Professional Documents
Culture Documents
Rem Review 1 Micky Ingles
Rem Review 1 Micky Ingles
FILING FEES 2
JURISDICTION 3
SMALL CLAIMS 6
Rule 1 8
RULE 2 CAUSE OF ACTION 9
RULE 3 PARTIES TO CIVIL ACTIONS 12
RULE 4 VENUE OF ACTIONS 21
RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS 24
RULE 6 KINDS OF PLEADINGS 27
RULE 7 PARTS OF A PLEADING 33
RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS 35
RULE 9 EFFECT OF FAILURE TO PLEAD 38
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS 41
RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS 44
RULE 12 BILL OF PARTICULARS 46
RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS 48
RULE 14 SUMMONS 53
RULE 15 MOTIONS 60
RULE 16 MOTION TO DISMISS 62
RULE 17 DISMISSAL OF ACTIONS 66
RULE 18 PRE-TRIAL 68
RULE 19 INTERVENTION 71
RULE 20 CALENDAR OF CASES 72
RULE 21 SUBPOENA 72
RULE 22 COMPUTATION OF TIME 74
MODES OF DISCOVERY 75
RULE 23 DEPOSITIONS PENDING ACTIONS 75
RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL. 81
RULE 25 INTERROGATORIES TO PARTIES 82
RULE 26 ADMISSION BY ADVERSE PARTY 83
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS 84
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS 84
RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY 85
RULE 30 TRIAL 86
RULE 31 CONSOLIDATION OR SEVERANCE 88
RULE 32 TRIAL BY COMMISSIONER 88
RULE 33 DEMURRER TO EVIDENCE 90
RULE 34 JUDGMENT ON THE PLEADINGS 91
RULE 35 SUMMARY JUDGMENTS 91
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF 92
RULE 37 NEW TRIAL OR RECONSIDERATION 94
RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS 96
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS 98
Brief overview of remedies 112
APPEALS 113
RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS 113
RULE 41 APPEAL FROM THE REGIONAL TRIAL COURTS 114
RULE 44 ORDINARY APPEALED CASES (PROCEDURE IN CA) 118
RULE 42 119
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS 120
RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS 122
RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT 124
PROCEDURE IN THE COURT OF APPEALS 125
RULE 46 ORIGINAL CASES 125
RULE 48 PRELIMINARY CONFERENCE IN THE CA 126
RULE 49 ORAL ARGUMENT 127
RULE 50 DISMISSAL OF APPEAL 127
RULE 51 JUDGMENT 128
RULE 52 MOTION FOR RECONSIDERATION 129
RULE 53 NEW TRIAL 130
RULE 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTION 130
RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS 132
Mickey Ingles 1
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
am+dg
Remedial Law Review: Civil Procedure and Appeals
• This reviewer is based on Atty. Tranquil Salvador’s lectures, stuff from Atty. Guevarra, Glenn
Tuazon’s brilliant lecture notes, cases, and Feria-Noche’s book. (No Riano since I left it in my
locker)
• Good luck!
FILING FEES
• Important: Payment of docket fees is not only mandatory, but JURISDICTIONAL.
• Know the true nature of the action because it will determine the docket fees. So take note of the
facts of each case.
o It may seem like a cancellation of deed of sale, but it can ultimately be one for the
recovery of property, making it a real action. (Ruby Shelter v Formaran III, 2009)
For example: if the action is for the cancellation of a deed of sale and the titles
have already been transferred to another party, that’s a real action because the
ultimate purpose is the recovery of real property. (that’s what happened in Ruby
Shelter)
• If the titles have not yet been transferred, it can be considered as a
personal action. (Spouses de Leon cited in Ruby Shelter)
• Docket fees to be paid:
o Real action: depends on the FMV stated in the current tax declaration or current zonal
valuation of the BIR (whichever is higher), or if there is none, the stated value of the
property in litigation.1
o Cases involving actions incapable of pecuniary estimation: flat rate
• Docket fees computation include interests, penalties, surcharges, damages of whatever kind,
attorney’s fees, court expenses. (see footnote 1) (Proton v Banque Nationale de Paris, 2005)
o So, if the plaintiff fails to pay the docket fees for alleged interest payments accruing before
the complaint is filed, plaintiff can not recover such. (Proton, wherein a certain period of
interest payment was alleged but the corresponding docket fees pertaining to such was
not paid)
o Important!: Compare with amount for jurisdictional purposes: only the principal claim is
considered.
• It is the duty of the parties claiming such damages to specify the amount sought on the basis of
which the court may make a proper determination and for the proper assessment of the
appropriate fees.
o The damages sought must be placed in the PRAYER of the complaint. (Philippine First
Insurance v Pyramid Logistics, 2008, wherein Pyramid amended their complaint and still
did not put the damages sought in the prayer. It was a sign of bad faith on their part.)
If not, the complaint will be expunged.
If the pleading specifies the claim, but the fees paid are insufficient, the court may
allow a reasonable time for the payment of the prescribed fees, or the balance
thereof.
• Example: if the party filing the case paid less than the correct amount for
the docket fees because of the wrong assessment of the clerk of court, the
responsibility of making a deficiency assessment lies with the same clerk.
Party cannot be penalized for such, so court will continue to have jd over
the case. But party will still have to pay the fees (Montaner v Shari’a
District, 2009)
• This also happened in Bautista v Unangst (2008) which involved the
deficient assessment in the Court of Appeals. SC said that it was not the
1
Rule 141, Sec. 7. Clerks of Regional Trial Courts.–
a) For filing an action or a permissive OR COMPULSORY counter-claim, CROSS-CLAIM, or money claim against an estate not based on
judgment, or for filing a third-party, fourth-party, etc. complaint, or a complaint-in-intervention, if the total sum claimed, INCLUSIVE OF
INTERESTS, PENALTIES, SURCHARGES, DAMAGES OF WHATEVER KIND, AND ATTORNEY’S FEES, LITIGATION EXPENSES
AND COSTS and/or in cases involving property, the FAIR MARKET value of the REAL property in litigation STATED IN THE CURRENT
TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL REVENUE, WHICHEVER IS HIGHER,
OR IF THERE IS NONE, THE STATED VALUE OF THE PROPERTY IN LITIGATION OR THE VALUE OF THE PERSONAL
PROPERTY IN LITIGATION AS ALLEGED BY THE CLAIMANT, is: xxx
Mickey Ingles 2
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
am+dg
Remedial Law Review: Civil Procedure and Appeals
appellant’s fault but he still has to pay the deficient fees within the
reglementary period. (since it was on appeal)
o Exception: no need to place the amount sought if the damages arise AFTER the filing of
the complaint since you wouldn’t know how much that would be
• Compulsory counterclaims and cross-claims must now pay docket fees. (see footnote 1)
o This, however, has been SUSPENDED at the moment. So, at present, no docket fees are
required for compulsory counterclaims and cross-claims.
• GR: docket fees must be paid when you file the complaint. (clerk will look at prayer and then
determine how much you have to pay.)
o Exceptions:
If the damages arose AFTER the filing, the additional docket fee will serve as a lien
on the judgment
• Like interests accruing after the filing of the complaint (Proton v BNP)
If the complaint is amended and new damages are alleged, the additional docket
fee will be allowed to be paid within a reasonable time within the applicable
prescriptive period or reglementary period (Tacay, cited in Philippine First)
If the clerk makes a wrong assessment, the full amount must be paid within the
applicable prescriptive period or reglementary period.
• Recipients of the service of the National Committee on Legal Aid and of the Legal Aid offices of the
IBP are EXEMPT from payment of filing, docket fees. (Re: Request for NCLA, 2009)
o This exemption does NOT apply to juridical entities, even if these entities are formed for
charitable purposes or make extremely delectable ube jam. (Query of Mr Roger Prioreschi
of the Good Shepherd Foundation, AM 9-6-9-SC)
JURISDICTION
• Define jurisdiction:
o The power of the court to hear, try, or decide the case
o AS CONFERRED by law
• Court knows if it has jurisdiction based on the allegations of the complaint. (Villacastin v Pelaez,
2008, where the SC said that the allegations of a complaint made out an ejectment case so the
MTC, and not the DARAB, had jd over the case even if the case was over agri land since it was not
an agrarian dispute anyway.)
• The jurisdiction of a court may be questioned at any stage of the proceedings. No estoppel. It is
the duty of the court to dismiss an action whenever it appears that the court has no jurisdiction
over the subject matter. (Vargas v Caminas, 2008, where jd was questioned before trial court
decided)
o EXCEPT: laches (Tijam, where jd was questioned only after 15 years)
• For a court to properly exercise jd over a case, the requirements of law must be complied with.
o Hence, when a RTC takes cognizance over an indirect contempt case filed through an
unverified motion (and not through a verified petition with a certificate of non-forum
shopping as required by Rule 71), the RTC has gravely erred.2
• Can the SC create special courts? 3
o NO. It can only designate. It can’t confer jurisdiction, only law can do that. SC can only
designate which courts will become special courts.
• IMPORTANT: in determining jurisdiction, you do NOT include damages, interest, attorney’s fees,
etc.
o Only limit the amount to the demand or the claim.
But, of course, if your action is for damages, then the amount of damages claimed
is determinative.
o The interest to exclude is the accessory interest. Not the loan interest.
2
Rule 71, Sec 4: How proceedings commenced. — Proceedings for indirect contempt may be initiated motu propio by the court against which the
contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision. (n)
3
Examples of other special courts: Drugs court, Environment court, Commercial court, IP court
Mickey Ingles 3
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
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Remedial Law Review: Civil Procedure and Appeals
Example: The case is in Pampanga. The promissory note is for P298,000 with
interest of 10% per annum, where do you file the collection suit for this?
• In the RTC of Pampanga. The cause of action revolves around the entire
promissory note.
• MTC
o Original and exclusive
Opposite of RTC
Ejectment/unlawful detainer
• Regardless of value
• MTC can determine ownership provisionally
• RTC
o Original and Exclusive
Amount incapable of pecuniary estimation
• Can NOT be measured in money
• Depends on the nature of the action
o Where the basic issue is something other than the right to recover
a sum of money, where the money claim is only incidental or a
consequence of the principal relief sought, the action is incapable
of pecuniary estimation. (FEBTC v Shemberg, 2006, where the SC
held that an action to cancel mortgage for want of consideration is
incapable of pecuniary estimation)
o Examples: rescission, reformation of contract, specific performance
o What about expropriation? Always with RTC, whether personal or
real property, regardless of value. Law zeroes in on the exercise of
such right.
o What about declaratory relief? RTC, except when there is an issue
of constitutionality, SC can take it.
o What about support? Family courts, regardless of value.
Civil actions involving title to, or possession of, real property, or any interest
therein, where the ASSESSED value of the property involved exceeds P20,000,00
or exceeds P50,000 if in Metro Manila4
• EXCEPT actions for forcible entry and unlawful detainer (original
jurisdiction over which is conferred upon the MTC, MeTC, MTCC)
• Assessed value is the worth or value of property established by taxing
authorities on the basis of which the tax rate is applied. (vda de Barrera v
Heirs of Legaspi, 2008, which was a accion publiciana case)
In all actions in admiralty and maritime jurisdiction where the demand or claim
exceeds P300,000.00 or, in Metro Manila, exceeds P400,000.00
• RTC acting in general jurisdiction, no special maritime courts
In all matters of probate, both testate and intestate, where the gross value of the
estate exceeds P300,000.00 or, in Metro Manila, exceeds P400,000.00
• What if the value of the estate is 100k, the MTC has jurisdiction over that,
right? But will it be subject to summary procedure?
o No. Of course not. Probate cases always under ordinary procedure
since you have to determine the due execution of the will.
o Summary procedure rules explicitly exclude probate proceedings.
In all actions involving the contract of marriage and marital relations
• Like support, annulment, nullity
• Courts will act as Family courts, special jurisdiction.
In all cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising jurisdiction of any court, tribunal, person or body exercising
judicial or quasi-judicial functions
• So juvenile, agrarian cases
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 P300,000, or in Metro Manila, exceeds P400,000
Those under the securities regulation code
4
So if accion publiciana case and less than P50,000 in Manila, file with MTC
Mickey Ingles 4
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
am+dg
Remedial Law Review: Civil Procedure and Appeals
5
There are two kinds of writ of habeas corpus. One for the custody of minors, and the regular one under the ROC. The difference is that in the
former, pre-trial is required. In the latter, it is not.
Mickey Ingles 5
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
am+dg
Remedial Law Review: Civil Procedure and Appeals
o Appellate over
RTC exercising original jurisdiction
• by petition for review on certiorari (rule 45) on pure questions of law
CA
• Sandiganbayan, CTA en banc, CoA, Comelec
SMALL CLAIMS
(AM-8-8-7-SC, 2008)
• Small claims are filed in the MTC
• Small claims cases involve cases with amounts NOT EXCEEDING P100k
o No distinction between cases outside Metro Manila and Metro Manila
• What should be included in the P100k?
o The claim itself, EXCLUSIVE OF INTERESTS and COSTS6
What if the claim is for damages itself?
• Then it’s not covered by small claims because these damages have yet to
be ascertained. Damages cases (like from personal injury) are not akin to
sum-of-money cases.
o Segue: what if the case is for P100k and is outside MM, what do you follow – small claims
or summary procedure?
Atty Tranquil suggests that it is the option of the complainant since there is
concurrent jd between small claims court and court of summary procedure.
• Does it cover quasi-delicts?
o Yes. It covers cases of fault/negligence, quasi-contract, contract, and even the civil aspect
of criminal cases.7
• No need for lawyers nor the filing of a regular complaint. You can just use the standard form
given.8
• Can you join separate claims?
o Yes, as long as:
Against same defendant
Total does NOT exceed P100k, exclusive of interests and costs.9
• Do you have to pay docket fees?
o Unfortunately, yes.10
6
Section 2. Scope. - This Rule shall govern the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred
Thousand Pesos (P100,000.00) exclusive of interest and costs.
7
Section 4. Applicability - The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial
Courts shall apply this Rule in all actions which are; (a) purely civil in nature where the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money, and (b) the civil aspect of criminal action, or reserved upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of Criminal Procedure.
These claims or demands may be;
(a) For money owned under any of the following;
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following;
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec.
417 of Republic Act 7160, otherwise known as the Local Government Code of 1991.
8
Section 5. Commencement of Small Claims Action. - A small claims action is commenced by filing with the court an accomplished and verified
Statement of Claim (Form 1 - SCC) in duplicate, accompanied by a Certification of Non-forum Shopping (Form 1-A,SCC), and two (2) duly
certified photocopies of the actionable document/s subjects of the claim, as well as the affidavits of witnesses and other evidence to support the
claim. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Claim, unless good cause is
shown for the admission of additional evidence.
No formal pleading, other than the Statement of Claim described in this Rule, is necessary to initiate a small claims action.
9
Section 6. Joinder of Claims - Plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided
that the total amount claimed, exclusive of interest and costs, does not exceed P100,00.00.
10
Section 8. Payment of Filing Fees. - The plaintiff shall pay the docket and other legal fees prescribed under Rule 141 of the Revised Rules of
Court, unless allowed to litigate as an indigent.
Mickey Ingles 6
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
am+dg
Remedial Law Review: Civil Procedure and Appeals
A claim filed with a motion to sue as indigent (Form 6-SCC) shall be referred to the Executive Judge for immediate action in case of multi-sala
courts, or to the Presiding Judge of the court hearing the small claims case. If the motion is granted by the Executive Judge, the case shall be
raffled off or assigned to the court designated to hear small claims cases. If the motion is denied, the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case shall be dismissed without prejudice. In no case shall a party, even if declared an indigent, be
exempt from the payment of the P1,000.00 fee for service of summons and processes in civil cases.
11
Section 9. Dismissal of the Claim. - After the court determines that the case falls under this Rule, it may, from an examination of the
allegations of the Statement of Claim and such evidence attached thereto, by itself, dismiss the case outright of any of the grounds apparent from
the Claim for the dismissal of a civil action.
12
Section 10. Summons and Notice of Hearing - If no ground for dismissal is found, the court shall forthwith issue Summons (Form 2-SCC) on
the day of receipt of the Statement of Claim, directing the defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC) to both parties, directing them to appear before it on a specific date and time for hearing, with a
warning that no unjustified postponement shall be allowed, as provided in Section 19 of this Rule.
The summons and notice to be served on the defendant shall be accompanied by a copy of the Statement of Claim and documents submitted by
plaintiff, and a copy of the Response (Form 3-SCC) to be accomplished by the defendant. The Notice shall contain an express prohibition against
the filing of a motion to dismiss or any other motion under Section 14 of this Rule.
13
Section 11. Response - The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a
non - extendible period of ten (10) days from receipt of summons. The Response shall be accompanied by certified photocopies of documents, as
well as affidavits of witnesses and other evidence in support thereof. No evidence shall be allowed during the hearing which was not attached to
or submitted together with the Response, unless good cause is shown for the admission of additional evidence.
14
Section 12. Effect of Failure to File Response - Should the defendant fail to file his response within the required period, the court by itself shall
render judgement as may be warranted by the facts alleged in the Statement of claim limited to what is prayed for. The court however, may, in its
discretion, reduce the amount of damages for being excessive or unconscionable
15
Section 13. Counterclaims Within the Coverage of this Rule - If at the time the action is commenced, the defendant possesses a claim against
the plaintiff that (a) is within the coverage of this rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the
subject matter of the plaintiff's claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another
pending action, the claim shall be filed as a counterclaim in the response; otherwise, the defendant shall be barred from suit on the counterclaim.
The defendant may also elect to the file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence ,
provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and the other legal fees are paid.
16
Section 14. Prohibited Pleadings and Motions - The following pleadings, motions, and petitions shall not be allowed in the cases covered by
this Rule:
(a) Motion to dismiss the compliant except on the ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgement, or for reopening of trial;
(d) Petiton for relief from judgement;
(e) Motion for extension of time to file pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
Mickey Ingles 7
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
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Remedial Law Review: Civil Procedure and Appeals
Rule 1
Section 1. Title of the Rules.
These Rules shall be known and cited as the Rules of Court.
(l) Interventions.
17
Section 17. Appearance of Attorneys Not Allowed. - No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney
is the plaintiff or defendant.
If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow
another individual who is not an attorney to assist that party upon the latter's consent.
18
Section 18. Non-appearance of Parties. - Failure of the plaintiff to appear shall be cause for the dismissal of the claim without prejudice. The
defendant who appears shall be entitled to judgement on a permissive counterclaim.
Failure of the defendant to appear shall have the same effect as failure to file a Response under Section 12 of this Rule. This shall not apply where
one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears at the hearing.
Failure of both parties to appear shall cause the dismissal with prejudice of both the claim and counterclaim.
19
Section 19. Postponement When Allowed. - A request for postponement of a hearing may be granted only upon proof of the physical inability
of the party to appear before the court on the scheduled date and time. A party may avail of only one (1) postponement.
20
Section 23. Decision. - After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence
(Form 13-SCC). The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith
served on the parties.
The decision shall be final and unappealable.
Section 24. Execution. - If the decision is rendered in favor of the plaintiff, execution shall issue upon motion (Form 9-SCC).
Mickey Ingles 8
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
am+dg
Remedial Law Review: Civil Procedure and Appeals
o Special proceeding
Application or proceeding to establish:
• the status of a party, or
• the right of a party, or
• a particular fact.
Examples are petition for adoption, petition for hospitalization of an insane person,
settlement of estate of a deceased person
• The commencement of an action interrupts the period of prescription as to all the parties to the
action.
• When does an action commence?
o Upon filing of the original complaint in the court
• With respect to an additional defendant, when does it commence?
o The present rule provides that 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.
You only file a motion for the admission of such amended complaint when then
here has been an answer served on the plaintiff.
In cases where the amended complaint is attached to the motion for its admission,
the date of filing thereof is the date of the commencement of the action with
regard to the additional defendant, irrespective of the action of the court on the
motion.
• Does the filing alone vest the court with jurisdiction over the subject matter?
o No. You have to 1) file and 2) pay the docket fees.
o It is important to remember that it is not simply the filing of the complaint or appropriate
initiatory pleading but also the payment of the prescribed docket fee that vests a trial
court with jurisdiction over the subject matter or nature of the action.
o Without the payment of the docket fees, no original complaint or pleading is considered.
o If the complete amount of the docket fee is not paid, the prescriptive period continues to
run as the complaint is deemed not filed.
Sec. 6. Construction.
These Rules shall be liberally construed in order to promote their objective of securing a just, speedy
and inexpensive disposition of every action and proceeding.
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4C Ateneo Law 2012
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Remedial Law Review: Civil Procedure and Appeals
21
Rule 3, Sec. 6. Permissive joinder of parties.
All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but
the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with
any proceedings in which he may have no interest.
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o In cases of different venues or jurisdiction between the SAME parties, the joinder may be
made in the RTC, provided it has jurisdiction over one of the causes of action and the
venue lies therein.
If one cause of action falls within the RTC and the other in the MTC, the action
should be filed in the RTC.
If the causes of action have different venues, they may be joined in any of the
courts of proper venue.
• So, 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.
o Case 1: Sum of money 350k, plaintiff resides in Makati, defendant
in QC
o Case 2: Real property worth 80k in Cavite.
You can join those two cases in the RTC of Cavite. (for
academic purposes)
But in practice, just severe because other lawyers
don’t know about this.
o Where all the causes of action are for recovery of money, the aggregate amount claimed
shall be the test of jurisdiction.
Important: This totality rule will only apply if ALL cases of action are for recovery
of money.
• Does this mean we can’t have joinder of real action and personal action?
o No. We can still do it, using Sec 5(c), but you just don’t use the
totality rule.
The totality of the principal claims for money determines which court has
jurisdiction.
But, in cases of joinder of parties, the first condition should apply.
• Joinder of causes of action is permissive and not mandatory. It’s up to the litigant if he wants to
avail of such. But when he decides to do a joinder, he must comply with the requirements. (Perez
v Hermano, 2005)
Mickey Ingles 12
4C Ateneo Law 2012
Atty Tranquil (and some stuff from Atty Guevarra); updated: March 4, 2013
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Remedial Law Review: Civil Procedure and Appeals
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o In an action for inspecting corporate books and records, it is the stockholder demanding
for the inspection that is the RPI. The right to inspect corporate books is personal. (Cua v
Tan)
• Difference between RPI and legal standing/locus standii
o The concept of RPI will only apply to private suits.
o Locus standii usually applies to public suits filed by a private party.
It pertains to government actions wherein a person may suffer injury.
You can base your legal standing as a taxpayer, voter, Congressman, citizens
suit22 (for environment cases – here, even generations yet unborn can be parties
based on a citizens suit. In fact, plaintiffs don’t need any interest in filing a citizens
suit. As long as he’s Pinoy, he can file.)
• Important: what is the remedy for impleading the wrong party? (For example, Harry sues Ron,
claiming that Ron owns the property, but Ron doesn’t own it and doesn’t have anything to do with
Harry in the first place)
o Motion to Dismiss. Ground: Pleading states no cause of action
This ground absorbs the situation wherein the party impleaded is not the RPI.
(Atty. Tranquil/Riano)
Difference between “pleading states no cause of action” and “lack of cause of
action” will be discussed when we get to Motion to Dismiss
• What happens when the action has commenced, but the party in interest changes?
o The original action continues, and the original plaintiff becomes the representative of the
transferee of the interest. (See Section 19)
• What happens when the interest has changed, and then the action commences?
o The original plaintiff is no longer the party in interest.
22
SEC. 5. Citizen suit.—Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an
action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in
the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the
Philippines or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective provisions. (A.M. No. 09-6-8-SC)
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o Exceptions:
Suit of one against the other
Based on a criminal act/delict
Judicial separation of property
Abandonment
Exclusive property of spouses
Suits involving the practice of one’s profession
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o Solidarily liable, either is indispensable, and the other is not even necessary because
complete relief may be obtained from either.
o Jointly liable, either is indispensable, and the other is necessary to accord complete relief.
Problem
• Action fro recovery of title and possession. X holds title, Y has possession. The action is solely for
recovery of title. Can you sue X?
o Yes, he’s the proper party.
o Can you sue Y for recovery of title without suing X? No, Y mere possessor. X is holder of
title, he’s the indispensable one.
Indispensable Necessary
Without whom no final determination of the Interest is distinct and divisible from the
case can be had; inextricably intertwined with interest of the other parties; will not
the other parties’ that his legal presence is an necessarily be prejudiced by a judgment which
absolute necessity does complete justice to the parties in court
Should be joined under any and all conditions Should be joined whenever possible; his
presence would merely permit complete relief
between him and those already parties to the
action, or simply avoid multiple litigation
Effect of failure to implead (important!)
• If necessary party
o GR: failure to implead is non-prejudicial
o No waiver of right to implead. There is no waiver UNLESS there is an order to implead
from the court, and you still did not implead.
• If indispensable party
o The court should ORDER that the indispensable party be impleaded. (Domingo case)
o If despite the order, you still did not comply, the case will be dismissed. On what ground?
Failure to comply with an order of the court.23
o If court did not notice the non-joinder (and thus did not order to implead the indispensable
party), and renders a decision… what happens?
The judgment is null and void.24
The absence of an indispensable party renders all subsequent actions of the court
null and void for want of authority to act, not only as to the absent parties but
even to those present. (NLMK-Olalia v Keihin, 2010)
23
Rule 17, Sec. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his
action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion
of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.
24
The ruling in Republic v Sandiganbayan (2003) stating that the judgment is still binding on the parties present during trial (even if some
indispensable parties were absent) is wrong. Atty. Tranquil said it’s not binding precedent and is actually a “sensitive” judgment.
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• When if, after the order, the pleader fails to explain to the non-joinder or fails to comply, without
justifiable cause, with the order of the court? (Given that jurisdiction over the person may be
obtained)
o Then it will be deemed a waiver of the claim against such party.
• What if the joint obligor can’t be impleaded because jurisdiction over the person couldn’t be
obtained?
o The judgment rendered against the impleaded joint obligor will not prejudice the rights of
the joint obligor not impleaded.
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• Just because a person represents a number of people doesn’t mean it’s a class suit. It has to
comply with the requisites.
o Courts exercise caution before allowing a class suit, which is the exception to the joinder
of indispensable parties. Why? Because if the judgment against the class represented is
not favorable, the represented would certainly claim denial of due process. (MIAA v
Rivera)
• Differentiate derivative suit from a class suit in the context of corporations
o Derivative suits are those instituted by an individual stockholder on behalf of the
corporation in order to protect or vindicate corporate rights. Usually filed when there is an
allegation of mismanagement or wrongful acts committed by the directors or trustees. The
wrong here is done to the corporation itself.
o Class suits are those instituted when the wrong is done to a group of, let’s say,
stockholders. An example would be a violation of the rights of preferred stockholders. The
wrong here is done to the a certain group or class.
• Give an example of a class suit that has prospered.
o Oposa v Factoran.
• Practical tip from Atty Guevara: If a judge denies the class suit, go for a permissive joinder of
parties. The thing here is that those not pleaded will not be affected by the judgment (as
compared to having a class suit where all will get affected)
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period, the court may order the opposing party, within a specified time, to procure the appointment of
an executor or administrator for the estate of the deceased and the latter shall immediately appear for
and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs.
• This provision applies when:
o Either party dies, and
o The action survives
• What’s the test to determine whether the action survives or not?
o If the wrong complained of affects primarily and principally property or property rights, the
action will survive, the injuries to the person being merely incidental.
Money claims
o If the injury complained of is to the person and the injuries to the property are incidental,
then the action will not survive.
Annulment of marriage, legal separation – even if it involves changes in the
property relations
• What should the lawyer do? (KNOW THIS!)
o He should, within 30 days after the death, inform the court thereof.
• Period: 30 days after FACT of death. Not knowledge of such.
o Give the name and address of the legal representative of the deceased.
o The court will order:
• the representative to appear and
• be substituted within 30 days from notice.
o Upon failure to of the legal rep to appear, the court may order the opposing party, within a
given period, to procure the appointment of an executor or administrator who shall
immediately appear for the estate of the deceased.
• Who should the substitutes be?
o Those who are “authorized by law”, meaning
The legal heirs, without requiring the appointment of an executor or administrator
The administrator
The executor, or
The guardian (Sumaljag v Literato, 2008, wherein the court said the substitution
of someone who does not fall into this list is an invalid substitution)
• What happens if there is no valid substitution because of either the fault of the counsel or the
failure of the court to order a substitution?
o It will not invalidate the proceedings and the judgment rendered thereon.
o Mere failure to substitute a deceased party is NOT sufficient ground to nullify a court’s
decision. The party alleging nullity must prove that there was an undeniable violation of
due process.
o Tag line: The rule on substitution of heirs is not a matter of jurisdiction, but a
REQUIREMENT OF DUE PROCESS.
Hence, formal substitution by heirs is not necessary when they themselves
voluntarily appear, participate in the case, and present evidence in the defense of
the deceased. (Napere v Barbarona, 2008)
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Such authority shall include an exemption from payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court may order to be furnished him. The amount of the
docket and other lawful fees which the indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before judgment is
rendered by the trial court. If the court should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees
shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by
the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as
the court may impose.
Who can be considered an indigent?
• Algura v LGU of Naga, 2006, answers this by juxtaposing this section with Rule 141, Section 9. It
gives a two tier test.
o If the indigent fits within the parameters set out by Rule 141, Section 9, it is MANDATORY
upon the court to declare him an indigent.
Gross income + family income does not exceed twice of monthly minimum wage,
and
Owns real property whose FMV is less or equal to P300k25
o If he fails that test, the court is given the discretion to determine whether he is an
indigent or not based on Rule 3, Section 21. (Indigency Test)
Party is one who has:
o No money or property sufficient and available for
Food
Shelter
Basic necessities
• for himself and his family.
• Benefits of indigent parties:
o Stenographic notes: free
o Filing fees: no need to pay, but lien on judgment
• What if he wasn’t an indigent and he claimed he was?
o The proper docket and lawful fees shall be assessed and collected by the clerk of court.
o If payment is not made within the time fixed by the court, execution shall issue or the
payment thereof, without prejudice to such other sanctions as the court may impose.
25
Sec. 19. Indigent litigants exempt from payment of legal fees. - Indigent litigants (a) whose gross income and that of their immediate family
do not exceed an amount double the monthly minimum wage of an employee and (b) who do not own real property with A FAIR MARKET
VALUE AS STATED IN THE CURRENT TAX DECLARATION of more than THREE hundred thousand (P300,000.00) pesos shall be exempt
from the payment of legal fees.
The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless the court otherwise provides.
To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross
income abovementioned, nor they own any real property with the fair value aforementioned, supported by an affidavit of a disinterested person
attesting to the truth of the litigant’s affidavit. The current tax declaration, if any, shall be attached to the litigant’s affidavit.
Any falsity in the affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or action or to strike out the
pleading of that party, without prejudice to whatever criminal liability may have been incurred. (16a)
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26
RULE 70 Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns
of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of
possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession,
or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.
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• What if any of the defendants does not reside and is not found in the Philippines, what’s the
venue?
o If it involves the personal status of the plaintiff, then in the court of the place where the
plaintiff resides.
o If it involves the property of the defendant located in the Philippines, where the property
or any portion thereof is situated or found.
• Jurisdiction is limited to the res, namely, the personal status of the plaintiff or the property of the
defendant located in the Philippines.
• The judgment must be confined to the res, and no personal judgment can be rendered against the
defendant, unless he submits to the jurisdiction of the court.
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27
(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where
attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00).
(2) All other cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed One hudred thousand pesos
(P100,000) or Two hundred thousand pesos (P200,000.00) in Metro Manila, exclusive of interest and costs, exclusive of interest and costs. (As
amended by AM 02-11-09-SC, November 25, 2002)(
28
Sec. 2. Determination of applicability. — Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not
the case shall be governed by this Rule A patently erroneous determination to avoid the application of the Rule on Summary Procedure is a
ground for disciplinary action.ch
29
B. Verifications. — All pleadings shall be verified.
Sec. 4. Duty of court. — After the court determines that the case falls under summary procedure, it may, from an examination of the allegations
therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a
civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule
shall apply
30
Sec. 5. Answer. — Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or
cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded.
31
Sec. 6. Effect of failure to answer. — Should the defendant fail to answer the complaint within the period above provided, the court, motu
proprio, or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein: Provided, however, that the court may in its discretion reduce the amount of damages and attorney's fees claimed for being
excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 15 of the Rules of Court, if there are two
or more defendants.
32
Sec. 3. Pleadings. —
A. Pleadings allowed. — The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims' pleaded in the
answer, and the answers thereto.
B. Verifications. — All pleadings shall be verified.
33
Sec. 7. Preliminary conference; appearance of parties. — Not later than thirty (30) days after the last answer is filed, a preliminary conference
shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of
this Rule.
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In the PC, the parties are asked to compromise, identify issues, etc.
If plaintiff is absent in the PC, the case will be dismissed.
• If the defendant appears and the plaintiff is absent, the court can rule on
the counterclaim.
• All cross-claims shall be dismissed.
If the sole defendant is absent, the plaintiff shall be entitled to judgment.
• Won’t apply if there are two or more defendants who are sued under a
common cause of action, and one of them appears in the PC.
So what should you do if either party is absent?
• Have an explanation or send a representative.
• Provision on authorization does not appear in the Rules of Summary
Procedure but in Macasaet v Macasaet, Court held that pre-trial rules apply
suppletorily to preliminary conference.
Take note that if the court finds sufficient evidence at this point in time, it can
already render judgment based on what’s presented in the PC.34
If there is no judgment yet in step 1 and 2, we move on to the submission of
judicial affidavits and position papers.
o THIRD: Submission of judicial affidavits and position papers
There are NO hearings or trials.
• Compare to criminal cases where trial is needed, but direct examination
can be waived for judicial affidavits.
Affidavits and position papers must be submitted 10 days from receipt of order of
the preliminary conference.35
GR: Court renders judgment 30 days from the filing of
• the last affidavit or position paper or
• the expiration of the period for filing the same. (note: not submission for
resolution but submission of the last affidavit/position paper)
o EXCEPT: if the court needs more clarificatory stuff, it will issue an
order requiring more affidavits to be given to the court within 10
days from receipt of order. The court will then decide 15 days after
the receipt of the last clarificatory affidavit.36
37
• Prohibited pleadings :
The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears
in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be
dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply
where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary
conference.
34
Sec. 8. Record of preliminary conference. — Within five (5) days after the termination of the preliminary conference, the court shall issue an
order stating the matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;.
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need
of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order;
(d) A clear specification of material facts which remain controverted; and virtual law library
(e) Such other matters intended to expedite the disposition of the case.
35
Sec. 9. Submission of affidavits and position papers. — Within ten (10) days from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon by them.
36
Sec. 10. Rendition of judgment. — Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the
period for filing the same, the court shall render judgment.
However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to
be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the
same.
The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.
37
Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not be allowed in the cases covered by this
Rule:chan robles virtual law library
(a) 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 the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial;
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o MTD, except
Lack of JD over subject matter
• Cannot be waived by the parties or cured by silence, acquieence or even
express consent. (Bongato v Malvar, 2002)
• Example: prescription, filing for ejectment case beyond the 1-year period
Failure to refer to lupon38 (waivable according to Banares case)
• Dismissed but WITHOUT prejudice
o Reply
o Bill of particulars
o MR or MNT
o Petition for relief from judgment
o Motion to declare in default
Also prohibited in small claims cases and environment cases
o Third party complaint
o Memoranda
o Dilatory motions for postponement
Motions for cancellation of hearing are not dilatory but be careful since the judge
will have to determine if it’s dilatory in the first place
o Motion for extension of time
o Petition for certiorari, mandamus, prohibition against interlocutory orders of the court
o Interventions
• Decisions from the MTC can be appealed to the RTC.39
o On appeal in the RTC, a MR is no longer a prohibited pleading.
The appeal before the RTC is no longer covered by the Rules on Summary
Procedure. (Macandangdang v Gaviola, 2009)
• Rules of Court supplement the Rules on Summary Procedure as long as they are not
inconsistent.40
o Hence, when the MTC dismisses a case because of lack of referral to the lupon and the
aggrieved party fails to appeal within 15 days, it becomes final and executory and cannot
be revived by a mere motion. (Banares, 2000)
• Preliminary injunction, being a provisional remedy, should lend itself to the summary nature of an
ejectment case. (Maderada v Mediodea)
• Judges who fail to follow the Rules on Summary Procedure will be held administratively liable.
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• WARNING: Sir will ask a lot of questions on Rule 6-8 for midterms so know the codal like the back
of your hand.
Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and
residences of the plaintiff and defendant must be stated in the complaint.
Sec. 4. Answer.
An answer is a pleading in which a defending party sets forth his defenses.
• An answer is a pleading in which a defending party sets forth his defenses.
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Sec. 5. Defenses.
Defenses may either be negative or affirmative.
A negative defense is the specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
An affirmative defense is an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by
him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute
of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance.
• What’s an affirmative defense?
o It’s an allegation of a new matter which, while hypothetically admitting the material
averments in the pleading of the claimant, would prevent or bar recovery.
Examples:
• Prescription, release, payment, statute of frauds (grounds for motion to
dismiss)
If you hypothetically admit, without raising any defense, then there’s no issue.
This will lead to a judgment on the pleadings. (Rule 34 – when the answer does
not tender an issue or admits the material allegations)
o Raise these first in your motion to dismiss (which you file before your answer), then raise
it again in your answer!
How do you plead affirmative defenses?
• If estoppel, allege the facts constituting it.
• If fraud or mistake, aver with particularity.
• If malice, intent, knowledge or other condition of the mind of a person,
just aver it generally.
• What is a negative defense?
o It’s a specific denial of the material fact or facts allege in the pleading of the claimant
essential to his cause/causes of action.
o A specific denial can be two things (Rule 8, Sec 10):
Specific denial: The defendant specifies each material allegation of fact (he doesn’t
admit the truth!) and whenever practicable, sets forth substance of the matters he
relies upon to support his denial, or if he denies only a part of the averment, he
specifies so much of it as is true and denies the remainder. (Basically, he chooses
stuff from the complaint and shoots them down by denying them)
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Disavowal of knowledge: The defendant states that he does not have knowledge
or information sufficient to form a belief as to the truth of a material averment.
(He says he doesn’t know anything regarding a material averment)
• However, if it the averment was in fact within the knowledge of the
defendant and he still disavows knowledge, it is deemed admitted as a
mere general denial.
• Defenses of “lack of knowledge for lack of privity” or “inability to recall
because it happened a long time ago” are insufficient defenses. (Republic v
Sandiganbayan, 2003)
• What is a negative pregnant?
o It’s a form of negative expression which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party.
o It is a denial pregnant with an admission of the substantial facts alleged in the pleading.
Example: allegations were that there were illegal funds in a Swiss bank account.
Answer was that the funds were legally acquired. Hence, the substantial fact that
there were funds in a Swiss bank account was not specifically denied, and thus
admitted.
Sec. 6. Counterclaim.
A counterclaim is any claim which a defending party may have against an opposing party.
Mario filed a collection case versus Luigi. Luigi filed a collection case versus Mario, claiming Mario
owed him.
• A counterclaim is a distinct and independent cause of action.
o Upon its filing, the same proceedings are had as in the original complaint.
• Period to answer counterclaim: within 10 days from service.
• Properly interposed, the defendant becomes the plaintiff.
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Sec. 8. Cross-claim.
A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence
that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim
may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant
for all or part of a claim asserted in the action against the cross-claimant.
Mario filed a suit versus Bowser and Luigi. Then, Luigi files versus Bowser.
• A cross claims is any claim by one party against a co-party
o arising out of the transaction or occurrence that is the subject matter either of:
o the original action or of a counterclaim therein.
• Period to answer cross-claim: 10 days
• No need for leave of court
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11, Sec 6)
If in response to a supplemental Within 10 days from notice of
answer order
After service of the bill of Within the period remaining to
particulars, or after notice of which he was entitled at the
denial of one’s motion for a bill time of filing his motion, which
of particulars (Rule 12, Sec 5) shall not be less than 5 days in
any event
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When the presence of parties other than those to the original action is required for the granting of
complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be
brought in as defendants, if jurisdiction over them can be obtained.
• How is this different from a third-party complaint?
o In a third party complaint, one of the third-party defendants is not a party to the main
action.
o In this section, one or more of the defendants in a counterclaim or cross-claim is already a
party to the action. They can be brought as other necessary parties under this section.
Section 1. Caption.
The caption sets forth the name of the court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be named in the original
complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on
each side be stated with an appropriate indication when there are other parties. Their respective
participation in the case shall be indicated.
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Sec. 4. Verification.
Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified
or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his personal knowledge or based on authentic records.
A pleading required to be verified which contains a verification based on "information and belief," or
upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an
unsigned pleading.
• GR: Pleadings need not be verified, under oath, or accompanied by an affidavit.
o EXCEPT: if specifically required by law or rule.
• A verification states that the affiant has read the pleading and the allegations therein are true.
o It must be under oath.
• It is the PARTY who signs the verification, not the lawyer.
o Although the lawyer can sign it under compelling reasons.
• A minor can sign, but he must be assisted.
• Verification is only a formal requirement.
o It is not jurisdictional. Failure to attach is not fatal.
But in the SC and CA, they dismiss without prejudice it for failure to comply with
procedural requirements.
• GR: For cases involving multiple parties, ALL of them must sign the verification. (applies also to
CNFS)
o EXCEPT: when they have a common interest among them. In this case, a signature of one
will suffice. (No need for authority from others either)
Examples of common interests:
• Heirs, with regard to property allegedly bequeathed to them (Iglesia v
Ponferrada, 2006, where only one heir signed the verification and it was
allowed by the court)
• Spouses and family members, involving the family home
• Members of a co-ownership, involving the property of the coownership
• Arising from the same transaction (Juaban v Espina wherein
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Section 1. In general.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of
the ultimate facts on which the party pleading relies for his claim or defense, as the case may be,
omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to
him shall be clearly and concisely stated.
• What should it contain?
o The ultimate facts, not evidentiary facts.
o Unlike a complaint which only alleges facts, an answer may cite legal provisions relied
upon for defense (like statute of limitations)
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o Yes. Take breach of contract as an example. Breach is the cause of action, while reliefs are
either specific performance or rescission.
o Alternative statements may be made either in one cause of action or defense or in
separate causes of action or defenses.
• Can the plaintiff make alternative allegations?
o Yes. There are cases where facts, essential to the plaintiff’s cause of action, are within the
knowledge of the defendant, but of which the plaintiff is so imperfectly informed that he
canot state with certainty, even on information or belief.
o The proper procedure is for him to state the facts within his knowledge with certainty, but
to plead in the alternative the doubtful facts which are wholly within the defendant’s
knowledge, and call upon the defendant to make the full disclosure of the facts.
• Can the defendant plead as many defenses as he wants?
o Yes.
o He has the right to set up negative defense in one cause of action and affirmative defense
in another in the same action. The affirmative matter in a separate defense does not
operate as a withdrawal of a defense in another portion of his answer.
o Those different defenses may be inconsistent with each other, but it is sufficient that each
is consistent with itself.
Sec. 4. Capacity.
Facts showing the capacity of a 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 of persons that is made a
party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial,
which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
• With respect to capacity, the facts concerning the following must be averred:
o The capacity of a person to sue or be sued
o The authority of a party to sue or be sued in a representative capacity
o Legal existence of an organized association of the persons that is made a party
• If a party wishes to raise an issue as to the legal existence of any party, etc, what should he do?
o He should do so by a specific denial, which should include such supporting particulars as
are peculiarly within the pleader’s knowledge.
o If the defendant wishes to raise an issue as to the plaintiff’s legal capacity to sue, he may
file a motion to dismiss on that ground, or set it up as an affirmative defense in the
answer.
o If the defendant wishes to raise an issue as to his legal capacity to be sued, he may
question the jurisdiction of the court over his person.
o In either case, the defendant may deny the allegation of capacity.
Sec. 6. Judgment.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or
of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter
showing jurisdiction to render it.
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o The court shall proceed to render judgment granting the claimant such relief as the
pleading may warrant, UNLESS its discretion requires the claimant to submit evidence.
The Clerk will receive the evidence, if ever.
• What’s the effect of the order of default?
o The party in default shall be entitled to notice of subsequent proceedings, but not take
part in the trial. (haha, loser.)
• Relief from an order of default:
o He may, at any time, after notice thereof and before judgment, file a motion UNDER OATH
to set aside the order of default.
o He must properly show that his failure to answer was due to:
Fraud
• EXTRINSIC fraud ah!41
Accident
Mistake
Excusable negligence (FAME!)
o State that you have a meritorious defense, without necessarily given an answer
o Also see Republic v Sandiganbayan, 2007, wherein the SC considered the trial court’s
granting of motions (motion to file responsive pleading and motion for BOP) as having the
same effect of lifting the order of default
• If judgment already rendered, the defaulted party has the following options (Martinez v Republic,
2006):
o If judgment already rendered when the defendant discovered the default, but before the
same has become final and executor, file a motion for NEW TRIAL (grounds: FAME) under
Sec 1, Rule 37
o If defendant discovered the default after the judgment has become final and executor, file
a PETITION FOR RELIEF under Sec 2, Rule 38
o Appeal from the judgment as contrary to evidence or to law, even if no petition to set
aside the order of default ahs been presented by him. (Sec 2, Rule 41)
Grounds:
• Plaintiff failed to prove the material allegations of the complaint, or
• Decision is contrary to law
o Certiorari (Rule 65)
• What’s the effect of partial default?
o When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment upon the evidence
presented.
This doesn’t apply when the defenses interposed by those present are personal.
o Hence, in a case versus Mario, Wario, Luigi, and Bowser, with Bowser not filing an answer.
Mario, Wario, and Luigi can present evidence. Bowser can not. But Bowser can still win on
the strength of the evidence given by Mario, Wario, and Luigi.
o The plaintiff will not be given the chance to present evidence ex parte since the other
defendants aren’t in default.
• What about the relief to be awarded?
o Well, it shall not exceed the amount or be different in kind from that prayed for.
o The court should also not award unliquidated damages (not supported by evidence).
o Even if the judge orders more evidence to be presented, the award should still not exceed
the amount prayed for. (Atty. Guevara)
o If the contract states “… in case of breach, damages will amount to P500,000.”, then that’s
not unliquidated and the judge can award that.
• When are defaults not allowed?
o Action for legal separation
o Action for annulment or declaration of nullity of marriage
In these 2 cases, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is none, to
41
Extrinsic fraud is actually a super ground! It can be invoked in 4 rules. Motion for new trial, petition for relief from judgment, petition for
annulment of judgment, AND relief from an order of detault
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intervene for the State in order to see to it that the evidence submitted is not
fabricated.
o SCAs like certiorari and prohibition, wherein the Court will order the respondent to
comment
But in Interpleader, there can be default since the rules don’t mention anything
about it and thus the ROC will apply suppletoritly
• How do you set aside an order of “as in default” (allowance for plaintiff to present evidence ex
parte)
o File an MR or motion to set aside order of default, also on the ground of FAME. (Saguid v
CA)
o No need to add that you have a meritorious defense, since you’re already in pre-trial.
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justice will be subserved thereby. The court may grant a continuance to enable the amendment to be
made.
• This rule covers the situation wherein what was alleged was different from what was proven.
(claim: P50,000, proved: P1,000,230.00)
• This rule allows the following: (Feria)
o A complaint which states no cause of action to be cured
either by evidence presented without objection, or
in the event of an objection sustained by the court, by an amendment of the
complaint with leave of court.
• But if there is no cause of action in the first place (compared to the failure
to state a cause of action), then no amendment can cure this.
o Admission of evidence on a defense not raised in a motion to dismiss or an answer if
No objection is made, or
In the event that there was an objection, the amendment of the answer in order to
raise such defense.
• There are two kinds of amendments to conform to evidence:
o First: no objection on the part of the other party. As such, it will be allowed even after
judgment.
This talks about a situation where a party presents evidence and no one objects,
either expressly or impliedly.
• How can one not object impliedly?
o By cross-examining
o By providing evidence in contra.
In instances such as these, the court will render judgment and will just order upon
motion at any time the amendment so that the complaint will conform with the
evidence presented and the judgment rendered.
o Second: if the other party objects, the amendment is left to the sound discretion of the
court.
The court will shall allow the pleadings to be amended when the presentation of
the merits of the action will be subserved thereby and the admission of such
evidence would not prejudice the objecting party in maintaining his action or
defense upon the merits.
After the amendment, the evidence objected to may be presented.
This was seen in Asean Pacific Planners v City of Urdaneta, 2008.
• Genio question: When can the court order an amendment even without motion/application to
amend?
o If it’s a merely formal amendment. (typo!)
o For bill of particulars, the court can either order compliance OR an amendment
o Motion to dismiss, the court can either grant, deny, or order an amendment
o In criminal case, in a motion to quash, the court can grant, deny or order an amendment.
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Amendments Supplements
Omission of a fact that happened before TOE happened only fter filing
filing; it was there at the time of the
pleading
May be filed without leave of court (if Always with leave of court
before responsive pleading)
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Sec. 6. Reply.
A reply may be filed within ten (l0) days from service of the pleading responded to.
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Section 1. Coverage.
This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed.
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Service
Sec. 5. Modes of service.
Service of pleadings, motions, notices, orders, judgments and other papers shall be made either
personally or by mail.
• How do you serve pleadings, motions, notices, orders, judgments and other papers?
o Personally
o By registered mail
o By ordinary mail
o Publication or substitute service (but depends if papers by parties or papers emanating
from the court)
• How is this different from service of summons?
o Service of summon is necessary in order that the court may acquire jurisdiction over the
person of the defendant.
o Once the court has acquired such jurisdiction either by service of summons or voluntary
appearance, the defendant may be served copies of the pleadings, either personally or by
mail.
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Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope,
plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if
known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the
sender after ten (l0) days if undelivered. If no registry service is available in the locality of either the
sender or the addressee, service may be done by ordinary mail.
• What about service by mail?
o By registered mail
Depositing the copy in the post office
In a sealed envelope
Plainly addressed to the party or his counsel at his office, or otherwise at his
residence
With postage fully prepaid, and
With instructions to the postmaster to return the mail to the sender after 10 days
if undelivered.
o If no registry service is available in the locality of either the sender or the addressee, then
by ordinary mail.
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Affidavit of the person mailing the pleading containing a full statement of the date,
place, and manner of service
Return card
• If unclaimed, file the:
o Return card
o The unclaimed document
o Certification by the post office
o If the service is by registered mail, the affidavit should be by the person who actually
mailed the pleading. (Romulo v Peralta, 2007, wherein the SC said there was improper
service because the affidavit was not by the person who actually mailed it, but was by the
person who made utos for it to be mailed)
o On the registry receipt, the receipt must indicate that the mail is a copy of the pleading,
decision, etc.
Actual knowledge of a decision cannot be attributed to the addressee of a
registered matter where there is no showing that the registry notice itself contains
any indication that the registered matter is a copy of the decision or that the
registry notice refers to the case being ventilated. (Romulo v Peralta)
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o All you need to send is a memorandum or letter, attaching the complaint, to the RD
• When do you need court approval with stuff involving a notice of lis pendens?
o When you intend to cancel the notice, on the following grounds:
The purpose was to molest other party
There was no need for the notice to protect the rights of the parties who caused it
o The trial court has the inherent power to cancel a notice of lis pendens.
• Important: notice of lis pendens only applies to judicial cases, not quasi-judical cases. (Heirs of
Lopez)
• Movants are not entitled to file a notice of lis pendens. (Heirs of lOpez v Enriquez)
• A notice must contain:
o A statement of the institution of an action or proceeding
o The court where the same is pending,
o The date of its institution
o The reference to the number of the certification of title, description of the land, and
registered owner
RULE 14 SUMMONS
Sec. 2. Contents.
The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain:
(a) the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be
attached to the original and each copy of the summons.
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• In quasi-judicial agencies, the rules on service of summons is NOT strictly construed. Substantial
compliance is enough. (Cada v Time Saver Laundry, 2009)
o Atty. Tranquil: Get the internal rules of quasi-judicial agencies. They might be different
from the ROC.
Sec. 4. Return.
When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of
the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to
the clerk who issued it, accompanied by proof of service.
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(b) by leaving the copies at defendant's office or regular place of business with some competent
person in charge thereof.
• When can you do substituted service?
o Only when the defendant cannot be served personally within a reasonable time that a
substituted service may be made
o Impossibility of prompt service should be shown by stating the efforts made to find the
defendant personally and the fact that such efforts field. This statement should be made in
the proof of service.
• How is substituted service effected?
o By leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or
o By leaving the copies at the defendant’s office or regular place of business with some
competent person in charge thereof.
• Requirements to effect a valid substituted service (Pascual v Pascual, Manotoc v CA):
o Impossibility of prompt personal service
What do you mean by “reasonable time”?
• For the sheriff, he has to serve the summons 15-30 days. After the 30th
day, the court will require the sheriff to submit the return.
o You have to be listo with this. If you file a complaint and you don’t
see to it that the summons is served within a reasonable time,
your complaint can be dismissed for failure to prosecute.
o In re: failure to prosecute, see Republic v Glasgow (2008) where
the SC said that it was not the Republic’s fault that summons was
not served within a reasonable time because Republic exerted
diligent efforts and Glasgow changed their address without
informing the SEC.
How many times should the attempted personal service been done?
• At least 3 times, on at least 2 different dates (Pascual v Pascual, 2009)
o Specific details in the return
Sheriff must describe in the return the facts and circumstances surrounding the
attempted personal service
The efforts made to find the defendant and the reasons behind the failure must be
clearly narrated.
In Manotoc, the return merely said that “on many occasions several attempts were
made to serve the summons.” Court held that this was deficient. Details must be
specific!
o If in the residence, to a person of suitable age and discretion.
What do you mean by “suitable age”?
• 18 years old and above
How do you test “discretion”?
• Ask questions, are they capable of making judgments? Do they understand
what’s happening?
• Must be able to speak English. (Obiter in Manotoc)
• The presupposes that a relation of confidence exists between the person
with whom the copy is left and the defendant, and assumes that such
person will deliver the process to the defendant.
Service is made at the residence of the defendant, but he was abroad, valid?
• Yes. Residence refers to the place where the person named in the
summons is living at the time when the service is made, even though he
may be temporarily out of the country at the time.
Can you give the summons to a cousin who’s visiting?
• Atty. Guevara says no. Strict compliance must be met. They must be
residing therein.
What about a househelper?
• Check two things:
o Does he or she reside therein?
o Is he or she of suitable age or discretion?
These details must also be written specifically in the return. (Manotoc)
o If in the defendant’s office or regular place of business, to a competent person in charge.
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Must be the one managing the office or business of the defendant (like the
president or the manager), and
Must have sufficient knowledge to understand the obligation of the defendant in
the summons
• Can a middle manager the same rank as Mr. X receive summons for Mr. X?
o He must be in charge of receiving summons in the office.
• Can you tender in substituted service?
o No.
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o So, service to the COO is ok, he’s the general manager. So with the CFO, since he’s the
treasurer. (Atty. Guevara)
• How do you serve to a GOCC?
o If created by law, see the charter who are authorized to receive summons.
o If created through the corporation code, follow Sec 11.
If the foreign private juridical entity is not registered in the Philippines or has no resident agent,
service may, with leave of court, be effected out of the Philippines through any of the
following means:
a) By personal service coursed through the appropriate court in the foreign country with the assistance
of the Department of Foreign Affairs;
b) By publication once in a newspaper of general circulation in the country where the defendant may
be found and by serving a copy of the summons and the court order by-registered mail at the last
known address of the defendant;
c) By facsimile or any recognized electronic means that could generate proof of service; or
d) By such other means as the court may in its discretion direct. (as amended by AM 11-3-6-SC, March
15, 2011)
• How can summons be served upon a foreign private juridical entity?
o For those who have transacted business here
By serving upon:
• Its resident agent designated in accordance with law for that purpose, or
• If none, on the government official designate by law to that effect, or
• Any of its officers or agents within the Philippines
o Remember Atty. Robles usual kwento about his jap client getting a
summons while playing golf in Wackwack
o For those who are not registered in the Philippines or have no resident agents
By serving:
• Personally through the appropriate court in the foreign country with the
assistance of the DFA, or
• By publication once in a newspaper in the country where the defendant
may be found AND by serving a copy and the court order by registered
mail at the last known address, or
• By fax or by any recognized electronic means that could generate proof of
service, or
• By other means ordered by the court
• Read this provision with Rule 11, Sect 2 (When to file responsive pleadings)
• Take note:
o If the foreign corporation has a representative office here, serve it on the resident agent,
as stated in this section
o If the foreign corporation has a subsidiary incorporated under the SEC, then use Sec 11,
since the subsidiary is a domestic corporation.
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Sec 14, 15, and 16 talks of summons by publication, but it is important to know the differences in
application and rules. So take note when each section will apply.
Sec. 14. Service upon defendant whose identity or whereabouts are unknown.
In any action where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of
court, be effected upon him by publication in a newspaper of general circulation and in such places and
for such time as the court may order.
• You use Sec 14 when the defendant is UNKNOWN or his whereabouts are UNKNOWN.
• When can summons by publication be done?
o Where the defendants is designated as an unknown owner, or the like; or
o Where his whereabouts are unknown and cannot be ascertained by diligent inquiry
• No need for personal service since you don’t know who the defendant is or where he is anyway.
• Important: Unlike Sec 15 and 16, Sec 14 only requires publication. No need to send the summons
by registered mail to the last known address.
• Before, you can only do this for in rem cases, but now, you can do this in whatever kind of action,
whether in rem or in personam. (Santos v PNOC)
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When any action is commenced against a defendant who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as
under the preceding section.
• You use this when the defendant is a resident but is TEMPORARILY absent from the Philippines.
• How do you serve summons to a resident temporarily out of the Philippines?
o Same as Sec 15, or
o Substituted service, if there is impossibility and there are earnest efforts to serve. (Palma
v Galvez, 2010, wherein summons was served to the defendant’s husband while the
defendant was abroad. This was valid.)
• Take note that the section uses “may”, so resorting to Sec 15 is not mandatory before going for
substituted service. (Palma v Galvez)
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• The printer
• Foreman
• Principal clerk, or
• Editor or business or advertising manager
Attached to it is a copy of the publication
o Affidavit showing the deposit of a copy of the summons and order for publication in the
post office, etc etc
• Seen in Acance v CA, 2005
RULE 15 MOTIONS
Section 1. Motion defined.
A motion is an application for relief other than by a pleading.
• A motion may be final or interlocutory. There are also motions which pray for a judgment on the
merits.
• A motion seeks relief, but is not a pleading.
• It does not raise a claim, nor does it raise defenses in an answer.
• Hence, a MTD does not take the nature of an answer because it does not lead to a joinder of
issues.
Sec. 3. Contents.
A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers.
• What should the motion contain?
o The relief sought to be obtained
o Grounds upon which it is based
o If required by the Rules or necessary to prove facts alleged therein, it should be
accompanied by supporting affidavits
o Notice of hearing (see Sec 4)
• When are supporting affidavits necessary?
o If the facts alleged in the motion are not of record or of judicial notice
o A motion for setting aside a judgment by default must be accompanied by an affidavit of
merit (to prove that there is a meritorious defense)
• When are they not necessary?
o When the grounds upon which the motion is based can be found in the record
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the other party at least three (3) days before the date of hearing, unless the court for good cause sets
the hearing on shorter notice.
• What must be done with the notice of hearing?
o All litigated motions shall be set for hearing by the applicant and,
o Shall be served together with the notice of hearing in such a manner as to insure receipt
by the other party at least three days before he date of hearing.
o You need notice of hearing and proof of service.
Served AND received by the other party 3 days before the hearing.
• You serve the notice of hearing to the other party.
o But also give notice to the clerk of court because he schedules the hearing.
• The absence of a notice of hearing makes the motion a MERE scrap of paper.
o Implication: the reglementary period keeps running.
• What motions can be acted upon without hearing?
o Ex parte motions like motion for extension of time to file pleadings, motion for extension
of time to file an answer, preliminary attachment (yes, it will adversely affect the other
party, but to require a hearing for this will defeat the purpose of the motion. Baka
tumakas lang yung other party)
o These can be acted upon immediately without prejudice to the adverse pary
• What motions should have a hearing?
o Litigated motions, like motion for reconsideration, motion to set aside order of default,
preliminary injunction, temporary restraining order (with exceptions)
o These will substantially affect the adverse party
• Atty Tranquil: It is the court who will conclude whether a motion is a litigious one or not, so just
put a notice of hearing on ALL motions.
o As long as in the trial court (either original or appellate capacity), you need a notice of
hearing.
• Do you need notice of hearing in appellate courts?
o No. See Rule 49 and Rule 56.
o If you put pa, superfluous lang yan.
• How do you attack a court order arising from a motion?
o If it’s a final order (like an order granting a motion to dismiss, judgment on the pleadings,
demurrer, summary judgment), your remedy is by appeal.
o If it’s interlocutory (like an order not granting a motion to dismiss), your remedy is by
certiorari under rule 65.
• The 3-day notice rule, however, is NOT absolute. A liberal construction is proper where the lapse
in the literal observance of the rule has not prejudiced the adverse party. (Presyler v Manila
Southcoast, 2010, where the respondent received the notice of hearing after the scheduled
hearing, but it did not prejudice him since the hearing was reset 3 time with due notice to both
parties).
o Why? Since the 3-day notice rule is for fair play and to allow the other party a chance to
prepare for the questions raised by the motion.
• Give an example of a motion which doesn’t follow the 3-day rule?
o Motion for summary judgment: must be served 10 days before the hearing42
42
Rule 35, Sec. 3. Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits,
depositions, or admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.
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Section 1. Grounds.
Within the time for but before filing the answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following grounds:
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(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or
otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of
frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
• Kinds of dismissal in civ pro:
o MTD by the defendant (Rule 16)
o MTD by the plaintiff (Rule 17)
Also covers failure to prosecute, which is another form of MTD
o Demurrer to evidence
• When should a motion to dismiss be filed?
o Before filing the answer to the complaint or pleading asserting a complaint
o This can be done by any defending party
• What are the grounds?
o No jurisdiction over the defendant
Look into the proper service of summons or voluntary appearance
o No jurisdiction over the subject matter
Depends on law
o Improper venue
See Rule 4, or special rules under specific laws
o Plaintiff no legal capacity to sue
Check the CAPACITY to sue
• Natural person – must be age of majority
o If minor or incompetent, must be assisted
• Corporation – must be duly organized and existing in the laws of country
where it was organized
• Attorney-in-fact – look into the scope of authority
o Litis pendentia
Requisites:
• Same parties
• Same interest
• Same rights asserted
• Same relief prayed for
• Could be pleaded as res judicata if the pending case has been disposed of
Forum shopping is NOT a ground. You usually use litis pendentia or res judicata
when forum shopping or splitting cause of action occurs. (Read with Rule 2, Sec 4)
• If there are two pending cases, what case will be dimissed?
o GR: the later case.
EXCEPT: the first case may be the one dismissed if the
later action is the more appropriate vehicle for the
ventilation of the issues between the parties. (UCPB v
Beluso, 2007)
o Res judicata
Requisites:
• Final judgment
• By a court having jurisdiction of the subject matter of the parties
• Must be on the merits (with trial, considering the evidence. Exception
would be judgment on the pleadings, order of dismissal – these are still
res judicata)
• Same parties, subject matter and cause of action
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o Prescription43
o Pleading asserting the claim states no cause of action (PACS-COA)
Does not go into the falsity or truthfulness of the claim
Pleading, on its face, does not appear to state a COA
Ground is also invoked when a party is not the RPI (Strongworld Construction v
Perello, 2006, where individual who brought suit was not authorized by the
corporation to file a case in its behalf)
What’s the test to determine if the complaint fails to state a cause of action?
• Ask: hypothetically admitting the facts alleged, can the court render a
valid judgment in accordance with the relief prayed for?
• This must be determined from the allegations of fact in the complaint
alone.
• This is the only ground of a motion to dismiss which must appear on the
face of the complaint.
When will the court not “admit allegations as true”? (exceptions to the
hypothetical admission of allegations)
• When there is judicial notice of the falsity
• When it’s legally impossible
• When the facts are inadmissible in evidence
• When the facts are unfounded, as appearing in the record or document in
the pleading
• There is evidence which has been presented to the court by stipulation of
the parties or in the course of the hearings related to the case
o See Heirs of Loreto Maramag v Maramag (2009) wherein the SC
used the exceptions since it was an insurance case and the heirs
were not beneficiaries, so under the Insurance Code, they couldn’t
recover even if the facts alleged were deemed hypothetically
admitted)
Important: What’s the difference between no cause of action and PACS-COA?
• Use the former in the answer as a defense or as a demurrer.
o But if used as a demurrer (Rule 33), it must be filed after the
plaintiff has presented evidence and rested its case. (Manila
Banking v Uni of Baguio, 2007, wherein the uni filed a MTD after it
filed an answer but before the plaintiff rested its case. So it wasn’t
a Sec 16 MTD nor a demurrer.)
Ground for demurrer: insufficiency of evidence
• Use the latter as a ground for motion to dismiss. Usually the complaint is
incomplete, defective or lacks allegations. It’s based on preliminary
objections.
o PACS-COA is waived if not raised in MTD or answer.
o No cause of action is not waived. (?)
43
Real actions over immovables 30 years (but if acquired with good faith and
just title, only 10 years to acquire ownership)
Real actions over movables 8 years (but if acquired with good faith and
just title, only 4 years to acquire ownership)
Mortgage action 10 years
Written contract 10 years
Obligation created by law
Judgment
Oral contract 6 years
Quasi-contract
Injury to the rights of the plaintiff 4 years
Quasi-delict
Forcible entry 1 year
Unlawful detainer
defamation
All others not fixed by other laws 5 years
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o As a matter of discretion by the court (Sec 2) – at any stage of the proceedings other than
before service of an answer or a motion for summary judgment. By motion and order of
the court.
• When can the plaintiff dismiss an action by notice?
o Any time before service of the answer, or
o Any time before a motion for summary judgment
o The court will then issue an order confirming the dismissal.
• What is the effect of the dismissal?
o It is without prejudice, so case can be re-filed
EXCEPT:
• If it is stated in the notice that the dismissal is with prejudice, or
• If the plaintiff has once dismissed in a competent court an action based on
or including the same claim (two-dismissal rule)
• No counterclaim yet since dismissal was before the answer.
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The only debatable exception would be if it is alleged in the counterclaim that it was the very act of the plaintiff in filing the complaint which
caused the violation of the defendant’s rights. But it remains debatable if it is sufficient to obviate the pending cause of action by the defendant
against the plaintiff. (Pinga v Heirs of German Santiago)
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• Take note: dismissal under this section will have the same effect as an adjudication upon the
merits, unless otherwise declared by the court.
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made
before a responsive pleading or a motion for summary judgment is served or, if there is none, before
the introduction of evidence at the trial or hearing.
• The rules above also apply to dismissals of counterclaims, cross-claims or third-party complaints
o for dismissals by notice, there is an additional reckoning point: before the introduction of
evidence at the trial or hearing
RULE 18 PRE-TRIAL
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Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a reminder to defendant to observe restraint in filing a motion to dismiss and instead allege the
grounds thereof as defenses in the Answer, in conformity with IBP-OCA Memorandum on Policy Guidelines dated March 12, 2002. A copy of
the summons is hereto attached as Annex "A;" and
1.2 The court shall issue an order requiring the parties to avail of interrogatories to parties under Rule 25 and request for admission by adverse
party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five days from
the filing of the answer.1 A copy of the order shall be served upon the defendant together with the summons and upon the plaintiff.
Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference.If the
plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.
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At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the
PMC mediation unit for purposes of mediation if available. If mediation fails, the judge will schedule the continuance of the pre-trial conference.
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Before the continuance, the Judge may refer the case to the Branch COC for a preliminary conference to assist the parties in reaching a
settlement, to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and
to consider such other matters as may aid in its prompt disposition
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Before the continuation of the pre-trial conference, the judge must study all the pleadings of the case, and determine the issues thereof and the
respective positions of the parties thereon to enable him to intelligently steer the parties toward a possible amicable settlement of the case, or, at
the very least, to help reduce and limit the issues. The judge should not allow the termination of pre-trial simply because of the manifestation of
the parties that they cannot settle the case. He should expose the parties to the advantages of pre-trial. He must also be mindful that there are other
important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case.7
The Judge with all tact, patience, impartiality and with due regard to the rights of the parties shall endeavor to persuade them to arrive at a
settlement of the dispute
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behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes
of dispute resolution, and to enter into stipulations or admissions of facts and of documents.
• Who has to go to the pre-trial?
o The parties, and
o Their counsel
• A representative can go but he needs a written SPA authorizing him to:
o Enter into an amicable settlement,
o Submit to alternative modes of dispute resolution
o Enter into stipulations or admissions of facts and documents
The parties shall file with the court and serve on the adverse party, in such manner as shall ensure
their receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial
briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery
procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.
• What is the effect of failure to file the pre-trial brief?
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Sec. 8. Preliminary conference; appearance of parties.
Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be
applicable to the preliminary conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The defendant who appears in
the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall
be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This
procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall
appear at the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as
the court in the exercise of sound discretion may impose on the movant.
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RULE 19 INTERVENTION
A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or
an interest against both, or 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 may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties, and whether or not the
intervenor's rights may be fully protected in a separate proceeding.
• In intervention, a third party takes part in a case between other parties because of
o Legal interest
in the matter in litigation
In the success of either parties
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The judge shall issue the required Pre-Trial Order within ten (10) days after the termination of the pre-trial. Said Order shall bind the parties,
limit the trial to matters not disposed of and control the course of the action during the trial. A sample Pre-Trial Order is hereto attached as
Annex "D."
However, the Court may opt to dictate the Pre-Trial Order in open court in the presence of the parties and their counsel and with the use of a
computer, shall have the same immediately finalized and printed. Once finished, the parties and/or their counsel shall sign the same to manifest
their conformity thereto.
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All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1 of Rule 118 shall be
approved by the court.
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against both
o situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or an officer thereof
• Must be done with leave of court
• Court will check whether:
o It will unduly delay or prejudice the adjudication of the rights of the original parties, and
o If intervenor’s rights may be fully protected in a separate proceeding
• The intervenor must have his/her own cause of action. (Nordic case)
o There was a mortgage over a vessel to secure a loan. There was default in payment, so
there was extrajudicial foreclosure. While the foreclosure was pending, there was a
complaint filed by the crew members of the vessel for sum of money against the vessel.
The mortgagee sought to intervene in the sum of money case because it held a preferred
mortgage. SC said no legal interest. Here, mortgagee had no interest in the sum of money
case, and in this case, the mortgagee can protect its rights in the foreclosure case.
• Dismissal of original action will result into dismissal of the intervention. (compare with
counterclaim!)
o The jurisdiction of the intervention is governed by the main action. So if the court has no
jd over the principal action, then it has no jd over an intervention. (ATI v Bautista-
Ricafort, 2006, wherein the main action, and the intervention, was filed in the wrong
court.)
• Difference between intervention and interpleader
o In intervention, intervenor must have legal interest
o In interpleader, the interpleading dude has no legal interest in the property in possession
• Other provisions on intervention:
o Rule 57, Sec 14 (on attachment) – 3rd party claimant can intervene
o Rule 39, Sec 16 – can no longer vindicate in same action, as there was final judgment
already
Sec. 3. Pleadings-in-intervention.
The intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of the
original parties, or an answer-in-intervention if he unites with the defending party in resisting a claim
against the latter.
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RULE 21 SUBPOENA
Sec. 6. Service.
Service of a subpoena shall be made in the same manner as personal or substituted service of
summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is
served, tendering to him the fees for one day’s attendance and the kilometrage allowed by these Rules,
except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer
or agency thereof, the tender need not be made. The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum,
the reasonable cost of producing the books, documents or things demanded shall also be tendered.
Sec. 9. Contempt.
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a
contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court,
the disobedience thereto shall be punished in accordance with the applicable law or Rule.
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The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one
hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course
of travel, or to a detention prisoner if no permission of the court in which his case is pending was
obtained.
BREAK MUNA!
MODES OF DISCOVERY
• What are the 4 modes of discovery?
o Depositions pending action (Rule 23)
o Request for admission by adverse party (Rule 26)
o Motion for production of documents or inspection of things (Rule 27)
o Physical and Mental Examination of Persons (Rule 28)
• In general, the modes are availed of after the issues have been joined with the filing of the
answer.
• The primary function of modes is to supplement the pleadings for the purpose of disclosing the
real points of dispute and affording an adequate factual basis during the preapartion for trial.
(Jonathan Land Oil)
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o NO! It does not! (At least it didn’t in Manguerra v Risos, 2008, wherein the prosecuting
witness was deposed in Makati but the case was in Cebu. Court held that Rule 119, Sec 15
must be followed. The prosecuting witness must be examined before the court where the
case is pending.)52
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Sec. 15. Examination of witness for the prosecution.– When it is satisfactorily appears that a witness for the prosecution is too sick or infirm to
appear at the trial as directed by the court, of has to leave the Philippines with no definite date of returning, he may forthwith be conditionally
examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice
to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the
accused to attend the examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver.
The statement taken may be admitted in behalf of or against the accused. (differentiate with defense witness)
Sec. 13. Examination of defense witness; how made. – If the court is satisfied that the examination of a witness for the accused is necessary, an
order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the
prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a
member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an
inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly
notified of the hearing. A written record of the testimony shall be taken.
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Is dead
• But to use his deposition, it is necessary that he was cross-examined (so it
won’t be hearsay)
Lives more than 100 KM from the place of trial or is out of the Philippines
• Unless the absence was procured by the party offering the deposition
Unable to testify or attend due to age, sickness, imprisonment
Could not be compelled to attend through a subpoena
Exceptional cases
• But take note: general rule is that you still have to put the witness in the
stand. That’s the priority.
• Depositions are not meant to substitute for the actual testimony in open
court of a party or witness. (Sales v Sabino, 2005)
• If a part of a deposition is offered in evidence, the adverse party may require the party to
introduce ALL of it.
• Mere failure to appear after a subpoena was issued is insufficient to prove inability to testify. The
court can exercise its coercive power to arrest. There must be efforts to have the witness
arrested. (Cariaga v CA, 2001, which was a criminal case so Rule 115 and Rule 130 were strictly
complied with)
•
Sec. 10. Persons before whom depositions may be taken within the Philippines.
Within the Philippines, depositions may be taken before any judge, notary public, or the person
referred to in section 14 hereof.
• In the Philippines, who can take depostions?
o Any judge
o Notary public, or
o Person authorized to administer oaths stipulated and agreed upon in writing by the parties
Sec. 11. Persons before whom depositions may be taken in foreign countries.
In a foreign state or country, depositions may be taken (a) on notice before a secretary of embassy or
legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b)
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before such person or officer as may be appointed by commission or under letters rogatory; or (c) the
person referred to in section 14 hereof.
• Abroad, who can take depositions?
o Secretary of an embassy/legation, consul general, consul, vice-consul or consular agent
o Such person or officer as appointed by a commission or under letters rogatory, or
o Person authorized to administer oaths stipulated and agreed upon in writing by the parties
Sec. 15. Deposition upon oral examination; notice; time and place.
A party desiring to take the deposition of any person upon oral examination shall give reasonable
notice in writing to every other party to the action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be examined, if known, and if the name is
not known, a general description sufficient to identify him or the particular class or group to which he
belongs. On motion of any party upon whom the notice is served, the court may for cause shown
enlarge or shorten the time.
• All objections with the notice must be promptly served in writing upon the party giving the
notice, or else it is waived.
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Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories.
A party desiring to take the deposition of any person upon written interrogatories 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 or descriptive title and address of the officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the
party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross- interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve recross-interrogatories upon the party
proposing to take the deposition.
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For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein
to the court in which the action is pending shall be deemed to refer to the court in which the petition
for such deposition was filed.
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Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party
not served with written interrogatories may not be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.
• Distinguish Rule 23 with Rule 25
Rule 23 Rule 25
To whom? To parties or witnesses, any To parties, always and only to
person! parties
How must Direct, cross, re-direct and re- It’s just one set of questions to be
questions be cross answered by the other partay
answered?
Time to answer No fixed time to answer 15 days to respond
(depends on the officer taking 10 days to oppose
the deposition)
Uses The same
• What is the effect of failure to serve written interrogatories?
o A party not served may NOT be compelled by the adverse party to give:
Testimony in open court, or
A deposition pending appeal.
• What is the effect of failure to answer specific questions in written interrogatories? (Read with Rule
29)
o NOT default, no, not yet!
Proponent must first move to compel the other party to answer. (Jaravata v
Karolus, 2007. See Rule 29, Sec 1 & 3. Atty Tranquil said this modified the rules,
but I don’t see or know how)
• What is the effect of failure to answer ALL questions in written interrogatories?
o Rule 29, Sec 5 should apply, not Rule 29, Sec 3. (Zepeda v China Banking, 2006)
Sec. 4. Withdrawal.
The court may allow the party making an admission under this Rule, whether express or implied, to
withdraw or amend it upon such terms as may be just.
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Compare to depositions.
• In requests for admission, what is it that you want admitted?
o The genuineness of any material/relevant document
Not the contents of the document, just the genuineness
Party requesting must attach the document
o Truth of any material and relevant matter
• Who do you address it to?
o The adverse party! (Not the counsel!)
• What are the relevant periods?
o To answer: 15 days, unless upon motion, allowed by court to extend
o To oppose: 15 days
Compare to opposing written interrogatories to parties (10 days)
• Should your answer be in any particular form?
o Well, it should be UNDER OATH.
What about your opposition/comment?
• In DBP v CA, it wasn’t under oath, but the SC allowed it.
• What happens if you fail to answer/oppose?
o Everything sought to be admitted will be deemed admitted!
• What if you don’t request for admissions from the adverse party?
o You won’t be permitted to present evidence on such facts.
• Can a request for admission be used instead of an offer to stipulate?
o Yes, so if party fails to answer the request, then facts are admitted. (Manzano v
Despalidares, 2004, judge asked them to make an offer to stipulate during pre-trial)
• Any limitations?
o Yes. No request for admission on matters which are
precisely the issues in the cases, or
irrelevant matters, or
opinions, or
conclusions of law, or
privileged matters, or
merely reiterations of allegations in the complaint. (Sime Darby v NLRC, 2006;
DBP v CA, 2005; Limos v Spouses, 2011)
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RULE 30 TRIAL
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence
in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good
reasons and in the furtherance of justice, permits them to adduce evidence upon their original case;
and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court
directs the parties to argue or to submit their respective memoranda or any further pleadings. If
several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence.
• Plaintiff, in the usual and ordinary course of things, presents before the defendant.
• The order can be reversed if there is an affirmative defense.
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The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties
agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as
the court shall prescribe.
• Can there be judgment without trial?
o Yes. When the parties agree, in writing, on the facts and submit the case on the facts
agreed upon. No need for introduction of evidence.
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53
In this case, there was a PN without a due date. The plaintiff said it was due. The defendant said it wasn’t due. So there was an issue raised, so
you can’t have a JOP.
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filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further
adjudge the offending party or counsel guilty of contempt.
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disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed
of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered,
the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments
and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in
whose favor the judgment is rendered.
• Several judgment: refers to judgments when there are many parties
o Court can render judgment to one party, and go on with trial with another
• Separate judgment: if there are many claims, the court can render judgment on one, and the
action proceeds with the other claims.
o Classic example: expropriation (authority to expropriate and just compensation)
Also in summary judgment (judgment over one claim which has no genuine issue,
other parts will be threshed out in trial)
Sec. 6. Judgment against entity without juridical personality.
When judgment is rendered against two or more persons sued as an entity without juridical
personality, the judgment shall set out their individual or proper names, if known.
• If judgment rendered against an entity without juridical entity, it will be against the members, not
the entity itself.
RULE 37 NEW TRIAL OR RECONSIDERATION
Section 1. Grounds of and period for filing motion for new trial or reconsideration.
Within the period for taking an appeal, the aggrieved party may move the trial court to 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:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has probably been impaired in his rights; or
(b) 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.
Within the same period, the aggrieved party may also move for reconsideration upon the grounds
that 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.
• MR/MNT period to file: 15 days (period for taking an appeal)
o Cannot be extended AT ALL.
See Fernandez v CA, where SC said that it is only in the SC that you can filed a
motion for extension of time to file a MNT/MR. (But Atty. Tranquil said that you
shouldn’t use this in practice because filing a motion for extension of time does
NOT interrupt the running of the period.)
• Can there be partial MR/MNT?
o Yes. When the court finds that the MR/MNT affects only a part of the judgment. (Sec 7)
• Motion for New Trial Grounds (FAME, which ordinary prudence could not have guarded against and
by reason of which the party was probably impaired his rights, and Newly Discovered Evidence):
o Fraud
Extrinsic fraud dapat!
o Accident
o Mistake
Mistake of fact in good faigth
Not mistake of law. If mistake of law, file MR
o Excusable negligence
o Newly discovered evidence
Could not have been discovered and produced at the trial with reasonable
negligence, and
If presented, would probably alter the result
• Motion for Reconsideration
o Damages awarded are excessive
o Evidence insufficient to justify the decision or final order
o Decision or final order is contrary to law
• A defective MR (such as a pro forma one: one that, for example, does not have a notice of
hearing) does NOT toll the appeal period. It keeps running.
o An MR/MNT is a motion (duh) so know the requirements for a valid motion. (See rules on
motions)
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o See Republic v Peralta, and Tan v CA 1998 (where entry of judgment was made because
the MR was defective and the time to appeal kept ticking.)
• If a movant had already filed in the SC a petition for review on certiorari, the MR previously filed
in the CA is deemed abandoned. (People v Odilao, 2004, where the OSG and the private
complainant filed different petitions without the knowledge of the other)
• Fresh period rule (important!): After the denial of an MR, the party is given a fresh period of 15
days to appeal. (Neypes v CA, 2005)54
o The denial of an MR is a final order, so reglementary period should start then.
o Fresh period rule only applies if you file for an MR (MNT?) and then it’s denied.
• Where does the Neypes rule apply?
o Basically, just to Rule 40 and 41 (although the case just mentioned Rule 40). These are
ordinary appeals.
o Rule 42 (Pet for Review), 43 (Pet for Review from QJA), and 45 (Pet for Review on
Certiorari), do not need the Neypes ruling because the fresh period rule is already inherent
in the said rules.
• Can there be MNT in the appellate court?
o Yes, but with different rules and applicable only to the Court of Appeals.
o Check Rule 53. For the CA, the only ground is newly discovered evidence.55
Also different periods:
• In trial courts: 15 days
• In CA: as long as the case is active (no need to wait for a judgment in the
CA)
• Is there MNT in the SC?
o Under Rule 56, generally no.
But the SC can entertain such if it feels it will serve the interests of madame
justice.
• What is a TMNT?
o A Teenage Mutant Ninja Turtle. They are heroes in a half-shell.56
Sec. 2. Contents of motion for new trial or reconsideration and notice thereof.
The motion shall be made in writing stating the ground or grounds therefor, a written notice of which
shall be served by the movant on the adverse party. A motion for new trial shall be proved in the
manner provided for proof of motions. A motion for the cause mentioned in paragraph (a) of the
preceding section shall be supported by affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be supported by affidavits of the witnesses by
whom such evidence is expected to be given, or by duly authenticated documents which are proposed
to be introduced in evidence.
A motion for reconsideration shall point out specifically the findings or conclusions of the judgment or
final order 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. A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
• A MNT based on FAME must be accompanied by an AFFIDAVIT of MERIT.
54
Does the fresh period rule apply to denial of MNT?
55
RULE 53 NEW TRIAL Section 1. Period for filing; ground. At any time after the appeal from the lower court has been perfected and before
the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly discovered evidence which
could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would
probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly
discovered evidence.
56
Turtle Power!
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Sec. 9. Remedy against order denying a motion for new trial or reconsideration.
An order denying a motion for new trial or reconsideration is not appealable, the remedy being an
appeal from the judgment or final order.
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57
FAME also applies in MNT, petition for relief, motion to lift order of default, and MR of order of court in pre-trial declaring that plaintiff can
present evidence ex parte due to failure of the defendant to appear in pre-trial
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The court in which the petition is filed, may grant such preliminary injunction as may be necessary for
the preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the
adverse party all damages and costs that may be awarded to him by reason of issuance of such
injunction or the other proceedings following the petition; but such injunction shall not operate to
discharge or extinguish any lien which the adverse party may have acquired upon the property of the
petitioner.
• Can the court grant a preliminary injunction during the petition for relief?
o Yes. But petitioner must file a bond.
Sec. 6. Proceedings after answer is filed.
After the filing of the answer or the expiration of the period therefor, the court shall hear the petition
and if after such hearing, it finds that the allegations thereof are not true, the petition shall be
dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or
other proceedings complained of upon such terms as may be just. Thereafter the case shall stand as if
such judgment, final order or other proceeding had never been rendered, issued or taken. The court
shall then proceed to hear and determine the case as if a timely motion for a new trial or
reconsideration had been granted by it.
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(b) Execution of several, separate or partial judgments.— A several separate or partial judgment may
be executed under the same terms and conditions as execution of a judgment or final order pending
appeal.
• Sec 2 talks of execution as a matter of discretion
• When is execution a matter of discretion?
o When the judgment is final, meaning it is either:
pending appeal or
a several/partial judgment (while the other issues of the case are still being tried)
o The distinction between a final judgment and one that is final and executory is essential,
so see the table which discussed the Intramuros case. (Rule 36, Sec 2)
o A final judgment or order is one that finally disposes of a case.
• Requisites for an execution pending appeal/several/separate/partial judgments:
o TC must still have jurisdiction over the case
o Must be within the appeal period
o Records or record on appeal are still with the trial court59
o Must be for good reasons
o The good reasons must be stated in a special order after due hearing
All of the requisites must concur!
And the presence of the records with the trial court is very important. It is possible
that the appeal has been perfected (meaning a notice of appeal has been filed) but
if the records are still with the trial court, execution pending appeal with the trial
court can still be availed of. (Atty. Tranquil)
• Seen in Capa v CA (2006)
• On the requirement of good reasons
o Examples of good reasons
Perishable goods to be executed upon
o Examples of NOT good reasons
The mere filing of a bond (ISM v CA, 1999, since the filing of a bond is not
required to apply for discretionary execution)
The conclusion of the trial court that the appeal is dilatory (since it is the appellate
court which determines when an appeal is dilatory)
Admission of liability (Manacop v Equitable Bank, 2005, since the admission and
willingness to deliver the proceeds to the proper party militate against execution
pending appeal because there is little or no danger that the judgment will become
illusory)
58
Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or
upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support
pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same
case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.
59
Read this rule with Rule 41, Sec 9
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(e) In all cases, the writ of execution shall specifically state the amount of the interest, costs,
damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of
the foregoing reliefs sought by the movant.
(b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall
levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from execution giving the latter the option to
immediately choose which property or part thereof may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, an then on the real properties if the personal properties are insufficient to
answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon. When there is more property of the
judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much
of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property,
stocks, shares, debts, credits, and other personal property, or any interest in either real or persoanl
property, may be levied upon in like manner and with like effect as under a writ of attachment.
(c) Garnishment of debts and credits. - The officer may levy on debts due the judgment obligor and
other credits, including bank deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the posssession or control of third parties. Levy shall be
made by serving notice upon the person owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will
satisfy the judgment and all lawful fees. The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how
much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of notice on said garnishing requiring such
delivery, except the lawful fees which shall be paid directly to the court. In the event there are two or
more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver
the amount due; otherwise, the choice shall be made by the judgment obligee. The executing sheriff
shall observe the same procedure under paragraph (a) with respect to delivery of payment to the
judgment obligee.
• Execution of judgments are enforced by the sheriff. But before he does so, he must observe the
following:
o Prepare an estimate of expenses to be incurred in executing the writ (must be court
approved)
o Render an accounting
o Issue an OR for the total amount he received from the judgment obligor (Zamora v
Villanueva, 2008, this is not corruption!)
• How do you enforce money judgments?
o Pay with cash (or certified bank check, or form of payment acceptable to the obligee)
To the judgment obligee, or if he’s not available, to his representative.
If both not available, pay to the sheriff, who will give to the clerk or, if not
available to a government bank
• If certified bank check, it should not be made payable to the sheriff.
Sheriff can NOT give it to the brother of the representative. (Benitez v Acosta,
2001)
o If no cash, levy will be made
Levy is the act of an officer of setting apart the property of a judgment property
for the purpose of selling it later.
Choice of the judgment obligor what property will be levied upon
• If he doesn’t make a choice, sheriff will choose but personal property will
be prioritized over real property
• It is incumbent on the Sheriff to give a Notice of Levy or receipt to the
person to whom the personal properties were taken. (Caja v Nanquil,
2004)
o If no one’s there, he should leave the notice of levy in the place
where the property was levied.
o If still nothing, then garnishment will follow
Sheriff may levy on debts due the obligor and other credits like bank deposits and
personal property not capable of manual delivery in the possession of 3rd persons
Levy is made by serving notice upon the person in possession of such debts or
credits
• Then, garnishee shall make a report within 5 days if the judgment obligor
has enough credits with the garnishee
If there is enough credits, court will order requiring the transfer of funds
• There can be no garnishment without period order of payment
Sec. 10. Execution of judgments for specific act.
(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a party
who execute a conveyance of land or personal property, or to deliver deeds or other documents, or to
perform any other specific act in connection therewith, and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done shall have like effect as if done by the party. If
real or personal property is situated within the Philippines, the court in lieu of directing a conveyance
thereof may be an order divest the title of any party and vest it in others, which shall have the force
and effect of a conveyance executed in due form of law.
(b) Sale of real or personal property.— If the judgment be for the sale of real or personal property, to
sell such property, describing it, and apply the proceeds in conformity with the judgment.
(c) Delivery or restitution of real property.- The officer shall demand of the person against whom the
judgment for the delivery or restitution of real property is rendered and all person claiming rights
under him to peaceably vacate the property within three (3) working days, and restore possession
thereof to the judgment obligee; otherwise, the officer shall oust and such persons therefrom with the
assistance, if necessary of appropriate peace officers, and employing such means as may be reasonably
necessary to retake possession, and place the judgment obligee in possession of such property. Any
costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a
judgment for money.
(d) Removal of improvements on property subject of execution.- When the property subject of the
execution contains improvements constructed or planted by the judgment obligor or his agent, 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.
(e) Delivery of personal property.- In judgments for the delivery of personal property, the officer shall
take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any
judgment for money as therein provided.
• If the court requires the judgment obligor to do something, but he refuses, the court may direct it
to be done by some other person, at the expense of the judgment obligor.
o The court itself may do the specific act. (Feria)
o If the other person does not comply, the court may consider that it has been deemed
complied with. (part of GT notes, not sure of the legal basis)
• If judgment is for the sale of property, court can sell such and apply the proceeds to the
judgment.
• If judgment involves the delivery or restitution of real property, the persons in said property have
3 days to vacate. If not, peace officers can come and make them vacate.
• If judgment involves demolition, demolition can not be done unless with a special order of the
court, issued upon motion of the winning party after due hearing and after the judgment obligor
fails to remove the same.
• If judgment involves delivery of personal property, the officer shall get the property and deliver it
to the party entitled to it.
Before the sale of property on execution, notice thereof must be given as follows:
(a) In case of perishable property, by posting written notice of the time and place of the sale in three
(3) public places, preferably in conspicuous areas of the municipal or city hall, post office and public
market in the municipality or city where the sale is to take place, for such time as may be reasonable,
considering the character and condition of the property;
(b) In case of other personal property, by posting a similar notice in the three (3) public places above-
mentioned for not less than five (5) days;
(c) In case of real property, by posting for twenty (20) days in the three (3) public places above-
mentioned a similar notice particularly describing the property and stating where the property is to be
sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by
publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected
by raffle, whether in English, Filipino, or any major regional language published, edited and circulated
or, in the absence thereof, having general circulation in the province or city;
(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3)
days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any
time before the sale, in the same manner as personal service of pleadings and other papers as provided
by Section 6 of Rule 13. The notice shall specify the place, date and exact time of the sale which
should not be earlier than nine o’clock in the morning and not later than two o’clock in the afternoon.
The place of the sale may be agreed upon by the parties. In the absence of such agreement, the sale of
real property or personal property not capable of manual delivery shall be held in the office of the clerk
of court of the Regional Trial Court or the Municipal Trial Court which issued the writ or which was
designated by the appellate court. In the case of personal property capable of manual delivery, the sale
shall be held in the place where the property is located.
• Notice of sale (to the public)
Posting Time
Perishable goods 3 public places Reasonable time
Personal property 3 public places Not less than 5 days
Real property (P50,000 and 3 public places 20 days
below)
Real property (exceeds No posting, but by publication For 2 consecutive weeks
P50,000)
• In all cases, notice to the judgment obligor must be made at least 3 days before the sale
o EXCEPT in case of perishable goods, notice at any time before the sale.
• Time of sale: 9 am – 2 pm
• Where: Office of the clerk of court (for real and personal property which can’t be manually
delivered).
o But if personal property capable of manual delivery, where the property is located.
obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied on. In case of disagreement as to such
value, the same shall be determined by the court issuing the writ of execution. No claim for damages
for the taking or keeping of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property in a separate action, or prevent the judgment obligee from
claiming damages in the same or a separate action against a third-party claimant who filed a frivolous
or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held
liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose.
• If there is a 3rd party claim to the property levied, the judgment obligee must file a bond to
indemnify the 3rd party claimant.
o The bond must not be less than the value of the property levied upon.
It is within the discretion of the sheriff to dispense with the indemnity bond if he
sees that the 3rd party claim is baseless.
• The sheriff is not liable for damages for the taking or keeping of the property if thebond is filed.
• The judgment oblige may claim damages against a 3rd party claimant in the same or a separate
action.
• The 3rd person may vindicate his claim in a separate action since intervention is no loger allowed
as judgment has already been rendered.
Sec. 17. Penalty for selling without notice, or removing or defacing notice.
An officer selling without the notice prescribed by section 15 of this Rule shall be liable to pay punitive
damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in addition
to his actual damages, both to be recovered by motion in the same action; and a person willfully
removing or defacing the notice posted, if done before the sale, or before the satisfaction of the
judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.000) pesos to
any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in
the same action.
Sec. 19. How property sold on execution; who may direct manner and order of sale.
All sales of property under execution must be made at public auction, to the highest bidder, to start at
the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the
judgment obligor or his authorized representative, unless otherwise directed by the judgment or order
of the court.
When the sale is of real property, consisting of several known lots, they must be sold separately; or,
when a portion of such real property is claimed by a third person, he may require it to be sold
separately.
When the sale is of personal property capable of manual delivery, it must be sold within view of those
attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, 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. Neither
the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested
directly or indirectly in any purchase at such sale.
• Manner of sale: public auction, to the highest bidder.
o Real property consisting of several known lots: sell separately
o Personal property consisting of manual delivery: sold within view of those attending the
same and in such parcels which will bring the highest price
• If judgment obligor is present, he may direct the order in which the property shall be sold
• The officer conducting the sale can not purchase or be interested in it
any loss occasioned thereby; but the court may order the refusing purchaser to pay into the court the
amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount
of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless
the execution has been fully satisfied, in which event such proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser who refuses
to pay.
• If a purchaser refuses to pay, he may be cited for contempt
Sec. 21. Judgment obligee as purchaser.
When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay
the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the
excess.
Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery.
When the purchaser of any personal property, not capable of manual delivery, pays the purchase price,
the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such
certificate conveys to the purchaser all the rights which the judgment obligor had in such property as
of the date of the levy on execution or preliminary attachment.
Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of
deeds.
Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year from the date of the registration of
the certificate of sale. Such certificate must be registered in the registry of deeds of the place
where the property is situated.
Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and
filed.
The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time
within one (1) year from the date of the registration of the certificate of sale, by paying the purchaser
the amount of his purchase, with one per centum per month interest thereon in addition, up to the time
of redemption, together with the amount of any assessments or taxes which the purchaser may have
paid thereon after purchase, and interest on such last named amount at the same rate; and if the
purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment
under which such purchase was made, the amount of such other lien, with interest.
Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon
payment of the sum paid on the last redemption, with two per centum thereon in addition, and the
amount of any assessments or taxes which the last redemptioner may have paid thereon after
redemption by him, with interest on such last-named amount, and in addition, the amount of any liens
held by said last redemptioner prior to his own, with interest. The property may be again, and as often
as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days
after the last redemption, on paying the sum paid on the last previous redemption, with two per
centum thereon in addition, and the amounts of any assessments or taxes which the last previous
redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens
held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who made the sale and a duplicate filed
with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or
if he has or acquires any lien other than that upon which the redemption was made, notice thereof
must in like manner be given to the officer and filed with the registry of deeds; if such notice be not
filed, the property may be redeemed without paying such assessments, taxes, or liens.
• Period of redemption:
o For judgment obligor
1 year from the registration of the certificate of sale
He may redeem either from the purchaser or a redemptioner
• Once he redeems, no further redemption is allowed.
o For redemptioner
1 year from the date of registration of the certificate of sale
• Second redemptioner has 60 days after the first redemption, the 3rd has
60 days after the second, and so on, even after the lapse 1 year from the
date of registration.
o As long as each redemption is made within 60 days after the last.
o Beyond the redemption periods, the judgment obligor can still redeem, but this will be
based on contract, not on the rules.
• The period to redeem is NOT suspended by an action to annul the sale. (Landrito v CA, 2005)
• Redemption must made with willingness and intention coupled with tender of payment.
o It must be full payment, can’t redeem in installments.
• See codal na lang for how much each has to pay.
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded
thereupon; to whom payments on redemption made.
If the judgment obligor redeems, he must make the same payments as are required to effect a
redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored
to his estate. The person to whom the redemption payment is made must execute and deliver to him a
certificate of redemption acknowledged before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the
registry of deeds of the place in which the property is situated, and the registrar of deeds must note
the record thereof on the margin of the record of the certificate of sale. The payments mentioned in
this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the
officer who made the sale.
Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given.
If no redemption be made within one (1) year from the date of the registration of the certificate of
sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the
date of the registration of the sale to redeem the property. The deed shall be executed by the officer
making the sale or by his successor in office, and in the latter case shall have the same validity as
though the officer making the sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by
the same officer unless a third party is actually holding the property adversely to the judgment obligor.
• All the rights and title of the judgment obligor is transferred upon the expiration of the right of
redemption.
o The purchaser or last redemptioner is entitled to a writ of possession upon the expiration
of the redemption period.
• Possession will be given to the purchaser or last redemptioner,
o UNLESS a third party is actually holding the property adversely.
•
Sec. 34. Recovery of price if sale not effective; revival of judgment.
If the purchaser of real property sold on execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or set aside, or because the property
sold was exempt from execution, or because a third person has vindicated his claim to the property, he
may on motion in the same action or in a separate action recover from the judgment obligee the price
paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may,
on motion, have the original judgment revived in his name for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same
force and effect as an original judgment would have as of the date of the revival and no more.
• If the sale is no effective for the reasons in the codal, the purchaser has the option either:
o to recover in a separate action from the judgment oblige the price paid to him with
interest, or
o to file a motion in the same case to revive the judgment in his name against the judgment
obligor for said amount.
In this case, he can execture, just like any other judgment oblige.
When property liable to an execution against several persons is sold thereon, and more than a due
proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or
one of them pays, without a sale, more than his proportion, he may compel a contribution from the
others; and when a judgment is upon an obligation of one of them, as security for another, and the
surety pays the amount, or any part thereof, either by sale of his property or before sale, he may
compel repayment from the principal.
Sec. 40. Order for application of property and income to satisfaction of judgment.
The court may order any property of the judgment obligor, or money due him, not exempt from
execution, in the hands of either himself or another person, or of a corporation or other juridical entity,
to be applied to the satisfaction of the judgment, subject to any prior rights over such property. If,
upon investigation of his current income and expenses, it appears that the earnings of the judgment
obligor for his personal services are more than necessary for the support of his family, the court may
order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such
installment when due without good excuse, may punish him for indirect contempt.
the sale of real estate upon execution, and the proceedings thereon shall be approved by the court
before the execution of the deed.
Sec. 43. Proceedings when indebtedness denied or another person claims the property.
If it appears that a person or corporation, alleged to have property of the judgment obligor or to be
indebted to him, claims an interest in the property adverse to him or denies the debt, the court may
authorize, by an order made to that effect, the judgment obligee to institute an action against such
person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of
such interest or debt within one hundred twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may be modified or vacated at any time by the
court which issued it, or by the court in which the action is brought, upon such terms as may be just.
• Sections 36-43 are proceedings supplementary to execution.
• You avail of these if ever property has already been sold but the proceeds still do not SATISFY the
judgment.
o So other property is in mind for these.
• Hence, the judgment obligee’s remedies are:
o Have the judgment obligor examined by an order (Sec 36)
o Have the obligor of a judgment obligor examined by an order (Sec 37)
Obligor may pay his debt to the sheriff (Sec 39)
o Have anyone else appear to be examined by order or subpoena (Sec 38)
Under pain of contempt (applies to Sec 36 & 37)
• The court can then order an application for property and income of the judgment obligor for the
satisfaction of the judgment. (Sec 40)
o But garnishment of the entire salary is not allowed when said is not sufficient for the
expenses of the judgment obligor and his family.
• Court can also appoint a receiver. (Sec 41)
o This is the only prov rem that can be given by the court after judgment.
o The receiver can, upon order of the court, sell and convey such real estate or the interest
of the obligor therein. (Sec 42)
• Court can also allow the judgment obligee to institute an action against a person who denies the
debt or claims the property as his (Sec 43)
o Court can also forbid a transfer or disposition of said property or debt within 120 days
from notice of order
Disobedience is under pain of contempt
APPEALS
• Before proceeding, let us look at the three modes of appeal:
o Ordinary appeal (Rules 40 and 41)
o Petition for review (Rules 42 and 43)
o Petition for review on certiorari (Rules 45)
RULE 40 APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS
(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the Regional Trial
Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be
furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellant’s
memorandum, the appellee may file his memorandum. Failure of the appellant to file memorandum
shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do so, the
case shall be considered submitted for decision. The Regional Trial Court shall decide the case on the
basis of the entire record of the proceedings had in the court of origin and such memoranda as are
filed.
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction.
If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits,
the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the
ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case
of reversal, the case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice.
Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
1. An order denying a petition for relief or any similar motion seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other ground vitiating consent;
5. An order of execution;
6. A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
7. An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action
as provided in Rule 65. (amended in 2007)
• Appeals can only be taken from judgments or final orders that complete dispose of a case, or a
matter declared to be appealable by the Rules.
• The enumeration in the codal are interlocutory orders, you can’t appeal from them, but you can
use Rule 65.
o Take note that if there is an order dismissing the action without prejudice, you can’t
appeal. Just go for rule 65 or just re-file.
(b) Petition for review.- The appeal to the Court of Appeals in cases decided by the Regional Trial Court
in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari.- In all cases where only questions of law are raised or involved, the appeal
shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
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Sec. 2. Dismissal of improper appeal to the Court of Appeals.
An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the
appropriate court but shall be dismissed outright.
• The late filing can sometimes be allowed in the interest of justice. (Aguilar v COMELEC, 2009)
• Where do you file the notice of appeal or record on appeal (applies to Rule 40 and 41)?
o In the court that issued the judgment.
• Give examples of cases where a record of appeal is required (multiple or separate appeals):
o Expropriation cases (NAPOCOR v Paderanga, 2005)
o In a case which had two causes of action – annulment of deeds of sale and recovery of
money (Fernando v Santamaria, 2004, where SC said that a record of appeal was needed
for the appeal on the issue of the collection of money)
• Distinguish appeal from certiorari under Rule 65 (Madrigal v Lapanday, 2004)
Appeal Certiorari
Attacks Errors of judgment Errors of jurisdiction
Appellate power Original independent action
Subject matter Judgements or final orders Interlocutory orders
Period of filing 15 days (or 30 days if record on 60 days
appeal)
MR not required MR generally required
• Appeal and certiorari are mutually exclusive.
o But don’t be fooled or get lito.
You can file Rule 65 on an order granting execution pending appeal while the main
case is on appeal.
• What is the mode of appeal when the RTC is acting as a Special Agrarian Court?
o Petition for review to the CA, according to the CARL. (Landbank v Arlene de Leon, 2002)
How about if it acts as a Commercial Court?
• Petition for review to the CA, according to 2005 SC Circular.
matters which are deemed essential to the determination of the issue of law or fact involved in the
appeal. If the trial court orders the amendment of the record, the appellant, within the time limited in
the order, or such extension thereof as may be granted, or if no time is fixed by the order within ten
(10) days from receipt thereof, shall redraft the record by including therein, in their proper
chronological sequence, such additional matters as the court may have directed him to incorporate,
and shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like
manner as the original draft.
• A record on appeal has to be approved.
o A notice of appeal does not.
Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal.
Within thirty (30) days after perfection of all the appeals in accordance with the preceding section, it
shall be the duty of the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be, and to
make a certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be required to complete the records,
availing of the authority that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court. If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or transcripts not included in the records being
transmitted to the appellate court, the reasons for their non-transmittal, and the steps taken or that
could be taken to have them available. The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court.
transmitted to the clerk of the trial court who shall thereupon arrange the same in the order in which
the witnesses testified at the trial, and shall cause the pages to be numbered consecutively.
It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the
notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7)
copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies
thereof upon the appellee.
Sec. 11. Several appellants or appellees or several counsel for each party.
Where there are several appellants or appellees, each counsel representing one or more but not all of
them shall be served with only one copy of the briefs. When several counsel represent one appellant or
appellee, copies of the brief may be served upon any of them.
relied on shall be cited by the page of the report at which the case begins and the page of the report on
which the citation is found.
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS
or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom.
(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay the
judgment or final order unless the Court of Appeals, the law, or these Rules shall provide otherwise.
• When is the perfection of appeal in petition for review cases?
RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT
OF APPEALS
Section 1. Scope.
This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central
Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board,
National Telecommunications Commission, Department of Agrarian Reform under Republic Act No.
6657, Government Service Insurance System, Employees Compensation Commission, Agricultural
Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.
of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed.
Upon proper motion and the payment of the full amount of the docket fee before the expiration of the
reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only
within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen
(15) days.
• See comments on Rule 42.
agreement of all parties to the proceeding. The Court of Appeals may require or permit subsequent
correction of or addition to the record.
• Same as in Rule 42.
• But note that the findings of fact of QJA, when supported by substantial evidence, shall be binding
on the CA.
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which
must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion
filed in the same action or proceeding at any time during its pendency.
61
like conflicting findings of fact, conclusion is grounded entirely on speculation, etc
o Habeas corpus, habeas data, writ of amparo, quo warranto, Rule 65 against lower courts
(concurrent with SC and RTC)
o Annulment of judgments of RTC (exclusive)
Sec. 3. Contents and filing of petition; effect of non-compliance with requirements.
The petition shall contain the full names and actual addresses of all the petitioners and respondents, a
concise statement of the matters involved, the factual background of the case, and the grounds relied
upon for the relief prayed for. It shall be filed in seven (7) clearly legible copies together with proof of
service thereof on the respondent with the original copy intended for the court indicated as such by the
petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the
judgment, order, resolution, or ruling subject thereof, such material portions of the record as are
referred to therein, and other documents relevant or pertinent thereto. The certification shall be
accomplished by the proper clerk of court or by his duly authorized representative, or by the proper
officer of the court, tribunal, agency or office involved or by his duly authorized representative. The
other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of
all documents attached to the original. The petitioner shall also submit together with the petition a
sworn certification that he has not theretofore commenced any other action involving the same issues
in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or
agency; if there is such other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5)
days therefrom. The petitioner shall pay the corresponding docket and other lawful fees to the clerk
of court and deposit the amount of P500.00 for costs at the time of the filing of the petition. The
failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for
the dismissal of the petition.
its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered
evidence; and
(d) To take up such other latters which may aid the court in the prompt disposition of the case.
(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in
section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum
within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record
as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or completion of the record
within the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with
orders, circulars, or directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable.
• Take note of the enumeration!
• It is also not mandatory on the CA to dismiss, Rule is directory.
• Other grounds aside from the enumeration:
o Moot causes
o Frivolous appeals (no justiciable question, or so devoid of merit on its face, or filed by a
troll)
RULE 51 JUDGMENT
or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed
from.
resolution, which shall be reached in consultation before the writing of the opinion by any member of
the division.
An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in
criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.
Sec. 4. Procedure.
The appeal shall be governed by and disposed of in accordance with the applicable provisions of the
constitution, laws, Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule.
Sec. 6. Procedure.
The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the reception of
the evidence may be referred to a member of the court or a judge of a Regional Trial Court.
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