Professional Documents
Culture Documents
Riano Civpro Outline PDF
Riano Civpro Outline PDF
Riano Civpro Outline PDF
Preparation
of
Complaint
Filing of
complaint
Dismissal
Dismissal
Dismissal by plaintiff
Before answer- matter of right
After answer- court discretion
Dismissal
Amendment by plaintiff
Before responsive pleading is SERVED - matter of right
After responsive pleading is SERVED- court discretion
Service of
summons
by the COC
Answer
By
defendant
NO answer made
Judgment by default
NO answer made
Admission of claim
NO denial. No triable
issues
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pg. 1
Summary judgment
Reply by Plaintiff
3 party complaint to a
stranger
Pre-Trial
(mandatory)
Modes of discovery
Alternative modes of
dispute resolution
No settlement or compromise
Trial
Present evidence by
plaintiff. Then rests
Defendant then:
1. presents own; or
2. demurrer to evidence
On demurrer to evidence:
1. denied-> may still present own evidence
2. granted-> denied on appeal -> waives
right to present evident
Judgment
BEFORE judgment becomes
final and executory
Postjudgment
remedies
Execution
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pg. 2
1st: Preparation of the complaint- lawyers meticulously pours over the following:
Cause of action vs. right of action.
-There is no right of action without there is no cause of action.
-Coa is determined by the allegations in the complaint not by the prayer.
Court having Jurisdiction.
-Wrong Juris-> motu proprio dismissal. Not waivable.
Venue.
Wrong Venue-> dismissal upon motion. Waivable
Real party in interest
Prescription. Is prescribed-> ground for dismissal
Conditions precedent (eg. brgy conciliation, exhaust admin remedies, etc)
State ultimate facts. evidence is presented in the trial proper.
Relief prayed for.
Dated and signed.
-Signed by the party OR his counsel.
-not signed -> no legal effect.
-if counsel signs- it is a certification by him that he has read the pleading, that to the best of his
knowledge, information, and belief, there are good grounds to support it and that it is not
interposed for delay.
Address of the party OR counsel.
Should it be verified?
- GR: no
Exp: law of rule requires it. ( eg. summary procedure, certiorari, mandamus, etc)
Certification against forum shopping
Violation-> dismissal upon motion
Provisional remedies ( depends upon nature of action)
2nd: Filing of complaint- act of presenting the same to court
Complaint filed + payment of docket fees= court acquires jurisdiction
GR: must be accompanied by payment of docket or filing fees
SC Rule: relaxed it. May pay within a reasonable time BUT not beyond the prescriptive period.
-Rule applies even on appeal.
Dismissal of action by plaintiff
Before defendant answers
notice of dismissal.
GR: A matter of right
EXP: exp: class suit (need court
approval)
GR: Dismissal is without prejudice to its
later refilling.
Exp: 1) notice states
otherwise; 2) covered by 2
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pg. 3
dismissal rule
Amendment of complaint:
Before responsive pleading
A matter of right- if court refuses to
accept, remedy is mandamus.
* motion to dismiss is NOT a responsive
pleading
Availed only once
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pg. 4
summary judgment
Base on pleadings, affidavits,
depositions, admissions
made
No genuine issue. Does not concern
material fact
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pg. 5
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pg. 6
RoC constitutes the body of rules governing pleading, practice, and procedure
Roc are not Laws because they do not originate in the Legislative
Have force and effect of Law because they are promulgated by authority of Law
Substantive law vs Remedial Law
Substantive Law
Creates, defines, and regulates right
duties concerning life, liberty, and
property.
When violated gives rise to a cause of
action
Remedial Law
Prescribes the methods of enforcing
those rights and obligations created by
substantive
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pg. 7
Roc not strictly observed in administrative proceedings. They only apply in a suppletory
character.
Scope: ordinary civil actions, provisional remedies, special civil actions
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pg. 8
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pg. 9
Chairman summons
respondents
Parties appeal
without counsel
To be resolved in 15 days
Not
resolved
Resolved
Goes to
COURT
Pangkat
issues
certification
Settlement
reached
No
repudiation
END
repudiation
Pangkat issues
certification
Goes to
COURT
Steps:
1st: initiation
- Complain orally or in writing before the chairman of the Lupon ( who is the punong brgy)
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pg. 10
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pg. 11
Writ of Amparo/HD
(NOT ALLOWED)
In addition to RoC not allowed
are: counterclaim, cross-claim,
3rd-party complaint, reply,
pleadings-in-intervention
FORM:
-Caption contains: name of the court, title of the action, docket number is assigned
-Title contains: names of the parties and their participation indicated. (plaintiff/ defendant)
It is not the caption but the allegations contained therein which determine the nature of the
action and relief sought. Thus, the court may pass upon the real issues as raised in the
allegations.
- Body of the pleading: sets forth its designation, allegations, reliefs, and date.
Shall be divided into paragraphs and shall be so numbered for ready identification. (
numbering will be used as referrals)
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
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pg. 12
Verification in a pleading
Verification- under oath.
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pg. 13
Significance: intended to secure that the allegations are true and correct and not mere
imaginations/ speculations, AND that it is made in good faith.
-Gr: Pleading need not be verified.
- Exp: law or rule requires otherwise
- absence-> will be treated as unsigned. Hence, no legal effect
- formal defect. Pleading is NOT defective. Hence, court may order it to be
CORRECTED or ACT on it even if not verified.
- corrected by making an oath
-
Other requirements:
indicate
Professional Tex Receipt Number (PTRN),
current IBP Official Receipt Number, Roll of
Attorneys Number
Effect if absent
Non-compliance within 5 days after notice:
a) will not be acted upon by court
b) disciplinary actions to the counsel
c) contempt of court by the counsel
Who executes: the plaintiff or principal party, signed by the party himself and not by his
counsels
If made by counsel: it is defective and a valid cause for dismissal
Ratio: it is the party himself who is in the best position to know if there are other similar
cases.
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pg. 14
If plaintiff is a juridical person: person duly authorized by the corporation and has
personal knowledge of the facts required to be disclosed in the certification. (eg.
company lawyer)
4 violations related forum shpping:
violations
Effect
non-compliance with
a)dismissal of the case by motion and NOT motu proprio
submission of certification
- motion and hearing is required
-dismissal made is without prejudice, unless court orders
-dismissal without prejudice
otherwise
-order of dismissal is non-appealable.
Ratio: dismissal is without prejudice. Remedy is
appropriate civil action under rule 65.
b) not curable by mere amendment.
Forum shopping proper
- dismissal with prejudice
Submission of False
certification
Non-compliance with the
certifications undertaking
NOTE: the failure to submit a certification against forum shopping is a ground for dismissal, separate
and distinct from the forum shopping as a ground for dismissal.
-Forum shopping happens when:
a) after an adverse decision, the party seeks another decision in a different tribunal Other than
by appeal or certiorari
b) where he simultaneously or successively seeks favorable decisions over different courts
- abuse of court processes
- malpractice
- Test to determine existence of FS:
1. WON the elements of lis pendentia are present
2. WON a final judgement in one case will result to res judicata in another
Thus, identify the
a) parties or atleastsuch parties as those representing the same interest in both
actions,
b) their rights or causes of action,
c)identity of relief sought
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
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pg. 15
VI. Filing and Service of pleadings, Judgments and other papers in civil cases
Paper required to be filed and served:
judgement
-resolutions
-orders
-pleadings
-notices
-appearances
-demands
-offers of judgements
-similar papers
Filing- act of presenting the pleading or other papers to the clerk of court
- Two modes of Filing:
a) presenting the original copy of the b) registered mail
pleading, etc
Date of filing: Coc shall indicate or endorse Date of mailing as shown by the post office
on the pleading or paper filed, the date and stamp on the envelope or registry receipt
hour of filing.
shall be the date of filing.
How proved: existence in the record of the By registry receipt and by the affidavit of
case or by written or acknowledged stamp of ther person who did the mailing, containing
its filing by the clerk of court
a full statement of the date and place of
depositing the mail in the post office in a
sealed envelope addressed to the court, with
postage fully prepaid, and with instructions
to the postmaster to return the mail to the
sender after 10 days if not delivered.
Service- act of providing a party with a copy of the pleading or paper concerned.
- Modes of service
Personal service
Service by mail
Substituted service
Preferred
GR: Written explanation why this is used instead of personal
Violation -> treated as if not service. Violation -> treated as if not filed.
filed
Exps: those documents coming from courts
HOW:
a) delivering a copy of the
Last resort
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pg. 16
How to prove:
a) Consist of the written
admission of the party
served.
b) official return of the
server
c) affidavit of the party
serving, containing full
information of the date,
place, and manner of
service.
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pg. 17
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pg. 18
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pg. 19
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pg. 20
Action- suit filed in a court for the enforcement or protection of a right or the prevention or
redress of a wrong
Coa- basis of the action
All elements of a Coa must be stated in the complaint.
Dismissal of the complaint:
Lack of CoA
Failure to state CoA
Failure to prove or to establish by evidence ones Insufficiency in the allegations in the complaint
stated Coa/ states no Coa
to establish Coa
Raised in the demurrer to evidence under Rule 33 Ground for dismissal under Rule 16 before a
after the plaintiff has rested his case and can be responsive pleading is filed and can be
resolved only on the basis of evidence he has determined only from the allegations of the
presented in support of his claim.
pleadings and not from evidentiary matters.
Test of sufficiency of the statement of a Coa
- WON admitting the facts alleged, the court could render a valid verdict in accordance with
the prayer of the complaint.
GR: Motion to dismiss in the ground of failure to state Coa, hypothetically admits the
allegations in the complaint.
Note: hypothetical admission only extend to relevant and material facts in the complaint as
well as to inferences deductible therefrom. Does not include conclusion or interpretations of
law.
Allegations in the complaint:
1. determine WON the complaint states a Coa. Thus, it is error for the court to take cognizance
of external facts/ matters aliunde or to hold preliminary hearings to determine its existence.
- sufficiency should appear on the face of the complaint.
- BUT court may also consider attachments, annexes or other documents, or admissions in the
records.
2. determine the nature of the Coa
- nature of Coa is not determined in the prayer.
-caption or designation of the complaint is not controlling
3. determines which court has jurisdiction.
How to state Coa
-Must contain only ultimate facts,
Ultimate facts: essential facts of the claim. A fact is essential if it cannot be stricken out
without leaving the coa insufficient. It is the basis of the right of the plaintiff and which
make up the wrongful act or omission of the defendant.
-stated in a plain, concise, methodological, and logical form
-evidentiary facts must be omitted.
- must not state conclusions of law
- should not contain sham, false, redundant, immaterial, scandalous matters. These are subject
to motion to stike by a party 20 days after service of the pleading OR by the court at any time.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
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pg. 21
Conditions precedent:
Some Coa has condition precedent that need be complied with. Failure to comply is a ground
for a motion to dismiss under Rule 16.
Pleading of a
1. a judgement or decision of a domestic or foreign tribunal:
it is sufficient to aver the judgement or decision. No need to aver details showing jurisdiction.
Under Sec 3, Rule 131, there is a presumption that a court has jurisdiction.
2. official document or act:
It is sufficient to aver that the document or act was issued or done in compliance with the law.
3. capacity to sue or be sued:
Facts showing ones capacity must be averred.
4. fraud, mistake, or condition of the mind:
Circumstances constituting such must be stated with particularity.
Malice or intent or knowledge must be generally averred.
5. alternative coa or defenses:
A party may set forth 2 or more statements of claims or defenses, alternatively or
hypothetically, either in one coa or defense or in separate coas/ defenses.
Even if inconsistent claim, it is okay as long as they are consistent with the coa relied upon as
an alternative.
The pleadings which contain alternative coa is not made insufficient by the insufficiency of one
or more of the alternative statements as long as one of them if made independently is
sufficient.
Rule allowing alternative defenses is consistent with the omnibus motion rule.
6. actionable documents.
- a document relied upon by either plaintiff or defendant
- to plead, pleader is to set forth in the pleading the substance of the instrument or the
document, and to attach the original or the copy of the document to the pleading as an exhibit
and which shall form part of the pleading OR
- to set forth in the pleading said copy of the instrument or the document.
-How to contest an actionable document: The party who has no intent of admitting the
genuineness and due execution of the document must contest the same by:
a) specifically denying the genuineness and due execution of the document under oath
b) setting forth what he claims to be the facts
MUST: denial + oath
Absence of oath=implied admission of the due execution and genuineness of the
document.
Defenses cut off by absence of oath
a) forger,
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
pg. 22
b) want of consideration
c)illegality of consideration
d) usury
e) fraud
ratio: these defenses are not inconsistent
with admission of genuineness and due
execution of the instrument and are not
therefore, barred.
or
discharge
in
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pg. 23
Joinder of parties, coas must arise from single transaction or series of transaction and there
must be a common question of law or fact. And that there are two or more defendants or
plaintiffs.
note: claim for attys fees and litigation expenses and costs are not to be included in the
computation of jurisdiction.
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pg. 24
II. Actions
Action- legal and formal demand of ones right from another person made and insisted upon in
a court of justice. (aka. Suit)
Civil action
Criminal action
Special civil action
Real action
Personal action
In personam
In rem
Quasi in rem
One by which a party sues another for the enforcement or protection of a right , of the
prevention or rederss of a wrong. Primary purpose: compensatory
one by which the state prosecutes a person for an act or omission punishable by law.
Primary purpose: punishment.
to establish a status, a right or a particular fact.
It affects title to or possession of real property, or an interest therein.
- but not every action involving real property is real action. Because the realty may only be
incidental to the subject matter of the suit. The fundamental and prime objective must be
related with real property.
- matter in litigation: title to, ownership, possession, partition, foreclosure of mortgage or
ang interest in the real prop.
- thus, Real property + matter in litigation = real action
Proceeding to enforce personal rights and obligations brought against the person and is
based on the jurisdiction of the person, although it may involve his right to, or to exercise of
the ownership of, specific property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court.
Purpose: impose upon the defendant a responsibility or liability
Directed against the whole world
One brought against persons seeking to subject the property of such persons to the discharge
of the claims assailed.
Purpose: subject his interests to the obligation or loan burdening the property.
-deals with the status, ownership or liability or a particular property but which are intended
to operate on these questions only as between parties to the proceeding and not to ascertain
or cut-off rights of interests of all possible claimants.
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pg. 25
Personal property: transitory, venue depends upon the residence of the plaintiff or the
defendant at the option of the plaintiff.
In determining venue, steps:
1. determine WON real or personal
2. application of the rule 4, Roc
In rem vs in personam vs quasi in rem
Significance; to determine WON jurisdiction over the person of the defendant is required and
consequently to determine the type of summons to be employed.
In personam: jurisdiction over the person of defendant
In rem: jurisdiction over the res
Quasi in rem: jurisdiction over the res
I. Jurisdiction
Jurisdiction: power and authority of the court to hear, try and decide a case, and the power to
enforce its determination.
Jurisdiction is the power of the court and not that of the judge.
Test of jurisdiction: WON the court has the power to enter into the inquiry and WON the
decision is right or wrong.
Jurisdiction over the subject matter is a matter of substantive law. Jurisdiction over the
parties, res, and issues are matters of procedure.
Can not be subject to waiver or stipulation of the parties.
It is the duty of the court to look at first if it has jurisdiction before proceeding to other matters.
It may motu pro prio dismiss case if it has jurisdiction.
Power to exercise jurisdiction may be enforced by mandamus.
Jurisdiction vs exercise of jurisdiction:
Jurisdiction: authority
Exercise: decisions made
- Errors of judgment: errors committed in the exercise of jurisdiction
Error of judgment vs error of jurisdiction:
Error of judgment
Error in jurisdiction:
as long as the court act within its jurisdiction, one where the act complained of was issued
any alleged errors committed in the exercise by the court without or in excess of
of its discretion will amount to nothing more jurisdiction or grave abuse of discretion
than mere errors of judgment.
Corrected by appeal
Corrected by certiorari
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pg. 26
Not void
Decision is void
Lack of jurisdiction
- If court does not have the legal power to determine the case
- Excess of jurisdiction
- Court is clothed with power but oversteps its authority determined by law
- Jurisdiction vs cause of action
Jurisdiction
Cause of action
Authority
Act or omission violative of rights of others
Conferred by law
Not. But exist bec a right is violated
-
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pg. 27
Jurisdiction, being a matter of substantive law, statute in force at the time of the
commencement of the action determines the jurisdiction of the court.
Note: ex mero motu: mere motion of a partys own free will. Same as motu proprio
Lack of jurisdiction over the subject matter:
Earliest opportunity to question jurisdiction: motion to dismiss filed before the filing or
service of an answer.
Gr: It maybe raised at any stage of the proceeding even on appeal.
Exp: the parties barred by estoppel.
(Tijam vs Sibonghanoy ruling- SC barred a belated onjection to jurisdiction after an adverse
decision was rendered against the party questioning jurisdiction AND after seeking
affirmative relief from the court AND after actively participating in all stages in the
proceeding. Estoppels by laches. Active participation is a recognition of courts jurisdiction.)
It is an exception to omnibus motion rule.
Court who dismisses a case on this ground, has no authority to forward the same to the proper
court. After dismissal, it has no authority to make any other order.
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pg. 28
The inclusion of a motion to dismiss on the ground aside from lack or jurisdiction over the
person of the defendant shall not be deemed voluntary appearance ( Sec 20, R14).
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pg. 29
-may be conferred by stipulation of the parties, by entering into stipulations of facts and
documents or enter into an agreement simplifying the issues of the case.
- may be conferred by waiver or failure to object to the presentation of evidence on a matter not
raised in the pleadings.
- Issues may be tried even if not raised in the pleadings if made with the express or implied
consent of the parties. Treated as if they were raised in the pleadings.
Thus, the pleadings may be amended upon motion or it is considered impliedly amended.
Question of law vs question of fact
Of law- when the doubt or difference arises as to what the law is on a certain set of fact.
Of fact- when the doubt or difference arises as to the truth or falsehood of the alleged facts.
When it involves review of evidence- Of fact
TEST: WON the court can determine the issue raised without reviewing or evaluating the
evidence, in which case, it is a question of law; otherwise it is a question of fact.
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pg. 30
Thus,
3. Has exclusive and original jurisdiction over civil actions involving title to possession of any
real property or any interest therein where values are:
Outside Metro Manila- P20k
Within Metro Manila- P50k
Value determined by tax declaration or assessed value of adjacent lots.
Assessed value: fair market value of the real property multiplied by the assessment level.
FMV: price at which a property may be sold by a seller, who is not compelled to sell, and
bought by a buyer, who is not compelled to buy.
Thus,jurisdiction over accion puliciana and reinvidicatoria cases are now determined by tax
declaration or assessed value.
4. Admiralty and maritime cases, if claim:
Outside Metro Manila- P300k
Within Metro Manila- P400k
5. Probate proceedings, if gross value of the entire estate:
Outside Metro Manila- P300k
Within Metro Manila- P400k
Prov rem follows principal action: MTC has exclusive original jurisdiction to grant/ deny
prov rem where principal action is within its jurisdiction.
6. SC Delegated jurisdiction: MTC is acting as RTC; thus appeal is to CA.
cadastral and land registration cases covering lots:
a) where there is no controversy/ opposition, or
b) P of land : =/< P100k
- value ascertained by affidavit of claimant/ agreement of the parties/ tax dec
7. Special jurisdiction:
a) petitions for habeas corpus ( RTC absent)
8. Summary Procedure
Basic principles:
1) not all pleadings allowed.
ONLY allowed are: complaint, compulsory counterclaim, cross-claim pleaded in the answer,
answer to these pleadings.
PROHIBITED: motion to dismiss, new trial/ recon/ reopening of trial, Relief from judgement,
extension, memoranda, certiorari/ mandamus/ interlocutory order, declare defendant in
default, dilatory postponement, reply, 3rd party complaints, interventions.
Exp: certiorari allowed when court acted contrary to rules of summary procedure.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
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pg. 31
- Procedure:
action commenced:
1)filing form I-SCC ( statement of claims, accomplished and verified, duplicate)
2) paying docket and other legal fees (unless, indigent)
3) attachements:
- if with actionable document, accompany with 2 duly certified copies
- affidavits of witnesses and other evidences in support of claim. ( state only facts of personal knowledge), noncompliance: inadmissible with disciplinary action.
- ratio- evidence not attached shall not be entertained. Unless, good cause.
pg. 32
Within:
Court issue form 2- SCC (
summons): directing to file
response.
Fails to respond:
Court render judgement
limited to prayer but may
reduce if excessive.
END
Failure to appear:
At hearing:
a) Plaintiff- dismissal of claim.
JDR
I will liveEND.
my life to the fuNNiest. (BIARES, 2013)
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JDR works:
OOHlala:b)
Only
human. Open
to constructive
lala
Defendantfailure
to file criticism. Hope this helps.
Settelement form 7-SCC
reponse. Render judgement.
Resolution form 8-SCC
Writing, signed by the parties for court approval ( form 12-SCC). pg. 33
EXP: several defendants sued
JDR fails:
under a common coa and who
JDR to be presided by judge
plead a common defense and
-terminated in 1 day
one or more of them appear at
nd
2 JDR fails
Not
Capable
Not
Capable
Capable
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pg. 34
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pg. 35
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pg. 36
c) annulment of marriage/ dec of nullity of marriage/ those relating to status or property relations
of H/W or those living together under different status and agreements, and petitions for
dissolution of cpg.
d) petitions for support/ acknowledgement
e) summary judicial proceedings under Family Code
f) petitions for declaration of status of children as: abandoned, dependent, neglected
g) petitions for voluntary or involuntary commitment of children
h) suspension/ termination/ restoration of parental authority
i) petition for the constitution of family home
II. Venue (Rule 4)
Venue: place or the geographical area where an action is to be filed and tried.
Civil cases: relates only to place of suit.
Crim cases: place of suit and jurisdiction
In determining venue, steps:
1. determine WON real or personal
2. application of the rule 4, Roc
Not a matter of substantive law. Merely procedural.
- Thus, parties may waive it
- Thus, Improper venue= not lack of jurisdiction
Dismissal based on improper venue:
- GR: TC can not motu proprio. Dismissal made on such, motu proprio, plain error.
- Must be in a motion to dismiss.
- Exp: action covered by the rules on summary procedure.
Determination of Venue:
1st: determine if action is personal or real.
Action is
Where is party?
Thus, venue:
personal
resident
Residence
of
plaintiff
or
defendant at plaintiffs option.
personal
Non-resident
Residence of plaintiff or where
defendant may be found at
plaintiffs option.
real
Where real prop is situated
real
Non- resident and nor found in phil
-residence of plaintiff or where
-Action affect personal status of plaintiff
the property or any portion
- any prop of defendant located in phil
thereof is situated.
personal
Action for damages and actions to collect Residence
of
plaintiff
or
sum of money
defendant at plaintiffs option
real
Action to recover ownership of real Place where located
property
real
Unlawful detainer, forcible entry, accion Place where located
publiciana
Recovery of possession of leased real prop
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 37
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pg. 38
authorized Motion to dismiss on the ground that the pleading asserting the
claim states no cause of action or failure to state cause of action
Ratio: there cannot be a coa against one who cannot be a party to a
civil action.
Plaintiff not real party in Motion to dismiss on the ground that the pleading asserting the
interest
claim states no cause of action or failure to state cause of action
Failure to include name of not fatal. Averments are controlling and not the title. Court goes
a party in the title.
into the substance of the complaint.
No indispensible party
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pg. 39
Failure to implead NP
Court ordered
impleaded
NP
3rd party to an amicable settlement can not ask for its enforcement, modification,
amendment.
Real-party-in-interest
Agency
A mere agent can not sue on a contract entered into
in behalf of his principal.
An agent, acting in his own name and for benefit of
unknown principal, may be sued. Except when it
involves properties belonging to the principal.
Atty-in-fact is not real party in interest
Possessor not the owner in a recovery Lawful possessor disturbed of his possession.
of possession/ forcible entry.
Damages arising from Deterioration Owner
to property
Corporate office illegally searched.
Corporation alone through officers.
If officers refuse- corp may sue through STHs
(latter as nominal party).
ejectment
Co-owners
Annulment of marriage
H or W
Partnership
Partnership
Reversion of public lands
Person occupying the land
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pg. 40
-every action must be prosecuted and defended in the name of the real party in interest.
- even if made in the name of a person in the representative capacity, the name of the
beneficiary must be included in the title.
Real party in interest vs locus standi
rpii
Won party if benefited or injured
Ls
Right of appearance in a court of justice on a
given question
Private suits : rpii
Indispensible parties- a party who has such an interest in the controversy or subj matter that a final adjudication
cannot be made, in his absence, without injuring or affecting his interest,
-a party who has not only an interest in the subj matter of the controversy, but also has an
interest of such nature that a final decree cannot be made without affecting his interest or
leaving the controversy in such a condition that its final determination may be wholly
inconsistent with equity and good conscience.
-a person whose absence there cannot be a determination between the parties alredy before the
court which is effective, complete, or equitable.
-a rpii without whom no final determination can be had of an action. Without such, court
decision can not attain real finality.
- one who must be included in an action before it may properly go forward.
-absent- case will be dismissed.
-joinder of IP is mandatory.
-Not IP: if his interest in the controversy is separable.
- not sufficient reason to declare a person to be IP that his presence will avoid multiple
litigation.
-
No judicial
power
Necessary Parties
- Action will proceed. Judmenet valid but withour prejudice to right of such NP.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 41
NPs
Necessary parties must be added whenever
possible.
Mandatory
Permissive
Interest in subj matter is inseparable
Interest in subj matter is separable
Joined for case to proceed and for case not to Joined to afford complete relief to already
be dismissed.
parties and avoid multiple suit.
If not joined ALL court actions are null and If not joined, court may decide and decision is
void
without prejudice to the rights of necessary
parties.
As applied:
Joint obligation
cd may sue either or both for their share. Each db is necessary party
to each others case filed by cd against either.
Solidary obligation
cd may sue against either or both for the whole.
Each db is not indispensible party to each others case filed by cd
against either.
Solidarity does not make solidary obligor IP in a suit filed by cd.
A owes B price of car. C If B files, C and A are IPs.
sub A. No novation. B Ratio: B would have right to foreclose or reposses car withour
did not consent.
establishing that default of A unless the obli of A to B was assigned
C failed to pay car.
to C with the consent of B thereby novating the obli.
Foreclosure/ replevin
Property pendente lite
Transferee no IP because he is bound by any judgement.
Person in office
IP in a case challenging his right to office
Reconveyance
of Person against whom reconveyance is asserted if IP
property
Unwilling co-plaintiff
- party who is supposed to be a plaintiff but whose consent to be joined as plaintiff cannot be
obtained as when he refuses.
- He may be: a) made defendant and b)reason be stated.
Alternative defendants
- When plaintiff cannot definitely identify who among two or more persons should be
impleaded as defendant, he may join all in the alternative, although the right of relief
against one is inconsistent with another.
Misjoinder and non-joinder of parties
- Neither is a ground for dismissal of an action
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 42
Becomes ground for dismissal if court orders to drop/ joint but parties do not foolow. (Sec3,
Rule 17, Roc)
Misjoinder
Non joinder
Person made a party to the action although
Party is not joined when he is supposed to be
he should not be impleaded
joined but is not impleaded.
Rule presupposes that original inclusion or non-inclusion had been made in the honest
conviction that it was proper and that it was a mistake. Not whimsical or irrational.
Unknown defendant
- Whenever the identity or name of the defendant is unknown, he may be sued as the
unknown owner heir, devisee, other designation as the case may require
- When his identity is discovered- pleading must be amended accordingly.
Death of client
-extinguishes the atty-client relationship.
- dead client has no personality, cannot be represented by lawyer
-does not automatically be lawyers of heirs UNLESS hired.
- Duty of counsel: inform court within 30 days after such death.
Mandatory. Failure to comply: ground for disciplinary action.
- Effect on case: court shall determine if such claim is extinguished.
If claim survives death
If does not survive
If no heirs
If heirs are minors or incap
-
Present rule: heirs do not need to first secure appointment because from the moment of
death, they step into the shoes of the deceased. Said heirs may elect among them
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pg. 43
Service of summons is not required to effect a substitution. Instead, court orders their
appearance.
What effects substitution: order of substitution and its service
Non-compliance: no jurisdiction over the person of the leg rep of heirs of the
deceased. Trial infirm.
But in ejection proceeding- failure to inform court, does not deprive court of
jurisdiction.
Decision in such is binding parties/ heirs/ defendant
Formal substitution is not necessary when heirs themselves voluntary appeared in the
action, participated therein and presented evidence in defense of deceased defendant.
Incompetency or incapacity of a party during the pendency of action- court ( upon motion)
may allow its continuance provided it be with assistance of legal guardian.
Death
Incompetency or incapacity court ( upon motion) may allow its continuance provided it be
with assistance of legal guardian.
Transfer of interest
Action maybe continued by original party UNLESS the court
upon motion direct the transferee to be substituted or joined
with original party.
Indigent parties
-may be allowed as such when court authorizes him.
-application and the hearing to litigate as an indigent litigant may be made ex parte.
-if allowed: exempt from payment of docket fees, transcripts, notes. Such amount will be a lien
on the judgment rendered UNLESS court provides otherwise.
Republic of the Philippines
- solicitor general can bring and defend actions on behalf of RP
- without SG; case be summarily dismissed.
- in criminal cases: shall be prosecuted under the direction and control of a public prosecutor.
Suit by or against spouses
- GR: sue and be sued jointly.
Exp: cases provided by law ( eg. exclusive property of a sps)
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 44
Liability of the spouse to cds for family expenses shall however, be solidary.
Class suit
- An action where one or more may sue for the benefit of all if the requisites for said action
are complied with.
- Requisites:
a) subject matter: common or general interest to many persons
-not commonality in the questions of facts or law involved in the issue. But commonality in
the subj matter ( physical things, personal/ real)
b) persons- too numerous that it is impracticable to join all as parties
c) parties actually before the court are sufficiently numerous and representative as to fully
protect the interest of all concerned.
d) the representative sue or defend for the benefit of all.
- No class suit:
- residents of a town where injured by gas leak of a plant. ( each must prove own injury)
- relatives of victims of a plane crash
-interests are conflicting:
- corporation to recover property of its members, owned in their personal capacity.
- recovery of portions of a property, as each could allege and prove their respective rights.
No identical title.
- recover real property individually held.
- damages for personal reputation ( libelous article against individual sugar planters)
-
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pg. 45
By leave of court:
- Made after service of responsive pleading. Ratio: defense already made. Amending
complaint will also amend defense.
- Can not be made to correct jurisdictional defect.
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pg. 46
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pg. 47
One which sets forth transactions, occurrences, or events which have happened since the
date of the pleadings sought to be supplemented.
It does not replace the original pleading. It only supports it.
Requires leave of court. Court will allow it upon such terms as just.
Made by: filing of a motion with notice to all parties.
Denied: When coa in the SP is different from that in the original pleading.
Answer to SP must be made within 10 days from notuce of the order admitting the SP.
Answer to it is not mandatory. Answer to the original complaint shall serve as the answer to
the SP if not new supplemental answer is filed.
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pg. 48
Separate action
-
Summons: writ by which the defendant is notified of the action brought against it.
Issuance thereof is ministerial and mandatory upon coc.
Served by sheriff, his deputy, other proper court officer, or person authorized by court.
Directed upon defendant.
Made upon: filing and payment of docket fees.
Purpose: due process.
Action in personam
notify defendant and acquire jurisdiction over him. Mere
knowledge of the case against him without service of summon,
no juris upon defendant.
Action in rem or Quasi in rem Jurisdiction upon defendant is not mandatory as long as juris
upon res.
Note:
Jurisdiction over the person:
a) personal service
b) substituted service
c) publication ( if resident temporarily out of the country/ identity of defendant unknown)
extraterritorial service.
Jurisdiction over the res:
a) placing the property under the courts custody (eg. attachment of property)
b) statutory authority conferring upon it the power to deal with the property or thing within
the courts territorial jurisdiction (eg status of non-resident defendant)
- in both cases summons must be served over defendant, to comply with due process.
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pg. 49
How served:
-sued under the name by which they are generally or commonly known.
-serving upon: any one of the persons who organized it OR upon the person
in charge of the office or of the place of business maintained in such name.
- this service shall not bind the individual, whose connection with the entity,
upon due notice has been severed before the action was brought.
Served upon him by the officer managing the jail or institution whre he is
confined. Jail manager is deemed deputized as special sheriff.
a) upon him personally AND his legal guardian is he has one. If none, upon
his guardian as litem.
Appointment of guardian ad litem shall be applied for by the plaintiff.
Minor: upon his father or mother.
Upon: a)president; b) managing partner; c) general manager; d) corporate
secretary; e) treasurer; or d) in-house counsel.
Present rule: enumeration is exclusive. Strict compliance. Expression unius
est exclusion alterius
Defendant RP: service upon OSG
Defendant is province, city: service upon its executive head or such other
officer as the law or court may direct.
With prior leave of court effected by publication in a newspaper of general
circulation. Place and frequency of publication is determined by court.
-applies to action personam, in rem, quasi in rem.
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pg. 50
unknown
despite diligent
inquiry
Resident
Either: a) personal service; b) publication in a newspaper of general
temporarily out circulation WITH registered mailing of a copy of the summons and the order
of Phil
of the court to the last known address of defendant; c) any manner of the
court may deem sufficient.
-applies to action personam, in rem, quasi in rem.
Note however that publication is not necessary because substituted service of
summons may be made.
Foreign private Transacted business in the Philippines, made upon: a) resident agent
juridical entity designated in accordance with law; b) if no agent, govt official designated by
law; or c) on any of its officers or agents within the Philippines.
When foreign corp designated receiver of summons pursuant to corporation
code: designation is exclusive.
Jurisdiction upon defendant: a) voluntary appearance; or b) valid service of summons; c)
defendant performs acts that could be construed as voluntary appearance
A. Service in the person of the defendant
Action in personam- personal service is preferred. If he refuses to accept, remedy of server is to
tender the summon and not substituted service agad agad.
If defendant can not be served personally within reasonable time, only then may substituted
service may be availed of. All efforts to effect personal service must be made and proof of such
effort must be placed in the proof of service.
Must be stated in the proof of service of summons and sheriffs return:
a) indicate the impossibility of service of summon within reasonable time
b) specify efforts of server to locate defendant
c) state that summons was served upon a person of sufficient age and discretion who is residing
in the address, or who is in charge of the office or regular place of business of the defendant.
Effect of ineffective substituted service:
a) period to file a motion to dismiss for lack of jurisdiction over defendant does not begin to
run since the court has no juris over him in the first place
b) trial court does not acquire jurisdiction over the person of the defendant
B. Substituted service of summons
Availed of for justifiable reasons, defendant can not be served within a reasonable time.
- Reasonable time:
a period of time longer than that demarcated by the word prompt and presupposes that a
prior attempt at personal service had failed.
So much time as is necessary under the circumstances for a reasonable prudent and diligent
man to do, conveniently, what the duty requires that should be done.
To plaintiff : 7 days
To sheriff: 15-30 days
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 51
Several attempts by the sheriff should be made. Which means 3 tries in at least 2 different
dates. Facts as to these attempts must be cited by sheriff in the Return of Summons. Absent
such or when cited in general terms, does not justify substituted service.
How made:
a) leaving copies of the summons at the defendants residence to a person of suitable age
and discretion residing therein ( at least 18 yo and able to read and write and relation of
confidence to the defendant)
- discretion: the ability to make decisions which represent a responsible choice and for
which an understanding of what is lawful, right or wise may be presupposed.
b) leaving copies of the summons at the defendants office or regular place of business to a
competent person in charge thereof.
- one managing the office or business of defendant, such as the president or manager; and
such individual must have sufficient knowledge to understand the obligation of the
defendant in the summon, its importance, and the prejudicial effect arising from inaction
on the summons.
- it is not important that such person be authorized, it is only important that he appears to
be in charge.
Validity of substituted service of summons is not affected by the fact that it was not actually
received by defendant. Sheriff not require to verify that he did receive it.
When defendant prevents service
- Deemed valid service. Judgment by default may be had.
C. Summons by publication
Rem
Quasi in rem
In personam
Defendant is resident
Defendant is Non-resident
a) In person
b) Cant be served within reasonable
time: Substituted service
c) Unknown or cant be found:
publication
d) temporarily out of Ph: substituted
service + sending notice
e) other modes as the court may
deem proper.
Publication: notive to thw whole worlds that the proceeding has for its object to bar indefinitely
all who might be minded to make an objection of any sort against the right sought to be
established.
- It brings the whole world as party to the case.
Extraterritorial service of summons
- Requisites:
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 52
SC decision
Judgment void.
Ratio: summons by publication futile.
Jurisdiction over the defendant was never
acquired. Action in personam.
Judgment valid.
Ratio: Action is quasi in rem. Jurisdiction
over the person not necessary. Important is
juris over the res.
Judgment valid.
Ratio: Provided, attachment is made on the
property of defendant. Thus, in personam
action is converted to quasi in rem.
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pg. 53
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pg. 54
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pg. 55
- if granted and the pleader MUST submit bill of particulars within 10 days from the notice
of the order or within the period fixed by court.
- pleader may comply through: filing a separate or amended pleading.
-bop submitted becomes part of the pleading for which it is intended.
-Non compliance:
b.1)striking out of the pleading.
b.2) striking out of portions of the pleading to which the order was directed.
b.3) order as it may deem just.
c) hold hearing for the motion ( court not mandated)
-
B. Motion to Dismiss:
Note: within one day from receipt of the complaint, summons shall contain a reminder to the
defendant to observe restraint in filing a motion to dismiss and instead allege the ground
thereof as defenses in the answer.
-If there is a ground for dismissal, defendant may:
a) file a M2d or
b) allege the ground as an affirmative defense.
-
M2D is not a pleading. Merely a motion, which is an application for relief other than by a
pleading.
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pg. 56
affirmative defense
hearing
g) states no coa
h) claim or demand of plaintiff has been paid, waived, abandoned,
extinguished
-includes: laches ( in this case, hearing is mandated)
i) claim on which the action is founded is unenforceable under the statute of
frauds
j) conditions precedent not complied with
-
w/o
w/
w/
w/o
f) res judicata
-basis: public policy and individual cannot be vexed twice.
- two concepts:
Bar by a former judgment
Bars prosecution of a second action upon the same claim,
demand, or coa
Conclusiveness of judgment
A fact of question which was in issue in a former suit and
was judicially passed upon and determined by court of
competent juris, is conclusively settled and cannot again be
litigated in any future action in the same or other court and
on either same or different coa.
-elements:
a) the former judgment must be final
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pg. 57
b) court which rendered it has jurisdiction over the subj matter and the parties
c) judgment on the merits
d) there must be between the 1st and 2nd actions, identity of parties, sunj matter, and coa.
- it does not requires absolute similarity identity of parties. Only substantial.
- substantial: when there is community of interest or rpivity of interest between a party
in the 1st and 2nd case even if the first case did not implead the latter.
- preliminary hearing may be had.
- applies to judicial or quasi- judicial authorizes.
- no res judicata in criminal proceedings.
-Grounds as affirmative defenses:
- If made, court may at its discretion, conduct preliminary hearing upon it.
- Omnibus motion rules does not apply. Other grounds not waived.
-A denial of a motion to dismiss does not preclude any future reliance on the grounds relied
thereupon.
Remedy of defendant if motion is denied:
interlocutory order.
Depending on ground:
1.without prejudice: refile the action or
certiorari when there is a ground.
2.wirh prejudice: appeal from the order of
dismissal
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pg. 58
Dismissal shall be without prejudice to the prosecution in the same or a separate action of a
counterclaim pleaded in the answer of defendant.
To/ against
Plaintiff
plaintiff
defendant
stranger
Original parties
Plaintiff/
defendant
A. Answer
- answer: pleading in which the defending party sets forth his defenses.
- there is no answer to a reply.
-Defenses in the answer: negative or affirmative
a) Negative answer:
material averments alleged in the pleading of the claimant are specifically denied. It is a form
of a specific denial.
If not specifically made/ blanket denial-> it is a general denial: thus it is an admission-> No
more triable issue-> judgment on the pleadings.
-GR: allegations in a complaint not specifically denied are deemed admitted.
Exps:
a) amount of unliquidated damages
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 59
b) conclusions in a pleading which to not have to be denied at all because only the ultimate
facts need be alleged in a pleading.
c) non-material averments
-GR: admission in a pleading cannot be controverted by the party making such admission
because the admission is conclusive as to him.
Exp: contradict own judicial admission when:
a) by showing that the admission was made through palpable mistake
b) that no such admission was made.
Specific denial:
-Purpose of specific denial: lay down cards on the table. make him disclose matters alleged in
the complaint which he succinctly intends to disprove at trial, together with the matter which
he relied upon to support the denial.
-using words specifically/ specific denial not enough.
Kinds of specific denial:
a) absolute denial
-defendant specifies each material allegation of fact the truth of which he does not
admit and, whenever practicable, sets forth the substance of the matters upon which
he relies to support his denial.
-reference must be made to the paragraph sought to be denied. Blanket denial is not
enough. It is considered as general denial.
b) partial denial
-defendant does not make a total denial of the material allegations in a specific
paragraph
c) denial by disavowal of knowledge
-defendant alleges that he is without knowledge or information sufficient to form a
belief as to the truth of a material averment made in the complaint.
- must be made in good faith.
- if made in bad faith-> considered an admission.
When specific denial MUST be coupled with a oath:
a) denial of an actionable document ( eg. promissory note)
Thus, a) specifically deny the document and to set firth what he claims to be the facts; b)
deny the document under oath.
GR: Failure to do such: he is deemed to have admitted the genuineness and due
execution of the actionable document.
Exp: fraud, mistake, compromise, payment, statute of limitations, estoppels, and want
of consideration. Thus, party may still argue it.
b) denial of allegations of usury in a complaint to recover usurious interest. Specific denial of:
- allegatios of usury in a complaint.
- comaplaint is filed to recover usurious interest.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 60
Example:
Defendant denies the truth of paragraph 7
Defendant admits that collision happened but
denies that it was through his fault
Defendant has no knowledge of
Complaint: P lend D for P500k
NP: Defendant specificall denies that P lend him
500k ( note: mere repetition)
a) Affirmative answer:
when it alleges new matters which, while hypothetically admitting the allegations of the
pleading of the claimant, would nevertheless, prevent or bar recovery by the claiming party.
- Avoidance of the claim not merely denial of plaintiffs coa.
- Includes: fraud/ statute of limitation/ release/ payment/ illegality/ statute of frauds/
estoppels/ former recovery/ discharge in bankruptcy/ any other matter by way of
confession and avoidance.
- Affirmative defenses are not automatically as such. It must be of such nature as to bar the
plaintiff from claiming on his coa.
B. Counterclaim
-any claim in a pleading which defending party may have against opposing party.
- any claim: money or some other relief against an opposing party.
- purpose: prevent multiplicity of suits.
- it is not intrinsically a part of an answer because it is a separate pleading. But it may be included in
the answer ( Answer with a counterclaim)
- Motion to dismiss with a counterclaim is not allowed.
- kinds:
a) compulsory counterclaim
- Requirements:
a.1) arises out of, or is necessarily connected with the transaction or occurrence which is the
subject matter of the opposing partys claim.
a.2) does not require for its adjudication the presence of 3rd parties over whom the court
cannot acquire jurisdiction; and
a.3) the court has jurisdiction to entertain both as to the amount and nature.
- if not within jurisdiction, the same may still be alleged to weaken the plaintiffs claim. OR
- if not within jurisdiction, pleader may waive the excess.
- even if not within jurisdiction: still a counterclaim.
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pg. 61
Test of compulsoriness: logical relation between the claim alleged in the complaint and that in
the counterclaim.
Compulsory or not?
-are the issues of fact or law raised by the claim and counterclaim are largely the same?
- would res judicata bar a subsequent suit on defendants claims, absent the compulsory
counterclaim rule?
- will substantially the same evidence support or refute plaintiffs claim as well as defendants
counterclaim?
-if there any logical relation between the claim and counterclaim, such that the conduct of
separate trial of the respective claims of the parties would entail a substantial duplication of
effort and time by the parties and the court?
Example: claim for compensation of improvements; cost of suit
-a party who desires to plead a compulsory counterclaim should not file a motion to dismiss.
But if he opts to pursue counterclaim, he may use his ground for dismissal as an affirmative
defense in his answer.
-
c) sec 3, rule 17
defendant does not file a m2d and uses grounds for dismissal as
affirmative defense with a counterclaim. Then a preliminary hearing. If
case is dismissed, counterclaim, ( cc or pc) is not dismissed.
plaintiff files m2d after defendant answers with a counterclaim. If
motion is granted, dismissal limited to complaint.
Defendant has right to prosecute his claim in a separate action unless
within 15 days from the notice of the motion he manifests his preference
to have his counterclaim resolved in the same action.
Complaint is dismissed through plaintiffs fault and cc already set up,
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pg. 62
same as above.
b) permissive counterclaim
- if any of the elements of a compulsory counterclaim is absent.
Example: damages based on culpa aquiliana in collection of loan; damages based on
quasi delict in unlawful detainer; payment of car in recovery of piece of land.
compulsory
Cc which a party has at the time the answer
is filed, is contained therein.
If not set up: barred.
Not an initiatory pleading
Not needed
Permissive
Does not apply
Initiatory pleading
Should be accompanied by a certification
against Forum shopping and certification
issued by lupong tagapamayapa to file suit
Must be answered by the party against
whom it is interposed.
Failure: may be declared in default of the
counterclaim.
C. Cross-claim
-any claim by one party against a co-party arising out of the transaction of occurrence that is the
subject matter either of the original action of a counterclaim therein.
- a cross-claim that a party has at the time the answer is filed shall be contained in said answer. Set up
in the same action.
C-c existing at the time the Amended pleading
Set up in the amended
answer is filed
pleading
C-c existed only after answer was Supplemental pleading
Presented
in
the
filed.
supplemental pleading
-counterclaim vs cross-claim
cc
c-c
Against a co-party
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pg. 63
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pg. 64
Judgment on default
waiver of defendants right to object to evidence presented and to crossexamine the witness presented.
NOT a waiver of his right to present evidence
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pg. 65
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pg. 66
- a judgment rendered against a party in default shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages.
Thus, complaint seeks 1M but evidence shows 1.5M, the court can not grant 1.5M.
-GR: does not answer, default.
Exp: Default PROHIBITED:
a) annulment of marriage
b) declaration of nullity of marriage
c) legal separation
- if no answer in the following, court shall order prosec atty to investigate WON collusion
exists. If none, court shall order prosec atty to intervene for the State in order to see to it
that the evidence submitted is not fabricated.
-GR: answer filed out of time: court will not admit it- default.
Exp: answer files out of time and is allowed by court within its judicial discretion. BUT must be
allowed before declaration of default is made and shown that there was no intention to cause delay.
-GR: default available when there is failure to answer
Exp: default despite answer is filed,
a) party refuses to obey court order to comply with various modes of discovery.
b) party or officer or managing agent of a party willfully fails to appear before the officer who is to
take his deposition or a party fails to serve answers to interrogatories.
H. judgment on the pleadings
- comes to operation when an answer is served and filed but the same fails to tender an issue or
admits the material allegations of the adverse partys pleadings.
- by motion of the party and not motu proprio
- not applied:
a) annulment of marriage
b) declaration of nullity of marriage
c) legal separation
-material allegations alleged in the complaint should always be proved.
Summary Judgment (accelerated judgment)
- proper where upon a motion filed after the issues had been joined and on the basis of the pleadings
and papers filed, the court finds that there is no genuine issue as to any material fact except as to the
amount of damages.
- what triggers it is that there is no genuine factual issue.
-genuine issue : issue of fact which requires the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim.
- by motion of the party and not motu proprio
K. Default/ judgement on the pleadings/ sum judgment
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 67
Judgment on default
On motion
On motion
On motion
Hearing
hearing
By plaintiff
By claimant/ defendant
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pg. 68
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pg. 69
- a motion is made 5 days after the last pleading has been filed and served. The motion is an ex parte
motion.
- P fails to file this: coc shall issue a notice of pre-trial.
last pleading : last permissible pleading that a party can file is the reply to the answer to the last
pleading asserting a claim or expiration of the period to file such, which ever comes first.
- Notice of pre-trial
: served on the counsel of the party if the latter is represented by counsel. Counsel then has duty to
inform party.
: otherwise, party himself
: mandatory no matter what.
-Appearance in the pre-trial
: it shall be the duty of parties and their counsels to appear.
: failure to appear
plaintiff
- plaintiff is non-suited
-cause of dismissal of the action. Dismissal shall be with prejudice unless the court
orders otherwise
-Remedy: appeal from order of dismissal
Defendant -defendant is in default
-cause to allow plaintiff to present his evidence ex parte (merely interlocutory,
non-appealable) and
-for the court to render judgment on the basis of the evidence presented by
plaintiff
Remedy: certiorari
: non-appearance excused
Show: valid cause AND represented by counsel (who has power to enter into an amicable settlement
AND adr AND stipulations or admissions- LAHAT dapat or considered as no authority at all)
- counsels authority must be in a SPA form.
: filing and contents- file with the court their respective pre trial briefs 3 days before date for such.
- Served to adverse party
- Shall contain
a) statement of their willingness to enter into an amicable settlement or adr and indicating
their desired terms
b) summary of admitted facts and proposed stipulation of facts
c) issues to be tries and resolved
d) docu/exhibits to be presented, stating the purpose
e) manifestation of their having availd of or their intention to avail the discovery
procedures or referral to a commissioner.
f) Number and names of the witnesses and the substance of their respective testimonies.
: documents and exhibits shall be identified and marked.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 70
Ratio: no evidence shall be presented and offered during the trial in support of a partys evidence-inchief other than those that have been identified and marked during pre-trial. Exp: for good cause.
:on pre-trial, there is an adherence to one say examination of witness rule. Absent settlement,
adhere to most important witness rule.
: Questions to be asked by judge:
Ask question on issues raised by the parties and all questions or comments by counsel or parties must
be directed to the judge to avoid hostilities between parties.
: failure to file pre-trial brief
-shall have same effect as failure to appear at pre-trial.
plaintiff
- plaintiff is non-suited
-cause of dismissal of the action. Dismissal shall be with prejudice unless the court
orders otherwise
-Remedy: appeal from order of dismissal
Defendant
-defendant is in default
-cause to allow plaintiff to present his evidence ex parte (merely interlocutory, nonappealable) and
-for the court to render judgment on the basis of the evidence presented by plaintiff
Remedy: certiorari
-Such dismissal is discretionary upon court.
: judge shall not allow the termination of pre-trial simply because of the manifestation of the parties
that they cannot settle.
Judges duty if they cant settle
a) inform them of the importance of a pre-trial and its advantages.
b) endeavor to achieve the other purposes of a pre-trial
c) to obtain admission using depositions under Rule 23
d) to obtain answers to admission under Rule 26
e) to obtain answers under Rule 25
f) production of docu or things requested by a party under Rule 27
g) production of results of physical and mental examination under Rule 28
: Pre-trial order
- issued within 10 days after termination of the pre-trial
- order shall contain the ff:
a) matters taken up in the conference
b) action taken thereon
c) amendments allowed to the pleadings
d) agreements or admissions made by the parties as to any of the matters considered.
These are binding and conclusive upon parties.
: should it proceed to trial, pre-trial order shall fcn as:
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 71
Device employed by a party to obtain information about relevant matters on the case from
the adverse party in preparation for the trial
May be used by all parties to the case
Purpose: designed to serve as an additional device aside from pre-trial, to narrow and
clarify the basic issues between the parties, to ascertain the facts relative to the issues and to
enable the parties to obtain the fullest possible knowledge of the issues and facts before civil
trial and thus prevent the said trials to be carried on in the dark.
Duty of court:
a) Preparing summons with in one day from the receipt of complaint
b) Issue an order requiring the parties to avail of the interrogatories under Rule 25;
request for admission under Rule 26; or at their discretion make use of depositions
under Rule 23, 27,28 within 5 days from filing of the answer.
c) Serve copy to defendant and plaintiff together with the summons
Modes of discovery
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pg. 72
Mode
Effect if not filed and served
Rule 23: deposition pending action
Rule 24: depositions before action or
pending appeal
Rule 25: interrogatories to parties
failure to serve written interrogatories: may
NOT be compelled by the adverse party to
give testimony in open court or to give
deposition pending appeal UNLESS allowed
by the court/ to prevent failure of justice
Rule 26: admission by adverse party
Party who fails to file and serve this request
shall not be permitted to present evidence
on such facts. UNLESS for good cause
permitted by court/ to prevent injustice
Rule 27: production or inspection of
documents and things
Rule 28: physical and mental examination of
persons
1. Deposition:
- taking of testimony of any person, whether he be a party or not, but at the instance of a party to the
action.
- testimony taken out of court.
- a) oral examination; or b) written interrogation
- may be used:
a)(perpetuam rei memoriam: future action pending appeal;
b) benne esse: pending action (Rule 23)
- pending action:
a)With leave of court: before the service of an answer but after jurisdiction is acquired before
defendant or property subj of the action
b)Without leave of court: after service of an answer
ex abudanti cautela ( to be on the safe side)
- When parties consider that what they submitted is not an answer as contemplated by Roc. :
the same contention does not make it less of answer because the pleading filed is
substantially an answer.
-before whom taken:
a) within the Philippines- judge/ notary public/ any person authorized to administer oaths if
the parties so stipulate in writing
b) outside the Philippines- secretary of an embassy or legation/ consul general/ vice consul/
consular agent of the Philippines/ officers or persons as may be appointed by commission or
letters of rogatory/ person authorized to administer oaths by written stipulation of the parties.
Prohibition: no depo shall be taken before a person who is a
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 73
a) relative within the 6th degree of consanguinity or affinity or employee or counsel of any of
the parties; or
b)who is a relative within the same degree, or
c) employee of such counsel; or who is financially interested in the action.
Use of depo pending action:
May be used against:
a) any party who was present or represented at the taking of the deposition
b) against one who had notice of the depositon
May use for:
a) contradicting or impeaching the testimony of the deponent as a witness
b) any purpose by the adverse party where the deponent is a party
c) for any purpose by any party where the deponent is a witness if the court finds that
-witness is dead
-that witness resides more than 100km from the place of trial or hearing or is outside
Phil UNLESS it appears that his absence was procured by the party offering the
deposition
- that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment
- party offering the deposition has been unable to procure the attendance of witness by
subpoena
-exceptional circumstances exist
-deposition of a prisoner: may only be taken with leave of court and upon such tems as the court may
prescribe.
- examination of the deponent:
1) party seeking deposition shall give reasonable notice in writing to all parties
2) notice shall state name, address of each person to be examined
3) courts then MAY make any order of protection of the parties and deponents.
4) Attendance of witnesses may be made by subpoenas
5) Deponent may be examined or cross-examined following the procedures for witnesses in
the trial. He as same rights as witnesses.
6) deponent may be examined any matter EXP: priveledge and court orders otherwise
7) person before whom deposition is made is HAS NO AUTHORITY to rule on the
objections interposed during the course of the deposition although any objections shall
be noted by him.
8) Any evidence that has been objected to shall still be taken but subject to objection.
- Deposition upon written interrogatories
- written interrogatories serve upon every party.
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pg. 74
-other party may also serve cross-interrogatories upon party proposing to take the deposition
within 10 days from service of written interrogatories.
- latter may, within 5 days serve re-direct
- and within 3 days thereafter the other may serve re-cross interrogatories
- copies of all these shall be delivered to the officer before whom the deposition is taken
- officer shall take responses and prepare the record.
-perpetuation of testimony pending appeal, Procedure:
1. done by filing a verified petition by person desiring to perpetuate own testimony or of any
another matter that may be cognizable in any Phil court
2. filed in the place of residence of any expected adverse party
3. notices sent
4. if court is satisfies that perpetuation may prevent a failure or delay justice, it shall order the
taking of deposition.
5. deposition under this is admissible in evidence in any action subsequently brought
involving the same subj matter
2. Interr0gatories to Parties:
- purpose: to elicit material and relevant fact from any adverse party
-vs Bill of particulars
I2P
Seek to disclose all material and relative fact
from a party
Not
- vs written interrogatories in a deposition
I2P
Directly upon adverse party
BoP
Designed to clarify ambiguities in the pleading
Directed to a pleading
IID
Not served upon the adverse party directly but
delivered to an officer who will make the depo
- Procedure:
1) filing and serving upon the adverse party written interrogatories to be answered by the party
served. If juridical entity answered by any competent officer.
2) No party, w/o leave of court, serve more than one set of interrogatories to be answered by the
same party.
3) Interrogatories shall be answered fully in writing and shall be signed and sworn to by the
person making them.
4) A copy of the answer to such shall be filed and served on the party who submitted it within 15
days after service thereof. ( 15 days may be extended or shortened by the court).
5) Person who needs to answer may make objection to interrogatories
6) Said objection shall be presented in court within 10 days after service of interrogatories.
7) Filing of objection- have the effect of deferring the filing and service of the answer to the
interrogatories.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 75
-failure to serve written interrogatories: may NOT be compelled by the adverse party to give
testimony in open court or to give deposition pending appeal UNLESS allowed by the court/ to
prevent failure of justice.
3. Admission by the Adverse Party
- purpose: allow one party to request the adverse party in writing to admit certain material and
relevant matters which most likely will not be disputed during the trial. To avoid unnecessary
inconvenience. May request:
a) admit the genuiness of any material and relevant document described in and exhibited with the
request
b) admit the truth of any material and relevant matter of facts set forth in the request.
-
Party who fails to file and serve this request shall not be permitted to present evidence on
such facts. UNLESS for good cause permitted by court/ to prevent injustice
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pg. 76
1) motion must be filed by the party seeking such and must show good cause supporting the same
2) court order shall be issued specifying the time, place, manner or making the inspection and
taking copies and photographs and may prescribe such terms and conditions that are just.
5. Physical and Mental Examination of Persons
- applicability: to an action which the mental or physical condition of a party in the controversy.
- Procedure:
1) motion must be filed showing good cause
2) notice to other parties
3) motion specify: time, place, manner, conditions, and scope of examination and by the person/s
by whom it is made.
4) Party examined may request the party causing the examination to deliver to him a copy of the
detailed report of physician setting out his findings and conclusions
5) After request and delivery: person who requested the examination SHALL BE ENTITLED to
receive a like report of any examination, previously or thereafter made of the same physical or
mental condition.
6) If he refuses, court may make an order the delivery thereof.
7) If physician fails or refuses to make report, the court may exclude his testimony.
- by requesting and obtaining report or taking deposition of examiner, the party examined is
WAIVES any privilege he may have in that action or any other involving the same controversy,
regarding the testimony of every other person who has examined or may thereafter examine him
in respect of the same mental or physical examination.
REFUSAL to comply with modes of discovery:
Refusal
effect
to answer any question (deposition or 1.may compel a deponent or person
interrogatories)
interrogated who refuses to answer an oral
examination
2. if there is a court order to answer, contempt
of court AND shall be liable the proponent the
reasonable expenses incurred in obtaining the
court order and attys fees
3.if application to issue order is denied- and no
substantial justification, proponent liable for
the reasonable expenses incurred in obtaining
the court order and attys fees
to answer designated or particular questions or 1. court may order compliance.
refusal to produce documents or things or to 2. court may also order that refusing party not
submit to physical or mental examination
to be allowed to support or introduce evidence
designated docu or things or items of
testimony, or from introducing evidence of
physical or mental condition
3.court may order the striking out of pleadings
or parts thereof or staring further proceedings
UNTIL order is obeyed
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 77
to be sworn
to admit
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pg. 78
Notice of Trial- coc shall notify the parties of the date of trial in such manner as to ensure its
receipt at least 5 days before such date.
In calendaring cases , coc shall give preference to habeas corpus cases, election cases, special
civil actions, and those whose preference is required by law.
Session: 4 trial per day unless pwede pa. hours in the morning dedicated for trial. Afternoons
are for pre-trial, writing decisions, reso, orders, or continuation of trial on merits. Schedule
may be modified upon IBP request in multi-sala courts with few practicing lawyers.
Adjournments
GR: a court may adjourn a trial from day to day, and to any stated time.
Limits: court has no power to adjourn a trial for a period longer than one month from each
adjournment, nor more than 3 months in all, except when authorized by court administrator.
- Motion for postponement should not be filed on the last hour
Postponements- not matter or fight, submitted to the courts discretion
illness
Absence of evidence
by party or counsel on motion
Affidavit or sworn certification showing that
Affidavit or se evidence sworn certification
a) presence of the party or counsel at the trial showing
is indispensible, AND
a) materiality or relevancy of the evidence
b) character of his illness is such as to render b) due diligence has been used to procure it
his non attendance excusable
Will not be postponed if adverse party admits
that facts to be given in evidence but are
absent EVEN if he reserves the right to object
to the admissibility of the evidence.
Reception of evidence:
Who: judge or clerk of court when properly delegated.
When coc receive: default hearings, ex parte hearings, written agreement of the parties.
Trial shall be limited to issues stated in the pre-trial unless court directs for special reasons.
Consolidation or severance:
1. when: actions involve a common question of law or fact pending before the court.
Thus, court may order joint hearing or trial and order CONSOLIDATION of all actions.
2. when: furtherance of convenience or to avoid prejudice.
Thus, court may order SEPARATE trial for claim, cross- claim, counterclaim, 3rd party
complaint or issues.
Demurrer to evidence
After plaintiff rests its case ( ends presenting evidence on his behalf, and defendant feel that
the plaintiff has not lived up to his burden or proving the material alleagations of his claim an
id therefore, not entitled to the relief sought, he may move for a dismissal aka. demurrer to
evidence.
Demurrer to evidence vs rule 16
Rule 33
Rule 16
Made after
evidence
plaintiff
ends
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pg. 79
One ground
Many grounds
denied
Demurrer
to
evidence
Defendant to
present evidence
No appeal.
Case ends.
granted
Render
dismissal of
the case
reversed
appealed
Affirmed.
ends
Demurrer in civil cases
Leave of court is not required
If granted, order or dismissal is appealable
If denied, def to present evid.
Judgement: final ruling by a court of competent jurisdiction regarding the right or other matters
submitted to it in an action or proceeding.
- Requisites of a valid judgment:
1. Court must be clothed with authority to hear and determine the matter before it
2. Court must have jurisdiction over the SUBJECT MATTER and PARTIES
3. Parties must have been given an opportunity to adduce evidence in their behalf
4. Evidence must have been considered by the court in deciding
5. Judgment: writing, personally and directly prepared by the judge. Verbal decision has no effect.
6. Judgment: must state clearly the facts and law on which it is based, signed by the judge and files with
the coc. Applies to decision and final orders on the merits NOT to those resolving incidental matters.
- No need to set forth complete recital of facts
- #6 applies to motions to dimiss
- #6 applies to petition for review and motion for reconsideration as mandated by the Constitution
Conflict between the dispositive portion (fallo) and the body of the decision ( ratio decidendi)
- It is the fallo of the judgment that actually settles and declares the rights and obligations of the
parties, finally, definitively, and authoritatively.
- GR: In case of conflict, fallo controls.
Exp: where there is a clear mistake in the fallo.
Clarificatory judgment: where the judgment us difficult to execute because of ambiguity in its terms, it
is suggested that the remedy to avail of it to have the court remove the emabiguity by the filing of this
motion and not to assail the judgment as void.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 80
Resolutions of the SC: SC denying petitions to review decisions of the CA and minute resolutions are
not decision within purview of the Constitution.
Interlocutory orders:
- Those that determine incidental matters that do not touch on merits of the case or put an end to
proceedings
- Proper remedy in case of improvident IO: certiorari under rule 65
Memorandum decisions
-one rendered by an appellate court and incorporates by reference the findings of facts and conclusions
of law contained in the decision or order under review.
-Ratio for allowing: to avoid cumbersome reproduction and repetition of the decision or the lower court
in the decision of the higher court
- although allowed, appellate court must make full findings of fact and conclusions of law. As long as a
memorandum decision states the nature of the case, summarizes facts with reference to the record and
contains a statement of the applicable laws and jurisprudence and the tribunals assessment and
conclusion on the case, judgement is valid.
Rendition of Judgement:
- It is the filing of the same with the clerk of court NOT the prolumgation in court or the writing of
judgment or signing the same. Because even if already written, it is still subject to amendment. NOT
yet a real judgment if not yet filed.
Periods in making decisions
court
Period
Lower courts
3 months from the date of submission, unless reduced by SC.
Lower collegiate
12 months from the date of submission, unless reduced by SC.
courts
Supreme Court
24 months from the date of submission, unless reduced by SC.
-GR: said periods are indispensible, mandatory.
- consequences: gross inefficiency of the judge.
EXP: extensions set by SC within which to decide a case upon request by the judge concerned on
account of heavy caseload or any reasonable excuse.
-Deemed submitted for decision: filing of the last pleading, brief, or memorandum required by Roc.
- 90 days (3mos) commences from the submission of the case for decision without memoranda
UNLESS court requires filing memoranda, in which case upong its filing or expiration of period when it
is supposed to be filed.
- no further orders announcing the submission of the case for decision is necessary before they are
deemed submitted for decision.
Judges decision
- It is not necessary that the judge who heard the evidence be the same judge who shall pen the
decision. The judge trying the case may die, resign, transferred, etc. Thus, succeeding judge can
examine and evaluate the evidence already presented by going
- There is a disputable presumption that the judge regularly performed his job
situation
Penned by a judge and promulgated during his incumbency
Penned by a judge after his retirement and promulgated after.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
Effect
Valid and binding
not
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pg. 81
not
Decisions of the SC forms part of the legal system and judges should take judicial notice thereof.
Stare decisis
-when the SC has laid down a principle of law applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases where the facts are substantially the same.
- it does not require identity of or privity of parties.
- decisions assume the same authority as the statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria which must control the actuations
not only of those called upon to decide thereby but also of those in duty bound to enforce obedience
thereto.
Obiter dictum
- An opinion expressed by a court, which is not necessary to the decision of the case before it.
- It is neither enforceable as a relief nor a source of a judicially actionable claim.
- It is not binding as a precedent
When a judgment becomes final:
- 2 senses of final
a) a judgment that disposes of a case in a manner that leaves nothing more to be done by the court
in respect thereto but to enforce it by execution
b) final and executory. judgment that is no longer appealable and is already capable of being
executed because the period for appeal has elapsed without a party having perfected an appeal of if
there has been an appeal, it has already been resolved by the highest possible tribunal.
Immutability of judgments ( preclusion of issue/ collateral estoppel)
- A judgment that has attained finality can no longer be disturbed
- Issues actually and directly resolved in a former suit cannot again be raised in any future case
between the same parties
- It may no longer be modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the highest court of the land
- May only be modified for clerical errors or mistakes, all the issues between the parties being deemed
resolved and laid to rest
- The court loses jurisdiction over the judgment to amend (exp clerical errors) or to alter the same but
it retains jurisdiction to execute it during its lifetime.
-EXCEPTIONS to IMMUTABILITY OF JUDGMENT
a) correction to clerical errors
b) nunc pro tunc entries which cause no prejudice to any party and void judgment
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pg. 82
c) whenever circumstances transpire after the finality of the decision rendering its execution unjust
and equitable
d) in cases of special and exceptional nature as when facts and circumstances transpire which render
the judgments execution impossible or unjust, when necessary in the interests of justice to direct its
modification to harmonize the disposition with the prevailing circumstances.
e) Void judgments
f) SC is not precluded from rectifying errors of judgment if blind and stubborn adherence to the
doctrine of immutability would involve the sacrifice of justice for technicality.
Res judicata effect of final judgment or final order
2 aspects:
a) Bar by a prior judgment- judgment or final order is a bar to the prosecution of a subsequent action
based on the same claim or cause of action.
b) Conclusiveness of judgment- judgment or final order precludes the relitigation of particular issues
or facts on a different demand or cause of action.
-
A final judgment is conclusive not only on the matters or issues directly or actually determined by
the decision but also on all issues that could have been raised in relation thereto.
A judgment of Philippine court has the effect of resolving the issues raised in the case. Conclusive
with respect to personal, political, or legal condition or status of a person.
Foreign arbitral awards may be enforced under ADR Act of 2004. Award must first be confirmed by
the RTC and when so confirmed shall be enforced in the same manner as final and executor
judgments in the Philippine Courts.
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pg. 83
so long as the facts on which such decision was predicated continue to be the fact of the case before
the court.
Several judgments
- One rendered by a court against one or more defendants, but not against all, leaving the action to
proceed against others.
- Proper when the liability of each party is clearly separable and distinct from that of his co-parties
Separate Judgment
- This judgment presupposes that there are several claims for relief presented in a single action
- This judgment will terminate the action with respect to that claim and the action shall proceed as to
the remaining claims.
- BUT despite the judgment, the court may stay the execution of the separate judgment until the
rendition of a judgment on all other claims.
Conditional Judgment
-one the effectivity of which depends upon the occurrence or non-occurrence of an event.
GR: Void because of absence of disposition
Judgment sin perjurio
-a brief judgment containing only the dispositive portion, without prejudice to the making of a more
extensive discussion of the findings of facts and law to support it.
-not a final decision
-dismissal without prejudice
Judgment nunc pro tunc (now for then)
- Judgment intended to enter into the record acts which had already been done, but which to not yet
appear in the record.
- Judgment which orders the entry of something which was actually previously done
- Purpose is not to render new judgment but only to make records show what the judicial action really
was but was omitted from the records
- A motion for clarificatory judgment that seeks the inclusion of matters that were not parts of the
judicial action is beyond the scope of judgment nunc pro tunc
Judgment upon compromise
- Rendered by the court on the basis of a compromise agreement entered into between the parties to
the action
- Res judicata upon the parties
- There shall be no execution of the compromise agreement except in compliance with a judicial
compromise
- Compromise is perfected by mere consent, manifested by the meeting of the offer and the
acceptance upon the thing and the cause which constitutes the contract. Thus, does not need a
judicial approval for its perfection.
- Once approved by the court, a judicial compromise is not appealable and it thereby becomes
immediately executor.
- Refer and apply only to those who are bound by the compromise. A stranger to the compromise can
not be bound
- NOT appealable. Implicit waiver of right to appeal.
- Enforced by writ of execution unless otherwise enjoined by a restraining order
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 84
If one party to it refuses to comply: the other may either enforce the compromise or regard it as
rescinded and insist upon his original demand.
Set aside compromise: motion on the ground that consent was attained by fraud, mistake, duress,
vitiation of consent. ( If such motion is denied: NON APPEALABLE.)
A motion to set aside the compromise on a ground vitiating consent applies only to a judgment
upon a compromise
When compromise is not judicial- proper remedy is annul compromise.
Compromise where consent is attained by fraud, mistake, duress, vitiation of consent is a
VOIDABLE contract.
Judicial compromise
Annulled by a motion to set aside compromise agreement
Extrajudicial
Annulled by an action to annul compromise
compromise
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pg. 85
- Form: motion, in writing, stating the grounds, written notice to adverse party
Grounds:
When to File:
-filed within the period to appeal and NO motion for EXTENSION of time shall be allowed.
-Notice of appeal (15 days), record of appeal (30 days).
- 15 days begin to run upon the OFFICIAL receipt of notice of decision or final order appealed from
Official: from the time counsel receives notice, service upon counsel is service upon party
NOT Official: service on party is prohibited and is not considered the official receipt of judgment.
EXP: court of tribunal orders service upon party or when technical defect in the manner of notice is
waived.
Pro forma Motion
- one which does not satisfy the requirements of the rules and one which will be treated as a
motion intended to delay the proceedings.
- Essential: non- compliance with the requirements of law
- Considered as such if the same does not specify 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 provision of law
alleged to be contrary to such findings or conclusions.
- When MORecon held pro forma
a) second motion for reconsideration
b) it did not comply with the rule that the motion must specify 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 provision of law alleged to be contrary to such findings or conclusions.
c) It failed to substantiate alleged errors
d) Merely alleged that the decision in question was contrary to law
e) Adverse party was not given notice thereof
-
Court should be linient in declaring it pro forma as long as motion reveals bona fie effort to
present it and no intent to delay.
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pg. 86
2. Partial Recon: the order may order grant as to such issues to which the motion affects, IF severable
without interfering with the judgment or final order upon the rest.
3. Denied: movant has a FRESH PERIOD of 15 days from receipt or notice of such denial within
which to file a notice of appeal. (applies to Rule 40,41,42,43,45)
- order of denial is NON APPEALABLE under rule 65
- Remedy: appeal from the judgment or final order itself subject of the motion for reconsideration.
Rule 65 DOES NOT apply.
Single motion rule: a party may NOT BE ALLOWED to file a second motion for reconsideration of
judgment or final order. This rule does not apply to a motion for recon of an interlocutory order.
B. Motion for New Trial
- it is a prohibited motion in summary procedure and small claims
-Effect of the filing of the motion within appeal period: interrupts period to appeal.
-Resolution of MoRecon: 30 days from the time it is submitted for resolution
- Form: motion, in writing, stating the grounds, written notice to adverse party
When to File:
-filed within the period to appeal and NO motion for EXTENSION of time shall be allowed.
-Notice of appeal (15 days), record of appeal (30 days).
Grounds:
a) Fraud/ accident/ mistake/ excusable negligence which ordinary prudence could not
have guarded against and by any reason of which such aggrieved party has probably
been impaired in his rights
-shall be supported by affidavit of merit
-Affidavit of merit: one showing the facts constituting the valid coa or defense which the
movant may prove in case a new trial is granted, because a new trial would serve no
purpose and would just waste the time of the court as well as the parties if found
groundless.
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.
-shall be supported by affidavits of the witness by whom such evidence is expected to be
given, or by duly authenticated documents which are proposed to be introduced in
evidence.
-Non compliance with support of affids shall render the motion as a mere pro forma. Thus, it shall not
toll the reglementary period.
- gross negligence of counsel is not a ground for new trial.
Courts action on motion for recon:
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pg. 87
1. Granted: original judgment or final order shall be vacated, and the action shall stand for trial de
novo.
-recorded evidence in the former trial shall be used at the new trial without retaking the same if the
evidence is material and competent.
2. Partial New Trial: court may grant a new trial as to such issues if severable without interfering with
the judgment or final order upon the rest.
-court may stay or enforce as to the rest until after the new trial.
3. Denied: movant has a FRESH PERIOD of 15 days from receipt or notice of such denial within
which to file a notice of appeal. (applies to Rule 40,41,42,43,45)
- order of denial is NON APPEALABLE under rule 65.
- Remedy: appeal from the judgment or final order itself subject of the motion for reconsideration.
Rule 65 DOES NOT apply.
Second motion for new trial: a party may be ALLOWED to file a second motion for new trial. A
motion for new trial shall include all grounds then available. Those not included are waived. BUT
when a ground for new trial was NOT EXISTING or available when the 1 st motion was made, a second
motion for new trial may be filed within the period allowed BUT EXCLUDING the thime during
which the 1st motion had been pending.
C. Appeals
General Principles:
1. right to appeal is a mere statutory privilege that has to be exercised only in the manner and in
accordance with the provisions of law
2. it is not a constitutional or natural right
3. certiorari and appeal as exclude each other as remedies.
4. Applied only to judgment or final orders that completely disposes the case.
NOT APPEALABLE
a) An order denying a petition for relief or any similar motion seeking relief from judgment
b) Interlocutory order
c) Order disallowing or dismissing an appeal
d) An order denying a motion to set aside a judgment by consent, confession, or compromise
on the ground of fraud, mistake, duress, or any other ground vitiating consent.
e) An order of execution
f) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims, and 3rd party complaint, while the main case is pending unless
the court allows an appeal therefrom.
g) An order dismissing an action without prejudice
completely dispose of the case judgment on the merits and leaves the court nothing to do
anymore.
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pg. 88
Example:
Motion to dismiss base on improper venue- denied- interlocutory- not appealable
Motion to dismiss base on improper venue- granted- dismissal without prejudice- not appealable
Dismissal based on violation on forum shopping- dismissal without prejudice- not appealable
Order granting a writ of possession under ACT 3135- final order- appealable
Order granting a writ of possession under Rule 67 (expropriation) - interlocutory-not appealable
Falls under Sec 1, Rule 41
Modes of appeal
a)
b)
c)
d)
e)
f)
g)
h)
Appeals in Criminal Cases: Unlike in civil cases, when appeal is made appellate court may decide on
matters even those not made the subject of assignment of errors,
Payment of docket fees
- Must be made within the prescribed period. Mandatory and Jurisdictional.
- But application of said rule is discretionary upon the court.
Record of appeal vs Notice of Appeal
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pg. 89
Appeal is usually made by filing a notice of appeal with the court which rendered the judgment or
final order appealed from.
GR: notice of appeal
Exp: record of appeals is required in special proceedings and other cases of multiple or separate
appeals where the law or RoC require it.
Multiple Appeals:
-party may appeal only a particular incident in the case and not all the matters involved in the same
case.
-Record on appeal is required so the appellate court may have a record of the proceedings to resolve a
separate and distinct issue raised in the appeal, and since the original records remain with the TC it still
can resolve the other issues of the case not made subject of the appeal.
Example:
Expropriation; 2 stages1st: determination of lawful right of the plaintiff to expropriate- may appeal
2nd: determination of just compensation- may appeal
Exp: no multiple appeal if TC haw fully and finally resolved all issues in the complaint for expropriation
and records could already be sent to the appellate court.
RULE 40; MTC to RTC
Where: taken to RTC exercising jurisdiction over the area to which the former pertains
When: 15 days after notice to the appellant of the judgment or final order appealed from. If record of appeal is
requires then 30 days.
How:
1. filing a notice of appeal with the court that rendered judgment
2. serving copy of the notice to the adverse party
3. within the period for taking appeal, appellant to pay coc which rendered judgment full amount of court
docket and other lawful fees
4. proof of payment shall be transmitted to the appellate court together with the original record or the
record on appeal
5. within 15 days from perfection of appeal, coc of lower court shall transmit the original record or the
record on appeal together with transcripts and exhibits, which shall certify the same as complete to the
proper RTC.
6. coc of RTC shall notify parties of the receipt of record/ notice
7. within 15 days from such notice, appellant shall submit a memorandum, copy furnished to appellee.
memorandum is vital, failure to do so will be a ground for notice of dismissal. Memorandum shall
discuss briefly the errors imputed to the lower court.
8. appellee , if he so desires, file his memorandum within 15 days from receipt of appellants memo.
9. Case is deemed submitted upon the filing of appellees memorandum or the expiration of the period to
do so.
10. RTC 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.
Perfection of Appeal:
Notice of appeal- perfected as to appellant upon filing. No need approval.
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pg. 90
Record of appeal- perfected as to appellant upon approval of the record on appeal filed in due time
Lack of Jurisdiction
-appeal taken from dismissal of MTC based on this ground:
a) if reversed- case shall be remanded to the MTC for further proceeding
b) if affirmed- dismissal becomes dismissal on the merits
-lack of jurisdiction upon subject matter and appeal taken.
a) if affirmed- affirm dismissal and RTC SHALL TRY the case on the merits as if it was ORIGINALLY filed with
it.
- RTC may allow amendment of the pleadings and may receive additional evidence in the interest of justice,
NOTE:
GR: sec 19 (g)Rule 41- order dismissing an action for lack of jurisdiction (without prejudice) is not appealable.
EXP: sec 8 Rule 40- MTC dismissal based on lack of jurisdiction is appealable.
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pg. 91
9. Within 45 days from receipt of appellants brief, the appelle shall file his own brief with proof of service
to the appellant.
10. Within 20 days from receipt of appellees brief, the appellant may file a reply brief answering points in
the appellees brief not covered in the main brief.
11. GR: Extension of time for filing briefs will not be allowed. EXP: for good and sufficient cause and ONLY
IF the motion for extension is filed before the expiration of the time sought to be extended.
Perfection of Appeal:
Notice of appeal- perfected as to appellant upon filing. No need approval.
Record of appeal- perfected as to appellant upon approval of the record on appeal filed in due time
Petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not files.
Instead, parties shall file their respective memoranda within the non- extendible period of 30 days from receipt
of the notice that all the evidences are already attached to the record.
Questions that may be appealed:
Any question of law or fact that has been raised in the court below and within the issues framed by the parties.
Residual jurisdiction: Authority of the TC
1. to issue orders for the protection and preservation of the right of the parties which do not involve any matter
litigated by the appeal.
2. to approve compromises
3. permit appeals of indigent litigants
4. order execution pending appeal
5. allow withdrawal of the appeal
-provided these are done prior to the transmittal of the original record or record of appeal even if the appeal
have already been perfected or despite approval of the record on appeal or in case of petition for review under
Rule 42, before the CA give due course to the petition.
- Residual jurisdiction of TC is available at a stage which the court is normally deemed to have lost jurisdiction
over the case or the subject matter involved in the appeal.
-There is NO such RJ where no appeal or petition has been filed.
RULE 42; RTC to CA (appellate jurisdiction)
When: 15 days after notice of the decision sought to be reviewed or of the denial of petitioners motion for new
trial or reconsideration.
Court may grant an additional 15 days as extension, provided: a) motion; b) there is payment of the full amount
of the docket and other lawful fees and deposit for costs before expiration of the reglementary period; c) most
compelling reason; d) no case exceed 15 days.
How:
1. Filing a verified petition for review with the CA, paying the docket and other lawful fees, depositing
amount of P500 for costs,
- Petition shall be in form required by Sec 2 Rule 42
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pg. 92
Stating a concise statement of the matters involved, issues raised, specification of errors of law or
fact or both committed by court and reasons or arguments relied upon for the allowance of appeal.
- Material Data Rule: Shall state the specific material dates showing that the petition was filed on
time.
- Accompanied by certification against forum shopping.
- Failure to comply with any: ground for dismissal
Furnish RTC and adverse party with copies of the petition
Ca may dismiss the petition: patently without merit, prosecuted for delay, questions raised are too
unsubstantial to require consideration.
If no dismissed: it may require the respondent to file a comment on the petition within 10 days from
notice. Respondent NO TO FILE motion to dismiss.
If CA finds prima facie that the RTC committed an error of fact or law- it may give due course.
If given due course, CA may set case for oral argument or require the parties to submit memoranda with
a period of 15 days from notice.
Case is deemed submitted for decision upon the filing of the last pleading or memo required.
-
2.
3.
4.
5.
6.
7.
Perfection of Appeal:
As to petitioner- filing of a petition for review and payment of the corresponding docket and lawful fees.
Dismissal of Appeal:
Appeal may be dismissed by CA ( motion or motu proprio), on the ff grounds:
a) Failure to comply with material date rule
b) Failure to file notice / record of appeal within the prescribed period
c) Failed to pay docket and other lawful fees
d) Unauthorized alterations, omissions, or additions in the approved record on appeal ( sec 4, Rule 44)
e) Failure of the appellant to serve and file required number of copies of his brief or memo with in the time
prescribed.
f) Absence of specific assignment of errors in the appellants brief, or of page reference to the record ( sec
13 a,c,d, f, Rule44)
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 appellant to appear at the preliminary conference under Rule 48 or to comply with orders,
circulars, or directives of the court without just reasons.
i) The fact the judgment appealed from is not appealable.
- These grounds are discretionary upon the court ( sec 2, R50 uses may)
Residual jurisdiction:
Same as those in Rule 41.
Rule 41
May be exercised prior to the transmittal of records
Rule 42
May be exercised by RTC before RTC gives due course
to the petition.
Stay of judgment:
-Appeal shall stay the judgment unless the CA, law, or rules provides otherwise.
-Civil cases decided under the Rules on Summary Procedure shall not be stayed.
RULE 45; Appeal by Certiorari to the SC
Application:
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pg. 93
a) RTC judgment in the exercise of original jurisdiction involving only questions of law
NOTE:
Orig jurisdiction, Questions of Law ONLY
a) Rule 45
Appellate jurisdiction, Questions of law/ fact/ both
b) Rule 42
b) CA judgment where the petition raises only questions of law
c) Sandiganbayan judgment where the petition raises only questions of law
d) CTA en banc decision
e) Writ of amparo judgment ( question of fact or law or both)
f) Writ of Habeas Date judgment ( question of fact or law or both)
- Applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment.
Provisional Remedies
-May include an application for preliminary injunction or other prov rem
-May apply for the same during pendency.
Rule 45 is not a matter of right
- GR: Subject to sound discretion of the court
- Exp: penalty of death or reclusion perpetua ( appeal here is a matter of right)
- Reasons for court to grant right:
a) when the court below has decided a question of substance not yet determined by SC
b) when court below decided a matter of substance in a way that is not in accord with law or with
the applicable decisions of the SC
c) when the court below has departed from the accepted and usual course of judicial proceedings, or
so far sanctioned such departure by a lower court, as to call of the exercise of the power of
supervision of the SC.
GR: only questions of law. SC not trier of facts.
Exps:
1) conclusion of the CA is grounded entirely on speculations, surmises, conjecture
2) inference made is manifestly mistaken, absurd, impossible
3) grave abuse of discretion
4) judgment based on misapprehension of facts
5) CA in making it finding went beyond the issues of the case and the same is contrary to the admission of
both appellant and appellee
6) Findings are contrary to those of the TC
7) Findings of fact are conclusions without citation of specific evidence on which they are based
8) Facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by
respondents.
9) Findings of fact of CA are premised on the supposed absence of evidence and contradicted by the
evidence on record
10) In an appeal from the judgment or final order of the court in a petition for a writ of amparo or habeas
date, questions of fact may be raised
Certiorari under Rule 45 vs Rule 65
Rule 45
Mode of appeal. A petition for review on certiorari
Continuation of the appeal process
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Rule 65
Special civil action ( an original action)
Independent action
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pg. 94
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pg. 95
b) if denied, file certiorari under rule 65 within 60 days from the notice of the
decision.
File with the CA ( applying principle of hierarchy of courts)
If filed with the CA instead of SC shall be dismissed. NO REFERRAL to CA.
Sandiganbayan
appealable by certiorari to the SC (pure questions of law) under Rule 45 NOT rule 65.
Rule applies when the penalty is less than reclusion perpetua, life imprisonment or
death.
If more than- appeal to SC.
Ombudsman
CTA
COMELEC
a) appeal to SC under Rule 65 by filing the petition within 30 days from notice
COA
a) appeal to SC under Rule 65 by filing the petition within 30 days from notice
CSC
Office of the President
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pg. 96
a)
b)
c)
d)
Grounds:
a) when a judgment or final order is entered into, or any other proceeding is thereafter taken
against the petitioner in any court through fraud, accident, mistake, excusable negligence.
filed where: in such court ( MTC/ RTC) and not in another or to a higher court
prayer: judgment or order or proceedings be set aside
any other proceeding is thereafter taken against the petitioner in any court through fraud, accident,
mistake, excusable negligence
- Thus, also applicable to a proceeding taken after the entry of judgment or final order such
as an order of execution.
b) when petitioner has been prevented from taking an appeal by fraud, accident, mistake,
excusable negligence.
filed where: in such court (MTC/ RTC) and not in another or to a higher court
prayer: appeal be given due course
When to File:
Filed within 60 days after the petitioner learns (knowledge) of the judgment, final order, etc AND not
more than 6 months after such judgment or final order, etc was entered or such proceeding was taken.
- These two periods must concur.
- Both periods are not extendible and never interrupted.
- Strict compliance but still subject to SCs discretion.
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pg. 97
How:
1. Petition must be verified and must be accompanied with affidavits showing fraud, accident,
mistake, and excusable negligence relied upon and the fact constituting the petitioners good
and substantial cause of action or defense, as the case may be.
2. If sufficient in form and substance, the court shall issue an order requiring the adverse parties
to answer the same within 15 days from receipt thereof.
3. After filing of answer or expiration thereof, court shall hear the petition.
4. Court finds that allegations are not true: dismiss the petition.
5. Court finds that allegations are true: it shall set aside the judgment, final order, etc.
6. In connection with number 5, the case then shall stand as if such final order/ judgment/ etc
had never been rendered issued or taken.
7. Court shall then proceed to hear and determine the case as if timely motion for new trial or
recon had been grated by it.
8. In case of prevented to appeal by FAME, the court shall set aside the denial to appeal and shall
give due course to said appeal. The case shall then be elevated as if a timely appeal had been
submitted.
Preliminary injuction pending the petition for relief:
- Court in which the petition is filed, may grant a Prelim Inj to preserve the right of the
parties upon the filing of abond.
- Bond is conditioned upon the payment to the adverse party by such reason of the issuance
of the injuction or other other proceedings following the petition.
B. Annulment of Judgments or Final Orders or Resolutions
Nature: remedy in law independent of the case where the judgment sought to be annulled was
rendered.
- Resorted to when the ordinary remedies or new trial, appeal, petition for relief, etc are no
longer available through NO FAULT of the petitioner and is based only in two grounds.
- Allowed only in exceptional cases.
- May no longer be invoked it the party has availed of new trial, appeal, pet for relief, etc or
where such remedies were lost through his fault or negligence.
- Purpose: have a final and executor judgment set aside so that there will be a renewal of
litigation.
- Available to parties or strangers to the case as long as petitioner is one who can prove his
allegation that judgment was obtained by fraud and collusion and that he was affected
thereby.
- Applies to annulling judgments of RTC by CA or of MTC by CA.
- It does not apply to annulling judgments of quasi-judicial bodies or agencies by the CA. the
proper remedy is petition for review under Rule 43.
Grounds: exclusive
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pg. 98
C. Certiorari
Nature: supervisory or superintending writ
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pg. 99
Availed of to annul or modify the proceedings of a tribunal, board, officer exercising judicial
or extra-judicial functions which ha acted without or in excess of jurisdiction, or with grace
abuse of discretion amounting to lack of jurisdiction.
For this to prosper it is necessary to show that there is no more appeal, or any other plain,
speedy, and adequate remedy.
Thus, if appeal is available but the same is not adequate or speedy, certiorari may be had.
Task of court in certiorari proceedings: determine won the lower court committed grave
abuse of discretion.
grave abuse of discretion
a) Too patent and gross as to amount to an evasion of a positive duty,
b) or a virtual refusal to perform the duty enjoined or act in contemplation of law,
c) or where the power is exercised in an arbitrary and despotic manner by reason of
passion ad personal hostility
Essential requirements:
a) petition is directed against a tribunal, board or officer (TBO) exercising judicial or quasi-judicial
functions.
-quasi- judicial act: acts of public administrative officers or bodies required to investigate the facts or
to ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their
official actions, and to exercise discretion of a judicial nature.
b) such TBO has acted without or in excess of jurisdiction or with grave abuse of discretion
c) there is neither appeal or any plain, speedy, and adequate remedy
- there must be capricious, arbitrary, and whimsical exercise of power.
Motion for reconsideration:
-Ratio: for court to correct itself.
GR: motion for reconsideration + denial thereof= to avail of certiorari
EXPS:
1. order is a patent nullity (eg. court a quo has no jurisdiction)
2. questions raised in the lower court have been duly raised and passed upon by the lower court
or are the same as those raised and passed upon by the lower court.
3. There is an urgent necessity for the resolution of the question and any further delay would
prejudice the interest of the govt or of the petitioner or the subject matter of the action is
perishable.
4. Motion for recon would be useless
5. Petitioner was deprived of due process and there is extreme urgency for relief
6. Where, in criminal case, relief from an order of arrest is urgent and the granting of such relief
by the TC is improbable.
7. Proceedings of the lower court are nullity for lack of due process
8. Proceedings was ex parte or in which the petitioner has no opportunity to object
9. Where the issue raised is one purely of law or public interest is involved
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pg. 100
10. Absence of appeal or any plain, speedy, and adequate remedy. (eg. denial of a motion to lift
order of default).
Writ of Injunction:
- Petition for certiorari does not interrupt the course of the principal action nore the running of
reglementary period unless an application for restraining orde or Writ of preliminary injuction is
granted by court.
Duty of Court:
-public respondent has duty to proceed with the principal case within 10 days from the filing of a
petition for certiorari or upon expiration of 10 days absent TRO or WPI.
- failure to proceed- ground for administrative charge. Judicial courtesy is no longer an excuse.
No petition for certiorari/ mandamus/ prohibition in a summary procedure:
EXP: procedural void. Court in one case allowed the petition because the TC gravely abused its discretion by
indefinitely suspending the proceedings in the ejectment case contrary to the principles of Rules on Summary
Procedure.
Cetiorari is NOT substitute for lost of appeal.
- Both remedies are mutually exclusice and not alternative or successive.
- When certiorari is available despire loss of appeal:
a) public welfare and advancement of public policy dictates
b) broader interest of justice so requires
c) writ issued are null and void
d) when the questioned order amounts to an oppressive exercise of judicial authority
When to File:
-Filed within 60 days after the petitioner learns (knowledge) of the judgment, final order or denial of
a motion for reconsideration.
- no extension of time to file shall be granted except for compelling reasongs
-Material data (date) rule
- 3 material dates for certiorari under rule 65
a) date when the notice of judgment or final order was received
b) the when the motion for NT or recon when such was filed
c) date when notice of the denial thereof was received
- to determine timeliness of motion.
Where to File:
a) if against corp/ board/ officer/ person file with RTC exercising jurisdiction over the territorial areas
defined by SC
b) quasi-judicial agency-file with CA won in aid of its appellate jurisdiction
c) Sandiganbayan won in aid of its appellate jurisdiction
d) Election cases involving an act or omission of a municipal or regional trial court- file with COMELEC in
as of its appellate jurisdiction.
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pg. 101
Hierarchy of courts must be observed. A direct invocation of SCs original jurisdiction may be
allowed only when there are special and important reasons therefore, clearly and specifically set out
in the petition.
Who:
How:
1. Person aggrieved may file a verified petition in the proper court alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of the tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.
2. Accompanied by certified true copy of the judgment, order, or resolution subject of the petition;
If not certified true copies- deficient and a ground for dismissal
3. Mere copies of the relevant pleadings and documents; a sworn certification of non-forum shopping.
4. Accompanied by Certification against forum shopping.
5. No service of summons. Found to be sufficient in form and substance, court shall issue an order
requiring respondent to comment on the petition within 10 days.
6. Reply and other responsive pleadings may be required is deemed necessary by the court.
7. Court may then hear the case OR require the parties to submit a memoranda
8. If found true, court shall render judgment for the relief prayed for.
9. If found unmeritorious, court may dismiss the case. Court may then award respondent TREBLE COSTS
solidarily against petitioner and counsel. Counsel shall be subjected to administrative sanctions.
SC may also impose motu pro prio disciplinary actions.
10. certified true copy of the judgment shall be served upon public respondent. Disobedience shall make
one liable for contempt ( Sec 9, Rule 65, Roc)
11. PRIMARY RELIEF: annulment or modification of judgment. And may include INCIDENTAL RELIEFS:
damages, costs, etc.
Collateral Attack
Made when in another action to obtain a different
relief, an attack on the judgment is made as an
incident in said action.
Proper only when the judgment is on its face null
and void.
Motion to dismiss on the ground that plaintiff has
no legal capacity to sue in a collection for sum of
money case
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pg. 102
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pg. 103
a) execution by motion is the enforcement of the judgment is sought within 5 years from
the date of entry
b) execution of independent action if the 5 year period has elapsed and before it is barred
by the statute of limitations. There must be an action for revival of the judgment.
If levy is made within 5 years, sale may be had after five years provided that sale must be
made within 10 years from the finality of the judgment can be enforced.
Revival of judgment: action to revive a judgment must be filed within 10 years from the date
the judgment became final.
Must be filed within 10 years from the date judgment became final
If action has been revived, it may also be enforced within 5 years before it is barred by
statute of limitations.
Revived judgment is a new judgment not a continuation of the original, and results in a new
judgment constituting a new coa, upon a new period of limitation begins to run.
New coa : not the merits of the orginal case but the revived decision itself.
It is not meant to retry the case on the merits all over again.
Proper venue: depends if it is a real or personal action.
pg. 104
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pg. 105
d) failure in an unlawful detainer case to make the required deposits to cover the rental
amounts due or for failure to post supersedeas bonds
NOT GOOD REASON:
a) frivolous appeal is not a good reason because the authority to disapprove an appeal
pertains to the appellant court.
b) posting bond is not in itself a good reason
c) financial distress
-
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pg. 106
2) 3rd person or garnishee shall make a written report to the court within 5 days from service
of notice, and shall state won the judgment obligor has sufficient funds to satisfy the
judgment.
3) If sufficient, garnishee shall deliver the amount in cash, check to the judgment oblige within
10 working days from the service of notice on said garnishee.
4) Is insufficient, garnishee shall make a report as to the amount he holds for the judgment
obligor.
Execution of judgment for performance of specific acts
- Such act must be performed
- Fails to do so, court may direct the act to be done by someone at the cost of disobedient
party
Execution of judgment for conveyance of real or personal property found in the Philippines
- To convey such
- If faild to do so, order divesting the title of any party and vest it in others
Execution of judgment for delivery or restitution of real property
- Example, ejectment: sheriff shall demand the judgment obligor to vacate peaceably within 3
working days, and restore possession of prop to judgment oblige
- Note that immediacy of execution does not mean instant execution, respect 3 days
- If refuse to vacate, sheriff may enforce the writ by ousting the judgment obligor with the
assistance of appropriate officers and employing such means as may reasonable necessary
to retake possession. Bodily removal of defendant and his belongings.
- contempt is not a remedy: Mere refusal to vacate is not contempt because orders were
made upon the sheriff not the judgment debtor.
- Improvement thereon shall not be demolished by sheriff. These may only be done by the
officer upon a special order by the court which will be issued upon motion and hearing.
Property exempt from execution: (section 13, Rule 39)
- List is exclusive.
a. family home or homestead and the land
b. ordinary tools and implements personally used by him in his trade/ employment/
livelihood
c. 3 horses, or 3 cows, or 3 carabaos or other beasts of burden as the judgment obligor may
choose necessarily used by him in his ordinary occupation.
d. His necessary clothing and articles for ordinary personal use, excluding jewelry.
e. Household furniture and utensils necessary for housekeeping, and used for that purpose by
the judgment obligor and his family, such as the judgment obligor may select of value not
exceeding P100k
f. Provisions for individual or family use sufficient for 4 months
g. Professional libraries and equipments of judges/ lawyers/ physicians/ pharmacists/
dentists/ engineers/ surveyors/ clergymen/ teachers/ and other professionals not exceeting
P300k
h. One fishing boar and accessories not exceeding the total value of P100k owned by the
fisherman and by the lawful use of which he earns his livelihood.
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
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pg. 107
i. So much of salaries, wages, or earning of the judgment obligor for his personal services
within the 4 months preceding the levy as are necessary for support of his family
j. Lettered gravestones
k. Monies, benefits, privileges, or annuities accruing or in any manner growing out of an life
insurance
l. The right to receive legal support, or money or property obtained as such support or any
pension or gratuity from the govt
m. Properties specially exempted by law
-
When a-m is not exempt from execution: when judgment is for the recovery of the price or
upon a judgment of foreclosure or a mortgage upon the property.
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pg. 108
k) Sale of personal property at auction conveys to the HB all the right which the judgment
obligor had in such property as of the date of levy on execution or the preliminary
attachment.
l) Certificate of sale may be issued
Sale and redemption of real property
- Sheriff to give HB the certificate of sale
- Such cert shall be registered in the RD of the place where the property is situated
- Real property sold may be redeemed from HB with in 1 year from the sate of registration of
sale.
- If there are other cd having lien, redemption may again be made within 60 days from last
redemption ( called redemptioner)
- Right of redemption under ROC refers only to real prop
If no redemption is made:
- After 1 year w/o redemption, the purchaser is entitled to a conveyance and possession of the
property
- Or if after 6o days from last redemption w/o redemption from other cd, the purchaser is
entitled to a conveyance and possession of the property
HB or redemptioner
- Shall not entitled to receive rent/ income/ earning of the property sold on execution when
such property is in the possession of the tenant.
- All of such shall belong to the judgment obligor UNTIL the expiration of his period of
redemption.
Judgment unsatisfied
- Remedy: judgment oblige is entitled to an order from the court which rendered the
judgment, requiring the judgment obligor to appear and be examined concerning his
property and income before the court or commissioner appointed by the court.
- BUT he can not be examined outside the province or city which he resides.
Effect of final judgment:
Upon a specific thing
Conclusive upon the title to the thing
Probate of a will or the administration of the Conclusive upon the will or administration but
estate of a deceased person
the same shall only be prima facie evidence of
the death or testator or intestate and not a
conclusive presumption of death
Personal, political, or legal condition or status Conclusive upon the condition, status, or relp
of a person or his relp with another
Judgment be with repect to the matter directly Conclusive between the parties and their
adjudged or as to any ptehr matter that could successors in interest by title subsequent to
have been raised in relation thereto
the commencement of the action or special
proceeding, litigating for the same thing and
aka Bar by prior judgement- res judicata
under the same title and same capacity,
I will live my life to the fuNNiest. (BIARES, 2013)
OOHlala: Only human. Open to constructive criticism. Hope this helps. lala
www.warlita.wordpress.com
pg. 109
relationship.
Conlusive on any other litigation between
same parties or their successors in interest,
Aka conclusiveness of judgment another which appear upon its face to have been
form of res judicate
adjudged, or which was actually and
necessarily included thereon or necessary
thereto.
Former of final order
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pg. 110