

JUDGMENT- final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding.

Judgment is the result, or the dispositive part of the decision while the opinion gives the grounds for the decision.

REQUISITES OF A JUDGMENT:1. It should be in writing, personally and directly prepared by the judge2. Must state clearly and distinctly the facts and the law on which it is based3. It should contain a dispositive part and should be signed by the judge and filed with the clerk of

court.

*** The court has to decide a question or issue according to its own judgment or understanding of the laws, as well as the laws applicable to the attendant facts & circumstances

PARTS OF A JUDGMENT:1. Opinion of the court (findings of fact and conclusions of law)2. Disposition of the case (dispositive portion)3. Signature of the judge

*** In case the OPINION of the court varies from the DISPOSITIVE portion, the latter should prevail



*** “Findings of fact” not conclusions of facts - Facts that have been established by the evidence

*** The dispositive portion of the judgment is controlling and becomes exclusive subject of execution and modification of writ of execution constitutes a reversible error where judgment had become final and already been executed. It is settled that the only portion of a decision that becomes the subject of execution is that ordained or decreed in the dispositive part. Whatever may be found in the body of the decision can only be considered part of the reasons or conclusions of the court and while they may serve at guide or enlightenment to determine the ratio decidendi, what is controlling is what appears in the dispositive part of the decision.(Fabular vs. CA ,119 SCRA 331)

PROMULGATION- the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel

*** A judgment is deemed promulgated on the day the judge gives his judgment or decision to the clerk of court

MEMORANDUM DECISION - the judgment or final resolution of the appellate court may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court.

* FALLO or the decretal portion or dispositive portion of the judgment;

* RATIO DECIDENDI is the reason of the decision or rationale;

* OBITER DICTUM – merely opinion of the court incidentally or collaterally expresses in the body of the judgment but forms no part of it

SPECIAL FORMS OF JUDGMENT;

A) WITHOUT RECEPTION OF EVIDENCE – 1. Judgment on the Pleadings under Rule 34; 2. Summary judgment under Rule 35;

B) WITH PARTIAL RECEPTION OF EVIDENCE – 1. judgment by default under Rule 9 Sec.3 or Rule 29; 2. judgment on demurrer to evidence under Rule 34; 3. judgment upon compromise:

> it cannot be entered into by counsel without the knowledge or special authority of the client;> a judgment upon compromise is immediately executory, not appealable and has the effect of res

judicata unless with fraud or mistake;> on motion, party must ask for setting aside the judgment and the compromise itself based on fraud or

mistake> in case of denial of motion, remedy is certiorari.Subjects NOT allowed to be compromise: JMG-CSLa. jurisdiction of the court;b. validity of marriage;c. grounds for legal separation or annulment of marriage;d. Civil status of person;e. Future support;f. Future Legitime.

4. Judgment on Consent is a judgment, the provisions and terms of which are settled and agreed upon by the parties to the action and entered in the record by the consent of the court.

JUDGMENT ON CONSENT JUDGMENT OF CONFESSION1) unqualified agreement of both parties to the action

Only an affirmative or voluntary act of defendant.

2) courts have no hand in the terms of judgment

Court exercises minimum supervision over the entry

Both immediately executoryBoth need special authority from their clients

5. Judgment Nunc Pro Tunc rendered to enter or record such judgment as has been formerly rendered but has not been entered as thus rendered. > Purpose: to record previous act of the court not recorded to make the record speak the truth without any

change in substance or in any material respect; > Neither a rendition of new judgment not determination of new rights; 6. Clarificatory Judgment/ Amended Judgment > where the original judgment is ambiguous making it difficult to enforce, the court makes a thorough study

of the original and renders and amended judgment after considering all the factual and legal issues. 7. Supplemental Decision serves to bolster or add something to the primary decision but not to supersede it.



8. Judgment on Several Parties made by requiring then to file adversarial pleadings to determine their respective rights and obligation under the original judgment.

9. Several judgments – In an action against several defendants, the courts may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others.

> not proper in actions against solidary debtors. 10. Separate Judgments are made when more than one claim for relief is presented in an action, the court at

any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim.

11. Judgment against entity without juridical personality, the judgment shall set out their individual or proper names, if known.

*** The power to amend a judgment is inherent to the court before judgment becomes final and executory. Once a judgment has attained finality (expiration of the period to appeal), no further amendment or correction can be made by the court except for clerical errors or mistakes.

CONSOLIDATED BANK vs. INTERMEDIATE APPELLATE COURT (189 SCRA 433)We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed, if

any member of the court who may have already signed it so desires, he may still withdraw his concurrence and register a qualification or dissent as long as the decision has not yet been promulgated. A promulgation signifies that on the date it was made the judge or judges who signed the decision continued to support it.

If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his office, his vote is automatically withdrawn.

The ponente in a collegiate court should remain a member thereof at the time his ponencia is promulgated because, at any time before that, he has the privilege of changing his opinion for the consideration of his colleagues. As a rule, his recommendations are accepted in recognition of the special study he is supposed to have made of the case after his designation as its ponente. It is important that he be incumbent at the time the decision is promulgated, in the event he may want to make last minute changes therein with the approval of the other members. Obviously, he cannot exercise this privilege if he is no longer in office.

It is on this jurisdiction that, as a matter of practice (and of courtesy), this Court defers promulgation of a decision written by a member on official leave until his return. The author is afforded an opportunity to suggest to the rest of the Court any change he may want to make in his ponencia before it is officially pronounced.

PEOPLE vs. COURT OF FIRST INSTNCE OF QUEZON, BRANCH X (227 SCRA 459)A trial judge whose temporary detail to a vacant branch has expired remains to be the incumbent judge of

the branch of the court where he is permanently assigned. Thus he may still decide cases submitted to him for decision during his temporary detail in the vacant branch even after the vacancy has been filled. In one case, it was held that it was not unusual for a judge who did not try a case to decide it on the basis of the record since the trial judge who tried the case may have already dies or retired. In fact, as early as 1915, this Court already ruled that “[t]here is no law which prohibits a judge from deciding a case because he did not see some of the witnesses when they testified therein. In the absence of any express prohibition of this kind, we cannot imply one.”

After all, where a Court of First Instance (now Regional Trial Court) is divided into several branches, each of the branches is not a court distinct and separate from the others. Jurisdiction is vested in the court, not in htejudges, so that when a complaint or information is filed before one branch or judge, jurisdiction does not attach to said branch of the judge alone, to the exclusion of the others.

A JUDGMENT is considered RENDERED: the filing of the signed decision constitutes the rendition of a judgment. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule.

*** 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

WHEN JUDGMENT OR FINAL ORDER ATTAINS FINALITY/EXECUTORY?

1) AS TO THE COURT – if no appeal or motion for new trial or reconsideration is filed within the time prescribed, the judgment or final order shall be entered by the clerk in the book of entries of judgments and the date of finality of the judgment or final order shall be deemed to be the date of its entry and the same is considered FINAL FOR PURPOSES OF EXECUTION.

2) AS TO THE PARTIES – upon receipt of the judgment/final order and the lapse of period of filing an appeal or motion for new trial or reconsideration, the judgment or final order and shall be deemed FINAL AND EXECUTORY FOR PURPOSES OF APPEAL.

FINAL ORDER VS. INTERLOCUTORY ORDER

FINAL ORDER*** One which disposes of the whole subject matter or terminates a particular proceeding or action leaving

nothing to be done except to enforce by execution what has been determined



INTERLOCUTORY ORDER*** Does not dispose of a case completely but leaves something to be adjudicated upon

*** Attack of judgment maybe direct or collateral

General Rule: Validity of a judgment or order of a court cannot be collaterally attack. It must be a direct atack either by appeal or certiorari. Exceptions: 1. Lack of jurisdiction;2. Irregularity of entry apparent from the face of the record.

Direct attack a.before finality 1.motion for new trial or reconsideration 2.appeal b. after finality 1. relief from judgment, Rule 38 2. annulment of judgment, Rule 47 *** We have said time and again that where there is an ambiguity caused by an omission or mistake in the dispositive portion of the decision, this Court may clarify such ambiguity by an amendment even after the judgment has become final. In doing so, the Court may resort to the pleadings filed by the parties and the findings of fact and the conclusions of law expressed in the text or body of the decision.(Partosa vs. CA)

PROMULGATION OF JUDGMENT

Section 4. Several judgments.

CONCEPT of SEVERAL JUDGMENTS*** There are 2 or more defendants & the liability that they have with respect to the obligation is “joint”*** The court may render judgment against one or more of them, leaving against one or more of them, leaving

the action to prove against the others.

*** Several judgment is proper where the liability of each party is clearly separable and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other.

*** A several judgment is not proper in actions against solidary debtors.

SEPARATE VS. SEVERALSeparate judgment

- What is several are the CAUSES OF ACTION, or claims or counterclaims


Court Renders Decision

Losing PartyFiling appeal within 15 days from notice of judgment

Accepts decision without further contest

Within 15 days from notice of judgment:Motion for reconsideration; ormotion for new trial

If no appeal is taken or did not avail of remedies, judgment becomes final and executory

Court maintains decision

Court grants motion:1.modifies decision; or2.grants new trial

Losing party may appeal within the remaining period


Several judgment- What are several are the NUMBER OF DEFENDANTS

Section 6. Separate Judgments*** Is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The action shall proceed as to the remaining claims.

*** In case of separate judgments, the court may defer the enforcement thereof to await the result of the hearing of the other causes of action

REMEDIES AGAINST JUDGMENT/FINAL ORDERS

A) BEFORE FINALITY OF JUDGMENT OR ORDER - 1. Motion for Reconsideration under Rule 37; 2. Motion for New Trial under Rule 37; 3. Appeal under Rule 40 – 45;B) AFTER FINALITY OF JUDGMENT OR ORDER – 1. Petition for relief from judgment under Rule 38; 2. Petition for Certiorari under Rule 45; 3. Annulment of Judgment under Rule 47;

*** A final and executory judgment may yet be amended on harmless or typographical error.

*** A court may still amend a final and executory judgment to clarify an ambiguity caused by an omission or mistake in disposition of the decision.

RULE 37NEW TRIAL OR RECONSIDERATION

MOTION FOR NEW TRIAL is a motion filed after receipt of judgment but within the period for taking an appeal asking the court set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party;

1) FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; 2) Newly Discovered Evidence, which he could not, with reasonable diligence,have discovered and produced at the trial, and which if presented would probably alter the result.

MOTION FOR RECONSIDERATION is a motion filed after judgment and within the period for taking an appeal, asking the court to reconsider upon the grounds: 1) Damages awarded are Excessive 2) Evidence is Insufficient to justify it; 3) Decision or final order is Contrary to law.

Section 1. Grounds of and period for filing motion for new trial or reconsideration.

MOTION FOR A NEW TRIAL MOTION FOR RECONSIDERATION

The grounds are: fraud, accident, mistake or excusable negligence or newly discovered evidence which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result

the grounds are: the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law.

Second motion may be allowed Second motion from same party is prohibited If a new trial is granted the trial court will set aside the judgment or final order

if the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly

* usually results in trial de novo * usually results in the amendment of judgment

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



*** a MNT or MR suspends the running of the period to appeal, BUT if denied, the movant has only the balance which to make his appeal. (Only with regards to R40-41, BUT if R 42, 43, and 45, the party is givem a new period of 15 days.)

GENERAL RULE: no party shall be allowed a 2nd MREXCEPTION: Supreme Court

*** Denial of motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment or final order;

*** No motion for extension of time is allowed. must be resolved 30 days from submission.

HABALUYAS ENTERPRISES vs. JAPSON (138 SCRA 47)For the guidance of Bench and Bar, the Court restates and clarifies the rules on this point, as follows: 1)

Beginning one month after the promulgation of this Regulation, the rule shall be strictly enforced that no motion for extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. 2) In appeals in special proceedings under Rule 109 of the Rules of Court and in other cases wherein multiple appeals are allowed, a motion for extension of time to file the record on appeal may be filed within the reglementary period of thirty (30) days. If the court denies the motion for extension, the appeal must be taken within the original period, inasmuch as such a motion does not suspend the period for appeal. The trial court may grant said motion after the expiration of the period for appeal provided it was filed within the original period. All appeals heretofore timely taken, after extensions of time were granted for the filing of a motion for new trial or reconsideration, shall be allowed and determined on the merits.

NEW TRIAL - the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken.

GENERAL RULE: A party can only file one Motion for New TrialEXCEPTION: When the ground for the 2nd MNT was a ground not existing at the time the 1st MNT was filed

PARTIAL NEW TRIAL - A new trial does not have to cover the entire case

*** FRAUD must be extrinsic or collateral not intrinsic > That kind which prevented the aggrieved party from having a trial or presenting evidence

*** Mistake generally refers to mistake of fact but may also include mistakes of law where, in good faith, the defendant was misled in the case.

General Rule: Client is bound by the mistake of his counsel.Exception: where mistake of his counsel as would deprive him of his right and work serious injustice to him, he is not bound thereby.

REQUISITES for newly-discovered evidence:(a) Must have been discovered after trial(b) Could not have been discovered and produced at the trial(c) If presented, would alter the result of the action

> Otherwise it is called forgotten evidence. FORGOTTEN EVIDENCE is not a ground for new trial

GENERAL RULE: A motion for new trial will not be granted if based on an affidavit of recantation of a witness ( probably – relief of judgment )

TUMANG vs. COURT OF APPEALS (172 SCRA 331)In order that a particular piece of evidence may be properly regarded as “newly discovered” for purposes

of a grant of new trial, what is essential is not so much the time when the evidence offered first sprung into existence is, rather, that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it. Thus, a party who, prior to the trial had, no means of knowing that a specific piece of evidence existed and was in fact obtainable, can scarcely be charged with lack of diligence. It is commonplace to observe that the term “diligence” is a relative and variable one, not capable of exact definition and the contents of which must depend entirely on the particular configuration of facts obtaining in each case.

Newly discovered evidence, under prevailing jurisprudence, need not be newly created evidence; newly discovered evidence, in other words, may and does commonly refer to evidence already in existence prior or during the trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant offering it or his counsel. Newly discovered evidence, again, is not limited to evidence



which, though already in existence before or during trial was not known to the offering litigant. So-called “forgotten” evidence may, upon the other hand, be seen to refer to evidence already in existence or available before or during trial, which was known to and obtainable by the party offering it and, which could have been presented and offered in a seasonable manner were it not for the oversight or forgetfulness of such party or his counsel.

Section 2. Contents of motion for new trial or reconsideration and notice thereof.

*** Motion for new trial shall be in writing, and supported by affidavits of merit if the ground is FAME; for newly-discovered evidence, it must be supported by affidavits of witnesses by whom such 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 judgment which are unsupported by evidence or contrary to law, with express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings.

*** A MNT must be supported by an affidavit stating the facts constituting the FAME, plus an affidavit of merit plus

1. if plaintiff – facts constituting his good and sufficient COA 2. if defendant – facts constituting his good and sufficient defense.

Affidavits of Merits must state: (only to FAME)1. Nature and character of FAME in which motion was based;2. Facts constituting movant’s good and substantial defense;3. Evidence in which he intends to present if granted.

*** An affidavit of merits should state the facts and not mere opinion or conclusions of law.

GENERAL RULE: Affidavit of merit is required to consider the motion.EXCEPTION: 1. Court has no jurisdiction over the person or subject matter.2. Where the judgment is a result of procedural defect.3. Defendant unreasonably deprived of his day in court.4. No notice in advance was furnished.

*** Any ground already available at the time the motion is filed, but not alleged therein is deemed waived

*** Litigated Motion, should be set for hearing

*** A motion suspends or tolls the running of the reglementary period for appeal except when the same is pro-forma.

PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is merely intended to delay the proceedings or if there is no affidavit of merit.

VALDEZ vs. JUGO (74 PHIL 49)“Pro-forma” motion for new trial is offensive to new rules of court and does not interrupt period for appeal.

There is a necessity of specifically setting out reasons in support of motion for new trial. Petitioner’s motion for new trial did not and could not interrupt the period for appeal, it having failed to state in detail as required by the rules, the reasons in support of the grounds alleged therein. Under Rule 37, Section 2, third paragraph, it is now required to “point out specifically the findings or conclusions of the judgment which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions.” And when, as in the instant case, the motion fails to make the specification thus required, it will be treated as a motion pro-forma intended merely to delay the proceedings, and as such, it shall be stricken out as offensive to the new rules.

EFFECT OF MOTION FOR NEW TRIAL OR MOTION FOR RECONSIDERATION ON EVIDENCE PRESENTED

On grounds of F-A-M-E - Only the evidences affected by FAME shall be set aside - Other remaining evidences not affected by FAME plus other evidences allowed by the court shall be basis of

the new decision



On ground of NEWLY DISCOVERED EVIDENCE - No evidence shall be discarded - The court shall consider all evidences previously presented plus the newly discovered evidence in rendering

the new judgment

In the case of Motion for Reconsideration, there is no reception of evidence- Court only reviews its judgment

RULE 38RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS

DEFINITION:> an extraordinary remedy where there are no other available remedy under the law.> Given to a party against any judgment or order of any court;> Rendered through FAME praying the judgment, order or proceeding be set aside.

PERIOD AND MANNER:> by filing a verified petition within sixty (60) days after knowledge of the judgment, that order, or other

proceeding to be set aside and not more than six (6) months after entry of judgment of such proceeding was taken;

> accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.

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

NEW TRIAL/ RECONSIDERATION RELIEF FROM JUDGMENT Must be filed within the appeal period.

Judgment not yet final. Judgment is final within 60 days after

petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered.

A legal right More on equity

FAME + Newly Discovered Evidence FAME onlyJudgment on final order Relief from judgment/ order on other

proceeding

2 TYPES OF PETITION FOR RELIEF 1) Petition for relief from judgment 2) Petition for relief from denial of appeal

*** The court which rendered the judgment is the court before whom the petition for relief should be filed*** Petition for relief is only available when the other remedies against a judgment are no longer available

Grounds: 1) Judgment or final order entered against a party by FAME; or 2) Judgment or final order is rendered and party has been prevented by FAME from taking an

appeal For fraud to be extrinsic, the losing party must never have had a chance to controvert the

adverse party’s evidence. Uniform procedure for relief from judgments of MTC and RTC

*** After petition is filed, court shall order adverse parties to answer within 15 days from receipt. After answer is filed or expiration of period therefor, court shall hear the petition.

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

TWO HEARINGS: (a) Hearing to determine whether the judgment be set aside(b) If yes, a hearing on the merits of the case

EFFECTS OF FILING on the JUDGMENT:



1) Court may grant preliminary injunction as may be necessary for the preservation of the rights of the parties, upon filing by of a bond to the adverse party. (Only if not yet executed)2) Injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner;3) Failure to file an answer of adverse party does not constitute default and the court will determine its merits;4) If granted, case shall stand as if such judgment, final order or other proceeding had never been rendered, issued or taken. It is interlocutory and non-appeallable.

*** if court grants PETITION FOR RELIEF FROM JUDGMENT, then the judgment is vacated and a new trial is held as if a timely Motion for New Trial has been filed. But, under sec 2, give due course to appeal.

SERVICE SPECIALISTS vs. SHERIFF OF MANILA (145 SCRA 139)A judgment or order denying relief under Rule 38 is final and not appealable, unlike an order granting

such relief which is interlocutory. However, in such an appeal, the appellate court is only to determine the existence of any of the grounds relied upon (fraud, accident, mistake, or excusable negligence) and the merits of the petitioner’s cause of action or defense, as the case may be.

A petition for relief of judgment rendered by the RTC should be filed in such court and in the same case.

RULE 39EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

EXECUTION – remedy provided by law for the enforcement of a final judgment.

AGAINST WHOM ISSUED: execution can only issue against a party and not against one who has not had his day in court. *** Execution can only be issued against the adverse party, their privies or to an intervenor (St. Dominic Corp vs. IAC 151 SCRA 577, Cabresos vs. Tiro 166 SCRA 400, Lising vs. Plan 133 SCRA 194)

*** ORDER OF EXECUTION is an order emanating from the court, which rendered the judgment allowing the enforcement of the said judgment.

WRIT OF EXECUTION : judicial writ issued to an officer authorizing him to execute the judgment of the court.*** Writ of Execution is a process issued by the clerk of court pursuant to the order of execution for the implementation of the same.

> valid for five (5) years

EXECUTION OF JUDGMENT


Judgment is executed by motion within 5 years from date of its entry

If the winning party does not move for execution w/in 5yrs. but before 10yrs. From the date of entry of judgment, the same can only be revived by means of a new action/petition.

Execution is a matter of right after expiration of period to appeal if no appeal is perfected

Discretionary execution upon good reasons stated in a special order after due hearing

Sheriff enforces writ of execution

Losing party is made to indemnify thru:1. payment with interest;2. levy and sale of personal property;3. levy and sale of real property;4. delivery of personal and real property


ESSENTIAL REQUISITE OF A WRIT OF EXECUTION: a writ of execution to be valid, must conform strictly to the decision or judgment which gives it life. It cannot vary the terms of the judgment it seeks to enforce

FINAL JUDGMENT OR ORDER - one which disposes of the whole subject matter or terminates the particular proceedings or action, leaving nothing to be done by the court but to enforce by execution what has been determined.

*** Judgment becomes final and executory by operation of law, not by judicial declaration, ie., by mere lapse of period to appeal and writ of execution shall issue and compellable by mandamus (Muñez vs. CA 152 SCRA 197)

*** The prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is a ministerial duty and compellable by mandamus.

> There must, however, be a motion.

TEST TO DETERMINE WHETHER A JUDGEMENT OR ORDER IS FINAL OR INTERLOCUTORY : The test is whether the judgment or order leaves nothing more for the court to do with respect to the merits of the case.

SPECIAL JUDGMENT – one that requires the performance of an act other than:1. The payment of money2. The sale of real or personal property

GENERAL RULE : Only judgments or final orders are subject to execution by means of a writ of execution.

EXCEPTION : 1) support pendente lite; 2) contempt

KINDS OF EXECUTION:

1) MINISTERIAL EXECUTION or EXECUTION A MATTER OF RIGHT –

General Rule: On motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected execution shall issue as a matter of right.

Exception: Execution may not be issued on the following: SENIDICa. Subsequent facts or supervening cause transpired which renders execution unjust or impossible;

(Lipan vs. Dev’t Bank of Rizal, 154 SCRA 257)b. Equitable grounds as when there is change in situation of parties; (Luna vs. IAC,137 SCRA 7)c. Novation of judgment by the parties (Salvante vs. Cruz 88 Phil 236)d. Injunction was granted in a petition for relief;e. Dormant judgment and 5 year period to revive expired;f. Incomplete or conditional judgment which will never become final;

Manner: winning party may move for issuance of execution with certified true copy of judgment and proof of its finality withy notice to adverse party.

> if the court refuses – MANDAMUS

5) DISCRETIONARY EXECUTION OR EXECUTION PENDING APPEAL –

A) ORDINARY JUDGMENT –

On Court of Origin - while it has jurisdiction over the case and is in possession of either the original record or the record on appeal at the time of the filing of motion, execution may issue even before expiration of period to appeal.

Manner: On motion of the prevailing party with notice to the adverse party filed in the trial court of origin after due hearing.

On the Appellate Court - after the trial court lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Manner: On motion of the prevailing party with notice to the adverse party filed in the appellate court = good reasons + to be stated in a special order + after due hearing.

B) SEVERAL, SEPARATE OR PARTIAL JUDGMENTS – may be executed under the same terms and conditions as execution of a judgment or final order pending appeal.

*** Court loses jurisdiction when all of the parties have filed their respective notice of appeal or the time has expired to file such appeal.*** The court retains jurisdiction to grant the motion for execution after it has lost jurisdiction, and can



enforce it before transmittal of the records.

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 such time as the merits of the case have been finally determined in the regular appeal, as the amounts remain uncertain and indefinite pending resolution.

*** Motion for execution of final and executory judgment should be served on adverse party and set for hearing;

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

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

*** In case of reversal of executed judgment, the court may, on motion, issue orders of restitution or reparation of damages;

When court may order execution even before an executory judgment and pending an appeal:1) Lapse of time would make the ultimate judgment ineffective;2) Appeal is clearly dilatory;3) Judgment is for support and the beneficiary is in need thereof;4) Articles subject of the case are perishable;5) Defendants are exhausting their income and have no other property aside from the proceeds

from the subdivision of lots subject of the action;6) 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) Judgment debtor is in imminent danger of insolvency;

8) 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) 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 discretionary execution.

ASSOCIATED BANK vs. GONONG(152 SCRA 479)The plaintiff or plaintiffs may not deprive the defendants or co-plaintiffs and neither may the defendant or

defendants deprive the plaintiff or co-defendants of the right to file a motion for reconsideration or to move for a new trial or an execution pending appeal by immediately filing a notice of appeal. The filing of an appeal by a losing party does not automatically divest the party favored by a decision of the right to move for a more favorable decision or to ask for execution pending appeal. It is only after all the parties’ respective periods to appeal have lapsed that the court loses its jurisdiction over the case. The period when a court considers and acts upon a motion for execution may take some time. As a matter of fact, the resolution of a motion may take place long after the expiration of the reglementary fifteen-day period for appeal.

REFUSAL OF EXECUTION OF A FINAL AND EXECUTORY JUDGMENT

GENERAL RULE: court cannot refuse execution UNLESS:1. Execution is UNJUST OR IMPOSSIBLE2. Equitable grounds like a CHANGE IN SITUATION3. Judgment NOVATED by parties4. Execution is enjoined5. Judgment has become DORMANT

When quashal of writ of execution proper1) 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

Remedies of the losing party:1. Petition for relief (Rule 38) or2. Direct or Collateral Attack against judgment

Order granting writ of execution ONLY appealable when:1) Order varies the terms of the judgment2) When vague and court renders what is believed to be wrong interpretation.

Section 3. Stay Of Discretionary Execution.

*** Stay of discretionary execution can be made upon the approval by the proper court of sufficient supersedeas bond filed by the party against whom it is directed.

SUPERSEDEAS BOND - one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part.

*** Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal, not other things like damage to property pending the appeal

*** the giving of the prevailing party of a bond is not a good reason by itself

The court may, in its discretion, order an execution before the expiration of the time within which to appeal provided:1. There is a motion for execution filed by the winning party2. There is notice of said motion to the adverse party; and3. There are good reasons stated in a special order after due hearing.

GENERAL RULE: an order of execution is not appealable otherwise there would be no end to the litigation between the parties.

EXCEPTIONS:1. When the terms of the judgment are not very clear;2. When the order of execution varies with the tenor of the judgment

ONG vs. COURT OF APPEAL (203 SCRA 39)“…To consider the mere posting of a bond a ‘good reason’ would precisely make immediate execution of

a judgment pending appeal routinary, the rule rather than the exception. Judgments would be executed immediately, as a matter of course, once rendered, if all that the prevailing party needed to do was to post a bond to answer for damages that might result therefrom. This is a situation to repeat, neither contemplated nor intended by law.” There are, to be sure, statements in some of this Court’s decisions which do generate the perception that the filing of the bond by the successful party is a good reason for ordering execution.

Section 4. Judgments Not Stayed By Appeal: - INJUNCTION

- RECEIVERSHIP- ACCOUNTING- SUPPORT- Such other judgments declared to be immediately executory unless otherwise ordered by

the trial court

DIRECTOR OF LANDS vs. REYES (58 SCRA 177)Execution pending appeal is not applicable in land registration proceedings. It is fraught with dangerous

consequences. Innocent purchasers may be misled into purchasing real properties upon reliance on a judgment which may be reversed on appeal.

A Torrens Title issued on the basis of a judgment that is not final, the judgment being on appeal, is a nullity, as it is violative of the explicit provisions of the Land Registration Act, which requires that a decree shall be issued only after the decision adjudicating the title becomes final and executory, and it is on the basis of said decree that the register of deeds concerned issues the corresponding certificate of title.

The lower court acted without jurisdiction or exceeded it jurisdiction in ordering the issuance of a decree of registration despite the appeal timely taken from the entire decision a quo.

Section 6. Execution By Motion Or Independent Action.



TWO WAYS OF EXECUTION OF JUDGMENT:EXECUTION BY MOTION EXECUTION BY ACTION1) obtained through motion for execution Obtained through the substitution of an action

or revival of judgment through an action.2) filed within 5 years from entry of judgment Filed after 5 years from its entry and before

barred by prescription.

*** A final and executory judgment may be executed on motion within 5 years from entry. May be revived and enforced by action after lapse of 5 years but before 10 years from entry. Revived judgment may be enforced by motion within 5 years from entry and thereafter by action before barred by statute of limitations – file motion within 10 years from the finality of the revived judgment.

Action to Revive A Judgment – is a personal action - VENUE is the residence of the plaintiff or the residence of the defendant at the option of the plaintiff

*** The lifetime of a WRIT of EXECUTION is 5 years

*** Judgment for support does not become dormant, thus it can always be executed by motion

*** 5-year period may be extended by the conduct of judgment debtor.

*** A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given the party.

*** The purpose of the action for revival of a judgment is not to modify the original judgment subject of the action but is merely to give a creditor a new right of enforcement from the date of revival.

SUSPENSION OF RUNNING 5/10 PERIOD: 1) injunction ordered 2) laws that prevents enforcement 3) agreement between the parties 4) acts of judgment obligor that prevents enforcement 5) proceeding supplementary to execution

GENERAL RULE : Injunction is not available to stay the execution of a final and executory judgmentEXCEPTIONS :

1. Petition for relief of judgment (R38) 2. Annulment of judgment (R47) 3. certiorari

Section 7. Execution In Case Of Death Of Party.

Death of judgment obligee - application of his executor or administrator or successor-in-interest

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 the recovery of real or personal property. However, if judgment is for a sum of money, and the judgment obligor dies before levy, such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate.

*** If he dies AFTER LEVY has been made, execution sale proceeds.

Sec. 9. Execution of money judgments

*** judgment debtor given an option to immediately choose which property or part thereof levied upon or if he does not exercise the option, officer shall first levy on personal properties, then real properties if insufficient.

*** Sheriff shall sell only a sufficient portion of the property levied upon.Section 10. Execution Of Judgments For Specific Act.

Manner of executing writ:



1) If judgment against property of the judgment obligor – out of real or personal property with interest

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, with interest

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

4) If for delivery of possession of property – deliver possession of the same to the party entitled to it, describing it, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and 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 satisfy the judgment.

*** Delivery or restitution of real property is initially carried by demand to peaceably vacate the property within 3 working days, otherwise, the officer shall oust them with *Special Break-open order with the use of necessary force.

*** Special Break-open order – sheriff is authorized without need of securing break open order, to break open the premises where there is no occupant therein (Arcadio vs. Ylagan July 30, 1986)

*** If party REFUSES TO VACATE PROPERTY, remedy is NOT contempt. The Sheriff must oust the party. But if demolition is involved, there must be a special order.

*** If party REFUSES TO DELIVER, sheriff will take possession and deliver it to winning party.

*** When the party REFUSES TO COMPLY, court can appoint some other person at the expense of the disobedient party and the act done shall have he same effect as if the required party performed it, the disobedient party incurs no liability for contempt.

*** Removal of improvements on property subject of execution, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.

*** The sheriff’s authority under the writ of execution does not embrace the power to compromise with the judgment debtor because any extrajudicial agreement should be between the judgment debtor and creditor.(Aquino vs. Aficial, 8 SCRA 223)

*** In case the executed judgment is reversed, the S.C. instead of ordering the judgment creditor to return funds that have been improperly garnished pursuant to an order of execution pending appeal, directed the judgment debtor to proceed against the bond filed by the judgment creditor.

Section 11. Execution Of Special Judgments.

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

*** the writ of execution shall be served upon the party required to obey the same and such party may be punished for contempt if he disobeys.

Section 12. Effect Of Levy on Execution As To Third Parties:

LEVY- act by which an officer sets apart or appropriates a part of the whole of the property of the judgment debtor for purposes or the execution sale. The levy on execution shall create a lien in favor or the judgment creditor over the right, title and interest of the judgment debtor in such property at the time of the levy.

GARNISHMENT - act of appropriation by the court when property of debtor is in the hands of third persons garnishment.



*** Law on Bank Secrecy of Deposit or RA 1405 does not preclude its being garnished to insure satisfaction of judgment (China Banking Corp. vs. Ortega 49 SCRA 355)

DISTINGUISH LEVY AND GARNISHMENT:LEVY GARNISHMENT

1) Involves real or personal properties Involves debts, credits, stocks and interest2) Possession is either with the owner or third person

Possession is in the hands of third person

3) Delivery is either actual or constructive Delivery must be actual LEVY OF REAL PROPERTY

REQUISITES:1. sheriff must file with registry of deeds copy of the order and description of attached property and notice of

attachment.3. Sheriff must leave copy of the order, description and notice with the occupant; (Delta Motors vs. CA 168 SCRA 206)

*** If real property subject to levy is occupied other the judgment debtor, the court should order a hearing to determine the nature of said adverse possession (Guevarra vs. Ramos 38 SCRA 194)

*** Levy or attachment over properties themselves is superior than levy on the vendor’s equity of redemption over said properties (Top Rate vs. IAC 142 SCRA 467)

SEC 13. Property exempt from execution 1) Family home as provided by law, homestead in which he resides, and land necessarily used in

connection 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 is 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 thus not claim it.

Section 15. Notice Of Sale Of Property On Execution.

NOTICE REQUIREMENT: written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale except in perishable goods with posting of notice as follows:

1) PERSONAL PROPERTY: Perishable property – within reasonable time with notice and by posting in three (3) public and

conspicuous places, municipal hall, post office and public market. Other Personal Property – for not less than 5 days by posting in 3 public and conspicuous places,

municipal hall, post office and public market;

2) REAL PROPERTY: Worth P50,000 – for 20 days by posting in 3 public and conspicuous places, municipal hall, post

office and public market with description of the property; Exceeds P50,000 – for 20 days by posting in 3 public and conspicuous places, municipal hall, post

office and public market with description of the property + publication of notice once a week for 2 consecutive week in newspaper of general circulation; (Sec. 15)

* Penalty for selling without notice – pay actual damages + punitive damages of P5,000 to any person injured thereby recovered by motion in the same action.

* Penalty for removing or defacing notice – pay actual damages + punitive damages of P5,000 to

any person injured thereby recovered by motion in the same action.



*** Losing party can participate in the public auction by choosing properties to be auctioned first but he cannot purchase. He can however prevent the sale by paying the award.

PHILIPPINE AIRLINES, INC. vs. COURT OF APPEALS (181 SCRA 561)Strictly speaking execution cannot be equated with satisfaction of a judgment.Execution is the process which carries into effect a decree or judgment, whereas the satisfaction of a

judgment is the payment of the amount of the writ, or a lawful tender thereof, or the conversion by sale of the debtor’s property into an amount equal to that due, and, it may be done otherwise than upon an execution (Section 47, Rule 39). Levy and delivery by an execution officer are not prerequisites to the satisfaction of a judgment when the same has already been realized in fact (Section 47, Rule 39). Execution is for the sheriff to accomplish while satisfaction of the judgment is for the creditor to achieve. Section 15, Rule 39 merely provides the sheriff with his duties as executing officer including delivery of the proceeds of his levy on the debtor’s property to satisfy the judgment debt. It is but to stress that the implementing officer’s duty should not stop at his receipt of payments but must continue until payment is delivered to the obligor or creditor.

Section 16. Proceedings Where Property Claimed By Third Person.

THIRD PARTY ADVERSE CLAIMANT- a claim by any person other than the judgment obligor or his agent, upon service of his affidavit of his title or right thereto to the officer and judgment obligee.

EFFECTS OF ADVERSE CLAIM:a) Officer shall not be bound to keep the property, unless judgment obligee, on demand of the officer, files a bond approved by court to indemnify the third-party claimant the value of the property levied on.b) if the officer continued the execution without bond, he shall be personally liable to 3rd person adverse claimant;c) Claim for damages for the taking or keeping of the property may be enforced against the bond after 120 days from filing of bond + the action is filed;d) Claimant or any third person’s remedy is to file separate action to vindicate his claim to the property. Appeal or certiorari is not proper because he is not party to the original action (Northern Motors vs. Coquia, 1975)e) If government is the judgment creditor, no bond required: (sec.16 Rule 39)f) If it was proven in separate action that the 3rd party claimant is entitled to the property, sale will be rendered ineffective and shall proceed to recover the purchase from Sec. 33, 34 to 35 Rule 39;

REMEDIES of third party claimant:1. summary hearing before the court which authorized the excution;2. TERCERIA or third party claim filed with the sheriff;3. Action for damages on the bond posted by judgment creditors; or4. Independent reinvidicatory action

*** the remedies are cumulative and may be resorted to by third party claimant independently of or separately from the others.

*** If winning party files a bond, it is only then that the sheriff can take the property in his possession. IF NO BOND, cannot proceed with the sale.

*** Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant, not the sheriff or officer;

*** Amount of bond not less than value of property levied on;

*** Sheriff not liable for damages if bond is filed;

*** Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a separate action.

*** 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 attachment and replevin, 3rd party claimant may vindicate his claim to the property by intervention since the action is still pending.

ESCOVILLA vs. COURT OF APPEALS (179 SCRA 111)The power of the court in the execution of judgments extends only over properties unquestionably

belonging to the judgment debtor.If a third party claim is filed, the sheriff is not bound to proceed with the levy of the property unless he is

given by the judgment creditor an indemnity bond against the claim. The judgment creditor, by giving an indemnity bond, assumes the direction and control of the sheriff’s action; so far as it might constitute a trespass and thus he



becomes, to that extent, the principal and the sheriff, his agent. This makes him responsible for the continuance of the wrongful possession and for the sale and conversion of the goods and for all real damages which the owner might sustain.

Even if the auction sale has been conducted and the sheriff’s certificate of sale was issued in favor of the winning bidder, the liability of the judgment creditor and consequently, the purchaser to the real owners of the properties levied and executed is not extinguished.

Section 19. How Property Sold On Execution; Who May Direct Manner And Order Of The Sale.

*** Prevent the sale by paying the whole obligation plus taxes and cost (Sec. 18 Rule 39)

*** In case of sale, the property is sold to the highest bidder. Any person including the judgment debtor or creditor may participate in auction except under Article 1491 of New Civil Code.

*** Remedy to contest an irregular public auction is a motion to set aside the sale filed in the court ordering it (Prov. Sheriff of Rizal vs CA 1975)

*** Illegal intervenor is a person who pariticipated in the auction sale but wilfully refuses to pay the purchase price said person shall be liable for damages resulted due to delay, disqualify to again bid and contempt of court (sec. 20 Rule 39)

*** Remedy against an irregular sale is MOTION TO VACATE OR SET ASIDE THE SALE to be filed in the court which issued the writ.

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 principal’s 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 upon an execution before the court within whose jurisdiction or territory they exercise their respective functions;

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

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

FILIPINAS MILLS vs. DAYRIT (192 SCRA 179)Section 19, Rule 39 of the Rules of Court: “The judgment debtor, if present at the sale, may direct the

order in which property, real or personal shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately.”

This section grants to a judgment debtor the right to direct the order in which real or personal shall be sold, during the public auction sale. But, interpreting this particular provision in the case of People vs. Hernandez, supra, We expanded the scope of said right of a judgment debtor to include the case of attachment/levy (or prior to the public auction sale): “…There is no question that a sheriff may attach the property of a judgment or execution debtor if he is clothed with the necessary authority under a judicial writ. However, it should not be construed to mean that, having discretion in choosing the property to be attached, he should necessarily levy upon such property as is valued by the execution debtor, particularly when the latter places other property at his disposal, as was done herein, the value of which is greatly in excess of the amount of the judgment under execution. The aforesaid provision does not forbid the execution debtor, in case he has sufficient property to answer for the payment of the judgment, to point out to the sheriff which of such property should be attached and sold to satisfy the judgment with the proceeds thereof.”

Section 27. Who May Redeem Real Property Sold.

REDEMPTION OF PROPERTY:1) Personal property – General Rule: no right of redemption where the judicial sale is personal property. Exception: if it is not judicial sale, pawnshop redemption;

2) Real property – General Rule: right of redemption expires 1 year from date of the registration of the certification of sale (legal redemption) Exceptions: a. Conventional redemption where the parties agree as to the period of redemption; b. Equity of redemption where the judgment debtor is given the time to redeem before the sale. Where the foreclosing creditor is a bank, extra 90 day period is given to redeem the property



before the sale:

WHO MAY REDEEM? JRS1) Judgment Debtor2) Successor in interest by conveyance, transfer, succession and co-ownership;6) Redemptioner which is a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold subsequent to the lien under which the property was sold.

HOW MUCH? Purchase price with 1% per month interest + assessment and taxes with 1% per month interest + amount of prior lien of creditor other judgment obligor.

IS PARTIAL REDEMPTION ALLOWED?General Rule: yes, piece-meal redemption is allowed because the amount payable is no longer the judgment debt but the purchase price (Dulay vs. Carriaga, 1983)Exception: property foreclosed by government bank and private banks must be redeemed in full.

MAY THE RIGHT OF REDEMPTION BE LEVIED UPON AND SOLD FOR THE SATISFACTION OF ANOTHER JUDGMENT? YES. The right of redemption is a PROPERTY RIGHT which may be sold voluntarily.

WHAT IS THE EFFECT OF REDEMPTION BY THE JUDGMENT DEBTOR? The effect of the sale is terminated and he is restored to his estate.

GOROSPE vs. SANTOS (69 SCRA 191)The right of redemption provided for by Section 6, Act 3135, as amended by Act 4148, like any other

property right, may be transferred or assigned by its owner. The transferee of such right stands in the position of a successor-in-interest of the mortgagor within the purview of Section 27 of Rule 39 of the Rules of Court. This provision, which ordinarily refers to redemptions of real property sold on execution of judgments, is likewise applicable to redemption of real property sold on extrajudicial foreclosure of mortgage, by virtue of Section 6 of Act No. 3135, as amended.

SEC 28. Time and manner of redemption

*** Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase, with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest 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 obligor’s right to redeem within 60 days from last redemption is limited to the one-year period, beyond which he can no longer redeem. Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch

as these belong to the judgment obligor until the expiration of the period of redemption. Section 30. Proof Required Of Redemptioner.

WHEN CAN REDEMPTION BE MADE?

1. BY THE JUDGMENT OBLIGOR . Within one (1) year from the date of registration of the certificate of sale.

2. BY THE REDEMPTIONER :(a) Within one (1) year from the date of registration of the certificate of sale; or(b) Within sixty (60) days from the last redemption by another redemptioner

CAN PERSONAL PROPERTY BE THE SUBJECT OF REDEMPTION? NO. Only REAL PROPERTY may be redeemed.

IS THE PERIOD OF REDEMPTION SUSPENDED BY AN ACTION TO ANNUL THE FORECLOSURE SALE? NO.

CAN THE PERIOD TO REDEEM BE EXTENDED? YES. The court may award an additional period to redeem under special circumstances such as when the period has been interrupted by an action by the judgment creditor to destroy the right of redemption. However, financial hardship is not a ground to suspend it.



CAN REDEMPTION BE PAID IN OTHER FORMS THAN CASH? YES. The rule is liberality in allowing redemption (aid rather than defeat the right) and it has been allowed in the case of a cashier’s check, certified bank checks and even checks.

SHOULD THE PAYMENT BE FOR THE WHOLE AMOUNT? YES.

CAN THERE BE REDEMPTION BY AN OFFER TO REDEEM? NO. The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price. However, a formal offer to redeem with a tender is not necessary where the right to redeem is exercised through the filing a complaint to redeem in the courts, within the period to redeem.

WHAT IS THE EFFECT OF FAILURE TO GIVE NOTICE ON ASSESSMENTS, TAXES OR LIENS? The property may later be redeemed without paying such assessments, taxes or liens.

TO MAKE A REDEMPTION, ARE PROOFS NECESSARY?

1. REDEMPTION BY THE JUDGMENT OBLIGOR? NO. The records already show this.

2. REDEMPTION BY A REDEMPTIONER? YES. He must show the person or officer from whom he seeks to redeem either a:

(a) If he redeems upon a FINAL ORDER OF JUDGMENT, a CERTIFIED COPY of the JUDGMENT OF FINAL ORDER;

(b) If he redeems upon a MORTGAGE OR OTHER LIEN, a CERTIFIED MEMORANDUM of the records thereof

(c) If he redeems upon an ASSIGNMENT, an ORIGINAL OR CERTIFIED copy of the ASSIGNMENT;(d) And in all cases, an AFFIDAVIT executed by him or his agent, showing the amount actually due on

the lien.

WHAT IS THE EFFECT OF FAILURE BY THE REDEMPTIONER TO SHOW PROOF? Ground for refusal to allow redemption. The act of the Sheriff in accepting the tender even when there is in fact no lien does not cure the defect.

Section 32. Rents, Earnings, And Income Of Property Pending Redemption.

RIGHTS OF OBLIGOR/REDEMPTIONER PENDING REDEMPTION:

A) Restrain the commission of waste on the property by injunction, on the application of purchaser with or without notice; Exception: Not a waste if OUR 1. Usual use of property; or 2. Ordinary use in the course of husbandry; or 3. Necessary Repairs to buildings;

B) Rents, earnings and income of property pending redemption belong to the judgment obligor until the expiration of his period of redemption.

WHAT RIGHTS CAN THE JUDGMENT DEBTOR EXERCISE?1. REMAIN IN POSSESSION2. COLLECT rents and profits3. Cannot be EJECTED4. USE the property in the same manner it was previously used5. MAKE necessary repairs

WHAT IS THE REMEDY OF THE PURCHASER IF THE JUDGMENT DEBTOR COMMITS ACTS OF WASTE? On application with or without notice, the court may RESTRAIN the commission of wasteSection 33. Deed and Possession To Be Given At Expiration Of Redemption Period; By Whom Executed Or Given.

WHAT HAPPENS IF THERE IS NO REDEMPTION? The purchaser is entitled to a CONVEYANCE AND POSSESSION of the property. He is substituted to and acquires all the rights, title, interest and claims of the judgment obligor to the property at the time of levy.



CONSOLIDATION OF TITLE AND WRITS OF POSSESSION: upon expiration of period of redemption, the purchaser shall hold absolute title over the property and said right shall retroact up to the time of sale. > writ of possession shall issue only after consolidation of title

WHAT IS THE DIFFERENCE BETWEEN THE DEED OF CONVEYANCE GIVEN TO THE PURCHASER AFTER THE EXPIRATION OF THE REDEMPTION PERIOD AND THE CERTIFICATE OF SALE GIVEN TO HIM AFTER THE SALE? The deed of conveyance is what operates to transfer to the purchaser whatever rights the judgment debtor had in the property. The certificate of sale after execution sale merely is a memorial of the fact of sale and does not operate as a conveyance.

*** The purchaser acquires no better right than what the judgment debtor has in the property levied upon. Thus, if the judgment debtor had already transferred the property executed prior to the levy and no longer has an interest in the property, the execution purchaser acquires no right..

WHAT HAPPENS WHEN POSSESSION IS WITH THIRD PARTIES? When the judgment debtor or his successor-in-interest are in possession the court has jurisdiction to issue a writ of possession to the purchasers but not when a third person is involved. The procedure is for the court to order a hearing and determine the nature of such adverse possession.

Section 34. Recovery Of Price If Sale Is Not Effective; Revival Of Judgment.

IN WHAT CASES MAY A PURCHASER RECOVER THE PURCHASE PRICE FROM THE JUDGMENT CREDITOR?1. When the purchaser or his successor-in-interest FAILS TO RECOVER POSSESSION of the

property or2. Purchaser after having acquired possession is evicted due to:(a) Irregularities in the proceedings concerning the sale(b) Reversal or setting aside of judgment(c) The fact that the property was exempt from execution(d) A third person has vindicated his claim to the property

WHAT ARE THE REMEDIES OF THE JUDGMENT CREDITOR IN AID OF EXECUTION?

1. If the execution is returned unsatisfied, he may cause examination of the judgment debtor as to his property and income (Section 36)

2. He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession (Section 37)

3. If after examination, the court finds that there is property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment (Section 37)

4. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs. It may order payment in installments (Section 40)

5. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property (Section 41)

6. If the court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court may order the sale of such interest. (Section 42)

7. If the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property, or denies the debt, the court may authorize the judgment-creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt (Section 43)

Section 46. When Principal Bound By Judgment Against Surety.

WHAT IF THE JUDGMENT IS RENDERED AGAINST A SURETY? The principal is bound by the same judgment from the time he has NOTICE of the action or proceeding and has been given an opportunity at the surety’s request, to join the defense.



Section 47. Effect Of Judgment Or Final Orders.

LAW OF THE CASE- the final decision of a court with respect to a particular issue cannot be changed or affected by a subsequent decision, insofar as the parties are concerned.

*** In case of judgment against a specified thing, probate of will, or administration of estate or legal condition or status, it is conclusive on the title or condition, status, relationship, will or administration.

*** In other cases/matters directly adjudged, or matters relating thereto that could have been raised subsequent to commencement of action, judgment is conclusive between parties and their successors in interest.

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

*** Sec. 47 refers to judgments which are considered as conclusive and may be rebutted directly by means of relief from judgment or annulment of judgment or indirectly by offering them in evidence under the parole evidence rule.

WHAT DOCTRINE IS INVOLVED IN THE EFFECT OF JUDGMENTS? RES JUDICATA. Final judgments on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties or their privies in all later suits on points determined in the former judgment.

WHAT ARE THE REQUISITES OF RES JUDICATA?1. A FINAL judgment or order2. JURISDICTION over the subject matter and the parties by the court rendering it3. Judgment UPON THE MERITS4. Between the two cases:(a) IDENTITY OF PARTIES(b) IDENTITY OF SUBJECT MATTER(c) IDENTITY OF CAUSE OF ACTION

WHEN IS THERE A JUDGMENT ON THE MERITS? When the judgment is such that if finally disposes of the case.

JUDGMENT ON THE MERITS- when it determines the rights and liabilities of the parties based on the ultimate facts as disclosed by the pleadings or issues presented for trial.- It is not necessary that there should have been a trial, actual hearing or arguments on the facts of the case.- for as long as the parties had full legal opportunity to be heard on their respective claims and contentions, the judgment is on the merits.THERE IS IDENTITY OF PARTIES:1. The parties in the first action are the same as in the second;2. When the parties in the second are successors-in-interest of those in the first such as heirs or

purchasers acquiring title after the first action.

THERE IS IDENTITY OF SUBJECT MATTER:> If in the second case, the same thing is involved or included in that involved in the first case. THERE IS IDENTITY OF CAUSE OF ACTION:> There is identity of cause of action when the two actions are based on the same delict or wrong committed by the defendant even if the remedies are different.

BAR BY FORMER JUDGMENT CONCLUSIVENESS OF JUDGMENT There is identity of parties, subject matter and causes of action

There is ONLY identity of PARTIES AND SUBJECT MATTER

The first judgment constitutes as an ABSOLUTE BAR TO ALL MATTERS directly adjudged and those that might have been adjudged.

The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted.



EFFECT OF JUDGMENTS OR FINAL ORDERS:

1) RES JUDICATA IN REM – judgment is conclusive upon the title to SPACSSpecific thing, orProbate of a will, orAdministration of the estate of a deceased person, orCondition or Status of person or his relationship to another.

2) RES JUDICATA IN PERSONAM – judgment is conclusive with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, between the parties and their successors in interest;

3) CONCLUSIVENESS OF JUDGMENT - In any other litigation between the parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto

MAY A VOID JUDGMENT BE INVOKED AS RES JUDICATA? NO.

WHAT ABOUT A VOIDABLE ONE? YES.

WHAT ABOUT A JUDGMENT OBTAINED THROUGH FRAUD? The judgment cannot amount to res judicata.

MAY A DOMESTIC JUDGMENT BE IMPEACHED BY EVIDENCE OF CLEAR MISTAKE OF LAW OR FACT? NO. Under the doctrine of res judicata, no matter how erroneous a judgment may be, once it becomes final, it cannot be corrected. The only grounds are lack of jurisdiction, collusion or fraud.

RULE: The effects of RES JUDICATA cannot be avoided or evaded simply by changing the nature of the subsequent action

RULE: The fact that the parties in the subsequent case may not exactly be the same as the parties in the prior case does not affect the application of the rule of res judicata. So long as the parties in the subsequent case represents substantially the same interest as represented in the prior case.

FILINVEST vs. INTERMEDIATE APPELLATE COURT (207 SCRA 61)The doctrine of res judicata has two aspects. The first is the effect of a judgment as a bar to the

prosecution of a second action upon the same claim, demand or cause of action. The second aspect is that it precludes relitigation of a particular fact or issues in another action between the same parties on a different claim or cause of action. Thus, a party by varying the form of action or method of case presentation cannot escape the effect of the priniciple of res judicata nor can a party avoid an estoppel of a former judgment by bringing forward in a second action new or additional grounds in support of his case or defense or new arguments to sustain it, the facts remaining the same at least where such additional matter could have been pleaded and adjudicated in the prior action.

In allowing the judgment to become final and executory, a party is precluded from claiming subsequent action for damages from an erroneous judgment.

If the judgment had become final and executory, there are only three ways under the law by which said judgment may be questioned: 1) by petition for relief; 2) by direct action to annul and enjoin the enforcement of the judgment where the alleged defect is not apparent on its face or from the recitals contained in the judgment, and 3) by direct action, as certiorari, or by collateral attack against the challenged judgment which is void upon its face or that the nullity of the judgment is apparent from its own recitals.

Section 48. Effect Of Foreign Judgment Or Final Orders:

WHAT IS THE EFFECT OF FOREIGN JUDGMENTS? Provided that the foreign tribunal had jurisdiction:

(a) IN CASE OF JUDGMENT AGAINST A SPECIFIC THING, the judgment is CONCLUSIVE upon the TITLE TO THE THING;

(b) IN CASE OF A JUDGMENT AGAINST A PERSON, the judgment is PRESUMPTIVE EVIDENCE of a right as between the parties and their successors-in-interest by a subsequent title. In both



instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact.

*** Foreign judgment (IN PERSONAM or IN REM) cannot be enforced by execution in the Philippines but only creates a cause of action and it is necessary that action be brought upon said judgment in local court (Perkins vs. Benguet Consolidated Mining Co 93 Phil 1035)

When foreign judgment may be repelled 1) Evidence of want of jurisdiction 2) Want of notice to party 3) Collusion 4) Fraud 5) Clear mistake of law.

*** A judgment rendered by a foreign court cannot be enforced in the Philippines except by action - Our courts do not enforce foreign judgments

APPEALS

APPEAL is a remedy by which judgment or final order of lower courts is subjected to review by a superior court in the exercise of its appellate jurisdiction over the former. It is a statutory right and part of due process.

KINDS OF APPEAL:1) Appeal as a matter of right – it is an ordinary appeal against the lower court filed by losing party for review by the superior court at instance.2) Appeal or Review Discretionary – an appeal to review the decision of a court granted only when there are special and important reasons therefore such as: a. court a quo has decided a question of substance, not therefore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; b. court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

> But this neither controlling nor fully measuring the court’s discretion, indicate the character of reasons which will be considered:

POINTS TO REMEMBER IN APPEAL:

*** An appeal is a statutory right and part of due process, manner and period making an appeal is not only MANDATORY but also JURISDICTIONAL. (Villanueva vs CA 205 SCRA 537)

*** A party cannot change his theory on appeal. Only issues pleaded and properly raised in lower court may be resolved by the appellate court.

Exception: Nuguid vs. Nuguid*** Only parties to an action can appeal from a decision but a surety becomes party thereto upon notice for execution of judgment.

*** Only judgment or final order can be subject to appeal not interlocutory order where remedy is RULE 65 by SCA of Certiorari.

*** Appeal may involve question of facts or question of law or mixed. 1. Question of facts is the question of correctness or falsity of an alleged fact. 2. Question of law is the question what applicable law in a given set of facts.

*** As a general rule, in ordinary appeals, execution is stayed, unless the law or rules provides otherwise. Among the exceptions are:

EXECUTION OF DECISION NOT STAYED BY APPEAL: (IMMEDIATELY EXECUTORY)1. Decision in Forcible Entry or Unlawful Detainer (FEUD)2. Decision of MTC granted by them or appellate court upon good cause;3. Decision of RTC appellate jurisdiction of FEUD; (no exceptions)4. Decision of Quasi-Judicial Agencies;5. Decision in Injunction, Receivership, Accounting and Support;6. Decision involving Perishable goods;

*** Period of time to appeal must be strictly enforced on considerations of public policy and failure to do so within the period of appeal renders the questioned judgment final and executory and deprives the appellate court of jurisdiction to alter it and any decision rendered therein is null and void.



*** EQUITY JURISDICTION – where appeal was filed out of time, the appellate court on special case may allow the same to serve the end of substantial justice. (Velasco Gayapa 1987)

*** MATERIAL DATA RULE – party appealing a judgment or final order either by notice of appeal or record on appeal must show the timeliness of the appeal or that it was made within the prescribed period to appeal.

*** The period to appeal shall be interrupted by a timely motion for new trial or reconsideration.

*** There is a “HIERARCHY OF COURTS” in determining the venue of appeals.

*** A judgment based only on compromise is not appealable and is immediately executory.

*** Where a judgment is amended, the date of the amendment should be considered the date of the decision in the computation of the period in perfecting the appeal.

COMMON RULE/REQUIREMENTS FOR APPEAL:

1) payment of docket fees and receipt of which shall be transmitted together with the notice of or record on appeal.

*** Though payment of docket fee is mandatory which may be a ground to dismiss the appeal (Pedrosa vs. Hill June 14, 1996), appellate court has the power/discretion if there are justifiable reasons for late payment (Fontanar vs Bonsubre 1986)

2) Duty of clerk of court to transmit all the records and certify its completeness to the appellate court;

3) Duty of the appellant to submit a memorandum or briefs which shall briefly discuss the errors imputed to the lower court and served with the adverse party within 15 days.And within 15 days from receipt of the appellant’s memorandum, the appellee may file his memorandum.

> Failure of the appellant to file a memorandum shall be a ground for dismissal of the appeal.

7) Upon filing of last memo or the expiration of the period to do so, the case shall be considered submitted for decision.

8) Effect of failure to comply with the requirements regarding docket fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

9) Comment – appellee may file comment within 10 days from notice thereof to dismiss the appeal stating it is: a. Patently without merit b. Prosecuted manifestly for Delay, or c. Questions raised are too Unsubstantial to require consideration.

MODES OF APPEAL –

1) Ordinary appeal under Rule 40 and 41 where TC exercise his original jurisdiction;

2) Petition for Review under Rule 42 and 43 where RTC decision in the exercise of its appellate jurisdiction over MTC will be reviewed by CA where question of fact or law or mixed.

3) Petition for review on Certiorari under Rule 45 where it involves automatic review in case of death penalty or reclusion perpetua or life imprisonment is meted out by RTC or on purely question of law.

RULE 40APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL

COURTS

APPEAL TO THE RTC

*** There can be no direct appeal from the MTC to any court other than the corresponding RTC

Mode of Appeal – Notice of Appeal within fifteen (15) days from receipt of decision.



*** After an appeal to the RTC has been perfected, the MTC loses its jurisdiction over the case and any motion for the execution of the judgment should be filed with the RTC.

*** The judgment on appeal of the RTC is immediately executory, without prejudice to a further appeal that may be taken therefrom.

*** The Summary Rules no longer apply when the cases is on appeal.

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

*** 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;

ORDINARY APPEAL - an appeal by notice of appeal from a judgment or final order of a lower court on questions of fact and law.

ORDINARY APPEAL PETITION FOR REVIEW Matter of right Discretionary

all the records are elevated from the court of origin

No records are elevated unless the court decrees it

Notice of record on appeal is filed with the court of origin

Filed with the CA

HOW TO APPEAL:POINTS OF COMPARISON BY NOTICE ON APPEAL BY RECORD ON APPEAL

1) Application Ordinary Appeal Special proceedings or whereMultiple Appeal allowed


Appeal decision of MTC by filing notice of appeal in the same MTC within 15 days from receipt of judgment

15 days from perfection of appeal, MTC clerk transmits record to RTC

Notice to parties that an appeal is being taken from the decision of MTC

Within 15 days from receipt of the notice of appeal:appellant submits memorandum to the

RTC appellee files his own memorandum,

15 days from receipt of appellant’s memorandum

RTC may affirm, reverse, modify decision

If uncontested, judgment is entered in the book of entries

Any party may appeal by filing a petition for review with the RTC


2) Time Within 15 days from notice of judgment

Within 30 days from notice of judgment

3) Manner By filing a notice of appeal in the court that rendered it with name of parties, judgment and material data rule.>copy served – adverse party> pay – docket & lawful fees

By filing a notice of appeal in the court that rendered with name of parties, judgment, and all pleadings, records and evidence of the case and material data rule.

4) Perfection To appellant – it is perfected upon the filing of the notice of appeal in due timeTo the Court – upon the lapse of the period within which to appeal

To appellant – it is perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.To the Court – upon expiration of the period within which to appeal.

5) Court loses jurisdiction The court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

The court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties.

6) Extension of Time after denial of motion for New Trial or Recon.

Appellant not allowed and he has only the remaining period from notice of denial within which to appeal.

Appellant allowed within which to file his record on appeal. (Lacsamana vs Hon. Second Special Cases of IAC Aug 1986)

Residual power of the court prior to the transmittal of the original record or record on appeal:

1. to issue orders for the preservation of the rights of the parties which do not involve matters litigated by appeal;

2. to approve compromise prior to the transmittal of the record;

3. permit appeal by an indigent;

4. order execution pending appeal under Rule 39, Sec.2 ( motion for execution was filed before the expiration of the period to appeal )

Section 4. Perfection of Appeal; effect thereof.

What is the effect of a perfected appeal?TO THE COURT – Although the court loses jurisdiction over the case, the court may exercise the following powers: 1. Residual jurisdiction – issuance of an order for the protection and preservation of the rights of the parties which do not involve the matter litigated by appeal.2. Approve Compromise prior to transmittal of record on appeal.3. Permit appeals of Indigent litigants.4. Execution pending appeal in accordance with section 2 of Rule 39, and5. Withdrawal of the appeal,6. Dismissal of appeal prior to the transmittal of the original record or the record on appeal to the appellate court, motu proprio or on motion dismiss the appeal for having been taken out of time.

HOW RTC RESOLVES THE CASE - “No trial de novo” - RTC will decide the appeal solely on the basis of the records of the case

*** Failure to file appellant’s brief is a cause of the dismissal of the appeal

*** Failure to file appellee’s brief, court still can decide, appeal based on appellant’s brief

How to stay execution of MTC decision with regards to FE/UD?1) Perfect appeal – file notice of appeal2) Pay supersedeas bond3) Pay monthly rentals (fixed by the court)

SEC 21 R70



> The judgment on appeal of the RTC is immediately executory without prejudice to a further appeal that may be taken therefrom (FEUD)

Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction

IF LOWER COURT DISMISSED CASE WITHOUT TRIAL ON THE MERITS: RTC may:(a) Affirm, or(b) Reverse, in which case, it shall remand the case for further proceedings.

IF DISMISSAL IS DUE TO LACK OF JURISDICTION OVER THE SUBJECT MATTER: RTC may:(a) Affirm; if RTC has jurisdiction, shall try the case on the merits as if the case was originally filed with

it, or(b) Reverse, in which case, it remand the case for further proceedings.

IF THE CASE WAS TRIED ON THE MERITS BY THE LOWER COURT WITHOUT JURISDICTION OVER THE SUBJECT MATTER: RTC shall not dismiss the case if it has original jurisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence

RULE 41APPEAL FROM REGIONAL TRIAL COURTS

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

What cannot be appealed? Clue: ( WE PAID)1. WITHOUT PREJUDICE - Order dismissing an action without prejudice2. EXECUTION - Order of Execution3. PENDING- Judgments or final orders for or against one or more of several parties or in

separate claims while the main case is pending4. APPEAL-Orders disallowing or dismissing an Appeal5. INTERLOCUTORY orders6. DENIALS-Orders denying P.M.S. (Petition for relief, Motion for new trial or reconsideration and

motion to Set aside a judgment, by consent, confession or compromise on the ground of fraud, mistake, duress or any ground vitiating consent.)

Remedy in cases where appeal is not allowed: Special civil action of certiorari or prohibition if there is lack or excess of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty.

INTERLOCUTORY ORDER - an order given between the commencement and the end of the suit which decides some point or matter but is not a final decision of the whole controversy or a final disposition of the case (as long as something else remains to be done).

*** A judgment based only on compromise is not appealabe and is immediately executory

Section 2. Modes of appeal.

POINTSof

comparison

OrdinaryAppeal

( R40 - 41 )

Petition forReview

( R42 - 43 )

Appeal byCertiorari

( R45 )1) How By filing notice of

appeal or record on appeal

By filing a petition for review

By filing a petition for review on certiorari

2) Where *From MTC to RTC for orig. jurisdiction.*From MTC to CA for delegated jurisdiction.

RTC to CA for exercise of appellate jurisdiction

RTC to SC on pure question of law in the exercise of its orig. jurisdiction



3) Nature As a matter of right Discretionary Discretionary4) Docket fee Paid to clerk of

court who render itPaid to Clerk of court of CA

Paid to Clerk of court of SC

5) Payment of fees as a requisite

Not required for perfection of appeal but will be dismissed if not paid on time

Required for perfection of appeal

Required for perfection of appeal

6) Parties Called appellant-appellee

Called petitioner-respondent

Called petitioner-respondent

7) Record on appeal Special proc. and multiple appeal

Not required Not required

8) Pleadings *MTC to RTC – memo*RTC to CA - briefs

Memoranda when required

Memoranda when required

9) Question Question of facts or law or mixed

Question of facts or law or mixed

Question of law

*In case of Reclusion Perpetua or life imprisonment, notice of appeal – SC, filed in RTC.

* In case of Death – automatic review.

*R40 – 41 vs R42,43,45R40 – 42

> In case of denial of MNT or MR, party has only the remaining period to appeal.R42,43,45

> In case of denial of MNT or MR, party is given a new period of 15 days.

Section 7. Approval of record on appeal.

Notice of Appeal Record of AppealParty’s appeal by notice of appeal deemed perfected as to him upon the filing of the notice of appeal in due time

Deemed perfected as to appellant with respect to the subject matter upon the approval of the record on appeal filed in due time

Court loses jurisdiction over case upon perfection of the appeals filed in due time and expiration of time to appeal of other parties

Court loses jurisdiction only over subject matter upon approval of records on appeal filed in due time and expiration of the time to appeal of other parties.

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;

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 is 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.

What is the procedure if the appeal is through a record on appeal?1. file record on appeal2. appellee may file an objection within 5 days from his receipt thereof3. if there is no objection the court may:

(a) approve it as presented



(b) direct its amendment on its own or upon the motion of the adverse party4. if an amendment is ordered the appellant must redraft the record within the time ordered or if there

is time, within 10 days from receipt5. submit the record for approval with notice on the adverse party

*** The period to appeal is mandatory and jurisdictional. Failure to appeal on time makes the decision final and executory and deprives the appellate court of jurisdiction. However in few instances the court has allowed due course to such appeals on strong and compelling reasons of justice.

*** Failure to pay appellate docket fees within the reglementary period is ground for dismissal of appeal.

*** General Rule: An ordinary appeal stays the execution of a judgmentExceptions: a. Decisions of quasi-judicial body appealed to the CA

b. Executions pending appeal c. Cases covered by Summary Procedure

STAY IN EXECUTION

GENERAL RULE: appeal stays the execution of the judgments under R40, 41, 42 and 45.EXCEPTION: R43 – immediately executoryEXCEPTION TO THE EXCEPTION: CA orders otherwise.

DISMISSAL OF APPEAL:Grounds:1. Failure of the record on appeal to show on its face the timelines of appeal;2. Failure to file notice of appeal or the record on appeal within the period prescribed;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 the appellant’s brief, or of page references to the record;7. Failure of appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;8. Failure of the appellant to appear at the preliminary conference or comply with orders, circulars, or directives of the court without justifiable cause; and9. The fact that the order or judgment appealed from is not appealable.

RULE 42PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE

COURT OF APPEALS

Section 1. How appeal taken; time for filing.Section 3. Effect of failure to comply with requirements

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 the allowance of the appeal;

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

5) Certification under oath of non-forum shopping.

*** Failure to comply with the requirements on form such as certification against forum shopping and non-payment of docket, lawful fees and deposit for costs and failure to show proof of service of the same petition to the adverse party are grounds for dismissal.

*** APPEAL – HABEAS CORPUS CASES – within 48 hours from notice.

Section 4. Action on the petition



*** Outright dismissal allowed - Petition for review is not a matter of right but discretionary on the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law.

GROUNDS FOR OUTRIGHT DISMISSAL1) Petition was filed out of time2) Required fees were not paid3) Copies of the petition were not served on the adverse party (no proof of service)4) Failure to comply with the proper form for the petition5) Petition patently without merit6) Prosecuted manifestly for delay7) The questions raised are unsubstantial

ACTIONS on the petition. Court may(1) require respondent to file comment;(2) dismiss the petition if it finds that

it is patently without merit prosecuted manifestly for delay the questions raised are unsubstantial

Judgment stayed. Questions of fact, of law or both.

It is merely discretionary on the CA to order the elevation of the records . This is because until the petition is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Procedure, the judgments are immediately executory. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case.

Dismissal of improper appeal to the Court of Appeals:1. Appeal on pure questions of law from RTC to CA, not SC;2. Appeal by notice of appeal instead of by petition for review from the appellate judgment of RTC to

CA;3. Appeal erroneously taken from the CA dismissed outright.

RULE 43APPEALS FROM THE COURT OF TAX APPEALS AND THE QUASI-

JUDICIAL AGENCIES TO THE CA

Same as Rule 42 except that judgment is not stayed unless the CA directs otherwise.

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

Quasi-judicial agencies covered:a. Civil Service Commission;b. Central Board of Assessment Appeals;c. Securities and Exchange Commission;d. Office of the President;e. Land Registration Authority;f. Social Security Commission;g. Civil Aeronautics Board;h. Bureau of Patents, Trademarks and Technology Transfer;i. National Electrification Administration;j. Energy Regulatory Board;k. National Telecommunications Commission;l. Department of Agrarian Reform under RA No. 6657;m. GSIS;n. Employees Compensation Commission;o. Agricultural Inventions Board;



p. Insurance Commission;q. Construction Industry Arbitration Commission;r. Voluntary arbitrators

St. Martin’s Funeral Home vs. NLRC - DECISIONS OF THE NLRC – ORIGINAL ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA, NOT SC

Fabian vs. Desierto – Appeals from decisions of the Office of the Ombudsman in administrative disciplinary 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 civil action relative to such decision, filed with the SC after March 15, 1999 shall no longer be referred to the CA, but shall be dismissed.

*** APPEAL is not a remedy in labor cases; it is certiorari, prohibition or mandamus – CA

In case order/judgment of Quasi-Judicial Bodies - Needs publication - 15 day period for filing petition for review will begin from the last day of publication

In case of MR: - 15 day period will start from date of receipt of order of denial or MR

GROUNDS for OUTRIGHT DISMISSAL 1) Petition filed out of time 2) Required fees were not paid 3) Copies of the petition were not served on the adverse party

GROUNDS FOR DISMISSAL 1) Patently without merit 2) Prosecuted manifestly for delay 3) Question raised are unsubstantial to require consideration

*** Findings of fact by QJA concerned, when supported by substantial evidence, shall be binding on the CA.

SUBSTANTIAL EVIDENCE> such evidence which affords a substantial basis from which the fact in issue may be reasonably inferred or as adequate to justify a conclusion.

RULE 44ORDINARY APPEALED CASES

Section 7. Appellant’s brief.

a. Period for filing: within 45 days from receipt of the notice of the clerk that all the evidence are attached to the record.

Tan v. CA – The filing of motion for new trial does not suspend the period for filing appellant’s brief.

b. 7 copiesc. With proof of service thereof to appelleed. Contents: (MUST BE IN THE FOLLOWING ORDER)

i. A subject indexii. Assignment of Errorsiii. Statement of the Caseiv. Statement ofr Facts



v. Statement of the Issues of Fact or Lawvi. Argumentvii. Relief/Prayerviii. If the case is not brought up by record on appeal, a copy of the judgment or final order appealed from should be attached as an appendix.

Section 8. Appellee’s brief.

a. Period for filing: within 45 days from receipt of the apellant’s briefb. 7 copiesc. With proof of service upon the appellantd. Contents: (MUST BE IN THE FOLLOWING ORDER)

i. A subject indexii. Statement of Facts – if appellee accepts the statement of facts in the appellant’s brief

Counter-Statement of Facts – if appellee wants to point out such inefficiences or inaccuracies as he believes exist in the appelant’s statement of factsiii. Argument

Section 9. Appellant’s reply brief.

optional, in order for appellant to answer points in the appellee’s brief not covered in his main brief Period for filing: within 20 days from receipt of the appellee’s brief

MEMORANDAa. Memoranda are filed, in lieu of briefs, in cases of:

i. certiorariii. prohibitioniii. mandamusiv. quo warranto andv. habeas corpus

b. Period for Filing: within 30 days from receipt of the notice issued by the clerk that all the evidence is already attached to the record.

c. Failure of appellant to file his memorandum within the period may be a ground for dismissal of the appeal.

*** Ground for dismissal of the appeal: unauthorized alteration, omission, or addition in the

approved record on appeal.

*** Failure to file appellant's brief on time is a ground for dismissal of the appeal.

*** If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted.

*** The failure of the appellant to make specific assignment of errors in his brief or page references to the record as required in this section is a ground for dismissal of his appeal.Section 15. Questions that may be raised on appeal.

*** Any question of law or fact that (a) has been raised in the lower court and (b) is within the issues framed by the parties may be raised on appeal.

General Rule: Issues not raised/ventilated in the lower court cannot be raised for the first time on appeal.

Exceptions:a. the issue is closely related to or intimately interwoven with the error properly assigned

b. questions on jurisdictionc. questions concerning mere incidents of the action, e.g., cancellation of notices of

lis pendens or the grant of dissolution of provisional remedies.

BRIEF vs. MEMORANDUMBRIEF MEMORANDUM

ordinary appeals certiorari, prohibition, mandamus, quo warranto and habeas corpus cases



filed within 45 days within 30 days contents specified by Rules shorter, briefer, only one issue involved - no

subject index or assignment of errors just facts and law applicable

RULE 45APPEAL BY CERTIORARI TO THE SUPREME COURT

Section 1. Filing of petition with Supreme Court. Appeals to the SC can be taken from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or such other courts as maybe authorized by law and only by verified petition for review on certiorari on questions of law except only in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is subject to automatic review.

CERTIORARI UNDER RULE 45 VS. CERTIORARI UNDER RULE 65 ( SPECIAL CIVIL ACTION)CERTIORARI UNDER RULE 45 CERTIORARI UNDER RULE 65

petition is based on questions of law petition raises the issue as to whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion

It is a mode of appeal Special civil action involves the review of the judgment award

or final order on the merits directed against an interlocutory order of the

court or where there is no appeal or any other plain, speedy or adequate remedy

must be made within the reglementary period

filed not later than 60 days from notice of judgment, order or resolution appealed from

stays the judgment or order appealed from

unless a writ of preliminary injunction or temporary restraining order is issued does not stay the challenged proceeding

the petitioner and the respondent are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded

the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties

Motion for reconsideration is not required Motion for reconsideration or for new trial is required

If a motion for reconsideration or new trial is filed, the period shall not only be interrupted but another 60 days shall be given to the petitioner ( SC Admin. Matter 002-03 )

the court is in the exercise of its appellate jurisdiction and power of review

court exercises original jurisdiction


RTC/ Sandiganbayan or CArenders a decision

Any party files a petition for review on certiorari within 15 days from notice of final judgment or final order of lower court or notice of denial of the motion for reconsideration or for new trial

Appellant serves copies of petition on adverse parties and to the lower court, and pay the corresponding docket fees


Kho vs. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that the issues raised involve a pure question of law, and that the mode of appeal is erroneous. That is the prerogative of the CA, not the RTC judge. A notice of appeal need not be approved by the judge, unlike a record on appeal.

QUESTIONS OF LAW QUESTIONS OF FACT doubt or controversy as to what the law

is on certain facts doubt or difference arises as to the truth or

falsehood of facts, or as to probative value of the evidence presented

if the appellate court can determine the issue raised without reviewing or evaluating the evidence

the determination involves evaluation or review of evidence

can involve questions of interpretation of the law with respect to certain set of facts

query invites the calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

As a GENERAL RULE, the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC.

EXCEPTIONS to CONCLUSIVENESS OF FACTS:1. When the finding is grounded entirely on speculations, surmise or conjecture;3. When inference made is manifestly absurd, mistaken or impossible;4. When the judgment is premised on a misrepresentation of facts;5. When there is grave abuse of discretion in the appreciation of facts;6. When the findings of fact are conflicting;7. When the CA in making its findings went beyond the issues of the case and the same is contrary to

both the admissions of appellants and appellees;8. When the findings of fact of the CA are at variance with those of the trail court, the SC has to review

the evidence in order to arrive at the correct findings based on the record;9. When the findings of fact are conclusions without citation of specific evidence on which they are

based;10. When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not

disputed by the respondents;11. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the

evidence on record;


SC may:dismiss the petition; orrequire the appellee to

comment

If given due course, parties may submit memoranda

SC may:Affirm, reverse or modify

judgment of the lower court


12. When certain material facts and circumstances have been overlooked by the trial court which, if taken into account, would alter the result of the case in that they would entitle the accused to acquittal.

RULE 46ORIGINAL CASES

To what actions applicable.*** Under B.P. Blg. 129, the CA has original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not they are in aid of its appellate jurisdiction, and it has exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts.

The court acquires jurisdiction:(1) Over the petitioner by filing of the petition.(2) Over the respondent by the service on the latter of the order or resolution indicating the courts

initial action on the petition and NOT by the service on him of the petition.

PROCEDURAL OUTLINE (original cases in the Court of Appeals)1) Filing of the petition2) Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to

requirements also form and payment of docket and other legal fees.3) Require respondents to file COMMENT within 10 days from NOTICE4) Court may require the filing of a REPLY or such other pleadings as it may deem necessary5) Determination of FACTUAL ISSUES

the court may delegate the reception of evidence on such issues to any of its members.

RULE 47ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

Section. 1. Coverage.

*** Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered and may be availed of though the judgment has been executed.

One important condition for the availment of this remedy - the petitioner failed to move for new trial in, or appeal from, or file a petition for relief against, or take other appropriate remedies assailing the questioned judgment or final order or resolution through no fault attributable to him. If he failed to avail of those other remedies without sufficient justification, he cannot resort to annulment provided in this Rule, otherwise he would benefit from his own inaction or negligence.

WHEN TO FILE (in case of failure to file without fault) 1) Notice of appeal 2) MR 3) MNT 4) Petition for Relief

GROUNDS FOR ANNULMENT OF JUDGMENT1. extrinsic fraud or collateral fraud2. lack of jurisdiction

EXTRINSIC OR COLLATERAL FRAUD is any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully and fairly presenting his side of the case.

*** Fraud committed outside the trial NOT in the course of the trial

examples: when the lawyer of the defeated party corruptly sells out his clients interest false promise of compromise



when the defendant never had knowledge of the suit or being kept in ignorance by acts of the plaintiff

Shall not be a valid ground IF: - It was availed of or could have been availed of in a MNT or Petititon for Relief

Section. 3. Period for filing action.

EXTRINSIC FRAUD - 4 years from discovery.

LACK OF JURISDICTION - before it is barred by laches or estoppel.

LACHES, Concept – Such inexcusable delay in the assertion of rights or failure to prosecute a claim within a reasonable and proper period which warrants the presumption that a party waived his right.

*** Filing and contents of petition is the same with new trial and petition for relief from judgment.

Section. 5. Action by the court.

*** If Prima facie merit found in the petition, it shall be given due course and summons shall be served on the respondent.

*** The rule allows the CA to dismiss the petition outright as in special civil actions.

*** For the court to acquire jurisdiction over the respondent, the rule requires the issuance of summons should prima facie merit be found in the petition and the same is given due course.

IF GRANTED, who receives evidence:CA has 2 options:

1) Authorize any of its members to receive evidence 2) May delegate reception of evidence to an RTC judge

*** The power delegated to the RTC judge is the power to receive the evidence, not the power to decide the case

- It is still the CA that shall render the decision

SUSPENSION OF PRESCRIPTIVE PERIOD

GENERAL RULE: Prescriptive period is suspended [Filing of original action to finality of judgment of annulment]EXCEPTION: Not suspended, when fault is attributable to the plaintiff in the original action (if extrinsic fraud)

Section 7. Effect of judgment.

Annulment based on lack of jurisdiction - original action may be refiled.

Based on extrinsic fraud - trial court will try the case.

Section. 10. Annulment of judgments or final order of Municipal Trial Courts by RTC.

regular procedure applies.

ISLAMIC DA’WAH vs. COURT OF APPEALS (178 SCRA 179)BP Blg. 129 introduced a new provision conferring on the Court of Appeals exclusive original

jurisdiction over actions for annulment of judgments of Regional Trial Courts. Section 9 (2) of Batas Pambansa Blg. 129 expressly provides that: The Court of Appeals shall exercise exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; Thus, it is beyond dispute that it is only the Court of Appeals that can take cognizance of the annulment of judgment in Civil Case No. Q-43746 rendered by the Regional Trial Court.

It is therefore clear from the foregoing that a person need not be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely affected thereby.

RULE 48PRELIMINARY CONFERENCE



*** Failure of the appellant to appear at the preliminary conference is a ground to dismis the appeal. (See §1[h], Rule 50 and § 5[e], Rule 56)

*** Rule 48 is applicable to the SC in original and appealed cases. (See §§ 2 and 4, Rule 56)

Section 3. Binding effect of the results of the conference.

*** In the CA, this procedural device may be availed of not only in original actions but also in cases on appeal wherein a new trial was granted on the ground of newly discovered evidence.

*** The CA can act as a trier of facts, hence the preliminary conference authorized is a convenient adjunct to such power and function.

RULE 49ORAL ARGUMENT

Section 3. No hearing or oral argument for motions.

*** Motions in the SC and the CA do not contain notices of hearing as no oral arguments will be heard in support thereof; and if the appellate court desires to hold a hearing thereon, it will itself set the date with notice to the parties.

RULE 50DISMISSAL OF APPEAL

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

reglementary 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 appellant’s 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 cause 9) Judgment or order appealed from is not appealable.

*** With the exception of Section 1 (b) dismissal of an appeal is directory and not mandatory. Other grounds for the dismissal of an appeal areby agreement of the parties, as where the case was amicably settled by themwhere the appealed case has become moot or academicwhere the appeal is frivolous or dilatory

Section 2. Dismissal of improper appeal to the Court of Appeals

*** No transfer of appeals, erroneously taken to it or to the Court of Appeals, whichever of these tribunals has appropriate appellate jurisdiction will be allowed. Also, elevating such appeal by the wrong mode of appeal shall be a ground for dismissal.

*** A resolution of the Court of Appeals dismissing the appeal and remanding the case to the trial court for further proceedings is merely interlocutory, hence a motion for its reconsideration filed year later may be entertained and granted

Section 3. Withdrawal of Appeal

*** An appeal may be withdrawn as a matter of right at anytime before the filing of the appellee’s brief. THEREAFTER, the withdrawal will be allowed at the discretion of the court.



*** Court of Appeals may dismiss the appeal outright even without motion. The remedy if dismissed for improper appeal is to refile it in the proper forum but has to be within the prescribed period.

RULE 51JUDGMENT

*** Memorandum decisions are permitted in the CA.

*** 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 shall indicate thereon the date of promulgation and cause true copies to be served upon parties or counsel.

*** Date when judgment or final resolution becomes executory shall be deemed as date of entry.

Section 5. Form of Decision

*** The requirement for the statement of facts and the law refers to a decision or for that matter a final resolution. The same are not required on minute resolutions since these usually dispose of the case not on it s merits but on procedural or technical considerations. Although the court may, if it feels necessary, briefly discuss the matter on the merits in an extended resolution.

*** With respect to petitions for review and motions for reconsideration, the Constitution merely requires a statement of the legal basis for the denial thereof or refusal of due course thereto. The court may opt, but it is not required to issue an extended resolution thereon.

Section 6. Harmless Error

*** The court, at every stage of the proceeding, must disregard any error or defect which does not affect the substantial rights of the parties such as error in admission or exclusion of evidence or error or defect in the ruling or order.

Section 8 Questions that may be decided

*** Only errors claimed and assigned by a party will be considered by the court, except errors affecting its jurisdiction over the subject matter. To this exception has now been added errors affecting the validity of the judgment appealed from or the proceedings therein.

*** Even if the error complained of by a party is not expressly stated in his assignment of errors but the same is closely related to or dependent on an assigned error and properly argued in his brief such error may now be considered by the court.

DECISIONS: CA – division

> quorum – 3> MAJORITY – unanimous*** If they cannot get a unanimous decision, there must be two (2) justices selected by raffle to

make a division of five (5), then majority will be 3 out of 5.SC –

> at least eight (8) votes are needed to affirm a death penalty.- If majority vote cannot be had, another deliberation and voting.- If still no majority 1. If original action – dismissed 2. If appealed case – affirmed (CIVIL)

- Reversed and accused acquitted (CRIMINAL)

RULE 52MOTION FOR RECONSIDERATION

Period for filing: Within 15 days from notice of judgment or final resolution



*** There must be proof of service on the adverse party.

*** PENDENCY OF A MOTION FOR RECONSIDERATION STAYS THE EXECUTION OF JUDGMENT unless the court, for good reasons, directs otherwise.

*** The rules now prohibit a second motion for reconsideration

*** Sec. 3 provides a time limit of 90 days for the resolution of a motion for reconsideration filed with the Court of Appeals from the date the same was submitted for resolution, which is normally the filing of the last pleading required by the rules of court or the expiration of such period.

RULE 53 NEW TRIAL

When to file: Any time after the appeal from the lower court has been perfected AND before the CA loses jurisdiction over the case

Ground: newly discovered evidence ONLY

*** Must be accompanied by affidavits of merit *** Same procedure followed as in new trials before the RTC

RULE 54INTERNAL BUSINESS

*** Cases of the CA are allotted among different divisions.

When CA should sit en banc:a. to make proper orders or rules to govern the allotment of cases among divisions;b. to make rules on the constitution of divisions;

c. to make rules on the regular rotation of Justices; d. to make rules on the filling of vacancies; and e. to make rules on other matters relating to the business of the court.

What constitutes quorum:a. en banc – majority of actual members of the court shall constitute a quorumb. division – 3 members shall constitute a quorum.

Number of affirmative votes necessary to pass a resolution/pronounce judgment:a. en banc – affirmative votes of the majority of the members of those presentb. division – affirmative votes of 3 members.

RULE 55PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS

*** Judgments and final resolutions of the court shall be published in the Official Gazette and in the Reports officially authorized by the court (Philippine Reports/SCRA).

PROCEDURE IN THE SUPREME COURTORIGINAL CASES

Rule specifically states what cases may be originally filed with the Supreme Courtpetition for certiorari, prohibition, mandamus, quo warranto, habeas corpus;disciplinary proceedings against members of the judiciary and attorneyscases affecting ambassadors, other public ministers and consuls

B. APPEALED CASES

Mode of Appeal An appeal to SC can only be taken by petition for review on certiorari, except in criminal cases

where the penalty imposed is death, reclusion perpetua, or life imprisonment.



Grounds for dismissal of appeal by SC1) 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.

*** Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.

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 lesser

penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Section 3, Rule 122)

*** Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision 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

The following are the provisional remedies provided for in the Rules of Court 1. Preliminary Attachment (Rule 57)2. Preliminary Injunction (Rule 58)3. Receivership (Rule 59)4. Replevin (Rule 60)5. Support Pendente Lite (Rule 61)

Provisional remedies (ancillary/auxiliary) Writs and processes available during the pendency of the action which may be resorted to by a

litigant to preserve and protect rights and interests therein pending rendition, and for the purpose of 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.

*** Provisional remedies are anciliary writs in aid of an original action. They cannot exist without principal action.

PURPOSE OF PROVISIONAL REMEDIES - to preserve or to protect the right or interest of the parties during the pendency of the principal action.

*** All inferior courts can grant appropriate provisional remedies if the main action falls within their jurisdiction.

*** In all provisional remedies, affidavits are required to support the issuance of these remedies.

*** Likewise, all of them requires the posting of bonds except for support pendente lite, for its issuance;

*** PA, PI, Replevin and Support Pendente Lite may become permanent but nit TRO and Receivership;

BONDS AND COUNTER BONDS IN PROVISIONAL REMEDIES:

PROVISIONAL REMEDY

BOND AND AMOUNT

COUNTER BOND AND AMOUNT

UNDERTAKING UNDER THE SAID

BONDS1. Attachment Required by the court

but amount is discretionary.

Discretionary not to exceed the claim.

Pay all cost and damages or sustained;

2. Injunction Required by the court but amount is discretionary.

Discretionary with the Court.

Pay all damages sustained.



3. TRO Not required but the court may require.

Discretionary with the Court.


4. Receivership Required by the court with another one for receiver.

Discretionary with the court but may add other security.


5) Replevin Required by the court double the amount of property

Required by the court double the amount of property

6) Support Pendente Lite

Not applicable Not applicable Not applicable

RULE 57PRELIMINARY ATTACHMENT

PRELIMINARY ATTACHMENT, defined – a provisional remedy issued upon order of the court in a pending action 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 secured in said action by the attaching creditor against the defendant. (Cuartero vs. CA 212 SCRA 260)

OLIB vs. PASTORAL(188 SCRA 693)Attachment is defined as a personal remedy by which the property of an adverse party is taken into legal

custody, either at the commencement of an action or at anytime thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party. It is an auxiliary remedy and cannot have an independent existence apart from the main suit or claim instituted by the plaintiff against the defendant. Being merely ancillary to a principal proceeding, the attachment must fail if the suit itself cannot be maintained as the purpose of the suit can no longer be justified. Where the main action is appealed, the attachment which may have issued as an incident of that action, is also considered appealed and so also removed from the jurisdiction of the court a quo. The attachment itself cannot be the subject of a separate case independent of the principal action because the attachment was only an incident of such action.

PURPOSES:1) To seize the property of debtor in advance of final judgment and to hold it for purposes of satisfying said judgment;2) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property, i.e., conversion of action in personam to action quasi-in-rem; (Quasha vs Juan Nov. 1982)3) To secure a contigent lien on defendant’s property (CEIC vs CA 251 SCRA 257) *** Available even if the recovery of personal property is only an incidental relief sought in the action;

*** May be resorted to even if the personal property is in the custody of a third person;

*** Extends to all kinds of property, real or personal or incorporeal;*** 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;

*** 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 the court

When it may be issued?:- at the commencement of the action or at any time before entry of judgment, a plaintiff may apply and attach the property of the defendant.

Grounds:1) Recovery of specified amount of money and damages, except moral or exemplary, where party is

about 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 the property is

concealed or disposed of to prevent its being found or taken;4) Action against party guilty of fraud in contracting the debt or incurring the obligation or in the

performance thereof;5) Action against party who is concealing or disposing of property, or is about to do so, with intent to

defraud creditors;6) Action against party who is not a resident of the Phils and cannot be found therein or upon whom service by publication can be made.



*** Attachment is a remedy purely statutory. It is therefor not available except in those cases where the statute expressly permits.

*** Ground of fraud relate to both causal and incidental fraud.

*** Fraud as a ground must be one which was made before and not after the conclusion of the contract which must be first litigated by the trial court. (Miranda vs CA 178 SCRA 703)

*** When the grounds relied upon is impending fraudulent removal or concealment , the court should either conduct a hearing or require submission of counter-affidavits from defendants to gather facts in support of the allegation of fraud (Adlawan vs. Torres 233 SCRA 645)

*** Mere insolvency of debtor is not a ground for issuance of preliminary attachment (Aboitiz Co. vs. Prov. Sheriff 105 SCRA 88).

*** Mere removal, by itself, even if in the absence of security, is not a ground for issuance of PA. Such removal must be made with intent to defraud creditors. If fraudulent disposal was alleged, the court before issuing PA should first give them chance to prove their claims to show fraud. When new allegation of fraudulent disposal was made for a new PA, a new affidavit must be filed. (Carpio vs. Macadaeg 9 SCRA 553)

REQUISITE FOR ISSUANCE:1) Application either ex-parte or upon motion to the court in which the action is pending;

2) Sufficient property in the Philippines of the party against whom it is issued must be attached, not exempt from execution to satisfy the applicant’s demand; No rule in substitution of attached property, you may either reduce or file another one.

TEST: Whether or not the judgment debtor holds beneficial title or interest in the property where he can dispose, sell or exchange the same for value.

3) Affidavit of person who personally knows the facts showing: a. Sufficient Cause of action exists,b. Case is One of those mentioned in section 1 hereof,c. No other sufficient security for the claim sought to be enforced by the action, andd. Amount due to the applicant , or the value of the property the possession of which he is entitled to

recover, is as much as the sum for which the order is granted above all legal counterclaims.

4) Bond – executed in favor of adverse party in amount fixed by the court conditioned that the latter will pay all the costs and damages which may be sustained by reason of the same, if the court shall finally adjudge that the applicant was not entitled thereto.

GENERAL RULE: Bond is liable only to actual damages sustained.EXCEPTION: (Where bond is liable not only to actual damage.)a. If attachment was found to be malicious, bond is also liable to moral and exemplary damages. b. If attachment was irregularly issued.c. If implementation is irregular and oppressive.d. If applicant have no cause of action.

*** The rule on issuance of a writ of attachment must be construed strictly in favor of the defendant. > If all the requisites for the issuance of the writ are not present, the court which issues it acts in excess of jurisdiction.

*** Affidavits must be complied strictly, otherwise renders the writ totally defective and the judge who issued it acts in excess of jurisdiction. (KO vs. Valenzuela 1982)

*** A WPA may be issued ex-parte or after hearing, BUT may not be enforced unless SUMMONS had been served first upon the party whose property is being attached.

*** WPA may issue even without notice and hearing – issuance of WPA lies in the sound discretion of the court and duty of courts is to ensure that the writ is issued on concrete and specific grounds and not on general averments. Rules makes no mention of notice and hearing is indispensable for the issuance of WPA. Evidence in main case under appeal may be used as basis for WPA for the taking of it in hearing the application of WPA would make it repetitious. Trial court does not lose jurisdiction to issue WPA upon perfection of appeal because the rule provides that it may issue at any time. (Uy vs. CA 215 SCRA 859)

*** No notice and hearing is required for issuance of attachment but it is required in discharging the same such as the filing of counter bond.

*** Filing of attachment is tantamount of abandoning the mortgage or security.

*** Order denying or granting of writ of attachment is an interlocutory order, hence not appealable. It may be however be challenged through petition for certiorari under Rule 65;



*** Appeal of case carries with it the attachment case and nonpayment of premium on attachment bond does not extinguish the bond by reason of that alone. - Attachment is an ancillary remedy, where the main action is appealed attachment is also considered appealed and removed from court a quo and cannot be a subject of separate case independent of principal action. Non-payment of premium on attachment bond does not extinguish the bond by reason of that alone. WPA is considered discharged only, at to party against whom it was issued, only when the judgment in his favor becomes final and executory. (Nasser vs. CA, 191 SCRA 783)

THREE STAGES OF ATTACHMENT: 1) issuance of order; 2) issuance of writ; 3) implementation of writ.

*** In the first two stages, jurisdiction over the person is not necessary but not in the third stage, otherwise the court has no power to act and bind the defendant. (CUARTERO vs. CA)

HOW WILL YOU ATTACH?

GENERAL RULE: Without delay and with reasonable diligence attach the property preceded or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. Return filed and served to adverse party.(subsequent service of summons will not cure the defect)EXCEPTION: non-resident outside of the Philippines and unknown defendant or in action in rem or quasi-in-rem. 1) Real property – by filing with the registry of deeds a copy of the order, description of property attached

and notice of attachment + leaving a copy of such order, description, and notice with the occupant of the property.

2) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor;

3) Stocks, shares or interest in any corporation or company, by leaving with the president or managing agent therof, a copy of writ, and notice of attachment.

4) Debts, credits, deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing or in possession or under his control such properties, copy of the writ, notice of attachment; (Garnishment)

Liability of Garnishee – amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred or paid to the issuing court.

5) Properties involved in estate proceedings, by serving the executor or administrator or other personal representative of the decedent with copy of the writ and notice of attachment and filed with clerk of the court of the probate court.

BUT: a. Shall not impair the powers of the executor, administrator, or other representative of decedent over such property for purposes of administration. b. Report the attachment to the probate court when any petition for distribution is filed. c. Property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him.PRINCIPLE OF PRIOR OR CONTEMPORANOUS SERVICE OF SUMMONS:

Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite 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.

*** The levy on execution or attachment cannot be done on the properties of the estate of the deceased because that is in custodia legis.

> what is being levied on is the interest of the adverse party as an heir, legate or devisee.

*** Salaries can only be attached at the end of each month subject to exemption under Rule 39 especially if a government employee, funds are public in character.

*** If government is a party, there is no need to file a bond, and liability therein may be proceeded in accordance with CA 327.

*** Property attached creates a lien and placed it in custodia legis and it cannot be affected by subsequent extrajudicial foreclosure by third party mortgage (Consolidated Bank vs IAC 150 SCRA 591).

*** Attachment and sale of property not belonging to defendant, null and void – property in custody of law may not be interfered without permission of the proper court if defendant is the owner or has proprietary interest on them. If sheriff attaches property other than those of defendant, he acts beyond the limits of his authority and



a 3rd party claim may be subject of separate action. Hence, sale of said property in public action is void because it cannot be attached. (Uy, Jr. vs. CA, 191 SCRA 275)

DAVAO LIGHT AND POWER CO. vs. COURT OF APPEALS (204 SCRA 345)A writ of preliminary attachment may be validly and properly applied for and granted even before the

defendant is summoned or is heard from. After an action is properly commenced – by the filing of the complaint and the payment of all the requisite docket and other fees – the plaintiff may obtain a writ of preliminary attachment upon fulfillment of the pertinent requisites laid down by law, and that he may do so at anytime, either before or after the service of summons on the defendant.

SIEVERT vs. COURT OF APPEALS (168 SCRA 695)The critical time is the vesting of jurisdiction in the court over the person of the defendant in the main

case. A valid service of summons and a copy of the complaint will vest jurisdiction in the court over the defendant both for the purposes of the main case and for purposes of the ancillary remedy of attachment. If a court has no jurisdiction over the subject matter or over the person of the defendant in the principal action, it simply has no jurisdiction to issue a writ of preliminary attachment against the defendant or his property.

WHEN PRELIMINARY ATTACHMENT IS DISCHARGED:1) Debtor posts a counterbond or makes requisite cash deposit- if attachment to be discharged is

with respect to particular property, counterbond or deposit shall be equal 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 THAT ATTACHING PARTY MAY RECOVER2) Applicant’s bond is insufficient or sureties fail to justify;3) Attachment was improperly or irregularly issued;4) Property attached is exempt from execution;5) Judgment is rendered against attaching party;6) Attachment is excessive – discharge is with respect to the excess

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

*** Compromise agreement entered by the defendant binds the surety even without notice and hearing. Compromise entered without the surety’s knowledge and consent is not fraud and it is valid through it is not a party to the case. In case of fraud, it is within the power of surety to protect itself (Vanguard Assurance Corp. vs. CA 64 SCRA 148).

*** Filing of counter bond does not render the attachment bond void or ineffective by the discharge of WPA, but subsist until judgment – Upon filing of counter bond, the attachment is dissolved but nowhere in the rules provides that attachment bond rendered void or ineffective. Whether the attachment was discharge by counter bond or otherwise, the liability of surety subsist and debtor cannot be deemed to have waived any defect in the issuance of WPA by simply availing himself of the way of discharging it for filing counter bond is the speedier way instead of the other way which would require presentation of evidence in a full blown trial. (Calderon vs IAC 155 SCRA 531)

When to apply for damages against the attachment bond1) Before trial;2) Before appeal is perfected;3) Before judgment becomes executory;4) In the appellate court for damages pending appeal, before judgment becomes executory.

*** 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.

Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property

DISTINCTION BETWEEN COURT EXAMINATION UNDER RULE 39 AND RULE 57:RULE 39 RULE 57

1) Examination is ordered only if execution is unsatisfied

Examination may be ordered even if unsatisfied or not

2) Done after finality of judgment and during execution

Done before judgment and execution anticipatory in character



3) Applicable if the property of debtor is not sufficient

Applicable whether property of debtor is sufficient or not

ORDER OF SATISFACTION OF ATTACHED PROPERTY:> Firstly, sale of perishable goods, if insufficient sale of real or personal property then garnished property and return of sheriff as to its satisfaction less expenses in proceedings. In case of balance, collect by ordinary execution, or in case of excess, return it to debtor.

Sec. 17. Recovery upon the counterbond

DISTINCTION OF RECOVERY FROM BOND WITH RECOVERY FROM COUNTER-BOND:RECOVERY FROM BOND OF

CREDITORRECOVERY FROM COUNTER BOND OF

DEBTOR1) Made after finality of judgment and execution unsatisfied.

Made before trial, before perfection of appeal or before judgment become executory.

2) Based on unsatisfied execution. Based on improper, irregular or excessive attachment.

3) With notice and summary hearing in court of origin.

With hearing and notice in appellate court.

REQUISITES FOR RECOVERY IN COUNTER-BOND:1) Judgment has become executory and was returned unsatisfied;2) Notice and summary hearing in the same action.

Requisite in order that surety may be held liable on the counter bond:1. Execution issued against principal and returned unsatisfied;2. Demand by judgment creditor to the surety for the satisfaction of judgment;3. Notice and summary hearing given to surety in same action as to his liability in counter bond.

*** Since surety is not a party to the case, he is entitled to be heard before execution, notice and hearing constitute the essence of procedural due process. Exhaustion of property of debtor first not required because surety is bounded solidarily. (Towers Assurance vs. Ororama 80 SCRA 262)

Claims for damages cannot be subject of independent action except:1) When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages;2) When damages sustained by a third person not a party to the action.

GENERAL RULE: Procedure in Sec. 20 Rule 57 is exclusive and such claims cannot be subject of an independent action:EXCEPTIONS:1) Where action was dismissed for lack of jurisdiction without giving an opportunity to the party to apply and prove his claim;2) Where damages was sustained by third person by reason of attachment who was not a party to the action wherein such writ was issued; (Santos vs. CA 95 Phil 36)

RULE 58PRELIMINARY INJUNCTION

PRELIMINARY INJUNCTION defined – an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person1) to refrain from a particular act or acts called “preliminary prohibitory injunction.”2) to require the performance of a particular act or acts called “preliminary mandatory injunction.”

Purpose:1) to preserve the status quo by furnishing a preventive relief. (Rivera vs. Florendo 144 SCRA 643)2) to prevent future injury. (Knecht vs. CA 228 SCRA 1)

Purposes:PROHIBITORY INJUNCTION

> Maintain the status quo - may issue TRO ex parte



MANADATORY INJUNCTION > Restore the last peaceable uncontested status quo - requires hearing in all cases

STATUS QUO is the last actual, peaceable uncontested status which precedes the pending controversy. (Rodulfa vs. Alfonso 76 Phil 225)

FINAL INJUNCTION – an order granted after trial of the action and it appears that the applicant is entitled to have the acts complained of perpetually restraining the party or person enjoined from the commission or continuance of the act or acts.

TEMPORARY RESTRAINING ORDER – one which may issue upon filing of an application for an injunction forbidding the defendant to do the threatened act until a hearing on the application can be had.

Preliminary injunction distinguished from ProhibitionPreliminary Injunction Prohibition

Generally directed against party to the action but may be against any person

Directed against a court, tribunal, or person exercising judicial powers

Does NOT involve the jurisdiction of the court

May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction;

May be main action itself or just a provisional remedy in the main action

Always a main action

DISTINGUISH INJUNCTION FROM TROINJUNCTION TRO

1) temporary in effect but may be made permanent

Temporary in nature which can never be made permanent

2) period to be determined by the court Period is limited to 20 days and 60 days to CAExcept: SC indefinite

3) requires filing of bond Does not require filing of bonds4) granted only after notice and hearing May be granted ex-parte with summary

hearing5) period given may be extended by the court

Period is non-extendible and will automatically expire by force of law

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 work

injustice to the plaintiff; 3) Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the

action and tending to render judgment ineffectual.

REQUISITES OF ISSUANCE: 1) Material and substantial invasion of right.2) Right of complainant is clear and unmistakeable.3) Necessity for the writ is urgent and paramount to prevent serious damage.4) No new relation will be created in granting it.

*** Injunction will not issue to protect a right which may never rise or does not have a cause of action. (Prado vs. Veridiano, 204 SCRA 654)

*** When the act sought to be prevented had long been consummated, the remedy of injunction could no longer be entertained.

REQUIREMENTS FOR ISSUANCE:a) Verified application showing facts entitling the application to the relief demanded; andb) Bond – executed to the party or person enjoined, in an amount fixed by the court conditioned to

answer all damages which the person enjoined may sustain by reason of the injunction or TRO if the court finally decide that the applicant was not entitled thereto.

c) Notice and hearing:



*** TRO good for only 20 days from service in the RTC; 60 days for CA; indefinite or until further orders from SC.

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

*** TRO is limited only to 20 days from issue: > if before expiration and application of PI denied, TRO deemed automatically vacated; > if no action was taken by the judge within 20 days. TRO automatically expires on the 20th day by sheer force of law without the necessity of any judicial declaration to that effect.

*** Independent action merely to obtain preliminary injunction is not allowed. There must be some substantive relief sought

*** a WPI, as an ancillary preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interest and for no other purpose during the pendency of the principal action.

*** PI is an action in personam directed to a person to refrain or do something;

*** Injunctions are enforceable only within the territorial jurisdictions of the issuing court.

*** Power of injunction is delicate and must be exercised with greater caution, deliberation and sound discretion. It is the strong arm of equity that never ought to be extended unless to cases of greater injury, where courts of law cannot afford an adequate or commensurate remedy in damages. (UP vs. Catungal, 272 SCRA 221)

IRREPARABLE INJURY means such constant and frequent recurrence that no fair or reasonable redress can be had in a courts of law or where there is no standard by which their amount can be measured with reasonable accuracy not susceptible of mathematical computation (SSC vs. BAYONA, May 30,1962)

HEARING IS NECESSARY – the court’s duty to observe the necessity of hearing and notice both applies in its issuance or denial of order of PI. It should not summarily issue an order of denial without adequate hearing and judicious evaluation of the merit of application. (BATACLAN vs. CA, 175 SCRA 764)

HEARING ON THE MERITS UNNECESSARY – where the grounds relied upon to dissolve the PI is insufficiency of the complaint, the application may be refused outright with or without notice, if the same is apparent on the complaint itself. (VALLEY TRADING CO. INC. vs. CFI, 171 SCRA 501)

*** Evidence submitted in the hearing for PI need not be conclusive or complete, it need only a “sampling” merely to give the court an idea of the justification for issuance of PI pending the decision on the merits. But such evidence presented is not conclusive to the courts. (Olalia vs. Hizon, 196 SCRA 665)

NOTICE AND HEARINGGENERAL RULE: Notice and hearing must first be conducted before issuance of injunction.

*** Where application is included in a complaint or any initiatory pleading + filed in multiple sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined.

*** In any event, notice preceded or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines exception is non-resident or unknown defendant.

*** TRO acted upon only after all parties are heard in a summary hearing which shall be conducted within 24 hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

EXCEPTION:EXTRA ORDINARY TRO 1) Extreme urgency + suffer grave injustice and irreparable injury. 2) Executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue a TRO effective for only seventy-two (72) from issuance. 3) Immediately comply with prior or contemporaneous service of summons; 4) Conduct summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard.

*** Now, even a TRO may require a BOND.



> If damage may be suffered by the adverse party. > But, for PI bond is MANDATORY.

*** The filing of a COUNTER BOND inorder to discharge the injunction is NOT a matter of right, unlike in attachment.

*** Failure to serve copy of bond is merely a formal defect but mere offer of counter bond not sufficient to dissolve PMI. (De la Cruz vs. Tan Torres, 107 Phil. 1163)

*** The claim for damages in the bond shall be governed by the same rules in attachment. (see Sec. 20 Rule 57)

WHO MAY ISSUE AND TO WHOM – may be granted by the court where the action or proceeding is pending or if in CA or SC, it may be issued by said court or any member thereof;

By SC – in cases on appeal or in original action;By CA – in cases on appeal or in original action whether in aid of its appellate jurisdiction.By RTC – cases on

1. appeal; 2. in original action; 3. those pending in inferior courts within its territorial jurisdiction.

*** Inferior courts may only issue WPI in FEUD cases.

LIMITATIONS OF TRO:1) TRO not to exceed twenty (20) days, including the original seventy-two hours provided herein.2) TRO deemed automatically vacated upon expiration therof whether injunction was denied or not without need of any judicial declaration to that effect.3) TRO effectivity is not extendible and no court shall have authority to extend or renew the same on the same ground for which it was issued unless supervening ground warrant it.

EXCEPTION: TRO in CA shall be effective for 60 days from service and in SC shall be effective until further orders.

*** A court should issue a writ of PI only when the petitioner assailing a statute or administration order has made out a case of unconstitutionality aside from showing a clear legal right to the remedy sought.

*** no injunction beyond prayer in complaint.

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 and

irreparable injury if injunction granted or continued while plaintiff can be fully compensated; 3) Plaintiff’s bond is insufficient or defective

*** No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing.

CASES WHERE MANDATORY INJUNCTION NOT GRANTED:1) To compel cohabitation2) In cancellation of attachment3) In release of imported goods pending hearing before the commissioner of customs.4) Transfer of possession of property.

PROHIBITED INJUNCTIONS:1. Against court or tribunal of co-equal rank;2. Against labor court or proceedings under Labor Laws;3. Against the prosecution of criminal proceedings;

EXCEPTIONS: A. For orderly administration of justice (Brocka vs. Enrile, 192 SCRA 182) B. To prevent use of strong arm of the law in an oppressive and vindictive manner; C. To avoid multiplicity of actions; D. To afford protection of constitutional rights; E. Unconstitutional or invalid statute; (Justiniani vs. Castillo, 162 SCRA 378) F. Findings of SC that communication is privileged and not libelous thereby enjoining the libel case; (Ang vs. Castro, 136 SCRA 453) G. Traffic ordinance is invalid (Primicias vs. Urdaneta, 93 SCRA 462)



4. Against the collection of internal revenue taxes;5. Against government infrastructure projects under RA 8735;6. Against any government financing institution in any action in connection with mandatory foreclosure

with arrears is at least 20% of total unpaid obligations and other charges.EXCEPTION: It does not apply where the

A.. extent of loan actually received not yet determined (Filipinas Marble Corp. vs. IAC, 142 SCRA 180) or

B. when the property is already foreclosed (Republic vs. CA, Feb. 3, 2000)7. Against Presidential Agrarian Reform Council (PARC) or any of its agencies;8. Against Asset Privatization Trust (APT).

*** A Court may not interfere by injunction with the judgments or orders of another court of coordinate and concurrent jurisdiction.

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

*** No writ may be issued by the RTC against quasi-judicial bodies of equal rank.Ex. Social Security Commission, SEC, IPO, COMLECE, WCC

*** Only the SC may issue injunctive writs against the implementation or execution of contracts for the operation of a public utility.

*** PMI AGAINST PUBLIC UTILITIES GIVEN A LEEWAY – in public utilities like MERALCO, PMI will lie where the injury complained of is a continuing one and where the invasion of rights of complainant during the pendency of proceeding would work a serious injury for which no other adequate remedy in the ordinary course of law. (MERALCO vs. Del Rosario & Jose, 22 Phil. 435)

IMPROPER INJUNCTIONS:1. restrain a mayor proclaimed as duly elected from assuming office; (Cereno vs. Dictado, 160 SCRA 759)2. restrain consummated acts; (Ortigas & Co. vs. CA, 162 SCRA 165)3. Order transfer of possession of property in litigation where legal title is in dispute; (Toyota Motors vs. CA, 216 SCRA 236)Except in forcible entries in MTC (Ramos vs. CA, 163 SCRA 583) or there is a clear finding of ownership under Torrens Title (CDO Landless vs. CA, 254 SCRA 229)5. Compel marital cohabitation between spouses (Arroyo vs. Vasquez, 42 Phil 54)6. Cancellation of attachment. (Levy Hermanos vs. Lacson, 71 Phil. 94)

*** An injunction suit becomes moot and academic after the act sought to be enjoined had already been consummated.

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, it shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant’s 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 the defendant 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 principle applies before the raffle and issuance of the writs or TRO.

RULE 59RECEIVERSHIP

RECEIVER – a person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all parties under the direction of the court. (Mallari vs CA July 1981)



When receiver may be appointed: 1) 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; 2) Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted

or 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.

5) Abandoned spouse without just cause to enforce obligation of the other spouse of his obligation to the family under Article 101 of the Family Code.

REQUIREMENTS FOR APPOINTMENT:1. Verified application to the court supported by affidavits whether ex-parte or upon motion;

2. Applicant’s Bond – executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment in case such appointment is without sufficient cause. The court may require additional bonds as further security for such damages.

3. Service of Bond to the adverse party in order to contest its sufficiency;

IF GRANTED BY THE COURT:4. Receiver’s Bond – Receiver appointed by the court shall file a bond;

5. Oath – Receiver appointed by the court shall sworn to the court to faithfully perform its duties as the court may direct.

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

POWERS AND DUTIES OF RECEIVER:1. File and defend as receiver, actions in his own name.2. Possession of the property in controversy.3. Receive rents.4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver;5. Compound for and compromise the same;6. Transfers or pay outstanding debts;7. Divide the money and other property that shall remain among the persons legally entitled to receive the same;8. Acts respecting the property as the court may authorize;9. Invest funds in the hands of a receiver but only by order of the court upon the written consent of all

the parties to the action.

NOTES:

*** Receivership may be a principal action or an ancillary remedy.

*** Pending appeal, appellate court may allow an 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.> If granted pending appeal, it is interlocutory in nature and not compelled by mandamus, but certiorari will lie if there is grave abuse (Samson vs. Barrios 63 Phil 109)

*** Appointment of receiver is not an absolute right which is subject to the sound discretion of the court.

*** As a general rule, neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. (Alacantara vs. Abbas 9 SCRA 54)



*** A third party such as a bank is usually appointed as receiver because of its competence and impartiality.

*** The receiver, being an appointee of the court is subject to its supervision and control.

*** A clerk of court should not be appointed as receiver as he is already burdened with his official duties. (Abrigo vs. Kayanan 121 SCRA 20)

*** Application for receiver may be ex-parte or upon motion to the parties;

*** Receivership cannot be effected with respect to property custodia legis (Lizzaraga vs. Abada 40 Phil 124). But where it is in the custody of executor or administrator is in danger of imminent loss or injury, one may be appointed (Dolor vs. Sundiam 38 SCRA 616)

*** No action may be filed by or against a receiver without leave of the court who appointed him.

*** All actions of the receiver must be in accord with the orders of the court and must be reported such that contracts executed by him without the approval of the court, constitute the personal undertakings and obligations. (Pacific Merchandising vs. Consolacion Insurance and Surety Co., Oct. 1976)

*** Any person who refuses to deliver property to receiver upon order constitute contempt and may be punish and answer all damages sustained due to such refusal.

*** Court may motu propio or upon motion terminate the receivership and order the settling of account, deliver of funds and payment of taxes, fees and compensation to the receiver.

When receivership may be denied/lifted 1) Appointment sought is without sufficient cause; 2) Adverse party files sufficient bond for damages; 3) Applicant or receiver’s bond is insufficient.

*** In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20, Rule 57, whether it be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case, no longer need to file a separate action).

RULE 60REPLEVIN

REPLEVIN is a writ issued by the court upon application by a party at the commencement of the action or at any time before answer, praying for the recovery of possession of personal property or for the delivery of such property to him.

REPLEVIN> Can be issued ex-parte> Once issued the writ can be served anywhere in the Philippines> The writ can be enforced against whoever is in possession of the applicants personal property> Good only for personal property capable of manual delivery - it cannot apply to real property

*** Available only where the principal relief sought in the action is the recovery of possession of personal property;

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

*** Available to recover personal property even if the same is NOT being concealed, removed, or disposed of;

*** 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.

REQUIREMENTS FOR ISSUANCE OF REPLEVIN:1) affidavit of application or some other person who personally knows the facts: a. Applicant is the Owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b. Property Wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, or belief;



c. Property has NOT been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and d. Actual market value of the property.2) Replevin Bond – executed to the adverse party in double the value of the property stated in the affidavit, for the return of the property if adjudged and for the payment to the adverse party of such sum as he may recover from the applicant in action.> The bond is twice the value of the property because it will answer for the return of the property or its value plus damages

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

ACTION OF THE COURT:1) Order of court with writ of replevin describing the subject personal property requiring sheriff to take possession of such property into his custody.2) Sheriff serve copy thereof on the adverse party, together with a copy of the application, affidavit and bond.3) Take possession of the property and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, sheriff must publicly demand its delivery, and if it be not delivered, break open order and take the property into his possession.4) Keep it in a secure place and shall be responsible for its delivery to the party entitled upon receiving his fees and expenses thereon.5) Return of property – within 5 days after taking the property by sheriff, adverse party wanting the return of the same> must post a Redelivery bond and serve a copy thereof to the applicant and the sheriff> bond is sufficient and proper in form.6) Sheriff must file the order, with his proceedings endorsed thereon within 10 days after taking the property.7) Judgment after trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative either:

* Judgment in the alternative: a. for the delivery thereof to the party entitled to the same, or b. for its value in case delivery cannot be made, and c. for damages as either party may prove, with costs.

*** if the adverse party does not file a “redelivery bond” within 5 days, the plaintiff will be entitled to possession

Defendant entitled to return of property taken under writ if:1) He seasonably posts redelivery bond2) Plaintiff’s bond is insufficient or defective3) Property is not delivered to plaintiff for any reason.

NOTES:*** once a writ is granted or in case of its return to adverse party, does not vest absolute title thereto.

*** Article 1484 or the Recto Law does not apply in replevin suit (Universal Motors Corp. vs. Velasco July 1980)

*** The applicant of a writ of replevin need not be the owner for it is enough if he has a right to possess it. (Yang vs. Valdez 177 SCRA 141)

*** Replevin bond is to indemnify defendant against any loss by reason of his surrender of property nut not by punitive damages arising from reconversion or any wrongful and fraudulent acts of the plaintiff (Sapugay vs CA March 1990)

GENERAL RULE: replevin cannot be availed of against a property in custodia legis.EXCEPTION: 1. when seizure is illegal (Bagalihog vs. Fernandez198 SCRA 614)2. when there is reason to believe that when seizure will not anymore be followed by the filing of criminal action in court or there are conflicting claims. (Chua vs. CA 222 SCRA 85)

*** prevailing party may refuse to take the seized but returned property if afterwards find them in depreciated value. He may instead sue on the redelivery bond or execute judgment for value. (Ago vs CA 16 SCRA 81)

*** Judgment in replevin must be in the alternative so as to afford a measure of relief where property re-delivered cannot be returned on substantially the same condition. (Ago vs CA 16 SCRA 81)

*** If such property is not delivered to plaintiff on the same condition, the officer must return it to defendant who has the obligation to take them back. (Ago vs CA 16 SCRA 81)



*** It is true that upon default of mortgagors, mortgagee is entitled to the possession of chattel to enable him to sell it in public auction. If refused, mortgagee may judicially foreclose or secure possession preliminary to the sale by replevin but mortgagee cannot lawfully take the property by force against the will of the mortgagors. In this case, the sheriff is acting as an agent of the mortgagee and not through the court order and the statute imposes no specific duty upon him to seize the same over the opposition of mortgagor. (Bachrach Motor Co. vs. Summers 42 SCRA 2)

*** The requirement of posting of redelivery bond and service thereof to applicant is mandatory to give them opportunity to question its sufficiency or in its prescribed form and for the right amount. (Case & Nantz vs. Jugo 77 SCRA 517)

*** Personal property permanently incorporated in a tenement considered real property which cannot be subject of replevin – replevin will lie only to specific personal property capable of identification and manual delivery and it will not lie in case of real property or incorporeal property. Restitution must be made to properties wrongfully taken by replevin. (Machinery and Engineering Supplies, Inc. vs. CA 96 SCRA 70)

*** Hearing required to make the surety liable on replevin bond must be summary and limited to new defenses set up by the surety. (Stronghold Insurance Co., Inc. vs. CA 179 SCRA 117)

Distinctions :REPLEVIN ATTACHMENT

1. may be sought only when the principal action is recovery of personal property.

1. Available even if recovery of property is only incidental to the relief sought.

2. Can be sought only when defendant is in actual possession of the property.

2. May be resorted to even if the property is in possession of a third person.

3. Only extends to personal property capable of manual delivery.

3. Extends to all types of property whether real, personal or incorporeal.

4. Cannot be availed of when property is in custodia legis

4. Can be availed of even if property is in custodia legis.

5. Available before defendant answers 5. From commencement but before entry of judgment

6. Bond is double the value of the property 6. Fixed by the court

RULE 61SUPPORT ‘PENDENTE LITE’

SUPPORT PENDENTE LITE is a provisional remedy upon verified application filed at the commencement of the proper action or at any time prior to the judgment or final order, by a party or in his behalf, praying that an allowance or amount of support be ordered pending the trial of the action.

> Immediately executory.

WHEN AVAILABLE?1) Civil action for support under Family Code;2) Criminal action where civil liability includes support of the offspring as a consequence of the crime

*** Where the right to support is put in issue by the pleadings or the fact from which the right of support arises is in contrary or has not been established, the court cannot grant support pendente lite.

When filed: a. At the commencement of the proper action or proceeding ORb. At any time prior to the judgment or final order

Application:a. Verifiedb. Filed by any partyc. State the grounds for the claim and financial conditions of both parties> Accompanied by affidavits, depositions or other authentic documents in support thereof.

Process:a. Application filed in court and served with adverse partyb. Adverse party files comment within 5 days (unless different period is fixed) from service of

application.c. Application is set for hearing not more than 3 days after comment is filed, or after the expiration

of the period for its filing.



What court shall do:a. Determine provisionally the pertinent facts, ANDb. Render such orders as justice and equity may require, having due regard to the probable

outcome of the case and such other circumstances as may aid in the proper resolution of the question involved.

If application is granted: court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided.

what court shall take into account:a. necessities of the applicantb. resources or means of the adverse partyc. terms of payment or mode for providing support.

If application is denied: principal case shall be tried and decided as early as possible.

Enforcement of order:a. If the adverse party fails to comply with an order granting support pendent elite: order of

execution, without prejudice to liability for contemptb. If the person ordered to give support pendent elite refuses or fails to do so and a 3 rd party

furnished that support to the applicant: 3rd party may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement.

EFFECT OF FAILURE/REFUSAL TO COMPLY: the court shall, motu propio or upon motion, issue an1. order of execution against him,

2. liability for contempt;

3. issue writ of execution to enforce right of reimbursement to 3rd person against the person ordered to provide such support.

EFFECTS OF JUDGMENT FOR NON-ENTITLEMENT TO SUPPORT: 1. order the recipient to return the amounts already paid with legal interest from the dates of actual payment,

2. obtain reimbursement in a separate action from the person legally obliged to give the support.

Support in criminal casesa. when applicable:

i. in criminal actions where the civil liability includes support for the offspring as a consequence of the crime AND

ii. the civil aspect thereof has not been waived, reserved or instituted prior to its filing

b. who may file: (in successive order)i. offended partyii. her parentsiii. grandparents or guardianiv. State

Restitution*** When applicable: when the judgment or final order of the court finds that the person who has

been providing support pendent elite is not liable therefore

*** What court may order recipient: return the amounts already paid

with legal interest from the dates of actual payment without prejudice to the right of the recipient to obtain reimbursement in a separate action

from the person legally obliged to give support.

*** If recipient fail to reimburse: person who provided the same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give support.

NOTES:



*** Support pendente lite is available to any person even if not a party to the action provided the grounds therefore exist.

*** It is interlocutory order but the same is subject to execution by way of an exception;

*** When application for support pendente lite is denied, the remedy is certiorari;

*** The grant of support pendente lite is provisional and the nature, amount and terms are to be determined in the final judgment subject to modification depending on the changing conditions affecting the ability of obligor to pay. (San Juan vs. Valenzuela 117 SCRA 926)

*** Appellate court may grant support pendente lite, even without application, pending appeal if the basis to right to support was established in the trial court. (Ramos vs. CA 1972)

*** Adultery being a good defense in an action for support, cannot be availed of if the husband failed to present any evidence thereon (Reyes vs. Ines-Luciano Feb. 1979)

*** Once the judgment has been rendered even though it is pending appeal, the plaintiff can ask for execution pending appeal.

SPECIAL CIVIL ACTIONS

WHAT ARE SPECIAL CIVIL ACTIONS UNDER THE RULES OF COURT?

SPECIAL CIVIL ACTIONS INITIATED BY COMPLAINTS

SPECIAL CIVILACTIONS INITIATED BY

PETITIONS

InterpleaderExpropriationForeclosure of Real Estate MortgagePartitionForcible Entry andUnlawful Detainer

Declaratory Relief Review of Adjudication of the Comelec/COACertiorari, Prohibition, Quo Warranto, MandamusContempt

VENUE

The venue of special civil actions is governed by the general rules on venue, except when otherwise indicated by a particular rule under the rules on special civil action.(Rule 62-71)

*** Special civil actions are governed by the rules on ordinary civil actions, subject to the specific rules prescribed for a particular special civil action. (Sec 3-a Rule 1)

RULE 62INTERPLEADER

INTERPLEADER – that special civil remedy whereby a party against whom conflicting claims are asserted and who claims no interest whatsoever in whole or in part upon the same subject matter, files an action to compel the conflicting claimants to interplead and litigate among themselves.

CONCEPT: A person in possession of a thing or right, but does not claim ownership



WHEN IS INTERPLEADER PROPER?

When a person has property in his possession or an obligation to render and he has no claim thereon or his interest is not disputed by the claimants, he may come to court to have said parties having conflicting claims to litigate among themselves.E.g. Warehouseman, with goods being claimed by 2 or more persons

REQUISITES: 1) Plaintiff claims No interest in the subject matter or his claim not disputed by the claimants;2) There are 2 or more Claimants;3) The parties to be interpleaded must make Effective claims.4) The Subject matter must be One and the same.

*** Complaint in interpleader must be answered 15 days from service of summons

MOTION TO DISMISS (INTERPLEADER) GROUNDS: 1) Impropriety of interpleader 2) Any of the grounds of Rule 16

WHEN – Within the time for filing an answer

PARTIES in an INTERPLEADER ACTION MAY FILE: 1) Counterclaim 2) Crossclaim 3) Third-party complaint 4) Other responsive pleadings provided by the Rules of Court

*** Parties need to furnish all parties in the action of all pleadings filed

INTERPLEADER INTERVENTION1. an original action 1. ancillary action

2. presupposes that plaintiff has no interest in the subject matter of the action or has interest therein in whole or in part which is not disputed by the other parties

2. proper in any of the four situations: person having (a) legal interest in the matter

in litigation, or (b) success of either of the parties, or (c) an interest against both, or (d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. (Rule 19, Sec. 1.)

3. defendants are being sued precisely to interplead them

3. defendants are original parties to the pending suits

NOTES:

*** Inferior courts have jurisdiction over interpleader where it involves property the amount of which is within their jurisdiction;

*** Summons must be served upon the conflicting claimants just like ordinary complaint;

*** Failure to plead will result in a judgment in default which will bar the negligent party from any claim in the subject matter.

*** Co-defendants must serve copies of their answer to his co-defendants not only to the plaintiff, they being the conflicting parties in this case, not the plaintiff.

*** The cost, expenses and attorney’s fees incurred by the plaintiff is recoverable from the defendant who loses in the action and is found to have caused the unnecessary litigation. (Menzi vs. Bastida 63 Phil 16)

*** Interpleader must be filed within a reasonable time after the dispute has arisen, otherwise it may be barred by laches (Wack-Wack vs. Lee Won, March 1976)

RULE 63DECLARATORY RELIEF AND SIMILAR REMEDIES



Declaratory relief – a SCA filed by any person:1) Who are interested under a deed, will, contract, or other written instrument. (DWCW)2) Whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation. (SEOROG)

DECLARATORY RELIEF - A Person wants to know what his rights & obligations are, under a written instrument or a law

PURPOSE:1. Determine any question of construction or validity arising thereunder, and2. Declaration of his rights or duties thereunder.

*** All parties affected must be made parties, otherwise, parties not impleaded shall not be prejudice;

ORDINARY ACTION DECLARATORY RELIEF1.writ of execution is available 1. no writ of execution

2.there is breach or violation of right 2. no breach or violation3. motion to dismiss- Rule 16 and 17

3. additional ground for Motion to Dismiss -Rule 63 Sec. 4

REQUISITES FOR DECLARATORY RELIEF1. justiciable controversy2. adverse claim between real parties in interest3. subject matter is a written instrument or a statute4. relief sought is merely a determination of the rights and duties5. there must be no breach or violation of instrument or statute6. no other available or sufficient remedy

Available only BEFORE: 1) There has been a breach of the written instrument 2) There has been a violation of a law

In every question of law or governmental regulation, notice and hearing must be given to: 1. Sol. Gen. If it involves national government;2. Legal officer/Prosecutor if involves local ordinance;

“Ripe for judicial determination” – it must appear in the facts of the case that there is threatened litigation in the immediate future, which litigation is imminent and inevitable unless prevented by the declaratory relief. (Tolentino vs. Board 90 Phil 83)

*** The institution of the declaratory relief after a breach of contract or statute, is objectionable on various grounds, among which is that it violates the rule on multiplicity of suits.(Sarmiento vs. CA)

*** Available when the provisions of a written instrument or a law are VAGUE giving rise to uncertainties & a possibility of a suit arising therefrom

- Doubtful character

*** Declaratory relief does not apply to issues involving CITIZENSHIP *** Third party complaint is not allowed (Comm. Of Custom vs. Cloribel 77 SCRA 459)

*** Petition for Declaratory relief is available only when there is no other available remedy against a written instrument or law

*** An action to interpret the provisions of a decision of a court, is not subject matter under declaratory relief.

RULE: Everybody affected by the law or instrument must be impleaded as parties, otherwise, those whoare not made parties are not affected by whatever judgment may be rendered in the case.

- Ground for dismissal REASON: the judgment the court may render will not put an end to the uncertainty that brought

about the controversy

SANTOS vs. AQUINO (94 SCRA 65)



The action is not for declaratory relief if the terms of the ordinance assailed are not ambiguous or of doubtful meaning which require a construction by the Court. Granting however, that the legality or validity of an ordinance may be drawn in question in an action for declaratory relief, such relief must be asked before a violation of the ordinance be committed.

GENERAL RULE: Declaratory relief is discretionaryEXCEPTION: Mandatory for—

1) Reformation of instrument 2) Quieting of title 3) Consolidate ownership (contract of sale with right of repurchase)

REFUSAL TO GRANT DECLARATORY RELIEF JUSTIFIED WHEN: 1) the decision will not terminate the controversy or uncertainty giving rise to the action; or 2) the declaration is not necessary and proper under the circumstances 3) Other remedies available 4) there is breach before decision ( converts it into an ordinary action)

*** The concept of a cause of action as “ an act or omission by which a person violates the rights of another “ under ordinary civil action does not apply to declaratory relief as this special civil action presupposes that there has been NO breach or violation of the instrument or statute involved.

RESULT OF JUDGMENT 1) Declaration of whether or not the law or contract is valid 2) Declaration of the rights & obligations of the parties 3) Construction or interpretation

*** Judgment cannot be enforced by execution

NO DECLARATORY RELIEF IN CASES OF:1. To obtain judicial declaration of citizenship. (Singson vs Republic 22 SCRA 353)2. To seek relief on moot questions or to resolve hypothetical, abstract or theoretical questions, or to decide claims which are uncertain. (Lim vs. Republic 37 SCRA 783)3. The validity or construction of instrument to be placed in a registration certificate as these are unilateral in nature and without conflicting adverse interest. (Obiles vs. Republic 92 Phil 864)4. To test the validity of court decision as there other existing remedies like appeal (Tanda vs. Aldaya 98 Phil. 244). Remedy of unclear judgment, clarificatory judgment;5. To determine hereditary rights. (Edades vs. Edades 99 Phil. 675)6. When it is based upon the happening of contingent event;7. When the petitioner is not a real party in interest. (Santos vs. Aquino 94 Phil. 65)8. When there are other means or forms of action or proceeding for adequate relief in the administrative level. (Ollada vs. Central Bank May 1962)

EDADES vs. EDADES, ET AL(99 SCRA 675)Plaintiff’s action in seeking his hereditary rights in the property of his alleged father and incidental to the

recognition of his status as an illegitimate son cannot be maintained as one for declaratory relief because it neither concerns a deed, will, contract or of written instrument, it does not affect a statute or ordinance, the construction or validity of which is involved. Nor is it predicated on any justiciable controversy, for the alleged right of inheritance which plaintiff desires to assert has not yet accrued for the simple reason that his alleged father has not yet died. And the law is clear that, the rights to the succession are transmitted from the moment of death of the decedent.

Section 6. Conversion to ordinary action:

*** If during the pendency of the case, there is a breach or violation, the court will now treat the case as an ORDINARY CIVIL ACTION

*** Judgment can now be enforced by execution

Note: Declaratory relief is available BEFORE there is actual breach or violation of an instrument or statute.

Must be before breach is committed, as in the case where the petitioner paid under protest the fees imposed by an ordinance. Declaratory relief still proper because the applicability of the ordinance 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.

GOMEZ vs. PALOMAR (25 SCRA 827)



The prime specification of an action for declaratory relief is that it must be brought “before breach or violation” of the statute has been committed. Section 6 of Rule 63, allows the court to treat an action for declaratory relief as an ordinary action, applies only if the breach or violation occurs after the filing of the action but before the termination thereof. If there has been a breach of the statute before the filing of the action, the remedy of declaratory relief cannot be availed of, much less can the suit be converted into an ordinary action.

However, Declaratory relief may still be availed even if there is breach or violation IF:1. it concerns future application of the instrument or law [Gomez vs. Palomar (25 SCRA 827)] or 2. not objected by the adverse party and the court has rendered judgement after full blown trial [Matalin

Coconut Producers (143 SCRA 1)]

*** That where no breach or violation of the ordinance in question occurred, the declaratory relief will still prosper because the applicability of the ordinance to future transactions still remained to be resolved, although it can be adjudge in an ordinary suit for the recovery of taxes paid. (Matalin Coconut Co.’ Inc. vs Municipal Council of Malabang, Lanao del Sur 143 SCRA 404)

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE

COMELEC AND THE COA.

TIME FOR FILING OF PETITION

For petition for review of judgments and final orders of the COMELEC and COA – period to file is 30 days to be counted from notice of the judgment or final order or resolution sought to be reviewed 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 to run again for the remaining period which shall not be less than 5 days from notice of denial.

MODE OF REVIEW

*** This petition should be filed exclusively to the Supreme Court.

*** This refers to Rule 65 as an independent civil action and not a mode of appeal.

N.B. Petition shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment with certified true copies of material portions of the record and other documents relevant and pertinent thereto. Otherwise, dismiss.

*** Effect of filing will not stay the execution of the judgment sought to be reviewed, unless SC direct otherwise;

RULE 65CERTIORARI, PROHIBITION AND MANDAMUS

CERTIORARI PROHIBiTION MANDAMUSPurpose of the writ.

Intended as a corrective remedyannul and modify a proceeding

prevent the commission or carrying out of an act

Intended to compel performance of an act desired

Act sought to be control-led.

Discretionary act Discretionary and ministerial act

Ministerial act

With respect to respondent.

Exercising judicial and quasi-judicial function

Judicial and /or non-quasi judicial function

Judicial and /or non-quasi judicial function

*** 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.

REQ. FOR EXTRINSIC SUFFICIENCY OF PETITION:1. Verified2. Certificate of non-forum shopping3. Certified true copy of judgment4. Proof of service.5. If not filed or served personally: Written Explanation



In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60-day period shall be counted from notice of the denial of said motion. (SC Circular 56-2000, effective September 1, 2000)

No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. (SC Circular 56-2000)

Where:In SC – it relates to the acts or omissions of a lower court, In RTC – if it relates to a corporation, board office or person exercising jurisdiction over the territorial areaIn CA – whether the same is in aid of its appellate jurisdiction if it involves the acts or omissions of a quasi-judicial agencyIn Sandiganbayan – if it is in aid of its appellate jurisdiction

CERTIORARI

REQUISITES OF CERTIORARI:1. there must be a controversy2. the respondent is exercising judicial or quasi-judicial functions3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion4. there must be no other plain, speedy and adequate remedy

Purpose – to correct an act performed by respondent;Act sought to be controlled – discretionary acts;Respondent – one who exercises judicial functions and acted with grave abuse of discretion or in lack or excess of jurisdiction.*** Exercise of Judicial Function is involved where he has the power to determine what the law is, what are the legal rights of the parties and he undertakes to determine these questions and adjudicate upon the rights of the parties. (Ruperto vs. Torres Feb. 1957)

*** Without jurisdiction means absence of a legal power to determine a case.

*** Excess of jurisdiction means that the court has jurisdiction but fails to comply with the conditions prescribed for its exercise.

*** Grave Abuse of Discretion means exercise of power capriciously, arbitrarily or despotically due to passion or personal hostility. (Gamboa vs. Cruz 162 SCRA 642)

*** When the Court exercises discretion in an arbitrary and despotic manner by reason of passion, prejudice or personal hostility then it commits grave abuse of discretion in the exercise of discretion.

*** Plain, Speedy and Adequate Remedy are those which will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. (Silvestre vs. Torres 75 Phil 885)

*** Certiorari as SCA is an independent action and does not interrupt the course of the proceedings of principal action nor the running of reglementary period. (Palomares vs. Jimenez 1952);

*** To consider a tribunal exercising judicial function, it is necessary that there be a law providing for the adjudication of rights and power to determine such rights. Thus, judgment by a committee for determining honor students (Santiago vs. Bautista March 1970), judges in oratical contest (Felipe vs Leuterio) cannot be a subject of certiorari;

*** Ceriorari as SCA is not the proper remedy for the denial of trial court of demurrer to evidence, motion for reconsideration and if denied, appeal, are the proper remedy. (Asian Trading Corp. vs. CA 303 SCRA 502)

*** An order of dismissal whether right or wrong is a final order, hence appeal not certiorari is the proper remedy.(Marahay vs. Melicor)

*** Generally directed against an interlocutory order of the court prior to appeal from the judgment in the main case;



*** 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 that any reversal thereof shall have become academic;

*** Mere filing of petition for certiorari under this rule will not stay execution of judgment. (Preliminary injuction must be sought)

*** Unless a writ of preliminary injunction shall have issued, does NOT stay the challenged order;

*** Parties are the aggrieved parties against the lower court or quasi-judicial agency and the prevailing parties;

GENERAL RULE: Filing of a motion for Reconsideration is a condition precedent to avail this remedy and pro-forma rule not applicable.

PURPOSE: To enable the lower court to pass upon and correct its mistakes without intervention of the higher court.

EXCEPTIONS:1. In the interest of justice and public welfare and advancement of public policy;2. Order was issued without or in excess of jurisdiction;3. Order is a patent nullity as when due process was denied or was unlawfully deprived of right to appeal;4. When relief is extremely urgent;5. When question raised and passed upon in lower court are the same as those of certiorari case;6. Pure question of law.

*** If a MR or MNT is filed and was denied, the period to file shall not only be interrupted but another 60 days shall be given to the petitioner.

*** 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 merely a nominal party, and he should not seek the reversal of a decision that is unfavorable to the action taken by him.

*** A writ of certiorari can never be issued by an RTC against an administrative agency because an administrative agency when exercising quasi-judicial functions is considered as of the same rank as the RTC. However, a writ a prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi- judicial function.

*** The jurisdiction of the Sandiganbayan over certiorari proceedings is only in aid of the appellate jurisdiction.

*** ”in aid of its appellate jurisdiction” – there exists a right to appeal the judgment on the merits to the Sandiganbayan

Professional Regulation Commission vs. CA – It is well settled that the remedies of ordinary appeal and certiorari are mutually exclusive, not alternative or successive. However, it has also been 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 does not appear to be a plain, speedy and adequate remedy. In this case, the SC noted that, while petitioners tried to justify their recourse to both an appeal and to a petition for certiorari by claiming that their appeal would not constitute a plain, speedy and adequate remedy, they did not see fit to withdraw or abandon said appeal after filing the petition. Thus, both the CA and SC are reviewing the same decision of the RTC at the same time. Such a situation would lead to absurdity and confusion in the ultimate disposition of the case.

*** An error of judgment or error in the exercise of jurisdiction can only be corrected by an appeal.

GENERAL RULE: Certiorari as SCA is proper to correct errors of jurisdiction not errors of law or fact, the proper remedy therein is appeal. Thus, if appeal is available you cannot use this remedy.EXCEPTIONS:1. Appeal is not speedy and adequate remedy;2. Order was issued without or in excess of jurisdiction;3. In special consideration of public welfare and for the advancement of public policy;



4. Order is a patent nullity;5. To avoid future litigation;6. To avoid miscarriage of justice;7. In furtherance of the broader interest of justice and equities.

LANSANG, JR. vs. COURT OF APPEALS (184 SCRA 230)If after judgment, the petition for certiorari is availed of when appeal is a plain, speedy and adequate

remedy, then the petition must fail as certiorari may not be resorted to as a substitute for appeal much less for a lost one. In such case, the right of appeal is deemed abandoned.

However, after a judgment had been rendered and an appeal therefrom had been perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does no appear to be a plain, speedy, adequate remedy. Hence, appeal and certiorari are not remedies that exclude each other.

CASTILLO vs. NAPOLCOM ADJUDICATION BOARD (156 SCRA 275)This petition suffers from a fatal defect in that nowhere does it raise a question of jurisdiction which is the

only question involved in certiorari. The petitioner does not allege, nor does he set out to prove, that the respondent board acted without jurisdiction, or in excess of its jurisdiction, or with grave abuse of discretion in rendering the questioned decisions and resolutions.

Findings of fact by the administrative officer are binding and conclusive upon the courts as long as they are supported by substantial evidence.

*** In a petition for certiorari, the court may order dismissal of the complaint because it is part of the incidental relief (Newsweek vs. IAC)

Can the Court of Appeals hear issues of damages in certiorari proceedings?YES. It is undisputable that courts have power to try and decide claims for damages accompanying any of the types or kinds of cases falling within their specified jurisdictions. (Vital-Gozon vs. CA 212 SCRA 235)

PROHIBITIONREQUISITES OF PROHIBITION:1. there must be a controversy2. the respondent is exercising judicial, quasi-judicial or ministerial functions3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion4. there must be no other plain, speedy and adequate remedy

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

*** Prohibition is a preventive remedy but unlike injunction which restrain the commission of an act, it only pertains to any act connected with any proceedings.

*** Prohibition will not lie against legislative actions;

*** Exhaustion of administrative remedy is a condition precedent in availing this remedy but the same exception applies where exhaustion may be dispensed with such as patent illegal act, pure question of law, etc. (Cabedo vs, Dir. Of Lands 1961);

*** Prohibition and not mandamus is the proper remedy if motion to dismiss was improperly denied. (Enriquez vs. Macadaeg 84 Phil. 674)

GENERAL RULE: Prohibition will not lie against consummated acts.EXCEPTION: In the case of Tan vs. COMELEC where SC invalidated the law for the creation of new province from Negros Occidental after the plebiscite and proclamation of the new province.

MANDAMUS

REQUISITES OF MANDAMUS:1. there must be a clear legal right or duty2. the act to be performed must be practical– within the powers of the respondent to perform such that

if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated3. respondent must be exercising a ministerial duty – a duty which is absolute and imperative and

involves merely its execution4. duty or act to be performed must be existing – a correlative right will be denied if not performed by

the respondents



5. no plain, speedy and adequate remedy in the ordinary course of law

Purpose – to compel the performance of the act desired;Act sought to be controlled – ministerial act;Respondent – one who performs judicial or non-judicial functions.

DISCRETIONARY ACT is the act of public officer pursuant to the power or right of his public office conferred upon them by law of acting officially under certain circumstances, uncontrolled by the judgment or conscience of others;

MINISTERIAL ACT is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done.

GENERAL RULE: Mandamus will lie only against the exercise of ministerial acts and not against discretionary acts.EXCEPTION: Even if it involves discretionary acts, mandamus will lie:1) When fiscal in criminal case abuse his discretion tantamount to a willful refusal to perform a duty specifically required by law;2) To correct errors of lower court to prevent failure of justice or correct an arbitrary action. (People vs. Orais 65 Phil 744)3) When judgment became final and executory against the municipality, mandamus will lie against the municipal council to enact and appropriate funds for the payment thereof, because it is ministerial and mandatory to obey a final judgment of the court. (Municipality of Makati vs. CA Oct.1,1999)

*** Mandamus will not lie to compel the performance of a contractual duty as there are other available remedies in the ordinary course of law to enforce it;

GENERAL RULE: Mandamus may be availed of by a party having direct legal interest in the right sought to be enforced.EXCEPTION: Where the question involves the enforcement of a public right which requires the performance of a public duty, a citizen may file one even if he has no special interest (Tañada vs. Tuvera)

*** Claim for damages due to such unlawful refusal may be claim in the same mandamus action or in a separate action.

*** Mandamus is proper to compel a corporation to give its monthly salaried employee holiday pay as mandated by law.

*** Mandamus is not proper to compel school to enroll a student for academic deficiency because it involves exercise by the school of discretion under academic freedom.

*** Mandamus will not lie against the President or Congress because of the principle of separation of powers and co-equality.

GENERAL RULE: Failure to exhast administrative remedies is generally fatal to an action for mandamusEXCETION: When the question is purely of law

JRS BUSINESS COPRPORATION vs. MONTESA (23 SCRA 190)Only specific legal rights are enforceable by mandamus, that the right sought to be enforced must be

certain and clear, and that the writ may not be issued in cases where the right is doubtful. The writ of mandamus is simply a command to exercise a power already possessed and to perform a duty already imposed.

*** Execution of judgment, erroneously declared void by court below, is compellable by mandamus. It is ministerial and mandatory for trial court to enforce its judgment. (Cojuanco vs. Marcos)

CALDERON vs. SOLICITOR GENERAL (215 SCRA 876)Petitioner cannot compel the Solicitor General to defend his unwarranted act of increasing the private

respondent’s bail. As a special civil action, mandamus lies only to compel an officer to perform a ministerial duty but not to compel the performance of a discretionary duty. The Solicitor General has the right to decide when and how to defend or prosecute a case, his duty is therefore is discretionary not ministerial.

*** Mandamus is the proper remedy to enforce the right of a suspended official, who is later acquitted, to the payment of his back salary. (Gabutas vs. CA)

GROUNDS FOR DISMISSAL OF PETITION



1. patently without merit2. prosecuted manifestly for delay3. questions raised are too unsubstantial to warrant further proceedings

As a GENERAL RULE, a motion for reconsideration is an essential precondition for the filing of a petition for certiorari as a form of a plain, speedy, and adequate remedy. Its purpose is to give the court a quo the opportunity to correct itself.

EXCEPT:1. if the assailed judgment/order is a patent nullity2. when there is extreme urgency3. if the issue has been raised and promptly passed upon by the court4. if the issue is purely a question-of-law5. if for public purpose6. if suggested by the court a quo

Section 8. Effect of filing

*** Mere filing of petition for certiorari under this rule will not stay execution of judgment. Preliminary injunction must be sought.

*** Sandiganbayan may likewise issue writs of certiorari prohibition and mandamus only in aid of its appellate jurisdiction.

*** If a motion for reconsideration or new trial is filed the period shall not only be interrupted but another 60 days shall be given to the petitioner. (SC Administrative Circular 002-03)

May mandamus be used to compel a discretionary duty?No. It is only applicable to a ministerial duty. However, it can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner.

DE JESUS vs. COURT OF APPEALS (212 SCRA 823)Court of Appeals may directly review decisions of Municipal Trial Courts on certiorari, prohibition and

mandamus.Under Sec. 9 of BP 129, the CA has original jurisdiction to issue writs of mandamus, certiorari, prohibition

habeas corpus and quo warranto, whether or not in aid of its appellate jurisdiction. Such jurisdiction is concurrent with that of the Supreme Court and the RTCs, for writs enforceable within their respective regions.

CA can remand to the proper RTC for appropriate disposition, this is done only when there is no cogent reason advanced why the appellate court should hear the case. This is for convenience and propriety as the RTC exercises administrative supervision over the MTC as the next higher tribunal in the judicial hierarchy, instead of the CA.

SANTIAGO vs. COURT OF APPEALS (184 SCRA 690)Section 1, Rule 45 allows a party to appeal by certiorari from a judgment in the CA by filing with this Court

a petition for review on certiorari. But petitioner judge was not a party either in the expropriation proceeding or in the certiorari proceeding in the CA. His being named as respondent in the CA is merely to comply with the rule that in original petitions for certiorari, the court or judge, in his capacity as such, should be named as respondent because the question in such a proceeding is jurisdiction of the court itself. In special proceedings, the judge whose is order is under attack is merely a nominal party; whereof the judge in his official capacity should not be made to appear as a party seeking reversal of a decision that is unfavorable to the action taken by him. A decent regard for the judicial hierarchy bars a judge from suing against the adverse opinion of a higher court.

RULE 66QUO WARRANTO

Section 1. Action by Government against Individuals

QUO WARRANTO – a proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Quo warranto may also be used when an association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.



*** In the case of a legally incorporated entity, the quo warranto action is now governed by the Corporation Code.

> The rule is limited to public officers or associations that act as corporations without being legally incorporated.> Actions for QW against corporations are now under the jurisdiction of the SEC.

SUBJECT OF QUO WARRANTO:1) Usurper who intrudes into, or unlawfully holds or exercises a public office, position or franchise;2) Disqualified public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office;3) Unregistered association acting as a corporation within the Phils. without being legally incorporated or without lawful authority so to act.

*** An action for QW filed in the name of a private individual who does not claim to be entitled to office shall be dismissed outright.

QUO WARRANTO VS. MANDAMUS:

MANDAMUS QUO WARRANTO

Involves a ministerial duty of public officer Involves dispute of title of public officer

Title is not in dispute Title is in dispute

There is exclusion of petitioner from an office already decided in his favor

There is an usurpation and the purpose is to try and settle who is the rightful claimant

Quo Warranto in Electoral Proceeding vs. Quo Warranto under Rule 66QUO WARRANTO IN ELECTORAL

PROCEEDINGSQUO WARRANTO UNDER RULE 66

- To contest the right of an elected public officer to hold public office.

- prerogative writ by w/c the govt. can call upon any person to show by what title he holds a public office or exercises a public franchise

- an electoral proceeding under the Omnibus Elections Code for the exclusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office

- three grounds: usurpation, forfeiture, or illegal association

- petition must be filed w/in 10 days from the proclamation of the candidate

- presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose

- may be filed by any registered candidate for the same office and, who, even if the petition prospers, would not be entitled to that office.

- the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

QW OF APPOINTIVE OFFICE VS. ELECTIVE OFFICE:APPOINTIVE OFFICE ELECTIVE OFFICE

1) issue is the validity of appointment 1) issue is the eligibility of respondent2) occupant ousted and the person legally appointed shall take over.

2) Occupant will be unseated but the petitioner will not be declared rightful occupant

Is the state also bound by the one-year period to file quo warranto? if the ground is CITIZENSHIP, the petition may be filed anytime however, if the issue is illegality of appointment the one-year period is applicable.

WHO CAN FILE A PETITION FOR QUO WARRANTO?1. Solicitor general or prosecutor concerning public offices, positions or franchises. However, any

person has locus standi in quo warranto proceedings in questioning the authority of public officials to hold offices under unlawfully constituted municipalities. This can be done because the creation of the



municipalities can be attacked directly or collaterally unless they are de facto in nature. (Municipality of Malabang vs. Benito)

2. Any person under his own name if it involves private position and offices.

HOW COMMENCED?

1) COMPULSORY FILING – Solg. Gen. Or public prosecutor, when directed by the President of the Phils. or when upon complaint or otherwise he has good reason to believe that a ground exist which can be established by proof must file a quo warranto proceeding. VENUE: either in RTC of Manila or SC at the option of the Sol. Gen.

2) DISCRETIONARY FILING – Sol. Gen. or public prosecutor may by leave of court in which the action is to be commenced, at the request and upon the relation of another person + indemnity for expenses and cost of the action in an amount approved and deposited in the court by the person requesting may file a quo warranto proceeding;

VENUE: in RTC exercising jurisdiction over the territorial area where respondent resides or if filed by Sol. Gen. either in RTC of Manila or SC at the option of the Sol. Gen;

3) PROPER/INJURED PARTY FILING – Private person may file QW when he claims to be entitled to the public office allegedly usurped by another, in which case he can bring one in his own name without need of Sol. Gen. fiscal intervention or prior leave of court as long as he is able to show that he is entitled to the office in dispute. (Sec. 5 & Garcia vs. Perez, Sept. 1980)

VENUE: in RTC exercising jurisdiction over the territorial area where respondent resides.

GENERAL RULE: QW must be commenced by the State through the Sol. Gen. or its officer because it involves question of public office/franchise emanating from the government.EXCEPTION: Private person may file QW when he claims to be entitled to the public office allegedly usurped by another, in which case he can bring one in his own name.*** QW filed by a private person must involve question to only one public office or position unless he can show that he is entitled to such two position.

PROCEDURAL REQUIREMENTS FOR QUO WARRANTO:1) Verified Petition in the name of the Republic of the Philippines or in his own name if a proper party

thereto and must show: a. that petitioner is entitled to the position; b. that respondent is unlawfully in possession of the public office;2) Bond for the expenses and cost of the action;3) Service of petition to adverse party;4) Notice and Hearing to adverse party;5) PRESCRIPTIVE PERIOD: a. As to Title – the QW must be filed within 1 year after the cause of such ouster or right to hold it

arose; b. As to damages – the action for damages must be filed within 1 year from entry of judgment of QW; c. As to franchise – the QW must be filed within ___ years after forfeiture of franchise.

(Corporations – 5 years)

EFFECTS OF JUDGMENT:1. Respondent ousted and altogether excluded from the public office;2. Petitioner or relator, may recover his costs;3. Determine the respective rights in and to the public office, position or franchise of all the parties to

the action;4. Person entitled to the office, after taking his oath of office and executing official bond required, may

demand all books, papers and docs, in the respondent’s custody or control appertaining to the office to which the judgment relates;

5. Contempt for respondent who refuses or neglects to deliver any book or paper;6. Bring action against the respondent to recover the damages sustained by such person by reason of

the usurpation.

Section 11. Limitations.

PERIODS FOR FILING QUO WARRANTO PROCEEDING AND ACTION FOR DAMAGES ARISING THEREIN:

Within 1 year from the date the cause of action arose (Sec. 11)



As for damages, within 1 year from date of entry of judgment establishing the right under the Quo Warranto proceeding.

Is the state bound by the 1 year period?

If the ground is non compliance of election qualification, quo warranto can be filed at any time because such qualification are CONTINUING REQUIREMENTS.

- If the ground is unlawful appointment, the 1 year period will apply.

GENERAL RULE: Filing of complaint suspends the running of the one year period to file QW and if dismissed, plaintiff has the balance to file it. (Mendiola vs. Tancinco 1960)EXCEPTION: 1 year period not interrupted by the filing of case as an administrative remedy because prior resort to admin bodies not required and public interest requires that right to public office must speedily determined as possible. (Palma-Fernandez vs. De La Paz April 1988)

NOTES:

*** A municipal government may be a subject of QW because they are just like ordinary corporation.

*** QW is a proceeding of a public nature and not private.

*** The burden of proof lies with the petitioner to prove with clear and convincing proof to his entitlement. Failure to prove title to the office by defendant does not necessarily follow that plaintiff is entitled to it.

RULE 67EXPROPRIATION

Section 1. The complaint.

EMINENT DOMAIN is the right of the State to acquire private property for public use upon the payment of just compensation.

All properties can be expropriated except:1. Money2. Choses in action

NATURE:

EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent domain.

EXERCISE OF POWER:

GENERAL RULE: Power is primarily lodged in the legislature.EXCEPTION: it may be validly delegated to the following:1. President of the Philippines2. Local Legislative Bodies3. Public Corporations e.g. Land Authority4. Quasi Public Corporations serving essential public needs or operating public utilities e.g. PLDT and

MERALCO. * When the statutory life of Iron and Steel Authority expired and reverted back to the State, the expropriation proceedings commenced by it may be continued by the Republic. (Iron and Steel Authority vs. CA 249 SCRA 538)

CORRELATE WITH:

* SECTION 18 ARTICLE XII provides that the State mat, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

* SECTION 17 ARTICLE XII states that in times of national emergency, when the public interest requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily takeover or direct the operation of any privately owned public utilities or business affected with public interest.REQUISITES FOR ITS VALID EXERCISE: 1) Taking of private property both real and personal must be for Public use2) Payment of just compensation3) Observance of Due process as laid down by the rules



TAKING MEANS – > Generally, physical dispossession of the owner and deprived of all beneficial use and enjoyment of his

property.> Includes trespass without actual eviction of the owner.> Material impairment of the value of the property.> Prevention of the ordinary uses for which the property was intended. (Constructive Expropriation) (US vs.

Causby & Ayala de Roxas vs. City of Manila 9 Phil 215)

BUT NO TAKING IF – > Mere notice of intention to expropriate a particular property is not taking (People vs. Fajardo 104 Phil 443)> Mere passage of an ordinance authorizing expropriation is not taking.

FOR PUBLIC USE – any use directly available to the general public as a matter of right and not merely of forbearance or accommodation.

IT IS FOR PUBLIC USE IF:

GENERAL RULE: ACTUAL USE. It is subject to direct enjoyment by any and all members of the public indiscriminately.

*** The property expropriated is devoted for public services when administered by public utilities giving public services which are demandable as a matter of right by any one prepared to pay for them.

EXCEPTION: Though not directly available to the public but redound to their indirect advantage or benefit like the promotion of social justice does not necessarily diminish the essence and character of public use. (Manosca vs. CA 252 SCRA 412)

REQUISITES OF EXERCISE: (Republic vs. Castellvi 58 SCRA 336) under politucal law. The expropriator must: 1. Entry in a private property2. For More than a momentary period3. Under a warrant or color of legal authority4. Property must be devoted to Public use or informally appropriated or injuriously affected5. Utilization of the property must be in such a way as to Oust the owner and deprive him of beneficial

enjoyment of the property6. Payment of just compensation7. Observance of due process

When is the expropriation proper?1. When owner refuses to sell2. When he agrees to sell but an agreement as to price cannot be reached

QUESTION OF NECESSITY OF EXERCISE:

GENERAL RULE: question of necessity of exercise is essentially political not subject to judicial review.EXECEPTION: question of necessity of exercise may be reviewed by the court if the one exercising a delegate of the legislature to ensure that the exercise is in accord with the power delegated.

*** In expropriation, the complaint must be verified.

*** The defendant can only file an answer instead of a motion to dismiss

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

The power of eminent domain is exercised by the filing of a complaint which shall join as defendants all persons owning or claiming to own, or occupying, any part of the expropriated land or interest therein. If a known owner is not joined as defendant, he is entitled to intervene in the proceedings; or if he is joined but not served with process and the proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for damages.

Section 2. Entry of plaintiff upon depositing value with authorized government depositary.

PURPOSE OF PRELIMINARY DEPOSIT UNDER SEC. 21. Provide damages if court finds plaintiff has no right to expropriate2. advance payment for just compensation



*** In the event that the court dismisses the complaint for expropriation, the deposit can be applied to the damages that may be awarded.Section 3. Defenses and objections.

*** Only an ANSWER is allowed under Sec.3, Rule 67, no other responsive pleadings are allowed

Period to file an answer - period stated in the summons. This is an exception to the period provided under Rule 11.

*** The defendants answer must contain all his objections, all those not raised will be deemed waived EXCEPT that amendments may be allowed within two days.

*** Even if the defendant does not object, he still has a right to be heard on the amount of just compensation.

DECLARATION OF DEFAULT*** The defendant cannot be declared in default. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on just compensation.

Section 5. Ascertainment of compensation.

*** The appointment of commissioners is mandatory and cannot be dispensed with. (Meralco vs. Pineda)

*** Provisions of PD Nos. 76, 464, 794 and 1533 on just compensation unconstitutional and void. Court has the power to determine just compensation and to appoint commissioners for the purpose.(EPZA vs. Dulay)

GENERAL RULE: Compensation must in the form of money.EXCEPTION: Bonds or other things of value was allowed in implementing agrarian reform law, since in this revolutionary kind of expropriation, progressive compensation is the practical method of payment devised by the legislature. (Association of Small Landowners vs. Sec. Of Agrarian Reform 175 SCRA 343)

*** Recovery of just compensation without expropriation need not be made in COA but immediately to the court since it is a waiver of immunity. (Amigable vs. Cuenca 43 SCRA 360)

*** Owner is entitled to payment of interest which must be claimed, until actual payment of just compensation. (Urtula vs. Republic 22 SCRA 477)

*** Taxes paid by the owner at the time of the taking is reimbursable (City of Manila vs. Roxas 60 Phil. 215)

*** Title to the property shall be transferred only upon actual payment of just compensation. (Visayan Refining Co. vs. Camus 40 Phil. 550)

NON COMPENSABLE DAMAGES:1. Payment not available if the taking is under police power; (loss due to damnum absque injuria)2. Destruction from necessity3. Damages/prejudice suffered is shared in common with the rest of community except if there is a special injury

hence compensable.

*** Destruction from necessity is different from eminent domain since the former may be undertaken by private individual, not for taking them but destroying as an act of self-defense, not for public use and does not require payment of just compensation.

*** An appeal from the judgment fixing the amount of just compensations will not prevent the plaintiff from retaining or taking possession and will not prevent the defendant from collecting the amount of just compensation even if he appeals.

Section 9. Uncertain ownership; conflicting claims.

*** If there are conflicting claims on the property or uncertainty with respect to its ownership, the remedy is for the court to order any sum awarded to be deposited with the Clerk of Court for the benefit of the person adjudged in the case. There is no need for an independent action since the person entitled thereto will be adjudged in the same proceeding.

Section 10. Rights of plaintiff after judgment and payment.

WHEN IS TITLE VESTED IN EXPROPRIATION:



If personal property, upon payment of just compensation. (Sec. 10)

If real property, upon registration. (Sec. 13)

STAGES IN EXPROPRIATION1. Determination of the authority of the plaintiff to exercise the power of eminent

domain and the propriety of the exercise in the context of the facts involved, and

2. Determination of JUST COMPENSATION.

JUST COMPENSATION is equivalent to the value of the property at the time of its taking. It is the fair and full equivalent for the loss sustained by the defendant.

FORMULA for determination of just compensationJS = Just CompensationFMV = Fair Market ValueCD = Consequential DamagesCB = Consequential Benefits

JS = FMV+CD-CB

If CB>CD then, JS=FMV*** Order of expropriation may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed.

WHEN MAY PLAINTIFF ENTER INTO POSSESSION OF PROPERTY?1. Upon filing of complaint, serving notice to defendant and after depositing of assessed value of

property for taxation purposes with authorized government depositary (Section 2)2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff

(Section10)

*** Rights of plaintiff after judgment and payment is the immediate take over of the property expropriated.

*** Entry not delayed by appeal but if plaintiff has no right of expropriation on appeal, judgment shall be rendered ordering RTC to restore property to defendants + damages.

RULE 68FORECLOSURE OF REAL ESTATE MORTGAGE

FORECLOSURE OF REAL ESTATE MORTGAGE - a real action filed by a mortgagee by reason of non-payment of mortgage debt or breach of the contract for the purpose of selling the same in public auction to satisfy the judgment thereof.

PARTIES TO A JUDICIAL FORECLOSURE1. mortgagee and mortgagor2. successors in interest3. junior encumbrancer/s

THREE REMEDIES OF MORTGAGEE:1. Collection Suit + Attachment, in which case it is converted to a personal action and deemed to have waived his

right to proceed against the REM;2. Foreclosure of REM, whether judicially or extra-judicially;3. Receivership if property is in danger of being lost or dissipated.

Section 1. Complaint in action for foreclosure.

NATURE and PURPOSE The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against a property used to secure said obligation. Its purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights acquired subsequent to said right.

PROCEDURAL REQUIREMENTS FOR FREM:



1. COMPLAINT – which must contain name of all parties, basis of obligation, description of property, extent of interest of the party and the extent of interest covered by obligation;

DEFENDANTS WHO MUST BE IMPLEADED: a. person liable to mortgage debt; b. person who own, occupy or control the property; c. the transferee or grantee of the property; d. the second mortgagee or junior encumbrancer;

2. JUDGMENT – judgment of the amount due, and order the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. Mortgagor must pay Debts, Interest, Other charges, Cost.

3. PUBLIC AUCTION – Notice + Posting + Publication under the provisions of Rule 39.

GENERAL RULE: After purchaser paid the winning bid, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, without redemption;EXCEPTION: FREM made by banking institution gives the mortgagor an “equity of redemption of 90 days” after judgment but before confirmation of sale;EXCEPTION TO THE EXCEPTION: If made by DBP or PNB, mortgagor has one year from registration of deed of sale to redeem it.

4. CONFIRMATION OF SALE BY PURCHASER – upon motion with notice to mortgagor to show cause why the sale should not be confirmed. (Tiglao vs. Botones 90 Phil. 275)

5. WRIT OF POSSESSION – It is a ministerial duty to issue writ of possession to the purchaser upon finality of order of confirmation or upon expiration of redemption when allowed by law.

6. REGISTRATION ORDER OF CONFIRMATION OF SALE – a. Without redemption – old title cancelled and issuance of new title in favor of purchaser; b. With redemption – annotation of brief memorandum of said sale in the meantime, and upon expiration of

redemption, issuance of new title in favor of purchaser;

7. DISPOSITION OF PROCEEDS OF SALE – the following order of disposition shall be followed. First, taxes, legal fees, and publication. Second, the cost of sale. Third, the satisfaction of mortgage debt, then any balance or residue, shall be paid to junior encumbrances in the order of their priority to be ascertained by the court.

a. Any excess, to be paid to the mortgagor or his duly authorized agent, or to person entitled to it; b. Any balance due, the court upon motion, shall render judgment against defendant which he may be

personally liable to the plaintiff and execution may issue immediately.EXCEPT, if mortgage was executed by 3 person not having assumed personal liability for the debt, he cannot be made liable to the deficiency. It must be pursued against the debtor in an ordinary action. (PTC vs. Tan Suisa 52 Phil. 852)

c. Any balance not yet due, the sale shall terminate but as soon as the balance becomes due, the court may,

on motion, order more to be sold unless property is indivisible in which case, the whole portion shall be sold and entire debt will be paid with a rebate of interest.

MTC could have jurisdiction PROVIDED:1. Value of real estate subject to FREM does not exceed 50,000/20,000.2. Amount of mortgage debt does not exceed 400,000/200,000

*** FREM may be the subject of multiple appeal from, judgment, confirmation of sale and deficiency judgment which must be made each for 30 days record on appeal;

*** Deficiency judgment cannot be rendered against a non-resident defendant.

*** If the debtor dies the deficiency may be filed as a claim against the estate.

*** Parties cannot change the procedure of FREM by mere agreement, it is a mandatory provision. (Piano vs. Cayanong Feb. 1963)

*** FREM by banking institutions whether judicial or extra judicial is subject to legal redemption but the party must pay the amount fixed by the court, not the amount for which the property was purchased at public auction; (Ponce de Leon vs. RFC Dec. 1970)

GBA of 2000



> In extra-judicial foreclosures, juridical entities like corporations and partnerships have only 3 months from the foreclosure sale within which to exercise their right of redemption if the properties sold on foreclosure.

> This 3 month limitation does not however apply to individual property owners who will enjoy a 1 year redemption period for foreclosed property.

EFFECT IF THE JUNIOR ENCUMBRANCER IS NOT IMPLEADED:a. his equity or right of redemption is not affected or barred by the judgment of the court (Sunlife

Insurance vs. Diez) b. his right is not affected because he is merely a necessary party not an indispensable partythe remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to

redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time

Rule regarding 2nd mortgagee, subsequent attaching creditor and subsequent purchase (NP) 1. if they are joined

> they can exercise the equity of redemption before the confirmation of the sale 2. if they are not joined

> They retain their equity of redemption even after confirmation of the sale

What the court shall do, if upon trial, it find the facts set forth in the complaint to be true:1) Ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs AND

2) Render judgment for the sum so found due and order that the same be paid to the court or to judgment obligeei. within what period: within a period of not less than 90 days nor more than 120 days from

entry of judgmentii. in default of such payment: such property shall be sold at public auction to satisfy the

judgment.

Effect when defendant fails to pay the amount of the judgment within the period specifieda. Court, upon motion, shall order the property to be sold in the manner and under the provisions

of Rule 39 and other regulations governing sales of real estate under execution.b. Sale shall not affect the rights of persons holding prior encumbrances upon the property or a

part thereofc. When confirmed by an order of the court, upon motion, sale shall operate to:

i. divest the rights in the property of all the parties to the action and to ii. vest their rights in the purchaser, subject to such rights of redemption as may be allowed

by law.

Possession

General Rule: When purchaser at the auction sale or last redemptioner entitled to possession: i. upon finality of the order of confirmation ORii. upon expiration of the period of redemption when allowed by law

Unless: a 3rd party is actually holding the same adversely to the judgment obligor

*** Said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.

REMEDY OF MORTGAGEE AGAINST THE BUYER OF THE MORTGAGED PROPERTY:Mortgagee can substitute or implead the buyer. (Sec. 19 Rule 3)

However, this rule shall not apply if : a) the property is covered by the Torrens Sysytem; b) buyer bought the property in good faith

To prevent this, the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent buyer/s have notice.

Section 3. Sale of mortgaged property; effect.



RULE 39 RULE 68No need to confirm sale Need to confirm sale

*** Mortgagor does not have the right to a notice of sale after failure to pay debt (Sec. 3) because:a. said notice is not litigableb. issuance is ministerial - the order may be had as a matter of course

However, the mortgagor is entitled to a notice for the hearing of the confirmation order. Due process requires that said notice be given so that the mortgagor a) can resist the motion; and b) be informed that his right to redeem be cut off. (Tiglao vs. Botones)

REMEDY if mortgagor refuses to vacate the property : writ of prossession

WHEN TITLE ACQUIRED: > The buyer acquires title upon confirmation of sale.

How proceeds of sale to be disposed:a. Costs of saleb. Mortgaged debt duec. Junior encumbrances in the order of their priority to be ascertained by the courtd. To the mortgagor or his duly authorized agent or to the person entitled to it.

How sale to proceed in case the debt is not all duea. General Rule:

i. A sufficient portion of the property is sold to pay the total amount and the costs dueii. Thereafter sale shall terminateiii. Afterwards, court may, on motion, order more to be sold as often as more becomes due

for the principal or interest and other valid charges

b. EXCEPT: if property cannot be sold in portions without prejudice to the parties:i. Whole shall be ordered to be sold in the first instanceii. The entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefore,

there being a rebate of interest where such rebate is proper.

Does the mortgagor have the right to redeem after confirmation of sale?No, except when preferred bidder is the mortgagee bank or a financial institution.

*** If no right of redemption exists: the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser.

*** If right of redemption exists:a. Certificate of title in the name of the mortgagor shall not be cancelledb. Certificate of sale and the order confirming the sale shall be registeredc. A brief memorandum thereof shall be made by the registrar of deeds upon the certificate of title.

*** If property is redeemed:a. Deed of redemption shall be registered with the registry of deedsb. A brief memorandum thereof shall be made by the registrar of deeds

*** If property is not redeemed:a. The final deed of sale shall be registered with the registry of deedsb. The certificate of title in the name of the mortgagor shall be cancelled and a new one issued in

the name of the purchaser

JUDICIAL FORECLOSURE EXTRAJUDICIALFORECLOSURE

Requires court intervention No court intervention necessaryThere is only an equity of redemption Right of redemption exists



Alternative remedy to personal action for the amount due to satisfy mortgage debt

Proper only when provided for in the contract

EQUITY OF REDEMPTION RIGHT OF REDEMPTION- right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt w/in 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation

- right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under w/c the property is sold to redeem the property w/in 1 year from the registration of the Sheriff’s certificate of foreclosure sale

- governed by Rule 68 - governed by Secs. 29-31 of Rule 39

Deficiency judgment

*** Court, upon motion, shall render judgment against the defendant for any balance for which, by the record of the case, he may be personally liable to the plaintiff

if balance is all due at the time of the rendition of the judgment: execution may issue immediately

otherwise: plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment

JUDGMENT OF FORECLOSURE DEFICIENCY JUDGMENTAction Quasi in Rem Action in Personam

INSTANCES WHERE COURT CANNOT RENDER DEFICIENCY JUDGMENT1. Recto Law2. non-resident mortgagor unless there is attachment3. Sec. 7 Rule 86 when mortgagor dies, the mortgagee must file his claim with the probate court4. Third person owned the property mortgaged but not solidarily liable with the debtor

DBP vs. VDA. DE MOLL (43 SCRA 82)Where there is a right to redeem, inadequacy of price is not material because the judgment debtor may

reacquire the property or else sell his right to redeem and thus recover any loss he claims to have suffered by reason of the price obtained at the execution sale. Mere inadequacy of the price obtained at the sheriff’s sale unless shocking to the conscience will not be sufficient also to set aside the sale if there is no showing that, in the vent of a regular sale, a better price can be obtained. This is based on the theory that the less the price the easier it will be for the owner to effect the redemption.

> Action to set aside auction sale do not toll period of redemption.> Action for recovery of deficiency judgment may be filed during period of redemption.

SAN JOSE vs. COURT OF APPEALS (225 SCRA 450)The Notice of Sheriff’s Sale must contain the correct title number and correct technical description of

property foreclosed. Failure of which is a substantial and fatal error which shall result in invalidating the entire notice. The purpose of the publication of the Notice of Sheriff’s sale is to inform all interested parties of the date, time and place of the foreclosure sale of the real property subject thereof. Logically, this not only requires that the correct date, time and place of the foreclosure sale appear in the notice but also that any and all interested parties be able to determine that what is about to be sold at the foreclosure sale is the real property in which they have an interest.

REHABILITATTION FINANCE CORPORATION vs. ALTO SURETY & INSURANCE (107 SCRA 386)An interest in the mortgage property acquired subsequent to the first mortgage may be divested or barred

only by making the holder thereof a party to the proceedings to foreclose. While as a general rule, the junior encumbrancer is not a necessary party to a suit to foreclosure by a Sr. encumbrancer. It is always proper & prudent to join them as defendant, both to give an opportunity to defend and to extinguish his right of redemption.

SUNLIFE ASSURANCE CO. vs. GONZALES DIEZ (52 PHIL 273)While a second mortgagee is a proper and in a sense even a necessary party to a proceeding to

foreclose a first mortgage on real party, he is not an indispensable party, because a valid decree may be made, as between the mortgagor and first mortgagee, without regard to the second mortgage; but the consequence of a failure to make the second mortgagee a party to such proceedings is that the lien of the second mortgagee on the equity of redemption is not affected by the decree of foreclosure.

Where the second mortgagee is not made a party to a proceeding to foreclose the first mortgage, an independent foreclosure proceeding may be maintained against him by the creditor in the first mortgage, in which



proceeding the court should require the second mortgagee to redeem from the first mortgage within three months, under penalty of being debarred from the exercise of his right to redeem.

TIGLAO vs. BOTONES(90 PHIL 275)Notice and hearing of a notice for confirmation of a sheriff’s sale is essential to the validity of the order of

confirmation. Confirmation is an important aspect of the foreclosure proceeding because it is through this process where a debtor is finally divested of all his rights, particularly right of redemption while the purchaser is finally granted all the rights of ownership over property purchased. Failure to give notice is a deprivation of the debtor’s right to due process and is therefore a good cause for setting aside the sale. This is to inform when the equity redemption is cut-off.

ROXAS vs. COURT OF APPEALS221 SCRA 729It is settled doctrine that failure to publish notice of auction sale as required by the statute constitutes a

jurisdictional defect which invalidates the sale. Even slight deviations therefrom are not allowed. Sec. 5 of RA No. 720, as amended by RA No. 5939, provides that notices of foreclosure should be posted in at least three (3) of the most conspicuous public places in the municipality and barrio where the land mortgaged is situated. The execution of a Certificate of Posting in lieu of the requisite affidavit is not considered as substantial compliance with Section 5 of RA No. 720. An affidavit is a sworn statement in writing whereas a certificate is merely a statement in writing. Strict compliance with the aforementioned provision is mandated.

GSIS vs. CFI OF ILOILO (175 SCRA 19) There is no right of redemption from a judicial foreclosure sale after the confirmation of the sale, except those granted by banks or banking institutions as provided by the General Banking Act and those made extrajudicially.

RULE 69PARTITION

Section 1. Complaint in action for partition of real estate.

PARTITION - is the process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property.

*** Partition does not call for equal area but equal value.

KINDS OF PARTITION:1) Partition by Agreement – if parties are able to agree, make partition among themselves by proper

instruments of conveyance, and the court shall confirm it by an order, and such partition + order of confirmation shall be recorded in the registry of deeds of the place in which the property is situated.

2) Partition by Order of the Court – it is made with the intervention of at least 3 commissioners appointed by the court which may either recommend and adopted by the court in the following manner:

a. Actual Partition – stating definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him.

b. Partition by Assignment – when real estate cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays the other parties such amount of the commissioners deem equitable; or

c. Partition of Proceeds – when the real estate cannot be divided without prejudice to the interests of the parties, and one of the interested parties asks that the property be sold in public auction instead of being so assigned.

WHEN CAN PARTITION BE MADE > It can be made anytime and the right to demand partition does not prescribe.

NATURE: > The partition of property may be made voluntarily (by agreement) or compulsorily under the Rules. Even if the parties had resorted to judicial partition, they may still make an amicable partition of the property.

Complainta. Shall set forth nature and extent of title and an adequate description of the real estate of which

partition is demanded b. Shall join as defendants all persons interested in the property



*** All co-owners are indispensable parties in an action for partition.

TWO (2) ISSUES IN AN ACTION FOR PARTITION1. Whether or not a co-ownership exists2. How to actually partition the property

2 STAGES – subject to multiple appeals1. Determination of the propriety of partition.2. Actual partitioning of subject property or payment of just compensation.

PROCEDURAL REQUIREMENTS:

A..DETERMINATION OF RIGHT OF PARTITION 1. Complaint – must state nature and extent of title and adequate description of real estate of which

partition is demanded and joining the defendants all the other persons interested in the property. 2. Service of Summons to all interested parties or co-owners affected thereby; 3. Opportunity to file answer for all parties; 4. Notice and hearing just like an ordinary action; 5. Order for partition after trial among all the parties in interest.

A B. ACTUAL PARTITION BY COMMISSIONER 1. Appointment of Commissioners and oath of office if the parties are unable to agree upon the

partition; (MANDATORY) 2. Notice and Appearance in the Examination of Property by the commissioners; 3. Hearing of the parties as to their preference in the portion of the property to be set apart to

them;CONSIDERING:

a. Comparative value b. Advantages and equitable; c. Presence of improvements; d. Situation and quality of the different parts; 4. Report of commissioner’s proceedings and right to object within 10 days upon report. 5. Decision of the court after 10 days after last objection or expiration of the same; 6. Accounting for rent and profits received by the other party from the real estate; 7. Recording in Registry of deeds of partition with judgment of the court;

*** The appointment of Commissioners is mandatory unless there is an extrajudicial partition between the parties.

Duties of commissionersa. View and examine the real estate, after due notice to the parties to attend at such view and

examinationb. Hear the parties as to their preference in the portion of the property to be set apart to them and

the comparative value thereofc. Set apart the same to the parties in lots or parcels as will be most advantageous and equitable,

having due regard to the improvements, situation and quality of the different parts thereof.

GROUNDS FOR OPPOSING PARTITION:1. Plaintiff not co-owners2. Agreement not to divide3. Prohibition made by testator > not to exceed 20 years

JUDGMENT CONTENTS OF JUDGMENT EFFECT OF JUDGMENTIf actual partition of property is made

The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the estate assigned to each party

To vest in each party to the act, in severalty the portion of the estate assigned to him.

If the whole property is assigned to one of the parties upon his paying to the others the sum or sums

The judgment shall state the fact of such payment and the assignment of the real estate to the party making the payment

To vest in the party making the payment the whole of the real estate free from any interest on the part of the



ordered by the court other parties to the actionIf the property is sold and the sale is confirmed by the court

The judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser

To vest the real estate in the purchaser or purchasers making the payment/s, free from the claims of any of the parties to the action

ROQUE vs. INTERMEDIATE APPELLATE COURT (165 SCRA 118)An action for partition – which is typically brought by a person claiming to be co-owner of a specified

property against a defendant or defendants whom the plaintiff recognizes to be co-owners – may be seen to present simultaneously two principal issues. First, there is the issue of whether the plaintiff is indeed a co-owner of the property sought to be partitioned. Second, assuming that the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to be divided between the plaintiff and defendant(s). Where co-ownership is raised as an issue, the court in partition proceedings can still validly render judgment.

RULE 70FORCIBLE ENTRY AND UNLAWFUL DETAINER

Section 1. Who may institute proceedings, and when.

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSIONACCION INTERDICTAL

ACCION PUBLICIANAACCION REINVIDICA-

TORIAsummary action for the recovery of physical possession where the dispossession has not lasted for more than one year. ejectment proceeding under Rule 70; either forcible entry or unlawful detainer

a plenary action for the recovery of the real right of possession when the dispossession has lasted for more than one year.

an action for the recovery of ownership, w/c necessarily includes the recovery of possession.

All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

RTC has jurisdiction if the value of the property exceeds P20,000 outside Metro Manila; P50,000 within Metro Manila, MTC has jurisdiction if the value of the property does not exceed P20,000 – outside Metro Manila; P50,000 within Metro Manila

RTC has jurisdiction if the value of the property exceeds P20,000 outside Metro Manila; P50,000 within Metro Manila, MTC has jurisdiction if the value of the property does not exceed P20,000 – outside Metro Manila; P50,000 within Metro Manila

ISSUE: FEUD is an accion interdictal and the only issue is, who is entitled to the physical possession of the real property subject of the action, i.e., possession de facto?

Subject to Rules on Summary ProcedureFORCIBLE ENTRY UNLAWFUL DETAINER

possession of the land by the defendant is unlawful from the beginning as he acquires possession by Force, Intimidation, Strategy, Threat or Stealth (FISTS)

possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract w/ the plaintiff

no previous demand for the defendant to vacate the premises is necessary

demand is jurisdictional if the ground is non-payment of rentals or failure to comply with lease contract

the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant

the plaintiff need not have been in prior physical possession

the 1 year period is generally counted from period is counted from the date of last



the date of actual entry on the land demand or last letter of demand

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 over an action for FE/UD, nor will it preclude execution of judgment in the ejectment case where the only issue involved is material possession.

*** On the basis of the allegations of the complaint alone, the court can decide to dismiss the case if there is any ground to dismiss.

GENERAL RULE: Parties are not allowed to file MTD.EXCEPTION: grounds1. Lack of jurisdiction over the subject matter2. Failure to comply with the Katarungan Pambarangay Law

*** in FE cases where STEALTH was used, 1 year period should be counted from the date the plaintiff demanded the perso to vacate

RULE ON AFFIDAVITS> Affidavits must be based on personal knowledge and the client must be competent to testify.> Affidavits take the peace of testimony and those not rebutted by counter affidavit are sufficient basis for a summary judgment.

GROUNDS FOR JUDICIAL EJECTMENT (RENTAL REFORM ACT OF 2003)1. Assignment of lease or sub-leasing without the consent of the owner/lessor.2. Arrears in payment of rent for a total of 3 months.3. Expiration of the period of the lease.

URBAN LEASE LAW (Grounds for ejectment)1. Assignment of a lease or sub-lease2. Non-payment of rentals for at least 3 months3. Legitimate need of the owner > Demand to vacate must be made at least 3 months in advance.4) The lessee owns another building5) Repairs are needed because of an order of condemnation6) Expiration of lease contract

URBAN DEVELOPMENT & HOUSING ACT OF 1992> Property owner to wait for 45 days after the order of ejectment before actual eviction.

ACTIONS THAT DO NOT ABATE UD CASES:1. Action for consignation2. Action for specific performance3. Annulment of sale4. Quieting of title

CLUTARIO vs. COURT OF APPEALS (216 SCRA 341)To validly eject lessee it must be shown that there is no other available residential unit to satisfy the need

which availability must exist at the time of demand to vacate. Non-payment for at least 3-months is sufficient ground for ejectment. Acceptance of back rentals does not constitute waiver of default in payment of rentals and the right to eject lessee.

JAVIER vs. VERDIANO II (237 SCRA 565)The only issue in an action for forcible entry is the physical or material possession of real property, that is,

possession de facto and not possession de jure. The philosophy underlying this remedy is that irrespective of the actual condition of the title to the property, the party in peaceable quiet possession shall not be turned out by strong hand, violence or terror. And, a judgment rendered in a case for recovery of possession is conclusive only to the question of possession and not on the ownership. It does not in any way bind the title or affect the ownership of the land and building.

Section 2. Lessor to proceed against lessee only after demand.

UD Cases> It is the demand to vacate that renders the possession unlawful.> The period of 1 year is counted from the demand to vacate - The period starts to run from the date of last demand.

*** Demand under this section is jurisdictional.



*** The term VACATE need not be stated if there are other terms definitively implying that the tenant should vacate.(Golden Gate Realty Corp. vs. CA)

TENOR OF DEMAND:

Pay AND

VacateOR

Comply with the

conditions of the lease

ANDVacate

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; AND 2) 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.

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

*** Both demand ( pay and vacate ) is necessary to make the lessee a deforciant or prevent an implied lease: (Dikit vs. Ycasiano 89 Phil. 44)

*** The fact of demand must be stated in the complaint, otherwise the court will not acquire jurisdiction. (Casillan vs. Tomasi 1964)

*** A notice giving the lessee the alternative to pay the rental or vacate the house does not comply with sec. 2 (Vda. De Murga vs. Chan 1968); or

*** An alternative demand to renew the lease with higher rental rate or vacate is not a definite demand to vacate and not basis of UD. (Penas vs. CA 233 SCRA 744)

*** Demand does not specifically require the use of word “vacate”. It is sufficient that the occupant puts him on notice to move out if he does not comply; (Golden Gate Realty Corp. vs IAC 1987)

CO KENG KIAN vs. INTERMEDIATE APPELLATE COURT (189 SCRA 112)Notice to vacate the leased premises may be served by registered mail. This is a substantial compliance

with the modes of service enumerated under Section 2, Rule 70 of the Revised Rules of Court. It cannot be avoided by the mere expediency of declining to accept delivery after notification thereof. The service is deemed complete regardless of such refusal to accept if the addressee fails to claim his mail from postal office after the lapse of 5 days from the date of the first notice of the postmaster.

GOLDEN GATE REALTY, CORPORATION vs. INTERMEDIATE APPELLATE COURT(152 SCRA 684)When the private respondents defaulted in the payment of rents in the amount of P18,000 they lost their

rights to remain in the premises. Hence, when the petitioner demanded payment of the P18,000 due and unpaid rentals or a case for ejectment would be filed against them, the owner was giving strong notice that “you either pay your unpaid rentals or I will file a court case to have you thrown out of my property.” The word “vacate” is not a talismanic word that must be employed in all notices. The alternatives in this case are clear cut. The tenants must pay rentals which were fixed and which became payable in the past, failing which they must move out. There can be no other interpretation of the notice given to them. Hence when the petitioner demanded that either he pays P18,000 in five days or a case for ejectment would be filed against him, he was placed on notice to move out if he does not pay. There was, in effect, a notice or demand to vacate.

BANDOY vs. COURT OF APPEALS(175 SCRA 459)It is a settled rule that “where the complaint contains no allegation that a demand has been made upon

the defendant to vacate the premises but only an allegation that a demand was made for payment of the rentals agreed upon, it is held that such allegation is insufficient to confer jurisdiction upon the MTC.

VIRAY vs. INTERMEDIATE APPELLATE COURT (198 SCRA 786)The giving of notice by posting a notice of termination of the lease at the doorway of the leased apartment

and that the notice had subsequently been noted and removed by the lessee’s representative is explicitly



authorized by Section 2, Rule 70 of the Rules of Court, which pertinently provides that a demand by a landlord for payment of rent or comply with the conditions of the lease and to vacate the premises may inter alia be made “by posting such notice on the premises if no persons be found thereon.”

Questions to be resolved in an action for forcible entry are:

First, who had actual possession over the piece of real property?

Second, was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy or stealth?

Third, does the plaintiff ask for restoration of possession? (Dizon vs.Concina)

ALVIR vs. VERA (130 SCRA 357)In actions of forcible entry and detainer, the main issue is possession de facto, independently of any claim

of ownership or possession de jure that either party may set forth in his pleading. As incidents of the main issue of possession de facto, the inferior court can decide the questions of (a) whether or not the relationship between the parties is one of landlord and tenant; (b) whether or not there is a lease contract between the parties, the period of such lease contract and whether or not the lease contract has already expired; (c) the just and reasonable amount of the rent and the date when it will take effect; (d) the right of the tenant to keep the premises against the will of the landlord; and (e) if the defendant has built on the land a substantial and valuable building and there is no dispute between the parties as to the ownership of the land and the building, their rights according to the Civil Code. Defendants’ claim of ownership of the property from which plaintiff seeks to eject him is not sufficient to divest the inferior court of its jurisdiction over the action of forcible entry and detainer.

LIM KEIH TONG, INC. vs. COURT OF APPEALS(195 SCRA 398)Petitioner through stealth changed the key to the main door thus depriving private respondent of the

possession of his rented room. Any person deprived of possession of any land or building or part thereof, may file an action for forcible entry and detainer in the proper inferior court against the person unlawfully depriving or withholding possession from him. This relief is not only available to a landlord, vendor, or vendee, but also to a lessee or tenant or any other person against whom the possession of any building, or a part thereof, is unlawfully withheld, or is otherwise unlawfully deprived possession thereof, within one year after such unlawful deprivation or withholding possession.

GERMAN MANAGEMENT & SERVICES, INC. vs. COURT OF APPEALSNotwithstanding petitioner’s claim that it was duly authorized by the owners to develop the subject

property, private respondents, actual possessors, can commence a forcible entry case against petitioner because ownership is not in issue. Forcible entry is merely a quieting process and never determines the actual title to an estate. Title is not involved.

WHAT IS THE RULE WHERE ISSUE OF OWNERSHIP WAS RAISED or INVOLVED?[Refurgia vs. CA July 1996]

Rule # 1 – The principal issue must be that of possession and issue of ownership is merely ancillary thereto. Issue of ownership may be resolved but only for the purpose of determining the issue of possession.

Rule # 2 – it must sufficiently appear from the allegation in the complaint that plaintiff’s prayer is primarily restoration of possession.

Rule # 3 – MTC cannot rule on the issue of ownership if:1. In unlawful detainer, lessor-lessee relation has been sufficiently established. (Why? Because of conclusive

presumption of ownership by lessor of the land occupied by lessee) unless there is a subsequent change in their relation.

2. In forcible entry, prior possession can be ascertained in other way other than ownership because a party who can prove prior possession can recover even against the owner itself, until he is lawfully ejected.

Rule # 4 – MTC may resolve the issue of ownership provisionally and does not bar or prejudice another action involving sane parties & title to the land where the question of prior possession or interpretation of contract/document cannot be resolved without touching the issue of ownership.

*** Raising the issue of ownership does not deprive the court of jurisdiction

*** If there is no formal contract between parties; there can still be unlawful detainer because ejectment considers implied contracts. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner. (Peran vs. CFI of Sorsogon)

*** Where entry to the land is by mere tolerance, unlawful detainer may be commence within 1 year from demand to vacate as there is an implied promise on his part to vacate upon demand; (Yu vs. De Lara 1962)



*** The DOCTRINE OF TOLERANCE applies only if possession is lawful from the start. In short said doctrine applies only to unlawful detainer cases and not to forcible entry because:1. the violation of the right in forcible entry authorizes speedy redress;2. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible

entry can really prescribe. (Muñoz vs. CA 214 SCRA 216)

*** This rule as to tolerance does not hold true in a case where there was forcible entry at the start but the lawful possessor did not attempt to oust the intruder for over one year, and only there after filed an FE suit following a demand to vacate.

*** The tolerance must be present right from the start of possession sought to be recovered to categorize a COA as one of UD.

*** IMPLIED LEASE or “tacita reconducion” IS A GOOD DEFENSE – where no notice was given by lessor and possession continued after expiry of lease with the acquiescence of lessor. (Co Tiamco vs. Diaz 75 Phil. 672)

*** An agreement to renew without provision as to renewal implies that same terms will govern in original contract (Ledesma vs. Javellana 121 SCRA 794)

*** DEFENSE OF TENANCY – preliminary hearing must be made and if there is prima facie tenancy relation, FEUD dismiss for lack of jurisdiction. It falls within DARAD. (Baranda vs. Padios 154 SCRA 720)

*** REFUSAL TO ACCEPT OR COLLECT RENTALS NOT A PROPER DEFENSE – there must be proper consignation by depositing it to the court with notice to plaintiff. (Medina vs. CA 225 SCRA 607)

*** Acceptance of back rentals after demand to vacate does not legitimize possession (Cursino vs. Bautista 176 SCRA 65)

Section 17. Judgment.

*** Although judgment is immediately executory, judge should not order it in his decision. (Lu vs. Siapno July 6, 2000). There must be a notice of judgment and motion and notice to the adverse party (Kaw vs. Anunciacion 242 SCRA 1).

JUDGMENT on ejectment proceedings are IMMEDIATELY EXECUTORY unless the defendant(1) perfects his appeal, (2) files sufficient supersedeas bond to pay the rents, damages and costs accruing down to the time of

judgment appealed from; and(3) deposits with the appellate court the amount of rent due from time to time under the contract or in

the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period.

However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that defendant’s appeal is frivolous or dilatory or appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 10 days from perfection of appeal.

SAN PEDRO vs. COURT OF APPEALS (235 SCRA 145)Judgments in ejectment cases which are favorable to petitioner are immediately executory. They can be

stayed by the defendant only by a) perfecting appeal; b) filing supersedeas bond; c)making a periodic deposit of rentals or the reasonable compensation for the use and occupation of property during pendency of appeal. The 3 requisites must concur. Thus, even if defendant had appealed and filed supersedeas bond but failed to pay the accruing monthly rentals, the appellant court upon motion of the plaintiff with notice to the defendant and upon proof of such failure, order the immediate execution of the appealed decision without prejudice to the appeal taking its course. Such deposit, like the supersedeas bond, is a mandatory requirement, if not complied with, execution will issue as a matter of right. Only exceptions are existence of FAME, which prevented defendant from making the monthly deposit, or the occurrence of supervening events which have brought about a material change in the situation of the parties and would make execution equitable.

ONCE vs. GONZALES (76 SCRA 259)No supersedeas bond is required to stay execution of a judgment pending appeal in a forcible entry and

illegal detainer proceeding where the defeated party, the lessee, was up to date in the deposit of his monthly rentals and also no back rentals were adjudged in the city court’s judgment.

MANILA BAY CLUB CORPORATION vs. COURT OF APPEALS (245 SCRA 715)Trial court has the authority to fix the reasonable value for the continued use and occupancy of the leased

premises after the termination of the lease contract, and that it was not bound by the stipulated rental in the contract of lease since it is equally settled that upon termination or expiration of the contract of lease, the rental stipulated therein may no longer be the reasonable value for the use and occupation of the premises as a result or by reason of the change or rise in values.



NG LIT vs. LLAMAS(118 SCRA 215)The filing of supersedeas bond is required merely to stay execution and not as a condition for the

perfection of the appeal which is done by (a) filing a notice of appeal; (b) depositing the docket fee; and (c) paying the appeal bond.

Immediate execution of a judgment, is a matter of right, upon failure of defendant to file supersedeas bond and pay the monthly rental deposits adjudged by the lower court to stay execution of judgment: Appellate court without discretion to extend period of required deposit prescribed by law, postpone the making of said deposit, or otherwise relieve the party of consequences of his failure to make the deposit within the reglementary period.

The court can award damages in ejectment cases provided the damages refer only to:a. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the

loss of possession;b. arrears;c. liquidated damages since they are already part of the contract

*** In forcible entry or unlawful detainer cases, the only damage that can be recovered is the fair rental value or the reasonable compensation for the use and occupation of the leased property and not the damages which have been suffered but which have no direct relation to the loss of material possession.

*** Judgment even if beyond the jurisdictional amount of MTC, as to plaintiff includes Restitution of the premises, Arrears of rent, Attorney’s fees and Costs (RAAC). As to defendant, to recover his costs with counterclaim.*** Judgment conclusive only on possession and not conclusive in actions involving title or ownership; Thus action in FEUD cannot be barred by land registration proceedings. (Medina vs. Valdellon 1975)

Judgment on FEUD is binding also:1. Trespassers, squatters or agents of defendants;2. Guests or other occupants;3. Transferee pendente lite;4. Co-lessees and sub-lessees;5. Members of family, relatives and other privies;

DEPRA vs. DUMLAO (136 SCRA 475)Judgment in a detainer case is effective in respect to possession only. The MTC overstepped its bounds

when it imposed upon the parties a situation of “forced leased”, which like a “forced co-ownership” is not favored in law. Furthermore, lease is an interest of real property, jurisdiction over which belongs to CFI. Since MTC, acted without jurisdiction, its decision was null and void and cannot operate as res judicata to the subject complaint for quieting of title. Even if the decision is valid, res judicata would not apply due to difference in cause of action.

DE GUZMAN vs. COURT OF APPEALS (195 SCRA 715)The order of dismissal in a Special Civil Action cannot be pleaded as a bar to the second ejectment case

as the dismissal was only due to non-compliance with the jurisdictional requisite of demand under Sec.2, Rule 70 of the Rules of Court.

The only damages that can be recovered in an ejectment suit are the fair rental value or the reasonable compensation for the use and occupation of the real property.

*** Pendency of the resolution of the action for consignation and specific performance, or annulment of a sale and damages pending before the RTC cannot be successfully pleaded in abatement of unlawful detainer. ( Demanay vs. CA)

HEIRS OF EUGENIO SEVILLA vs. COURT OF APPEALS (206 SCRA 559)It is well settled rule in this jurisdiction that the sublessee can invoke no right superior to that of his

sublessor. A judgment of eviction against a lessee affects his sub-lessee even if the latter are not sued in the ejectment case.

Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court. – The judgment of the Regional Trial Court against the defendants shall be immediately executory, without prejudice to a further appeal that may be taken therefrom.

RULE 71CONTEMPT

DIRECT CONTEMPT INDIRECT CONTEMPT

summary in nature punished after being charged and hearing

GROUNDS:a) misbehavior in the presence of or so near a

GROUNDS:a) Misbehavior of an officer of a court in the



court as to obstruct or interrupt the proceedings.

b) Disrespect towards the court.

c) Offensive personalities towards others.

d) Refusal to be sworn or to answer as witness or to subscribe an affidavit or deposition.

performance of his official duties or in his official transactions.

b) Disobedience of or resistance to a lawful writ, process, order, or judgment. Unauthorized intrusion to any real property after being ejected;

c) Any abuse or any unlawful interference w/ the proceedings not constituting direct contempt.

d) Any improper conduct tending to degrade the administration of justice.

e) Assuming to be an attorney or an officer of the court w/o authority.

f) Failure to obey a subpoena g) Rescue, or attempted rescue, of a person or

property in the custody of an officer.

DIRECT CONTEMPT INDIRECT CONTEMPT

If committed against:(PENALTY)a. RTC / CA / SC – fine not exceeding P2,

000 or imprisonment not exceeding (10) days or both.

b. MTC – fine not exceeding P200 or imprisonment not exceeding (1) day, or both.

a. RTC / CA / SC – fine not exceeding P30,000 or imprisonment not exceeding 6 months or both

b. MTC – fine not exceeding P5,000 or imprisonment not exceeding (1) month or both

DISTINCTION OF DIRECT CONTEMPT VS. INDIRECT CONTEMPT

POINTS OF COMPARISON DIRECT CONTEMPT INDIRECT CONTEMPT1) Where the act committed In the presence or near the

court or judge as to obstruct and/or interrupt proceedings.

Out or not in the presence of the court as to impede/degrade the administration of justice.

2) Necessity of a charge No need for a written charge Needs a written charge or show cause order

3) Necessity of a hearing Summarily meted penalty without any hearing

There is a need for a hearing

4) Appeal Not appealable but may be a subject of certiorari

Appealable

*** Power to punish contempt is granted expressly by law except in the Congress which is sui generis and inherent in their legislative function ( like in investigation in aid of Legislation );

TWO ASPECTS OF CONTEMPT: (People vs. Godoy 243 SCRA 64)1. CIVIL CONTEMPT – the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein;2. CRIMINAL CONTEMPT – conduct directed against the authority and dignity of a court or judge, as in unlawful assailing or discrediting the authority or dignity of a court or judge or in doing a forbidden act.

Criminal contempt1) Purpose is to vindicate public authority;2) Conduct directed against the dignity or authority of the court.

Civil Contempt1) 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.

*** Criminal contempt proceeding is in the nature of a criminal or quasi criminal actions and therefore punitive in nature. A civil contempt is remedial and civil in nature.

*** Violation of TRO issued by SEC or any quasi-judicial body is criminal contempt so that acquittal of respondent is unappealable. (Yasay vs. Recto 313 SCRA 739)

PROCEDURAL REQUIREMENTS OF INDIRECT CONTEMPT:



1. Written charge or verified petition with supporting particulars and certified true copies of documents or papers involved therein;

2. Docket fees unless initiated by the coket court;3. Opportunity to comment within the period fixed by the court;4. Hearing by himself or counsel.

*** Hearing is required in Sec. 3 of Rule 71, without which is a violation of due process; (Bulado vs. Navarro Feb. 1988)

IMPRISONMENT AS A PENALTY: GENERAL RULE: The court has the power to bring in custody the respondent during the proceeding;EXCEPTION: Respondent may be released by invoking his right to bail.EXCEPTION TO EXCEPTION: When contempt consists in the refusal or omission to do an act which is in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it.

*** Habeas Corpus is also a remedy if there is an imprisonment.

VENUE OF FILING INDIRECT CONTEMPT:

GENERAL RULE: Indirect contempt must be filed and tried in the court against which the conduct was committed;

EXCEPTIONS:1. IC committed against MTC may be filed and tried in RTC.2. IC against the SC which may be cause to be investigated by prosecutor and filed and tried in RTC. But IC

against SC under res ipsa loquitor case without any factual issues involved may be filed and tried in SC;3. IC against quasi-judicial bodies where the law provides that act as contempt of court and with power to punish

contempt by filing it in RTC.

GENERAL RULE: No contempt is committed by one not a party to the case. The remedy is either criminal or civil action.

EXCEPTION: where such party is in conspiracy with any one of the parties in violating lawful order of the court. (Desa Ent. Inc. vs. SEC 117 SCRA 321)

*** Power to punish contempt to be exercised in preservative not vindictive principle. It must be applied to clear and cuntamicious refusal to obey should the power be exercised. (Lipata vs. Tutaan 124 SCRA 877)

*** Use of contemptuous language against a judge in pleadings submitted to another court is indirect contempt and if submitted to the court of the said judge, it is direct contempt.

NAZARENO vs. BARNES (136 SCRA 57)An indirect contempt requires a written charge either (1) in the form of a show cause-order why he should

not be punished for contempt for having committed the contemptuous act imputed against him or (2) by way of special civil action under Rule 71. The first procedure applies only where the indirect contempt is committed against a court or judge possessed and clothed with contempt powers. The second if the contemptuous act was committed not against a court nor a judicial officer with authority to punish contemptuous acts.

WICKER vs. ARCANGEL (252 SCRA 444)A case is one for direct contempt where it involves a pleading allegedly containing derogatory, offensive,

malicious statements submitted to the court or judge in which the proceedings are pending, as distinguished form a pleading filed in another case. In case of indirect or constructive contempt, the contemnor may be punished only “after charge in writing has been filed, and an opportunity given to the accused to be heard by himself or counsel,” whereas in case of direct contempt, the respondent may be summarily adjudged in contempt. The judgment in cases of indirect contempt is appealable whereas in cases of direct contempt only judgments of contempt by MTC’s, MCTc’s and MeTCs are appealable.

* In special judgments under Rule 39 Section 11, the person required by the judgment to obey the same may be punished for contempt if he disobeys. NO contempt however lies in judgments for money (Section 9) and judgments for specific act (Section 10) under Rule 39.

REMEDIES to challenge contempt judgments:

DIRECT CONTEMPT The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him.

INDIRECT CONTEMPT



The person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt.

*** The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond.


Jurisdiction and Civ Pro

Documents

Transcript of Jurisdiction and Civ Pro