CivPro 1

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[2b: batch 2013][CIV PRO REVIEWER JUSTICE LAGUILESS]

CIVIL PROCEDURE AND CRIMINAL PROCEDURE

Civil procedure
§ Deals with the steps in the civil cases
§ The ideal world for litigation by people is SIMPLICITY, COHERANCE AND CONCISENESS
The criminal case can go together with the civil case
§ Under article 100 of the RPC a criminal case carry with-‐it the implied institution of civil case,
UNLESS the right to file a civil action is RESERVE, WAIVE or filed a head of the criminal case
o We have to inform the court of the separate civil action before the prosecution start
presenting his evidence

I. CAUSE OF ACTION
§ Its equivalent in criminal proceeding is the determination of probable cause
o The beginning of everything
o To determine that there is a crime or there is a reason for filing a complaint
o 2 functions in determining probable cause
§ Executive function: done by the prosecutor to determine whether a criminal
information will be filed
§ Judicial function: done by the judge to determine whether a warrant of arrest will
be issue
§ The very starting point in the development of the civil cases
§ It is the very reason why a civil case is being filed
§ It gives why and wherefore of the case
§ Cause of action
o It refers to right in favor of the plaintiff but which right is violated by the defendant either
intentionally or negligently and that violation resulted to damage or injury of the plaintiff
o Illustration:
§ X is walking when suddenly a car hit X as a result he suffer an injury
• Cause of action: X has the right to walk there peacefully free from any
injury and that right was violated by the driver resulting to the injury of X.
all the requisites are present ergo you have a cause of action
o You also have the right to file a criminal action for reckless
imprudence resulting physical injury
Elements of cause of action
§ There is right in favor of the plaintiff to be treated with utmost care
§ The defendant was violated either intention or negligently
§ The complainant suffered injury or damages as a result of such violation
Cause of action vs. right of action
• Right of action-‐
o Simply referring to situation on the timing of the filing of the action is already proper. It is
already right to file an action
§ When do you have the right time to file the action: if you have already complied
with certain requirements like the condition precedent (like signature of barangay
captain), so it is not enough that you the cause of action you have to ask yourself
also “is it timely for me now to file an action”.
§ Not complying with condition precedent will make your complaint premature. It is
vitiated by the vices of premature

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o The time limits of the filing of the complaint/ prescription
§ We are telling the court that it is not yet barred with prescription
• Cause of action
o It refers to right in favor of the plaintiff but which right is violated by the defendant either
intentionally or negligently and that violation resulted to damage or injury of the plaintiff
Lack of cause of action vs. failure to state cause of action
• Failure to state the cause of action
o One of the grounds under rule 16 for the dismissal of then complaint
o Insufficiency of the allegation from the complaint or pleadings
§ But we do not only refer to the complaint we also have to look the attachments or
the appendices. This supporting documents will help you to determine the
existence of the cause of action as well as the insufficiency of the cause of action
o The failure to state the cause of action could be seen right away from the complaint. Can be
determined by merely reading the complaint.
o The lawyer failed to make sufficient allegation of facts to show cause of action
§ Effect: it will be vulnerable to dismissal
• Lack of cause of action
o Can only be detected or appreciated after the plaintiff present his evidence, therefore it
requires presentation of evidence.
o Has no right to file the case
o If the defendant beliefs that the plaintiff was not able top meet the quantum of evidence
require in civil cases (preponderance of evidence), then the case could be dismissed on the
ground of lack of cause of action.-‐-‐ we call it demurer of evidence
Prohibition on splitting
§ The prohibition for splitting is in complementary with our rule in Certificate against forum
shopping, litis pendencia, res judicata
o Because they have the same goals and objectives
• There must only one complaint for a single cause of action
• To avoid clogging of dockets
• To avoid circuitry in the proceeding
• To prevent double recovery
• We put our reliefs in only one cause of action, wag nating pira pirasuhin
• To prevent waste of time and money
• So if you are entitled of different reliefs, you file them in just one complaint, but in must came
from the same nature
o Example: forcible entry
§ Cause of action is your forcible entry, so you want to recover your land at the
same time you want to recover damages, you do not spilt your cause of action
by filing a forcible entry for recovery and number 2 filing a separate complaint
for damages otherwise you are guilty of splitting. What you do is combine all
these reliefs in one complaint.
§ What if the complainant wants to file a civil case and an administrative case
against a doctor coming from the same occurrence is there a splitting? None
because the causes of action in a civil action and an administrative action is
pertaining to different jurisdiction
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Joinder of cause of action

• If there is an error in the joining of causes of action it will not lead to the dismissal of complaint. What
the court will do is to chop off or separate the misjoined cause of action then the remaining cause of
action will proceed.
o Example: ejectment suit and collection for money so you have two different causes of
action, at this point you cant put them in the same complaint because ejectment suit is a
special civil action unlike collection for money is an ordinary civil action. Hence when special
civil action is involved you can’t combine them with any ordinary civil actions.
§ What if one of the causes of action is under the jurisdiction of the rtc let say 450
thousand and the other one which is also for collection money is 200 thousand, do
you have to file a separate complaint in the rtc and mtc? No we joined them
together and file them to the higher court which is the rtc
• They must from similar transaction
o Example: promissory notes different date -‐-‐-‐ it will depends sa time frame-‐ pag makakalapit
(same transaction)-‐-‐pag malayo (not same transaction)
Actionable documents
• Are promissory note actionable documents? Yes
• An actionable document is a document that can be use to show the existence of a cause of action
• How do we deny an actionable document
o Specifically denying (you give the court the basis for that denial, you give details why you are
denying) the genuineness and due execution of the document under oath (we attest the
truthfulness of what is stated in your specific denial, in short your specific denial is verified,
may verification)
o effect of non specific denial: tantamount to the admission of the genuineness and due
execution of the document. You are considered to have waived defenses like forgery,
coercion or the like. As an effect of that admission the court now can make a judgment on
the basis of that document, so in short it makes the proceeding short.
o Exemption: there is no need for under oath if:
§ The one taking the denial is not a party in the document, enough na yung specific
denial
§ When compliance with an order for an inspection of original instrument is refused
Alternative cause of action
• One event will give rise to several alternative, such as you can go criminal, civil or administrative,
because option is given to, you may decode which among these is your remedy
o Example: quasi-‐ delict-‐ a crime which criminal intent is substituted by negligence,
recklessness or lack of prudence
• The court can grant other relief or award so long as it is supported by a cause of action
II PARTIES
Question: “am I the right person to sue and is he the right person to be sued”
Who can be parties?
• Natural
• Juridical person
• Other entities authorized by law
Effect of death of the parties
• In criminal procedure if :


o Accused die before arraignment

§ Criminal liability is extinguished
§ Civil liability is also extinguished with prejudice to an independent civil action that
the aggrieved party may file under article 34 of the civil code
o After arraignment-‐ the same
o Before judgment
o After judgment
§ the criminal liability is extinguished but not the civil liability as long as it is an action
that survives
• Effect to atty client relationship
o The atty client relationship will be terminated upon the death of his client
o The last legal act that the atty can do is to notify the court of such death 30 days from the
knowledge of such fact
§ However if the atty submits other document such as an anwer, such action can be
valid if the heirs or legal representative ratified such act. So in general such act is
considered null and void.
• There could be substitution
o it is intended for the litigants due process and for the preservation of the estate and
property rights of the deceased.
o There could be a substitution of the deceased if the action filed before the court is an action
that survives.
o The court will not order substitution if the action is one that does not survive.
o in substitution there is a transfer of interest or transfer pen dente lite
o it is the process where in the legal representative (administrator or executor of the estate of
the deceased-‐ they are the one who represent the interest of the estate left behind by the
deceased) or heirs take the place of the deceased in the action
§ Heirs-‐ by operation of law (by virtue of the heir ship or relationship they subrogated
the deceased) they step in to the shoes of the deceased
• But they could only be placed in the shoes of the deceased if there is no
legal representative
• If there is already a judgment in the case and one of the parties already
pass away, the judgment shall be executed against his heirs, to prevent
inconvenience.

o Effect of irregularity or non-‐substitution:
§ It depends on the knowledge of the court
• if there is prior notification from the counsel of the deceased or the court
is notified of the death-‐-‐-‐irregularity or non substitution-‐-‐court jurisdiction
is infirmed meaning very weak, can be subject of a challenge, so if not
challenge the proceeding will remain valid
• if the court is not notified by the counsel-‐-‐irregularity or non substitution-‐-‐-‐
will have no effect in the jurisdiction of the court or will not affect the
validity of the proceedings

o Before there could be substitution what is to be done first?
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§ The lawyer must inform the court of the death of the party within 30 days from the
time the counsel takes or acquired personal knowledge of the death of his client,
and also to give the name and address of the legal representative of the deceased
• Therefore, no matter how long that the death already lapsed, as long as
the counsel is not aware of such then he is not duty bound of the said 30
day period.
• How does he acquire personal knowledge
o If he personally see for himself that his client indeed pass away
o Through a copy of an authenticated death certificate
• Failure of the lawyer to inform the court can be a ground for disciplinary
action
§ If legal representative is not available then the heirs by operation of law subrogates
the deceased.
§ Then the court shall order the deceased’s legal representative or hears to appear
for the deceased. The heirs can voluntarily go to the court even without the order it
is considered valid substitution.
§ the court may order the opposing counsel, within the specified period, to procure
the appoint of an executor or administrator if: the counsel has to file a separate
petition using the court order.
• The counsel of the deceased does not name a legal representative
• After the issuance of the order from the court the legal rep. or heirs did
not appear
• Or the legal representatives failed to appear within the specified period.
• The heirs refuse to subrogate the deceased.
• Action that survives vs action that dies
o Action that dies
§ Meaning it is action that dies together with the party
§ Kinds:
• Claims for funeral expenses and those for the last sickness of the decedent
• Judgment for money
• All claims for money against the decedent arising from contract either
express or implied. (Contract only pertains to all personal obligations and
not those which source in delict or tort)
o Example: credit card the wife died, according to the husband it is
an action that survives, but the SC the action is based on a
contract, and that contract without evidence to the contrary is
presumed for the benefits of the contract
o Action that survives
§ An action that can be prosecuted against the administrator or executor
§ An action that can be continued by the legal representatives (administrator or
executor of the estate of the deceased-‐ they are the one who represent the interest
of the estate left behind by the deceased) or by the heirs. hence there could
substitution for the deceased by the legal representative or heirs in the complaint.
§ kinds:
• actions for recovery of real or personal property


• action that arise from delict

• action the arise from crime (depends pa)
• actions that arise from obligation or contract express or implied.
o In execution we only make the claim against the estate of the
deceased, we do not proceed along the rule 49, we only have to
give our claims to the administrator or executor that will be
equivalent to a claim against the estate of the deceased
• action to enforce a lien thereon-‐-‐ action to enforce a claim on the property
• action to recover damages for an injury to person or property (not only
specific property but it also extent to other wrongs which personal estate is
injured or diminish)
o Tortious conduct-‐
§ Damages for injury to property
§ An act or omission characterized by bad faith
§ Conduct that can be result of liability for damages that
emanates from bad faith (aguas case)
Transfer of interest in the parties
• It is possible in the pendency of the case suddenly there is a contract of sale or deed of assignment,
such act will not affect the proceedings, but for purposes of clarity so that nobody will not be
mislead, it is ideal to inform the court about of the transfer of interest and request the title of the
case be amended. Hence, even if the court is not informed of such transfer the proceeding will
remain valid.
o Unlike in substitution it is required to notify the court of the substitution in order to know
whether the irregularity or non-‐substitution will affect the proceeding
Kinds of parties
• Indispensable party
o Without whom there is no way the case will proceed
o And the court will never have acquired jurisdiction over the case, even if the court it is
already in the execution of the decision still it never acquire jurisdiction therefore the
decision is null and void.
§ Action of the court will be considered illegal
§ But it is not an immediate moto propio dismissal, the court may still cause the
inclusion of the indispensable party, only if the party did not comply then the court
shall dismissed the case
o But the mere absence of the indispensable party is not a sufficient ground to cause the
dismissal of the complaint, the court will give you opportunity or chance to include your
indispensable party
o The party who have real interest or the real party in interest
o Question: can your father file for you? May minor or incompetent person (you do not have
the full possession of your mental faculties) filed a suit
§ Answer: minor and incompetent person can sue by himself, provided with the
guidance or assistance of the parents, grandparents, guardian or stat
§ EXAMPLE: breach of promise to marry
• General rule not actionable therefore no cause of action, but if the person
already incurred expenses due to that promise like the wedding is already
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set plus the damages it incurred against the woman like sleepless night etc.
is can give rise to civil action QUESTION: can the parents file the case for
the woman since she is not herself? no because the parents are not the
real party in interest but the woman
• Necessary party
o Somebody who even without whom the case may proceed
o Effect of non inclusion:
§ There is no complete determination of the reliefs
• Remedy: you can always latter on file a case.
o May be or may not be included. However the ideal situation is that he must be included,
because we are after complete reliefs. Kasi if not wala kang complete relief, oo pwede kang
mag file ulit ng case for that person pero waste of money yan.
o Non inclusion is not ground for dismissal
• Real party in interest
o One who stand to be benefited or injured by the outcome of the case.
o If the person is not the real party in interest then the case could be dismissed, by filing a
motion to dismissed the case
o Non-‐joinder of joinder of real party in interest will result to the dismissal the same with the
non-‐joinder of indispensable party, because the court will never acquire jurisdiction.
Generally misjoinder is not a ground for dismissal but if the party is a necessary party or real
party is can cause dismissal.
o Corporation:
§ the corporation has distinct personality from the personality of the stockholders or
members of the board. Therefore when the property involved the property of the
corporation the stockholders are not the real party in interest but the corporation
(principle of corporate fiction)
§ How do you make the corporation liable? By piercing the veil of corporate fiction
o Contract
§ The real parties in interest are the parties of the contract.
• Plaintiff
o Claiming party
o Usually the initiator
o Sometimes he could also a counter claimant interpose by the defendant-‐ permissive in
character
• Unwilling co-‐plaintiff
o There are people even suffered damages but does not want to file a suit, but you want him
to join your complaint in order to strengthen your allegation, so what are you going to do?
§ You can include that unwilling party as one of the defendants, however before you
could do that he must first give his reason before the court why he wants that
person to be a defendant, then that person must also be compelled to state his
reason why he is not joining the other person as a plaintiff
o He may be include as unwilling co-‐plaintiff but will be described as defendant.
• Cross-‐ claimant
o The person who files a cross claim in order to pass on the claim to another co-‐parties for
contribution, indemnification and subrogation.


• Representative party
o When the person can’t file a suit or answer he can have a representative. And the
representative can sue and be sued
§ Guardian
§ Executor
• It is called executor if there is a last will and testament left behind and it is
duly probated
§ Administrator
• Spouses as parties
o Husband and wife shall sue and be sued jointly, except as provided by law
§ Hence there is a joinder of parties
§ Rationale: the presumption that the absolute community of gains is the one being
observe by the parties
o The other spouse is always an indispensable party, if you don’t include them then your
action is vulnerable of dismissal
§ Exemptions: listed in the family code
• Legally separated (generally it is an exemption)
o Except: when the spouse incurred debts for the benefit of the
family, so even if they are separated the other spouse may still be
sued even for the debts he or she contracted alone.
• Involve a an exclusive property of one of the spouses
• Abandonment of the spouse
• The subject of the controversy pertains to the exercise of the other spouse
personal line of profession
• Incompetent party
o Those who are not in possession of there full mental capacity
o Those who are minors are also consider incompetence, because in the eye of the law they
are not yet capacitated to perform acts with legal consequences
§ SUBSTITION: if a minor is the one who will substitute the deceased, the court must
appoint a guardian ad litem (a guardian appointed during the pendency of the
litigation)
• No need for separate petition, the court will only ask for a list of nominees
from the party for the possible appointment of the minor’s guardian
o So the side of the deceased may file there nominees, while the
other party may submit their comments either they agree or
disagreeing on the list, and if there is an disagreement it shall be
the court who shall decide for the finality of the appointment of
the guardian ad litem
o Insane person is also considered as incompetent party
§ We have to deal with the presumption that everyone is sane, an exemption from
that is somebody is insane, in such case we need to have a medical certificate from
a government appointed doctors proving such insanity
§ Modes of discovery
• Mental and physical mode of discovery
• Indigent party
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o The one who has no money or property sufficient and available for food, shelter and basic
necessities for himself and his family.
o how do convince the court that you are an indigent party
§ there must be certificate coming from the city assessor that attesting that the
person has no real property
§ an affidavit from the applicant and persons who personally know the applicant,
which could be a barangay chairman attesting that the person is indigent.
o effect of the approval of the application
§ he will be exempted from the payment of
• docket fees and other lawful fees, and of transcripts of stenographic notes
which the court may order to be furnished him.
§ the amount of the docket and other lawful fees which the indigent was exempted
from paying shall be a lien on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides
• the lien is the government right not the litigant
o Rule 141 and rule 3
§ Rule 3 is very general while rule 141 is the specific one
§ There is no conflict with regards to these rules in the determination whether the
person is an indigent or not
• In the decision of the supreme, in case of the application of indigent the
first rule that has to be applied is rule 141, which has two requirements
(income and property requirement), however if the applicant failed to
satisfy one of the requirements in the rule 141 the court shall not
immediately deny the application, instead apply first rule 3 to determine
whether the applicant has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family.
§ Under rule 3 and 141 there could be a writ of execution against you handed down
by the court even if there is no judgment yet, if the court found out that the litigant
is not really an indigent. Also the litigant could be a subject of contempt proceeding
Class suit
§ When the plaintiffs are too numerous and bound by similar causes of action against the defendant. It
is impracticable to them to go one by one against the defendant
§ Is this analogous to joinder? Yes
§ Why do we join the plaintiffs in a class suit? Because they have similar or same causes of action
meaning has common or general interest.
o They are similarly situated not identically situated
§ Most of the claimants are bound of the same claim, we are referring to the nature
of the claim
• What claim is it? Are you claiming for compensation because of the injury
that you sustain, then yes you have a common denominator between and
among the parties.
• But what if each of you is claiming for different amount?
o If follow the ruling of the supreme court it shows that they are
also after the same amount
§ Example in shipwreck, the plaintiff according to the
Supreme Court is not similarly situated because some of

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them are heirs of doctors, lawyers, teachers and etc.

(sabi ni maam di daw sya medyo convince dito)
o The same extent of damages to be compensated and have to be computed
o Same interest in the complaints.
o Same nature of possession
§ Elements
o The controversy has a common or general interest that bind the parties
o That the plaintiffs are too numerous that is impracticable to be brought to the court
§ Can be a ground for dismissal if there is really no class suit since it only means that the one who filed
on behalf of the plaintiffs is not the real party in interest.
§ If it is a class suit it important to write all the names of the plaintiffs in the title of the complaint
§ Example: is the case of 349 case of pepsi-‐ the court said it is not a class suit why?
o The alleged date of winning is different
o The identity or genuineness of the tansans are not established
*Locus standi (kilos bayan case)
• We are talking of matters that are transcendental interest, or interest or matters affects the nation as
whole or the entire citizenry. Like constitutional rights
• Literally means legal standing
• Where you file this transcendental interest to the SC, but the SC sometimes exercise concurrent
jurisdiction with CA.
• You cant go directly to the SC, only when it is a matter of question purely of law
Joinder of parties
• To avoid inconvenience and wasting of resources
• To clogging of dockets
• This parties could join if they have common question of facts or laws (are they bound by the date of
transaction, are they same date of occurrence)
• There could only be joinder of parties when an occurrence which is a result a same transaction or a
series of transaction so long as they have common question of laws or facts applicable to all of them
• Can a be joinder of plaintiff or joinder of defendant
o Joinder of necessary parties can give you a complete reliefs
• It is only permissive not compulsory
• Not a ground for dismissal, the court will only ask for the separation of that person.
o Example: a property is involve owned by a corporation, then the corporation together with
its BOD filed an action for recovery, is there a proper joinder of parties? NONE, because a
corporation has a separate personality from its BOD, therefore only the corporation can file
an action, the BOD is not the real party in interest. So the court will have to separate the
disjoined party.
o Exemption: when the party is an indispensable party or real party in interest
o
Inclusion of alternative defendant
• It is allowed by law so long as there is uncertainty (on the part of the plaintiff) as to who the person is
going to proceed against
Notice to the solicitor general
• What is OSG?
o They are lawyers of the government
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o It handle cases that have transcendental interest (both civil and criminal case) such as
§ Validity of the law
§ Criminal cases-‐ only on appeal or certiorari wherein a government functionary is
involve either as complainant or defendant.
o The guardian of the state
o Does not indiscriminately accept cases.
o The principal lawyer of the state
III. COMPLAINT
§ It is the pleading alleging the plaintiff’s cause of action or causes of action.
o The act of the plaintiff in filing the complaint is equivalent to the plaintiff submission of
himself to the jurisdiction of the court.
What do you alleged in the complaint?
§ The material or the ultimate facts
o The most significant facts
§ The facts that show the existence of the cause of action, jurisdiction of the court
and right of action
What is to be attached in the complaint?
§ The things that would show the existence of the cause of action such as a medical certificate or letter
of credit
Can the court direct the plaintiff to remove a particular portion of his complaint?
• Yes, if that part of the complaint is sham, redundant, immaterial, impertinent, or scandalous
• Rule 8 sec 12 Striking out of pleading or matter contained therein.
o Upon motion made by a party before responding to a pleading or, if no responsive pleading
is permitted by these Rules, upon motion made by a party within twenty (20) days after the
service of the pleading upon him, or upon the court's own initiative at any time, the court
may order any pleading to be stricken out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out therefrom.
• Does is it require a hearing for the court to determine that something is scandalous on the pleading?
no
o Example in a complaint for annulment of marriage on the ground of sexual perversion on the
part of the husband and the wife attached in her petition is the video tapes showing the
sexual perversion-‐-‐-‐ that video tapes can be stricken out by the court if to its appraisal or
assessment the same is scandalous
§ But what if that video tapes are needed to prove the wife’s claim
• Most of the justices said that it was scandalous and that it was enough that
they here the wife, but there was a dissent and according to that justice
that video tape is the best evidence to prove her claim that indeed that she
had been subjected to the sexual perversion of her husband
• Is this the same as to your amendment and supplemental pleadings under rule 10? Under rule 10
amendment and supplemental pleading pertain to modification and addition respectively of
whatever it is that is indicated in the complaint, and your amendment under the rules of court can
either be with leave of court or without leave of court
o Without leave of court-‐-‐-‐ amendment as a matter of right, it is a matter of right if there is no
responsive pleading that has been filed

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o With leave of court -‐-‐-‐ amendment not a matter of right-‐-‐-‐ when there is already a
responsive pleading filed, because the defendant may have certain rights there that could be
prejudice by the amendment.
o Note: responsive pleading is an answer, a motion to dismiss is not an answer
2 important technical requirements
1. Certificate against forum shopping (CFS)
§ Forum shopping
o Shopping for friendly forum or venue or court to have a favorable judgment
§ Objective
o For impartiality
o Declogging of court dockets
§ When is it required:
o The CFS requires the initiator or first litigant to give the said certificate for the consumption
of the court, opposing party and public
o It must be attached to the complaint or other initiatory pleadings (the one that initiate a
proceeding)
§ Question does counter claim required CFS? It depends if it is
• Permissive
o It is an initiatory pleading
o Requires CFS
o it can be a subject of an independent action
o There is an absence of a logical connection with the subject
matter in the complains
• Compulsory
o Not an initiatory pleading
o CFS is not required
o Meaning it must be pleaded at all cause
o Arises out of the transaction or necessarily connected with the
transaction of the subject matter in the complaint
o Cannot be a subject of an independent action
§ Content:
o That there is no other case that is pending before any court, tribunal or board of tribunal
involving the same
§ Parties
§ Issues
§ Reliefs prayed for
o And if ever the party forgot that he already filed a same case in other court he must inform
the court if such situation within the period of 5 days from the knowledge of such facts
§ Significance:
o That you are taking judicial process seriously and that you are not contributing to the
clogging of court dockets
• NON-‐ filling of CFS
o Can cause dismissal but not immediate, there must be a motion for dismissal
§ Not motion propio
• Previous decisions of courts have been relaxed, before the fact that certainty is defective or wala
talaga would warrant dismissal. But so many litigants agree an outright dismissal of a complaint
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simply because of the defect of the CFS is too harsh, there is injustice of courts in such case. If we
dismissed a case simply because of it, that kind of reason is very inclined towards technicalities and
we all knows as principle technical rules of procedure should subordinate to substantial justice.
Substantial justice should not always be sacrificed for technicality. But notwithstanding that
pronouncement do not forget this while they are rules of technicalities it does not mean we have to
treat them lightly, they are here because of one useful reason to help us to expedite the procedure,
this technicalities are here to help us attain justice. You may invoked substantial justice but you are
duty bound to submit or show to the court the presence of compelling reason or justifiable reason (to
convince the court enough to reconsider its prior ruling which to you appears to be harsh)
o How is it relaxed: non submission of CFS or defective CFS will not immediately cause for
dismissal, the court now will give you certain period in order for you to file the correct CFS
• Deliberate willful submission of false (assertion that is untruthful) CFS can cause
o Cited for Contempt
o Dismissal of the complaint
o Administrative liabilities on the lawyer
• Who sign it:
o Juridical person-‐
§ The properly delegated corporate officers-‐-‐they are the one authorized by the
board od directors
• In general it must be the legal counsel, but in case the lawyer is not
available then the secretary or president of the corporation with the
authority of the board of directors
o Natural person:
§ Generally the plaintiff or the principal, because it gives an assurance that there is no
other complaint involving same facts and issue filed in other courts
§ Exemption: the lawyer when there is a just cause
• REMEDY AFTER DISMISSAL: motion of reconsideration
2. Verification
§ Simply an attestation by the litigant or by the counsel in effect that everything stated in the
complaint is true and based on persona; knowledge and other document
§ Significant:
o To assure the court that everything in the complaint is true and correct not mere
invention
§ Non-‐filing of vereification or filing of false certificate
o Meaning what you are telling there is not true
o Can cause dismissal and administrative liability on the part of the counsel, contempt
§ Signed by:
o Plaintiff or counsel
Kinds of pleadings: Pleading-‐ written statement of the respective claims and defenses of the parties
submitted to the court for appropriate judgment
o Complaint
a.) It is the pleading alleging the plaintiff’s cause of action or causes of action.
o Answer
a.) An answer is a pleading in which a defending party sets forth his defenses.

o Reply

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a.) A reply is a pleading, the office or function of which is to deny, or allege facts in
denial or avoidance of new matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters. If a party does not file such
reply, all the new matters alleged in the answer are deemed controverted.
rd
o 3 party complaint
rd th
a.) If the defendant is accidentally drag in the case his remedy is filing a 3 or 4 party
complaint
b.) Suing someone outside the complaint for contribution, subrogation,
indemnification or subrogation
c.) Require a leave of court.
d.) Objective: to prevent multiplicity of suits, to avoid circuity
o Complaint-‐ in-‐ intervetion
rd
a.) If the 3 party wants to participate in the case in order to preserve and protect his
actual, material and direct interest, which will be affected by any judgment in the
case.
• If he does not qualify with the requirements the court will not allow him to
intervene.
b.) Time to intervene: The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-‐in-‐intervention shall
be attached to the motion and served on the original parties
c.) The initiative comes from the outside
d.) Require a leave of court, and the discretion of the court here is so large or so big
since the chancers are or very likely, in most instances the court denies because it
has tendency to cause delay
e.) Answer to the complaint-‐in-‐intervention: The answer to the complaint-‐in-‐
intervention shall be filed within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed by the court.
rd th
f.) complaint in intervetion vs 3 or 4 party complaint
rd
• In the 3 party complaint the defendant seeks for the inclusion of an
outsider, he wants that outsider to be brought with in the existing case. In
rd
the complaint for intervention the 3 party (intervenor) wants to
participate or enter the case, but that initiative comes from the outside,
the person has nothing to do with the case originally, but that person
wants to join the case because he has an interest to protect
g.) Objective: to prevent multiplicity of suits, to avoid circuity
h.) Process:
• First there must be a motion from the intervenor, since it is a motion it is
equivalent to an action seeking for permission (whenever we say motion
there is a prayer, we supplicate to the court, we ask the court that the
particular prayer be granted, and motion can be either in writing or oral
during the process of the case)
o Cross claim
a.) Claim that is pass on to a co-‐party because of the desire to sick contribution,
indemnification and subrogation
b.) Claim of the defendant is not to the plaintiff (if sa plaintiff it is a counter claim), but
against his co-‐party. The defendant seek for contribution, shift of liability,
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subrogation. In effect he is admitting liability but at the same time he is telling the
plaintiff that it is somebody else who should be held answerable.
c.) The defendant and cross-‐claimant are already in the same case
rd th
• Cross claim vs 3 or 4 party complaint
rd th
o Difference with 3 or 4 party complaint -‐-‐-‐ the defendant this
time is seeking the inclusion of an outsider in order to be brought
here in the same complaint, the purpose is the same, to seek like
wise contribution, indemnification and subrogation
o The object of the inclusion is outside of the case, but in your cross
claim the person who is sought to be liable is already within the
case
d.) Failure to make a cross claim= barred
• Remedy: rule 11 sec 10
o when a pleader fails to set up a counterclaim or a cross-‐claim
through oversight, inadvertence, or excusable negligence , or
when justice is required he may , by leave of court, set up the
counterclaim or cross-‐claim by amendment before judgment.
o Counter claim
a.) Intended to offset or defeat the claim of the plaintiff
b.) “panabla”
c.) Something that is interpose by the defendant in order to defeat the strength of the
plaintiff’s claim
d.) It must be set up in the answer specially a compulsory counter claim or else it will
be barred
• Remedy: rule 11 sec 10
o When a pleader fails to set up a counterclaim or a cross-‐claim
through oversight, inadvertence, or excusable negligence, or
when justice is required he may , by leave of court, set up the
counterclaim or cross-‐claim by amendment before judgment.
RULE 11 SEC 10
o Meaning you have to convince the court that such failure to set
up the counterclaim id due to oversight, inadvertence, or
excusable negligence, or when there is a compelling or justifiable
reason, he can ask the court permission that the same be set up
by amending answer.
e.) Is it a case of admission and avoidance? Not necessarily
• Because if we are talking of admission and we are talking of affirmative
defenses (you are admitting the allegation or liability but there is
something in the defendant that will make him avoid liability-‐-‐-‐you admit
but avoid liability) in the counter claim you does not necessarily admit, but
you interpose something to make the claim nugatory. It does not
necessary defeat the claim but only weakens.

f.) 2 kinds
• Permissive

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o An initiatory pleading
o Requires CFS
o it can be a subject of an independent action
o Need not to be set up, he can always set It up in another proceeding
o There is an absence of a logical connection with the subject matter in
the complains
• Compulsory
o Not an initiatory pleading
o CFS is not required
o Meaning it must be pleaded at all cause, otherwise it will be
considered barred not waived. You can no longer invoke it.
o Something that is logically connected with the subject matter of the
complaint, there is no way that it could be separated
§ You ask whether or not the same evidence that will established
the act or facts asserted in the complaint is the same evidence
that will be used in interposing the counter claim? If yes then it is
compulsory
o Arises out of the transaction or necessarily connected with the
transaction of the subject matter in the complaint
o Cannot be a subject of an independent action
Amendment and supplementary pleadings: rule 10
• Under rule 10 amendment and supplemental pleading pertain to modification of whatever it is that is
indicated in the complaint,
• Amendment vs supplementary pleading
o Amendment means change or modification
o In supplemental pleadings the pleading is not replace at all, the pleadings is not change at
all or modified at all but something is merely added therein, because of a new: TOE
• Transaction
• Occurrence
• Event
§ Meaning something took place or occurred after the submission of the pleadings
and you want the attention of the court to be invited towards this new occurrence,
transaction or event, if that is the situation your pleading is merely supplemental.
• Effect of amendment:
o the old pleading will be superseded, the supersedure however will not render the replaced
pleading useless, after amendment the old pleading will continue to be attached in the
expidiente (the records of the case), because even though pleading is amended there could
be admissions in that old pleading, and if admission has been made in the old pleading it
continue to bind the admitter, in other words that can still be invoked against to the person
who made the admission.
• Differentiate the old pleading and amended pleading since the old pleading is not allowed o
thrown away
o Amended pleading is required to be noticeable by making the amended parts in bolded or
italicize or in closed in prentices or in could be underline, this signage’s will signal to the
court that these are the parts replace or modified
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• if the pleading is amended does it require new sets of summons?
o Depends
§ If the cause of action is not change or the theory of the case is not change there is
no need to send new sets of summons
§ If there is a change is the cause of action then it will require to send new sets of
summons.
• Amendment under the rules of court can either be with leave of court or without leave of court
§ Without leave of court-‐-‐-‐ amendment as a matter of right (can only be exercise
once), it is a matter of right if there is no responsive pleading that has been filed
§ With leave of court -‐-‐-‐ amendment not a matter of right-‐-‐-‐ when there is already a
responsive pleading filed, because the defendant may have certain rights there that
could be prejudice by the amendment.
o Note: responsive pleading is an answer, a motion to dismiss is not an answer
• Kinds of amendments
o Formal—does not require leave of court, the formal amendment however must be seen as
something that will not cause prejudice to the other side
o Substantial-‐-‐-‐-‐ requires leave of court
• Amendment to conform to or authorize presentation of evidence
o When issues not raised by the pleadings are tried with the express or implied consent of the
parties they shall be treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so with liberality if
the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance to enable the amendment to be
made. RULE 10 SEC 5
o This is usually amendment to conform to the evidence, this takes place during trial or may be
pre-‐trial, which happens if it is seen that a particular piece of evidence will be presented and
in order that this particular evidence shall be admitted there is a need to amend the
pleading.
§ So if trial is already on going the plaintiff or defendant may pray to the court that
they may be allowed to amend there pleadings in order to conform to what is being
presented as an evidence in the trial, this is an amendment to conform with
evidence
§ When a party did not object to the introduction of evidence that is different from
what is stated in the complaint then there is an implied amendment, then the other
party can no longer in the future object to the introduction of the amendments
IV. JURISDICTION AND VENUE
Jurisdiction vs. venue
o Jurisdiction is matter of law, but venue is matter of convenience on the part of the parties (civil case)
o In a criminal case venue is a matter of jurisdiction but in civil cases it is a matter of convenience
Jurisdiction
§ It is the authority of the court to hear and try a case
§ Conferred by law alone
§ Not subject to any agreement of the parties
§ In criminal case the general rule is locus diminish

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o Rules: it must be filed and tried in:

§ Where the crime occurred or any of the elements took place (General rule)-‐-‐
§ In case in the crime happened in a bus, train etc. it must be filed and tried in the
proper court that the bus, train etc. passed during its trip-‐-‐-‐ transitory cases
(exemption)
§ Where selected by the prosecution authorized by the Supreme Court to prevent
miscarriage of justice. (Exemption)
§ Totality rule
o In an action for collection of money we total everything except the collection for damages,
interest and atty’s fees, unless the cause of action is simply for award of damages in such
case we have to include the interest and atty’s fees.
§ Example: suppose in an action for nullity of a certificate of title the defendants ask
for damages, 100k for defendant no.2, 200k for defendant no. 2 and 300k for
defendant no. 3. Is totality rule applies? NO, because the cause of action is not for
sum of money
§ Can we apply the Totality Rule in Action for Damages?
• Yes by way of exception we can lump together the amount of damages.
§ Rule:
o First level court
§ Entertain cases with an attempt to collect an amount less than 400,000
§ And those under its special jurisdiction
• Ejectment suits regardless of the amount
• Smuggling claims does not exceed 100,000
• BP 22 regardless of the amount
o It cannot be a subject of independent prosecution of civil case,
because the law specifically provides that the civil case is
instituted in the criminal action all the time.
§ What are the first level courts
• Municipal circuit trial court
o It is circuit because the court handled 3 different towns or
municipalities
• Municipal trial court
o One town only
• Metropolitan trial court
o Metro cities
o Second level courts/ RTC
§ Cases with an attempt to collect an amount of 400,000 and above
o Reviewing courts-‐ CA-‐SANDIGAN BAYAN-‐COURT OF TAX APPEAL
§ CA
• It has broader subject matters compared to sandigan bayan and court of
tax appeal
§ SANDIGAN BAYAN-‐COURT OF TAX
• They are special courts, since they deal on with specific cases
o Sandigan bayan-‐ case involving government with salary grade 27
o Court of tax appeal-‐ tax cases
o Supreme Court
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§ The court of last resort

§ If the action is purely a question of law, you can directly file it before the SC
Venue
• Can’t be dismissed motu propio.
o The court can motu propio dismissed the case only when it is:
§ Lack of jurisdiction over the subject matter
§ Litis pendencia
§ Resjudicata
§ Prescription
o In other grounds under rule 16 the court cant motu propio dismissed the case, it requires the
petition of the proper parties for the court to decide to it, because those grounds can be
waive if the defendant failed to invoke them.
o It should be the defendant who saying that venue is improperly made, because venue is a
rule of convenience.
• The place of trial
• The areas where we go to file cases or try cases.
• It is procedural not substantive
• Can be a subject of agreement because it is for the parties’ convenience
• Distinction between personal action and real action
o It is important to know their distinction in order for the plaintiff to know the proper venue
for his complaint.
o Real action
§ An action that affects the title to or possession of real property of interest therein
o Personal action
§ Those that do not fall under real action are considered personal action
• Rule on venue (general rule)
o Personal action
§ It must be filed in the residence of the plaintiff or any of the principal plaintiff
§ Or in the residence of the defendant or any of the principal defendant at the
election of the plaintiff
o Real action
§ It must be filed in the place where the real property or any of its portions is
located.
§ Example: action for reconveyance
o Non residence-‐ he is outside the Philippines or not found in the Philippines
§ if the subject matter is the personal status of the plaintiff or property of the
defendant the action may be filed (permissive):
• The case may be filed in the residence of the plaintiff or any of the
plaintiffs-‐-‐if personal status
• Or to the place where the property of the defendant is located-‐-‐ if property
of the defendant
• Exemptions from the general rule
o Unless the law specifically provides for the venue

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§ Example: in case of unlawful detainer or force ejectment suit the law provides that it
must be filed on in the place where the property or any of its portions is located. -‐-‐
venue is fixed cant be subject to an agreement
• Because there are summary action
• Unlawful detainer-‐ arises from non payment of rent or withdrawal of
tolerance, lawful from the beginning
• Forcible entry-‐ the possession is unlawful from the beginning, because the
defendant mere occupy the subject place due to stealth, strategy, fraud or
force
§ Example: foreclosure: it shall only be filed in the court where the subject property is
located.
o By agreement of the parties.
§ The mere fact that they entered in the contract does not automatically mean that
the parties can only file the suit in that court, we have to first determine whether
the said agreement is permissive of restrictive in character.
§ 2 kinds of agreement or stipulations
• Exclusive
o Where in the parties agreed to have a particular venue exclusively
o There must be presence of restrictive words in the agreement in
order for it to be considered as exclusive. So we have to look into
tone or wordings of the stipulation. (Example: only, solely,
exclusively)
o Elements:
§ Must be written
§ Entered into before the filing of the case
§ Must contain an exclusive venue
• Permissive
o Open to the idea that the venue can be in somewhere else
o In the absence of the restrictive words in the agreement the
contract is only permissive meaning it is only an addition option
on the parties where they can the suit or action
o It is only permissive if there is a room for adjustment in the tenor
of the agreement
• Venue is improperly made:
o To defeat the complaint: the defendant must file a motion to dismiss the case on the ground
of improper venue
o Cant be dismissed motu propio
V. PAYING OF DOCKET FEES
• It is the payment of the court docket fees that vested the court of the whole jurisdiction over the case
o This means that after the plaintiff filed his complained before the court, wherein the court
acquire jurisdiction over the person of the plaintiff, the plaintiff is still required to pay docket
fees for the court be vested of the whole jurisdiction over the case.
• Assessment of docket fees:
o Matter given to the clerk of court
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o The office of the clerk of court is the soul office that is tasked to assessed and collect the
necessary docket fees
• Importance:
o It is the life blood of the judicial system
• Not correctly paid:
o The court does not automatically lose its jurisdiction, the court will simply give reasonable
time to complete the payment
§ Reasonable time -‐ still within the period for the filing of the case
VI. RAFFLING OF THE CASE
• For impartial distribution of the case
• We cannot select the court, that is already forum shopping.
VII. SERVICE OF SUMMONS
• This will determine whether or not the court has acquired jurisdiction over the person of the
defendant, if the court did not acquire jurisdiction over the person of the defendant then the court
has no authority to proceed
o The lack of jurisdiction will continue to exist despite the fact that the court already rendered
judgment, the proceeding will be considered void as well as the judgment.
• It is a formal notice under rule 14 which is the equivalent of a subpoena in criminal procedure
o Subpoena
§ Given by the court in criminal case to a person requiring him to testify before the
court
§ Also available in civil cases
§ It’s a coercive process coming from the court.
• Attached to the summons is the complaint and it is addressed or intended only to the defendant
alone informing him that:
o A case has been filed against him
o He has to file an answer to the complaint within the certain period
§ 10 days for special procedure
§ 15 days ordinary procedure
• under rule 14 sec 17 (leave of court): Any application to the court under this Rule for leave to effect
service in any manner for which leave of court is necessary shall be made by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the
application
o example: service through publication or extraterritorial service
Distinction is important in action in rem, in persom and quisi in rem
• In order to know whether jurisdiction over the person of the defendant is required.
• Action in rem
o If the object of the action is against the whole world, it happens when the object of the
action centers on the plaintiff and defendants status or right.
o Service of summons to the defendant is not important so long the court has jurisdiction over
the res.
§ Jurisdiction over the res: means the court acquire jurisdiction over the subject of
the litigation
• When the court acquire jurisdiction over the res, this means that the court
now is empowered to proceed with that res

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• How does it acquire jurisdiction over the res?

o By the seizure of the property under legal process, whereby it is
brought into the actual custody of the law
o Or as a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective
o In action in rem and quasi in rem, the court is not concerned with the acquisition of
jurisdiction over the person of the defendant. In these actions, it is the acquisition by the
court of jurisdiction over the res which principally matters
• Action in personam
o The liability in the action is only against the defendant and no one else
o Liability that is personal to the defendant.
o Example: collection for money
• Action quasi in rem
o It is the combination of the action in rem and action in personam
o It involve the real property and at the action seek to enforce the personal liability of the
defendant
o Example: foreclosure proceedings
o Service of summons to the defendant is not important so long the court has jurisdiction over
the res.
§ Jurisdiction over the res: means the court acquire jurisdiction over the subject of
the litigation
• When the court acquire jurisdiction over the res, this means that the court
now is empowered to proceed with that res
• How does it acquire jurisdiction over the res?
o By the seizure of the property under legal process, whereby it is
brought into the actual custody of the law
o Or as a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective
o In action in rem and quasi in rem, the court is not concerned with the acquisition of
jurisdiction over the person of the defendant. In these actions, it is the acquisition by the
court of jurisdiction over the res which principally matters

Who shall receive the summons?
• in case of natural person: the defendant personally
• in case of domestic juridical person: service may be made on the president, managing partner,
general manager, corporate secretary, treasurer, or in-‐house counsel
o Up to this time, this enumeration is exclusive only. However, in one case decided by the
Supreme Court wherein the branch manager is the one who received the summons, the
court held that it is a valid service of summons. The court in supporting its decision consider
the degree of responsibility of the person who received the summons and the likelihood of
the person by reasons of him being so connected with higher ups of the corporation be
sensible enough to bring the attention of the superiors. Hence in this case the court said that
if the person is do affiliated and connected so that it becomes reasonable to presumed or
expect the person to be sensible enough to bring the matter to the attention of his superior
then that is certainly considered as valid service of summons.
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o So what is the right answer? According to justice, if your answer is that there is no valid
substitution since the person is not one of those enumerated in the list, it is technically
correct. But for the purpose of practicality you could answer that there is a valid service of
summons because of the connection of that person to his superior, this answer is also
correct. In other words both are correct depending on your articulation or argument in
answering the question.
• in case of foreign juridical person: service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents within the Philippines
o resident agent meaning it is the one authorize by the foreign company and which authority
is duly registered with the securities and exchange commission
o what if the foreign corporation has no resident agent to whom the summons be served?
§ If the foreign corporation is authorized to conduct business in the Philippines
summons may be serve on it through the necessary representative from the
department of trade and industry. But if the corporation is one which conduct
business in the Philippines without the necessary authority and hence can be sued,
then the summons shall be serve to the proper consular office
• in case of public corporation: service may be effected on the Solicitor General; in case of a province,
city or municipality, or like public corporations, service may be effected on its executive head, or on
such other officer or officers as the law or the court may direct
• In case of substitution:
o 1) it can be leaved in the residence of the defendant with the person with suitable age and
discretion and residing therein
o 2) leave the summons to the place of business of the defendant with a person who appears
in charge with to receive the summons
§ Note the word who appears: this means that in reality that person is not the one in
charge to receive the summons on place of business
§ Example: secretary
Who shall serve the summons?
§ the sheriff
§ process server
§ Policemen
§ barangay official
§ or any other person that the court may authorize like people in the embassy or consular officials
Rule in service of summons in case of SPOUSES
• It shall be serve jointly to the spouses, if they are together one summons is enough, but if one of the
spouses in not in the Philippines or currently living in another place then there should be two
summons
How do we serve summons?
1.) Personal summons
o Personal service
o It is the ideal service, because there could be no problem. The defendant can’t say that he
did not receive the summons.
§ But if the person cannot give it personally there are other options available.
o Who shall serve it:
§ Sheriff/Process server-‐ most of the time

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§ Barangay official
§ Policeman
o It is important that the sheriff or process server hands over personally the summons to the
defendant
o Attachment to the complaint:
§ Complaint copy
o Act of tendering-‐ it is the act of giving the summons to the defendant. This include that
situation where in the defendant will do anything to avoid the attempt of the sheriff or the
process server to serve the summons and the complaint.
o Process
§ Upon giving personally the summons to the defendant, the sheriff must asked the
defendant to sign.
• But what if does not want to receive the summons?
o Then the sheriff can tender to the defendant, meaning leave it with the
defendant and it is up to the defendant whether he will pick it up or not, what
is important is that the sheriff prepare a return or report to the court saying
that the he leave the summons to the defendant who refused to received it.
§ In case of BP 22 where the notice of dishonor was attended to be served
to the issuer of the check, and the drawer continue to dodge or avoid the
service of notice of dishonor, because the drawer knows that the receipt
of the notice is the primary element in prosecution of BP 22, so what is
the remedy of the plaintiff?
• Remedy: ask for a witness to accompany him to witness the attempt
of service of notice. If the accuse refuses to sign the
acknowledgement of the receipt, the witness will simply state in his
affidavit the said refusal and that satisfy the requirement, hence the
accused is deemed duly serve of the notice of dishonor.
• But what if the defendant is not there? Like he is somewhere else, outside the
country or his where about is unknown?
o The sheriff has to pause for a while, he cannot just leave the summons, he has
to go back to the court and make a return stating that the defendant is
unavailable. After that he must again go back to the place of the defendant.
The sheriff must continue this cycle for 3x
• but what if the defendant migrated in another country?
o the sheriff must exert efforts to determine the truthfulness of the information
by asking the barangay captain, the neighbors or any person who is credible to
attest the information, he must be able to include all of these to his report. In
short the sheriff must exert all the efforts is asking the where about of the
defendant. So when the sheriff is satisfy that the defendant is really not
present he can now leave the summons to a person of sufficient age and
discretion (SUBSTITUTED SERVICE)
§ Then prepare a return or report to the court saying that the defendant personally
received the summons
2.) Substituted service
o If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the
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summons at the defendant's residence with some person of suitable age and discretion
then residing therein, or (b) by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof RULE 14 SEC 7
o We resort to substitution when:
§ There is difficult in imposing personal service, we say it as difficult because the
defendant cannot be found thereat, since always whenever the sheriff goes there
he is nowhere to be found and there is no information that he is outside the
country.
• Under the jurisprudence the sheriff must at least attempt to serve the
summons for 3 times
o But what if at the time the sheriff went to the house, according to
the current occupant thereon, the house has been sold, then the
sheriff being unsatisfied with the information went to the
barangay captain to validate the information, then the barangay
captain affirmed the said information, -‐-‐-‐-‐ in such case the there
could still be a substitution, the sheriff may leave the summons to
the place of business of the defendant with some competent
person in charge thereof, but if it is not applicable, such as when
the whereabouts of the defendant is unknown then the sheriff
may resort to publication.
3.) Publication
o Applicable to all action under rule 14 sec 14
§ In any action where the defendant is designated as an unknown owner, or the like,
or whenever his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the court
may order.
o When do we resort to publication?
§ If the service of summons cant be done personally or by substitution
§ If the identity or whereabouts of the defendant is unknown
o Before publication, the plaintiff must first seek for leave of court or permission from the
court
§ Why? because it is a very expensive process
o What is to be published?
§ The entire complaint at the expense of the plaintiff.
o The court has to give its leave or permission
o The publication must be chosen by the court and not by the plaintiff
o Presumption
§ The whole world will be notify (legal presumption)

4.) Extraterritorial service
o When the defendant does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the defendant has been attached

6
within the Philippines, service may, by leave of court, be effected out of the Philippines by
personal service as under section 6; or by publication in a newspaper of general circulation
in such places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known address
of the defendant, or in any other manner the court may deem sufficient. Any order granting
such leave shall specify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer RULE 14 SEC 15
o Outside the territory of the court
o when do we resort to this?
§ When the defendant is considered as non-‐resident defendant, meaning he does not
reside in the Philippines and is not found in the Philippines
o The cause of action against the defendant is limited only to:
§ the action affects the personal status of the plaintiff
§ property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest therein
§ or the property of the defendant has been attached within the Philippines
o How do serve this:
§ It could be done personally
• In the foreign place where the defendant.
• Who can serve this?
o It could be the process server if appointed by the court or any
person that the court may appoint. And the service of summons is
done with the coordination of the foreign affairs or the embassy
in that place.
§ It can be by publication
§ It can be by registered mail
• It will be mailed from within our country or start from within our country.
o It shall be sent to the last known address of the defendant
§ Or other means that the court may authorize
5.) Any other mode that the court may produce
6.) Voluntary appearance
o The defendant's voluntary appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance
RULE 14 SEC 20
o In case the defendant is aware that a case has been filed against him, then he can voluntarily
appear before the court, which shall be deemed equivalent to service of summons
§ But in this case it is not enough that the defendant has knowledge, a summons may
still be required base on the circumstance, for instance, if the defendant is aware of
the complaint and voluntarily submit himself then issuance of the summons is no
longer required. But if the defendant despite such knowledge did not do anything
then summons shall be issued and be served accordingly.
o When there could be a voluntary appearance?
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7

§ If he appears before the court and seek affirmative relief, and if that appearance is
not intended to question the jurisdiction of the court then such appearance is a
voluntary appearance
§ Acts considered voluntary
• Filing a motion
• Replying to the plaintiffs complaint
• Appearing in court without assailing the courts jurisdiction
§ If the person filed a motion to dismiss on the ground of lack of jurisdiction or other
ground it is not considered as voluntary appearance

Distinction between service of summons and service of pleadings
• Service of summons
o Under rule 14
o For defendant alone
o Serve personally or if not practicable through other modes authorize by law
• Service of pleadings UNDER RULE 13
o Intended for the court and litigant not necessarily defendant
o Giving copies of the pleadings in general
§ Pleadings-‐ example complaint, it is a written statement containing the claims and
defenses of the parties, submitted to the court for judgment
o Under rule 13
§ Rule on filing and service of pleadings, judgments and other papers
v Filing:
ü Where to we file it? To the clerk of court, the clerk of court is the
first line before the judge
ü manner of filling : The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made by
presenting the original copies thereof, plainly indicated as such,
personally to the clerk of court or by sending them by registered
mail. In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second case, the date
of the mailing of motions, pleadings, or any other papers or
payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of
their filing, payment, or deposit in court. The envelope shall be
attached to the record of the case. RULE 13 SEC 3
ü 2 modes of filing
§ Personal-‐-‐-‐-‐There is nothing complicated in this mode, all
you have to do is look for the signature of the party who
received or the clerk of court who received, the date and
hour of the filing
§ Registered mail-‐-‐ much more complicated, the act of
mailing is the act of filing, you see this from the office
stamp on the envelope and from the receipt
v Service:
ü we serve the pleading to the other side or opposing party

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ü Legal meaning: the act of providing a party with a copy of the

pleading or paper concerned.
ü If any party has appeared by counsel, service upon him shall be
made upon his counsel or one of them (in case na maraming
counsel like sa law office, so you cant use as an excuse that you
are not the handling lawyer of the person, because if the services
of a law office are engaged, then service upon one of the lawyers
is enough), and service upon the party himself. So it is not enough
the pleading is serve to the lawyer, it is also required that the
party being represented by that lawyer is likewise serve.
ü If there is only one counsel representing a group of parties, one
copy for the counsel is sufficient.
o The ideal way of filing and serving a pleading is that it must be done personally as much as
possible, because if is done personally chances are there will be no problem, however, if
cant be done then it could be filed through substitute or served through registered mail
§ In case of service, if it done through registered mail or other modes authorize by
law it is important that the pleading is accompanied by a reason why it cant be
serve personally
• Example: time constrain, distance or lack of man power
o Modes of service
§ Personal service
• service of the papers may be made by delivering personally a copy to the
party or his counsel, or by leaving it in his office with his clerk or with a
person having charge thereof. If no person is found in his office, or his
office is not known, or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient age and
discretion then residing therein. RULE 13 SEC 6
§ service through mail
• Service by registered mail shall be made by depositing the copy in the post
office in a sealed envelope, plainly addressed to the party or his counsel at
his office, if known, otherwise at his residence, if known, with postage fully
prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days if undelivered. If no registry service is available
in the locality of either the senders or the addressee, service may be done
by ordinary mail. RULE 13 SE 7
• Right now we observe the presumption of completeness of service, if the
notice was sent via registered mail the passing of 10 days will give rise to
the presumption that the said mail is dully received. We have to resort to
this presumption, because not always 100 % that the person who received
that pleading will be given a receipt.

§ Substituted service
• If service of pleadings, motions, notices, resolutions, orders and other
papers cannot be made under the two preceding sections, the office and
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9

place of residence of the party or his counsel being unknown, service may
be made by delivering the copy to the clerk of court, with proof of failure
of both personal service and service by mail. The service is complete at the
time of such deliver. RULE 13 SEC 8
o Generally service of pleadings through registered mail is void, but if service can be done
personally then it is valid so long it is accompanied by an explanation why it can’t be serve
personally.
o How do we serve judgment and order from the court?
§ Personally or by registered mail
§ What if the defendant is summoned through publication, how do serve judgment
on that person? Also by publication, meaning the entire judgment must be
published; there is no way that judgment will attain finality until and unless the
same is published entirely.
o RULE 13 SEC 14 NOTICE OF LIS PENDENS
§ In an action affecting the title or the right of possession of real property, the
plaintiff and the defendant, when affirmative relief is claimed in his answer, may
record in the office of the registry of deeds of the province in which the property is
situated notice of the pendency of the action. Said notice shall contain the names of
the parties and the object of the action or defense, and a description of the
property in that province affected thereby. Only from the time of filing such notice
for record shall a purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the action, and only of its
pendency against the parties designated by their real names
§ The literal meaning of this is a notice of a pending litigation; this is intended to
notify the whole world that they should beware of a particular property because it
is a subject of a current litigation.
§ The kind of property involve here is a real property, we register the notice in the
register of deeds
§ The purpose of this notice is to act as warning to anyone who may be inclined to
deal or enter into transaction with respect to that particular property, but it does
not prevent that person to transact, it is just a warning. It just like saying that you
deal with that at your own risk.
§ This notice cant be removed except upon order of the court, that notice shall be
removed only after the case has been terminated and if it shown that the notice is
only for molesting the adverse party (vexing or annoying the other party), or that it
is not necessary to protect the rights of the rights of the party who caused it to be
recorded.
VIII. AFTER SUMMONS the defendant has an option to file
1.) Answer
o It is not an initiatory pleading, hence answer does not require verification and certificate
against non-‐forum shopping
o Date:
a.) The defendant may have either 10 days or 15 days to file his answer from the
receipt of the summons and complaint:
o Summary proceeding-‐ 10 days-‐-‐not extendable

0
o Ordinary civil case-‐ 15 days-‐-‐extendable, but it requires a motion

for extension of time
b.) Rule 11
• if the defendant is foreign private entity-‐ 30 days from the receipt of the
summons
• If the complaint is amended, then the defendant can file his answer
depending on whether the amendment is matter of right or not
o Matter of right it is 15 days from the receipt of the copy
o Not a matter of right it is 10 from the receipt of the copy thereof.
• Answer to supplemental complaint shall be filed within 10 days from
notice of the order admitting the same, unless the court fixed a different
period
• Answer to a counterclaim or cross-‐claim shall be filed within 10 days from
service
• Answer to third or fourth party complaint must be within 15 days from
service
• Reply shall be given within 10 days from service
•
o An answer is a pleading in which a defending party sets forth his defenses.
a.) Kinds of Defenses
• A negative defense is the specific denial of the material fact or facts
alleged in the pleading of the claimant essential to his cause or causes of
action.
o Failure to make a specific denial is equivalent to an admission,
there is however this admission is not extended to unliquidated
damages, therefore the plaintiff has the duty to prove the
damages
§ Example: plaintiff is saying I suffer actual damages
amounting to 100,000 I ask this court to award in his
favor 200,000 by way of moral damages-‐-‐ these are mere
claims, they are not proven
o The court may render summary judgment for the implicit
admission due to lack of specific denial but the court will still
require the plaintiff to present evidence with respect to the
amount of damages that he has sustain

• An affirmative defense is an allegation of a new matter, which, while
hypothetically admitting the material allegations in the pleading of the
claimant, would nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery, discharge
in bankruptcy, and any other matter by way of confession and avoidance.
o Example: Payment, Condonation, Waiver, Prescription, Res Judicata,
Litis Pendentia. You are in effect admitting the allegation in the
complaint but the cause of action has already prescribed.
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1

o Failure to file an answer or failure to file the answer on time will make the defendant in
default -‐-‐-‐ require a motion
a.) Not motu propio, the court cannot act on its own, there must be a motion filed by
the plaintiff. Why?
• Because the rules as much as possible disallow disposition of the cases by
mere technicalities, what the court encourage is the disposition of the
cases in the merits as much as possible.
• Upon filing of the motion for the declaration of default by the defendant,
the defendant is required to be notified o such motion
o it shall contain a notice to the defendant that the plaintiff is
seeking the declaration of his default because of his failure to
answer
o why is notification important? Because we give all the chance to
the defendant to answer, since the court do not encourage
disposition of case based on technicalities but it must be based on
the merits.
o Effect:
a.) You lose your standing in court or personality in co’rt meaning you can’t participate,
you can,t cross examine, you cant raise a question, you can’t complaint during the
trial (in criminal case an accused lose his personality when h failed to be present in
the promulgation of his judgment)
b.) The only right that you retain is receive copies of the notices or orders coming from
the courts-‐-‐-‐
• why? Because as we already said the court encourage them to file their
answer and recover their standing in order for the case to be disposed
based on the merits.
o REMEDY AFTER DEFAULT: to recover his standing in court
a.) He can file a motion to lift the order of the court, in other words that defendant will
ask the court to reconsider its order of default if what has been issued is only an
order. Or a motion to lift the judgment of the court if judgment has been rendered.
b.) In his motion the defendant has to show the court justifiable reason why he was
not able to file the answer in time so that the court will grant his motion-‐-‐-‐ these
grounds should be contained in a affidavit of merit, this affidavit contains the
circumstance surrounding the excuse being offered by the defendant, the excuse
that will justify the lifting of the default order against him (FAMEN)
• Fraud
o Extrinsic fraud or external fraud-‐ simply refers to that situation
which prevented the one claiming fraud having his full day in
court. There is a deprivation of due process
§ Example: the defendant was not able to receive the
notice because of plaintiff and clerk of court make it
appear that he received the notice
• Accident
o An act bordering on neglect
o Surprise incident/event which prevents the movant from
answering in time

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§ Example: misplaced of notice

• Mistake
o Mistake of facts, there is miscomprehension of certain things
§ Example: when the defendant thought that he should file
his answer in another court
• Excusable neglect
o Neglect that is not severe, it is a matter addressed to the judicial
discretion of the presiding judge
o If your neglect is to an ordinary person of ordinary prudence is
gross that is not a ground for lifting the order or judgement
c.) EFFECT ONCE THE MOTION IS GRANTED
• The defendant will recover his standing in court
• The court will give him another period where he could file his answer
o PARTIAL DEFAULT
a.) Effect: when a pleading asserting a claim states a common cause of action against
several defending parties, some of whom answer and the others fail to so, the court
shall try the case against all upon the answer thus filed and rendered judgment
upon the evidence presented. RULE 10 SEC 3 (C)
• This section refers to the existence of several defendants, what happen
here is that some of the defendants answered some did not. What shall
the court do is that it shall tried the case against all upon the answered
thus filed and rendered judgment upon the evidence presented
o What if the defendant did not bother anymore to do anything, he did not care anymore, he
did not file any motion, thus this mean that the plaintiff is already assured in winning the
case?
a.) No, notwithstanding the absent of the answer it does not equate automatic winning
to the plaintiff, because even if the plaintiff is presenting his evidence ex parte (ex
parte means in the absence of other party) he is still duty bound to present the
required quantum pf proof to support his cause of action. The quantum of proof in
the civil case is merely preponderance of evidence, if the plaintiff does not master
the required proof, then the plaintiff will lose the case.
o If let say you won the case ex parte presentation of evidence, your counsel able to present
that proof to pin down the defendant, will the court be justify in awarding the bigger relief
than that prayed for?
a.) No, only up to the extent that is prayed for in the complaint shall be the extent of
relief prayed for
• Example: the plaintiff in his complaint prayed for a relief amounting to
100,000 the court cant give him a bigger amount.
o But what if during the hearing the plaintiff was able to present
proof that he sustain damages in the amount of 1million at di lang
pala 100,000, may the court id justified in giving him an award
which is 1 million? Still no,
b.) The possible counterpart of this in crim pro is the rule in variance
• The offense proof is different from the offense charge
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3

o The elements must be similar or the elements must be necessarily
included to the other, but the two crimes must be in the same
nomenclature
o DEFAULT IS NOT ALLOWED IN: in this case if the defendant did not give his answer, then the
court shall order the prosecutor or counsel of the state to investigate whether or not a
collusion between the parties exist, and if there is no collusion, to intervene for the state in
order to see to it that the evidence submitted is not fabricated. RULE 10 SEC 3 (E) REASON:
for public policy, because it is the duty of the state to preserve the sanctity and interest of
the marriage
a.) Annulment of marriage
b.) Nullity of marriage
c.) Legal separation
o After filing an answer:
a.) The plaintiff may file a reply if there is a need
• Counter affidavit sa crim pro
2.) Bill of particulars
o It’s a way of saying to the plaintiff the some of his allegations are vague and required
clarification.
a.) It is vague because the allegation is not made with sufficient clarity or definiteness
o It does not mean that the court will always grant this, if the court sees that nothing is vague
in the complaint then the court will likely to DENY
a.) Because frequently defendants file a motion for bill of particulars to by time or
delay the hearing of the case
b.) EFFECT to the:
• Time frame where the defendant should answer-‐-‐-‐ the answer should be
submitted within the remaining balance but not later 5 days. RULE 13 SEC
5
o But if there is really a reason to believe that the allegation is very indefinite, then the court
may GRANT the motion for bill of particular
a.) EFFECT
• The plaintiff will be directed to clarify that particular portion in his
complaint that is unclear within 10 days from receipt of the notice
o If the plaintiff disobeyed the order of the court or in case of
insufficient compliance the order, the court may order the striking
out of the pleading or the portions thereof to which the order is
directed or make such other order as it deems just. RULE 13 SEC 4
3.) Motion to dismiss
o Equivalent in the criminal procedure is a motion to quash under rule 117-‐-‐
a.) Under this rule there grounds that cannot be waived
• Lack of jurisdiction
• Extinguishment of criminal liability
• Prescription
• Double jeopardy
o It is a remedy available to the defendant alone
o Required hearing and notice of hearing
a.) Requirements

4
• The other party must be given a copy of notice of hearing 3 days before
the date of hearing, unless the court for good cause sets the hearing in
shorter notice
• The notice of hearing shall be addressed to all the parties concerned
• The notice of hearing shall specify the time and date of the hearing which
shall not be later than 10 days after filing of the motion
o Grounds of motion to dismiss under civil procedure-‐-‐ these grounds should be invoked
prior to answer, before the defendant filed his answer.
a.) That the court has no jurisdiction over the person of the defending party;
• Due to improper service of summons
• Jurisdiction over the person of the plaintiff is not a ground for dismissal,
because the act of the plaintiff in filing the complaint is equivalent to the
plaintiff submission of himself to the jurisdiction of the court.
b.) That the court has no jurisdiction over the subject matter of the claim;
c.) That venue is improperly laid;
d.) That the plaintiff has no legal capacity to sue;
e.) That there is another action pending between the same parties for the same cause;

f.) That the cause of action is barred by a prior judgment or by the statute of
limitations; (resjudicata)
• Objective: for public policy-‐-‐ to put order in the society, there must be an
end to every litigation. Even though the judgment is erroneous, unjust, or
iniquitous. Once it is already final and executory, it cannot be altered
(Doctrine of Immutability of Judgment)
• Resjudicata literally means barred from prior judgment.
• Resjudicata is also applicable to decisions rendered by quasi-‐judicial court.
• 2 kinds of resjudicata
a. Barred by previous judgment: this means that the second case
can no longer be filed because it is already barred by the fact that
a judgment before has been rendered, which is final and executor,
which decision is decided by court of court of competent
jurisdiction over the same issues, over the same parties not
exactly similar but substantially similar with that of the parties in
the second case. The judgment is with prejudice
elements
§ The judgment must be rendered by court of competent
jurisdiction, it must be jurisdiction over the defendant and
subject matter
§ There is substantial similarity in the parties, interest, and reliefs
prayed for.
• There is substantial similarity of the parties if there is similarity of
the interest
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5

§ Judgment is based on the merits, hence the judgment is

prejudicial: based on the merits means the court listen to both
side, the court has receive the evidence of the parties
• But in case of failure to appear in pre-‐trial or failure to prosecute
the case for long time, these could warrant the dismissal of the
case with prejudice, hence resjudicata is applicable. In this case
decision is base on the merits even though evidence has not
been presented.
§ Judgment must be final and executory.
• Why is it required to be final and executor? Because the mere
fact the decision is final it does not mean it is now ready for
implementation. It can only be implemented when there is
already a writ of execution (it is an order), which has been
granted by the court upon the motion of the winning party.
Hence the judgment in unalterable even if the decision is
erroneous so long as it is already final, it must be implemented.
• The judgment becomes final after the lapsation of 15 day period
within which to avail of further remedies, like an MR or APPEAL.
• Book of entries of judgment-‐ where all the decision with finality
is recorded. The clerk of court put only the dispositive portion
and the date of entry of the judgment, the date is important
because it will serve as the reckoning point for purposes of the
several periods under the rules of court.
b. Conclusiveness of judgment.
§ If a certain question or issue has been settled, that settlement is
conclusive or is binding upon same parties and their privies in
another case.
§ In this case, the second case is allowed, but if a particular issue
that is subsequently brought out in the second case has been
actually decided upon by court in the previous case, the
conclusion of the court in the first case shall continue to bind
the parties in the subsequent case.
§ The second case is allowed to proceed, but the issue that has
been touch in the first case will continue to be conclusive and
binding to the second case
• Example: first case the cause of action is sum of money, the
nd
promissory note has been obtained, the validity of the 2 PN
nd
has been established. Then on the 2 case, which is action for
nd
damages arising from same transaction, the validity of the 2
PN is again raise, then the plaintiff can say to the court ad a
nd
defense that “your honor the 2 PN that was presented in the
first civil case has already been characterized by court of
competent jurisdiction as genuine and valid. So the finding of
that genuineness by the first court will continue to bind in the
second case.

6
g.) That the pleading asserting the claim states no cause of action;
h.) That the claim or demand set forth in the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
• these are affirmative defenses, whenever your affirmative defenses is
invoked as a ground to defeat the complaint must contain in the same
motion, we call that omnibus motion rule. Note that these affirmative
defenses can be subject of preliminary hearing if this defenses are not put
in the motion to dismiss but part of the answer, because the defendant
would like the court to see immediately the existence of these affirmative
defenses. These affirmative defenses are important because if they are
sufficiently presented and the court is convince the case could be
immediately dismissed. It serve to abbreviate the entire proceeding.
• if the affirmative defenses is invoked in the motion to dismiss, then no
need for preliminary hearing, but the hearing to be conducted would be
the regular hearing of the motion under sec 4 of rule 15 and sec 2 rule 16
i.) That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds; and
• The contract is valid but not enforceable
j.) That a condition precedent for filing the claim has not been complied with.
• the case is prematurely filed.
o Exemptions: grounds that cant be waived in civil cases -‐-‐ can be invoked in any stage of the
proceeding
a.) Lack of jurisdiction over subject matter
b.) Litis pendecia
c.) Prescription
d.) Res judicata
o Genreal rule: omnibus motion rule 9
a.) The defendants in filing a motion to dismiss may file all the existing grounds,
because if not it will be considered waived.
b.) Ideally if the defendant will have to file his answer he has to include all the defenses
that are available to him, defenses that may be fit to his complaint, these defenses
should be seen or could be seen:
• In the motion to dismiss under rule 16
o All the grounds under this rule shall be lamped together in one or
single motion -‐-‐-‐-‐ omnibus motion rule.
§ Effect of not including any of the grounds: it will be
considered waived.
c.) Note: however this waiver is not applicable when there is no motion to dismiss is
filed, if the defendant use the grounds under rule 16 as his affirmative defense in
his answer instead of filing a motion to dismiss, the other grounds not included in
such answer is not considered waived.
• Further more under rule 16 sec 6
o If no motion to dismiss has been filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as an affirmative defense in
the answer and, in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss had been filed. The
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dismissal of the complaint under this section shall be without

prejudice (hence appeal is not applicable, but the case can be refiled)
to the prosecution in the same or separate action of a counterclaim
pleaded in the answer.
§ There could only be a preliminary hearing for the affirmative
defense when the defendant give his affirmative defense and the
plaintiff denied such defense, but the defendant believe to the
value of his defense then he can ask for preliminary proceeding to
prove his affirmative defense
• A preliminary hearing is not required when the affirmative
defense of the defendant is admitted by the plaintiff, in case
of admission there could only be a summary judgment or
judgment on the pleadings depending on who is invoking it.
§ The preliminary hearing can be availed of during pre-‐trial. The
hearing for affirmative defenses is part of the parcel of pre-‐trial.
The plaintiff may file a motion to conduct preliminary hearing.
§ Preliminary hearing is required: because during this hearing the
court becomes aware of the existence of these defenses and its
genuineness of the defense. And grants your motion to dismiss.
Everything is cut short. (ex: Payment of debt already, Cause of
action prescribed) Complaint will be dismissed. This will
abbreviate the proceedings. Instead of the parties going to trial,
the court may now validly render a decision.

o Remedy:
a.) If the motion is granted: either the plaintiff re-‐filed the case or file an appeal
• The plaintiff can only re-‐filed the case if the decision is without prejudice
• But if the decision is with prejudice it can only be appealed (what you
appeal is the order not the motion), It is with prejudice if the motion is
base on:
o That the cause of action is barred by a prior judgment or by the
statute of limitations
o That the claim or demand set forth in the plaintiff's pleading has
been paid, waived, abandoned, or otherwise extinguished;
o That the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds; and
b.) If the motion is denied: in this case appeal is not the remedy prescribed by existing
court, since it order of denial is only interlocutory hence not appealable by express
provision of rule 14. However, the proper remedy would be certiorari, prohibition
or mandamus, whichever is proper under the circumstance, under Rule 65.
However, this remedy is predicated upn the allegation and showing that the denial
of the motion was tainted with grave abuse of discretion amounting to lack of
jurisdiction, hence it is required for the defendant to prove that the dismissal is
tainted with grave abuse in order to justify the grant of the extraordinary remedy of
certiorari.

8
• once a motion is dismiss it will be a final order, because there is no more to
be done.
• Effect of denial: upon the denial of the court the movant shall file his
answer within the balance of the period prescribed by Rule 11 to which he
was entitled at the time of serving his motion, but not less than five (5)
days in any event, computed from his receipt of the notice of the denial. If
the pleading is ordered to be amended, he shall file his answer within the
period prescribed by Rule 11 counted from service of the amended
pleading, unless the court provides a longer period RULE 16 SEC 4
o Meaning the defendant must file an answer and go to trial, BUT
this is not absolute, if the denial is tainted of grave abuse of
discretion then the defendant may file a certiorari under rule 65
o RULE 17 dismissal of action: dismissal by the plaintiff
a.) this is dismissal made by the plaintiff. The plaintiff is the center of the action
b.) Kinds of motion to dismiss under this rule
• Dismissal by notice: dismissal upon notice of the plaintiff
Dismissal as a matter of right
o A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for
summary judgment
§ Meaning the plaintiff may simply notify the court of the
fact of his dismissal. It shall be done respectfully.
o Upon the filing of the notice of dismissal, the court shall issue an order
confirming the dismissal.
§ Mere confirmation but not approval, hence even without
the confirmation of the court so long as the court is
notified the case is dismiss.
o In case of first dismissal it is without prejudice, but in case of second
dismissal of the plaintiff by the same complaint the plaintiff is still
entitle for the second dismissal, however such dismissal is subject to a
warning to the effect that the plaintiff can no longer re-‐file the case.
• Dismissal upon motion of the plaintiff
Dismissal not a matter o right
o If the defendant already filed his answer the plaintiff can no longer
simply send his notice of dismissal. If the plaintiff wants to dismiss the
case he is required to file a motion to dismiss. We call it motion to
dismiss or dismissal upon motion of the plaintiff.
o
• Dismissal due to fault of the plaintiff
o If the plaintiff does not do anything to prosecute his case (failure to
prosecute) or if the plaintiff does not obey the directive of the court,
then the case may be dismissed upon motion of the defendant or upon
court’s own motion
o Failure to prosecute: we refer to the situation where the plaintiff for an
unreasonable length of time appears to have neglected his case, and
when we say neglect it could refer to failure to appear for quite
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sometime without justifiable cause or failure to present evidence with
justifiable reason.
§ There is no mathematical formula for this, on how many
months or how many years will there be before we can
consider the plaintiff to have failed to prosecute. It is a
matter that is largely address to the sound discretion of
the court taking into account the circumstances
surrounding the case.
o Effect:
§ If the complaint is dismissed due to the fault of the plaintiff and
there is no evidence adduce by him, the court shall ask the
defendant if the latter is still prosecuting his counterclaim, if
there is any, in the same or separate case
§ If the plaintiff already adduce some evidence before the court,
like he already presented two or more of his witnesses but in the
middle of the proceeding he stop appearing before the court,
then the court upon motion of the defendant may consider that
the plaintiff has already terminated the presentation of evidence
and hence the defendant is now free to present his counter
evidence or the court may now render judgment based on the
evidence that is available.
§ The dismissal is without prejudice

rd
c.) Rule 17 sec 4: dismissal of counterclaim, cross-‐claim,or 3 paty claim
• The provisions of this Rule shall apply to the dismissal of any counterclaim,
cross-‐claim, or third-‐party complaint. A voluntary dismissal by the claimant
by notice as in section 1 of this Rule, shall be made before a responsive
pleading or a motion for summary judgment is served or, if there is none,
before the introduction of evidence at the trial or hearing.
Motion:
• A motion is an application for relief other than by a pleading granted by the court
• Kinds of motion
o Written:
§ a written motion may be litigated motion, meaning it stands to post prejudice to
the other side
o It shall be set for hearing by the applicant
§ The motion must be accompanied by a notice of hearing
Requirements
• The other party must be given a copy of notice of hearing 3 days before
the date of hearing, unless the court for good cause sets the hearing in
shorter notice
• The notice of hearing shall be addressed to all the parties concerned
• The notice of hearing shall specify the time and date of the hearing which
shall not be later than 10 days after filing of the motion

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• During the period motion the parties are given opportunity to expound
their respective position.
§ a written motion may also be one in ex parte or in the absence of other party. It is
ex-‐parte when the motion does not stand to post prejudice to the side
• Example: motion for postponement, motion for minor correction
o Oral
• what is an omnibus motion? When do we say that a motion is omnibus
o it is omnibus when it includes everything that the movant would like to obtain from the
court, it contain several prayers.
o So what is omnibus motion rule?
§ It simply refers to that rule that all the defenses that are available to the defendant
should be included otherwise the defenses that are not included are deemed
waived except those grounds that are not subject to waiver.
• Example:
o motion to dismiss
o motion for bill of particulars
o Motion for extension of time
§ OSG can seek as many as 8 extensions, the attitude of the court towards the OSG is
one of tolerance, because of the number of cases being handled by the OSG, it is
too much.
• Pag naka 8 nayan, pwedeng may warning na, that there will be no further
extension be given
§ Example: a motion for extension to file an answer, extension to file comment-‐-‐-‐
these are all matters addressed to the sound discretion of the court, it is up to the
court how many extension shall be given.
IX. PRE-‐TRIAL
• In criminal procedure it is required that the accused and his counsel to sign the order in order that
they may be bound by it.
• It civil procedure signatures of the defendant and his counsel is not required
• Tinio vs. Ramos Ruling: Matters not raised up during pre-‐trial can no longer be touched during
appeal. The fundamental reason is that the defendant is deprived of due process. There is deprivation
on the part of the defendant to present evidence on the issues raised for the first time on appeal.
However, this is only a general rule. The higher courts can very well consider a matter, even if it is not
tackled during pre-‐trial, when such matter is of substantial importance or when the issue at hand
cannot be dispensed with without such matter being considered. In this case, the land was subject of
an application for free patent. However, this matter was not taken up during pre-‐trial. It must be
remembered that the purpose of pre-‐trial is to define the issues for the parties and the court to
tackle. This will guide the court in the navigation of the case. The ideal pre-‐trial in this case should
have included an issue regarding the nature of the land.
o If the plaintiff wants to change the gravity of his cause of action: File a motion for
amendment. This is one of the things that we can do during pre-‐trial.
o Effect of amendment: It will supersede the previous complaint. However, the old complaint
is not necessarily obviated. It can still be used because it may contain admissions.
• Objective: SAE
o Simplify
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o Abbreviate
o Expedite
• When do we say that the issues are now joined?
o Issues are now clear to the court. The issues are now clear to the plaintiff and defendant.
The last pleading has been filed and served. Once the issue is joined pre-‐trial can now be set.
• When conducted: After the last pleading has been served and filed, if shall be the duty of the plaintiff
to promptly move ex parte that the case be set for pre-‐trial
o Last pleading: pertains to the filing of a reply. It is either the party filed a reply or the period
of filing a reply already prescribed, then the plaintiff may move the case for pre-‐trial in ex-‐
parte
o Who set the pre-‐trial: the Plaintiff
§ What if the plaintiff does not move for the case to be set for pre-‐trial?
• A: The Branch Clerk of Court shall issue notice for pre-‐trial
o Date: Within 5 days from receipt last pleadings
• Nature and purpose: The pre-‐trial is mandatory. The court shall consider:
a. The possibility of an amicable settlement or of a submission to alternative modes of dispute
resolution;
b. The simplification of the issues;
c. The necessity or desirability of amendments to the pleadings;
d. The possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;
ü Stipulation of fact is the same as admissions. It must contain the summary of the
Cause of actions of the plaintiff and the defense of the defendant and it must contain
legal provisions or laws or jurisprudence to be relied upon
ü Request for admission: It is important to request for admissions with the other parties.
This is because if the other party admits the facts that you request to admit, then, you
are relieved of the burden of proving such fact in the court. You are relieved of the
burden of presenting evidence regarding such fact
ü Resort to various modes of discovery
ü Marking of evidence: It involves admission of the genuineness of a document. This
means that once documents are marked, you are obviating the questions regarding the
genuineness of the document. Such genuineness is already established.
e. The limitation of the number of witnesses;
f. The advisability of a preliminary reference of issues to a commissioner;
ü Who is the commissioner?
o A person who is an expert, who is equipped with certain expertise with respect
to the matters or issues at hand.
o They are being compensated, The expenses are shouldered pro rata by the
parties. As opposed to receivership, it is the party who caused the appointment
of the receiver who shoulders the expense.
§ The court shall allow the commissioner such reasonable compensation as
the circumstances of the case warrant, to be taxed as costs against the
defeated party, or apportioned, as justice requires
o Example: Accountant or auditor, land evaluators.
g. The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to exist;
h. The advisability or necessity of suspending the proceedings; and
i. Such other matters as may aid in the prompt disposition of the action.

• Notice of pre-‐trial:

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o Under the present jurisprudence the general rule is that notice of pre-‐trial shall be serve to
both Counsel and the Client ALWAYS. You might be mislead that Notice to Counsel is Notice
to Client. This is true in other proceedings but NOT in Pre-‐trial. Notice must be sent to BOTH
Counsel and the Party.

• Pre-‐trial brief:
o The parties shall file with the court and serve on the adverse party, in such manner as shall
ensure their receipt thereof at least three (3) days before the date of the pre-‐trial, their
respective pre-‐trial briefs which shall contain, among others:
a) A statement of their willingness to enter into amicable settlement or alternative
modes of dispute resolution, indicating the desired terms thereof;
b) A summary of admitted facts and proposed stipulation of facts;
• Stipulation of fact is the same as admissions.
c) The issues to be tried or resolved;
d) The documents or exhibits to be presented stating the purpose thereof;
e) A manifestation of their having availed or their intention to avail themselves of
discovery procedures or referral to commissioners; and
f) The number and names of the witnesses, and the substance of their respective
testimonies.
o Failure to file pre-‐trial brief shall have the same effect as failure to appear at the pre-‐trial.
o Pre-‐ trial brief must also contain: (according to justice)
a) It must contain the summary of the Cause of actions of the plaintiff and the defense
of the defendant and it must contain legal provisions or laws or jurisprudence to be
relied upon
b) Must it contain the modes of discovery to be availed of? Yes
o EFFECT: the parties are bound by the representations and statements in their respective pre-‐
trials. Such representation and statements are in nature of judicial admissions.
• Pre-‐trial order:
o this order of the court is issued upon the termination of the pre-‐trial. It should be issued
within 10 days after the termination of the pre-‐trial
o importance: should the action proceed to trial, the pre-‐trial order:
a) defines and limits the issue to be tried
b) controls subsequent course of the action, except if it is modified before trial to
prevent manifest injustice
o contains:
a) the matters taken up in the conference
b) the action taken
c) the amendments allowed to the pleadings
d) the agreement or admissions made by the parties as to any matters considered
• PLAINTIFF DOES NOT APPEAR DURING PRE-‐TRIAL DESPITE NOTICE EFFECT:
o The case will be dismissed either with or without prejudice upon the discretion of the court.
If the dismissal is with prejudice then the complaint cant be re-‐filed
§ Can res judicata be invoked when a case with prejudice is refiled?
• A: Yes, it is considered as Adjudication on the merits.
§ If the case is dismissed because of the plaintiff’s or counsel’s non-‐appearance, may
the defendant be allowed to present evidence in his counterclaim?
• The dismissal of the complaint does not mean the accompanying
counterclaim shall be dismissed. The court shall ask the defendant whether
or not it shall adduce evidence for his counterclaim.
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o IMPORTANT: Dismissal of the case because of the failure on the part of the plaintiff to
appear at pre-‐trial is only discretionary. The courts may still continue with the case despite
plaintiff’s absence in the interest of substantial justice. In pre-‐trial, it gives the court
discretion whether or not the court will dismiss the case or not. UNLESS AND UNTIL, there is
an evident intent not to appear at pre-‐trial, the courts may consider imposing lesser
sanctions
• DEFENDANT DOES NOT APPEAR DURING PRE-‐TRIAL DESPITE NOTICE EFFECT:
o The plaintiff will be simply allowed to present his evidence ex parte. And the court may
render judgment based on the evidence presented by the plaintiff.
o if it is the defendant who is absent, the plaintiff may present his evidence ex parte.
However, this does not necessarily mean that the plaintiff will win his case.
o Wala ng declaration for default, under yun sa old rule.
o Importance of the presence of the defendant:
§ Because of the stipulations. The defendant’s lawyer cannot simply enter in to a
stipulation of facts unless he has a special power of attorney.
• It is important that the SPA must contain specific authorization. It must not
be couched on general language. It must that the lawyer is authorized to
appear in behalf of the litigant, to enter into amicable settlement and to
enter to stipulation of facts.
§ The defendant cannot just be absent during pre-‐trial. There are repercussions. If the
defendant is absent without justifiable cause, he could cause considerable delay.
Judgment on the pleadings: rule 34
• Where an answer fails to tender an issue or otherwise admits the material allegation pf the adverse
party’s pleading, the court may, on motion of the party, direct judgment on such pleading. However,
in an action for declaration of nullity or annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved RULE 34 SEC 1
o Judgment on the pleading is proper if there is absence of factual issue in the pleadings
ALONE
o Judgment is rendered based on the pleadings ALONE
§ And based on the pleading there is:
• No issues/ No genuine issues can be seen on the pleadings ALONE, because
the defending party fails to raise an issue at all
• No matters to talk about
• no dispute with respect to the claim of the plaintiff
o Concerned only with the initial stage of the cases, no presentation of evidence yet.
o The court deals with the pleadings.
• Basis of the movant or the movant is looking at for asking the court to render judgment on the
pleading is the admissions in the pleading, if there are admissions there is nothing to talk about upon
which the court may continue trial of the case
• Can the court render judgment on the pleadings on its own?
o NO, judgment on the pleading can only be rendered : Upon motion of the claiming party.
There is no way that the court may render a Judgment on the Pleadings on its own. The
court must wait such time that the proper is filed by the claiming party. In the same manner
that it observe this rule when it comes to Default.
• Pleadings: Complaint, Answer, Reply, Counterclaim, Third party complaint
• Movant: Claiming Party
• Illustration:
o In case for collection of money arising from a contract, the defendant admits the existence
of the contract, but at the same time pass its payment to another person saying that he is a

4
mere contractor and since the principal is not yet giving the payment he still cant pay the
plaintiff and it should be the principal that is paying. In this case judgment on the pleading
can be now rendered upon motion of the claiming party, because the defendant failed to
raised an issue in his answer and also admits the material allegation in the complaint hence
there is no more dispute to talk about.
Summary judgment: rule 35
• A party seeking to recover upon a claim, counterclaim, or cross-‐claim or to obtain a declatory relief may,
at anytime after the pleading in answer thereto has been served, move with supporting affidavits,
depositions, or admission for a summary in his favor
o In this case it presupposes that there is an issue, but it is not genuine.
§ The issue is not genuine or the issue is sham or the issue is fictitious: means the is issue
is patently unsubstantial, patently unmeritorious to merit the attention of the court
§ If the issue is genuine, forget about summary judgment go to TRIAL.
o At first glance the court sees the futility on dealing with it. The court or the other party may see
o It this case there could be already presentation of evidence
• Judgment is based on: PADA
o Pleadings,
o Admissions (not only found in the pleadings in arguments, open court)
o Depositions,
o Affidavits (not confined in Pleadings)
• Rendered by the court upon motion.
• Movant (May be availed of): Either the Claiming party or the Defending Party
• Notification requirement:
o Motion for the rendition of Summary Judgment, there is a need to notify the defendant. The
notice is intended to give the defendant an opportunity to meet the arguments based on the
motion for the rendition of summary judgment
• Illustration:
o There is an action to foreclose because of the defendant’s failure to pay the debt. If the
defendant’s answer admits: Existence the debt, he does not dispute that indeed he signed the
promissory note or the real estate mortgage, he does not dispute the maturity of the loan. But
he only raises the issue with respect to the interest that the lender is claiming, that is right for
SUMMARY JUDGMENT. Because here, there is an issue (with respect with the interest) But it is
not a genuine issue for purposes for proceeding further. The court may verily render a judgment
on the legal rate of interest. There is an issue but the same is pretended. Obviously intended to
cause delay. What is there to talk about? It is useless for the court and the parties to beat around
the bush. Simply useless to proceed further
NOTE in summary judgment and judgment on the pleading:
• What is the attitude of the court in the motion for Judgment on the Pleadings and Summary Judgment?
Does the court grant this immediately?
o No, There must be a hearing. Opportunity to allow the parties to expound the opportunities they
may have taken. The court if in doubt must not render Judgment on the Pleadings or Summary
Judgment. It is granted when there is clarity that there is no issue at all.
• These procedural devices (summary judgment and judgment on the pleading) cut short the proceedings.
Are these the same as preliminary hearing on the affirmative defenses?
o We relate that on Judgment on the Pleadings and Summary Judgment ,your preliminary hearing
on the affirmative defense, motion to dismiss all grounds. All of these are procedural devices of
the court that cut short the proceeding. This is what we want. This is the very intention of the
rules. To make things easier. To expedite everything.
• Will damages be included in the courts decision in the summary judgment or judgment on the pleadings?
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o Even it is prayed for your unliquidated will not be included in the judgment of the pleadings or
summary judgment, they will always be subject to presentation of proof or evidence.
Modes of Discovery
ü Modes of discovery are very important. Compliance therewith is imperative. Non-‐compliance may result
to adverse effects such as contempt, reimbursement of expenses, dismissal of a case. Modes of discovery
is not a toothless tiger. Another consequence is that the matter shall be deemed admitted. Therefore, the
plaintiff may move for summary judgment or judgment on the pleadings.
o To sum it all it is to compel the other party to produce and disclosure of the information
known to the other party to prevent surprises in litigation
ü Republic vs. Sandiganbayan: The refusal or failure to apply of the various modes of discovery can be
traced on the fact that there is a gross unfamiliarity in the modes of discovery that makes them hesitant
to apply modes of discovery. The rules particularly the modes of discovery are there to help us expedite
things. The word discovery helps us discover knowledge or information from the other party.
ü Judicial Policy when it comes to modes of discovery: The courts deal with modes of discovery with
utmost liberality. It is limited only by two things (limitation of the modes):
o .Privileged and confidential matters:
§ If the information is privileged the mode cannot be applied. The rules disallow the
productions of such evidence. This is disallowed by reason of public policy.
§ Example
• Marital privilege – Spouses cannot testify against each other.
• Lawyer-‐Client privilege – Information gathered by the lawyer in the course of their
client-‐lawyer relationship.
• Doctor-‐ Patient privilege – An examination of a doctor may not be disclosed by the
doctor without the consent of the patient.
• Traders privilege -‐ The trade secrets of the company.
• Journalist privilege -‐ Reporter cannot be compelled to disclose the source of his
information.
o Irrelevant matters:
§ If the mode sought is not relevant to the issue at hand
ü Objection of the Modes of Discovery:
o Simplify, Abbreviate, Expedite

ü What are these Modes of Discovery? DIAP
o Depositions,
o Interrogatories,
o Admissions,
o Production and Physical and Mental Examination
ü Deposition
o Whenever we speak of depositions outside the courtroom, it is apparent that the other party will
also be present in that deposition. He may interpose questions to the person who gives his
testimony. The proceedings are similar to the depositions taken in the courtroom.
o Where can a deposition take place?
§ It may take place outside court.
§ If it is outside the court room with whom can it be made?
• If it is within the Philippines: It may be before judge, notary public, a person who is
authorized by the parties in their stipulation.
• If it is outside the Philippines: It may be taken before a consul, vice-‐consul, person
authorized by the parties.
o three kinds of depositions:
1. Deposition pending actions-‐

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Object: Taking of testimony of another party.

2. Depositions during appeal-‐ depositions to be taken after judgment and before period for appeal
expired.
• What are the instances where further proceedings may be had?
§ When the case is remanded to the court for further proceedings. If there are
additional questions of facts that must be tackled by the lower court then the case
may be remanded to it for further proceedings.
• It is filed with the court that rendered the judgment.
3. Depositions before actions (Perpetuation of Testimony)-‐ making of a statement before a case is
filed.
• Why is this allowed?
§ Because there could be a threat, there could be an eventuality that would seal the
lips of the deponent. Therefore, there might be miscarriage of justice.
• However, until and unless the affiant is presented in the court, that affidavit does not have
any value. It is a useless piece of paper. You can never take away the right of the defendant
to cross-‐examine affiant.
• Example: Old man has a legitimate child. Old man realizes that he is old and is very sick and
he wants to attend to his illegitimate child. If he wants to acknowledge his child and he
wants that child to inherit a sizable portion of his assets where will he file his motion for
taking of his testimony?
§ It shall be filed in the RTC where the expected adverse party resides.
§ He must file a verified petition.
§ The court then will file a notice with the adverse party.
§ The court will still first study the objective of the party for the taking of the
deposition. The deposition will not instantly be taken.
§ Benefit: The old man can leave this world peacefully. He is rest assured that the
legitimate family can no longer question the paternity of the illegitimate child.
• Ex. A dying man or a man who is about to leave the country.
ü Interrogatories
o Kinds of interrogatories: verbal or written
o Interrogatories are set of questions that are sent out to other parties.
§ Set of questions submitted to a party, a set of written interrogatories. It is given not only to a
litigant but also to a witness who is not a party to the case
o Process: Interrogatories -‐ Cross-‐Interogatories – Re-‐direct interoggatories. Therefore, it is similar
to a cross examination.
o The service of interrogatories before joinder of issues is pre-‐mature
o Is leave of court required? DEPENDS
§ If an answer has already been filed, leave of court is necessary.
§ when no answer has been filed and the court has not yet acquired jurisdiction over the
person of the defendant, leave of court is not necessary
o What is the effect of not answering written interrogatories?
• Allegations, subject matters shall be deemed admitted
o May there be objections to interrogatories? Yes.
o Interrogatories vs. Depositions:
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§ Deposition is the general thing. Taking of the testimony of a particular matter in two ways:
oral examination and written interrogatories.
ü Admission
o Seek admissions from other party.
o A party is ordered by the court to disclose or admit a fact raised by the opposing party.
o Admissions do not take place only during trial. It can also take place during the proceedings. Such
admissions constitute judicial admissions.
o What can be the subject matter of an admission?
• Genuineness of documents
• Relevant facts
o Why do we need to seek admission?
• Because we do not need to present evidence anymore
• Because the party can resort immediately to judgment on the Pleadings or summary
judgment.
o Judgment on the Pleadings-‐ there is no issue at hand. The facts is deemed admitted.
o Summary Judgment-‐ There is an apparent issue but such issue is not genuine. An
issue is not genuine when the issue is patently unsubstantial.
o Briboneria Case: This is the case where there is a repeat request for admission. There is no need
for a request of admission in this case because the defendant is deemed to have admitted the
facts in the complaint. The party cannot be compelled again to admit what he has already
admitted in his pleading concerning matters where there is already no issue.
ü Production and physical and mental examination
o We resort to this when the physical and mental condition of a party is the subject of the
controversy.
o Example:
• Seeking correction of the birth certificate reflecting a person as a male but in fact she is
female.
o Note: Some examinations are privileged in nature.
• Ex. A doctor may not disclose his examination without the consent of the patient.

o Production of documents or things – Inspection of things is the nature of the rule.
• Note: This refers to tangible or objects elements. Something comprehended by the senses,
must not be things not offensive to the sensibilities of anyone.
• Ex. A dead body may not simply be produced in open trial. (Dead body is considered as a
thing)
• DNA evidence is not allowed in this jurisdiction. (Pieces of hair)

Refusal to comply with modes of discovery: Rule 29 (note codal lang to pa check na lang kung tama)
• Refusal to answer:
o if a party or other deponent refuses to answer any question upon oral examination, the
examination may be completed on other matters or adjourned as the proponent of the question
may prefer. The proponent may thereafter apply to the proper court of the place where the
deposition is being taken, for an order to compel an answer. The same procedure may be availed
of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.
o If the application is granted, the court shall require the refusing party or deponent to answer the
question or interrogatory and if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the counsel advising the refusal, or
both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining
the order, including attorney's fees.

8
o if the application is denied and the court finds that it was filed without substantial justification,
the court may require the proponent or the counsel advising the filing of the application, or both
of them, to pay to the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees
• contempt of court:
o If a party or other witness refuses to be sworn or refuses to answer any question after being
directed to do so by the court of the place in which the deposition is being taken, the refusal may
be considered a contempt of that court
• Other cosequences
o If any party or an officer or managing agent of a party refuses to obey an order made under
section 1 of this Rule requiring him to answer designated questions, or an order under Rule
27 to produce any document or other thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or other property or an order made under
Rule 28 requiring him to submit to a physical or mental examination, the court may make
such orders in regard to the refusal as are just, and among others the following:
§ An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action in accordance with the claim
of the party obtaining the order
§ An order refusing to allow the disobedient party to support or oppose designated
claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from introducing evidence of physical
or mental condition
§ An order striking out pleadings or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party; and
§ In lieu of any of the foregoing orders or in addition thereto, an order directing the
arrest of any party or agent of a party for disobeying any of such orders except an
order to submit to a physical or mental examination
• Expenses on refusal to admit:
o If a party after being served with a request under Rule 26 to admit the genuineness of any
document or the truth of any matter of fact serves a sworn denial thereof and if the party
requesting the admissions thereafter proves the genuineness of such document or the truth
of any such matter of fact, he may apply to the court for an order requiring the other party
to pay him the reasonable expenses incurred in making such proof, including attorney's fees.
Unless the court finds that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued
• Failure of party to attend or serve answer:
o If a party or an officer or managing agent of a party wilfully fails to appear before the officer
who is to take his deposition, after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories, the court on motion and notice, may strike out all or any part of any
pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a
judgment by default against that party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees.
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X. TRIAL
• The respective parties present there evidence
o Plaintiff first then defendant
• Trial vs. Hearing – The former is a formal term and the latter is an informal term
• Order of Trial:
o Direct-‐ examination – plaintiff presents evidence.
o Cross-‐ examination -‐ defendant rebuts the evidence presented by the plaintiff.
o Redirect-‐ examination – plaintiff recovers from the destroyed evidence in the cross-‐examination.
o Recross – examination – defendant remedies the destroyed evidence in the redirect-‐examination
o Resting -‐ the plaintiff formally offers his evidence. Collating all the evidence to the court
o Demurred to evidence – Available to both civil and criminal cases.
• May we suspend a trial?
o Yes, for reasons of the parties considers to amicably settle the case.
o How long?
§ 60 days and may be extended but subject to the sound discretion of the court.
• Adjournment vs. Postponement-‐
o The former contemplates that something took place in the trial and the court decided to
continue on another day. In the latter nothing happened, the courts simply move the trial on
another day
o Will motions for postponement be automatically granted?
§ No, there must be a justifiable reason.
§ Ex. The absence of evidence or witness, Illness of a party (notarized medical certificate is
needed).
• Demurrer to Evidence (DE):
o After presentation of then plaintiff, if the defendant saw that there is a insufficiency of evidence
then he may file a demurer of evidence
o Defendant may move for the dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief.
o The provision of the rules of court governing DE is not applicable to election law
o Demurrer is in the nature of a motion to dismiss. The effect in both is a dismissal of the case. Lack
of cause of action may lead to the granting of the Demurrer
o When it is filed?
• within 10 days without leave of court from the date the plaintiff has rested his case
o Effects
• If granted: then the case will be dismissed
o if after the dismissal the plaintiff appealed the decision and the CA granted the
appeal, the defendant loses his right to present evidence, hence the court will
render decision based on the evidence presented by the plaintiff
• if denied: then the defendant shall have the right to present his evidence
o an order denying a DE is interlocutory and is, therefore, not appealable. It can
however be subject of a petition for certiorari in case of grave abuse of discretion
• Consolidation
o If there are several actions, the court may order to jointly try the matters in a single action. The
court must consider the commonality in the facts, issues and applicable law in the two actions.
o Purpose: To avoid multiplicity of suit and to prevent conflict of decisions coming from different
courts.
o Ex. Two cases are similar and filed to two different courts, Judge A grants prayer while Judge B
denied the prayer. This will cause confusion as to what ruling will be observed by the parties.

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o How to determine what court will try the consolidated case if it is already filed in different
courts?
• The court who acquired the case with a lower docket number.
• Separate Trial
o The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any
claim, cross-‐claim, counterclaim, or third-‐party complaint, or of any separate issue or of any
number of claims, cross-‐claims, counterclaims, third-‐party complaints or issues
• Agreed statement of facts
o parties may agree to simply submit facts and stipulations. This will allow the court to move to
decision quicker. There is a need to proceed to trial
• Trial by Commissioner:
o A referee, auditor or examiner. They practically acting as judges.
o This is one of the aims of pre-‐trail. But in order to have a trial by commissioner a motion must be
filed, the court cannot motu propio grant the said trial
o The commissioner is compensated.
§ Compensation -‐The expenses are charged pro rata or court discretion.
§ The court shall allow the commissioner such reasonable compensation as the circumstances
of the case warrant, to be taxed as costs against the defeated party, or apportioned, as
justice requires
o Will court be totally dependent on the decision of the commissioner?
• The court is not bound by the decision
• The court may either adopt or reject the decision or recommendation of the commissioner.
o May the commissioner have the power of contempt?
• Yes. (Sec. 7, Rule 32) The refusal of a witness to obey a subpoena issued by the
commissioner or to give evidence before him, shall be deemed a contempt of the court
which appointed the commissioner

XI. JUDGMENT
• Constitutional requirements
o There must be statement of: FIA
§ Facts
§ Issues
§ And conclusion
o The absence of any of these will result to the nullity of the decision.
o Note: the appellate court can remand the case for the rendition of a proper decision if the
decision is not in accord with the requirements
• Entry of judgment: If no motion for reconsideration or appeal is filed the clerk of court will enter the
judgment in the book of entries of the court. The date of finality of the judgment or final order shall
be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or
final order and shall be signed by the clerk, within a certificate that such judgment or final order has
become final and executor
o Importance of recording in the book of entries?
§ For purposes of computing the periods for the availing of the remedies provided.
• Principle of immutability of judgment – Once a decision attains finality it cannot be altered. There is
a need to put an end of litigation.
o Exception: Clerical alterations.
• When does a decision attain finality?
o After the lapse of the period of 15 days of filing and MR, Appeal or lapse of 60 days for
certiorari and no appeal, MR, or certiorari was perfected.
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• 2 parts of the judgment

o the body of the judgment or the ratio decidendi
§ the part of the judgment that is not subject to execution
o the dispositive portion of the judgment or fallo
§ it subject to the execution, because it constitute the order of the court
§ it is the final order of the court
§ basically states whether the petition or motion is granted or denied.
§ And it is the part that actually settle and declares the rights and obligations of the
parties
o IN CASE OF CONFLICT:
§ If the conflict is minor it is the fallo must be followed
§ But if the conflict appears to be substantial the first thing to be done it to reconcile
it. How? By referring to the body and trying to tell out what the judgment or court
really tend.
§ Note: This possibly led to a clarificatory judgment. This is without prejudice to the
court rendering or giving a new judgment with a certain clarification
• Judgment Nun pro tunc –
o These are judgments that seek to enlighten a party regarding its previous decision.
o It is intended to supplement an old judgment in order to make the same judgment reflect
the true state of the case
o One intended to enter into record acts which had already been done, but which do not yet
appear in the record (Riano book)
o Ex. In an order for reinstatement, the court may add supplement statements to reflect the
reasons for entitlement, such as back wages. Does not change the decision, is it merely
supplemental.
• Judgment Sin perjuicio
o The court promulgates a judgment but does not give a reason nor a copy of the decision.
Highly discourage at present
o Traditionally understood to be 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
o Ex. Only the dispositive portion was given and the reason is given later.
• Separate Judgment –
o Usually done in consolidation of cases. A judgment is rendered for a particular set of parties;
perhaps the parties are not similarly situated.
o When more than one claim for relief is presented in an action, the court, at any stage, upon
a determination of the issues material to a particular claim and all counterclaims arising out
of the transaction or occurrence which is the subject matter of the claim, may render a
separate judgment disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to the remaining claims.
In case a separate judgment is rendered the court by order may stay its enforcement until
the rendition of a subsequent judgment or judgments and may prescribe such conditions as
may be necessary to secure the benefit thereof to the party in whose favor the judgment is
rendered RULE 36 SEC 5
o Ex. Defendants admitted liabilities; however the other defendant does not want to admit
anything. In the former the case may be move to summary judgment while in the latter the
case may proceed with trial.

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• Post-‐ judgment
• Remedies before judgment becomes final and executory:
o Motion for new trial, motion for reconsideration and appeal.
• Remedies after judgment becomes final and executory:
o Petition for relief from judgment, petition for certiorari, annulment of judgment under Rule
47.
• Reconsideration
o Basically a second look by the court to correct errors committed by the court in the
application of the facts or law.
o Grounds:
§ damages awarded are excessive,
• How much is excessive? It is addressed to the sound discretion of the
court.
• Kinds of damages:
o Actual damages supported by receipts, etc.
o Exemplary damages addressed to the discretion of the court
o Moral damages would depend to the stature/status of the victim
or person claiming the award thereof. Is he a doctor/lawyer/etc.
•
§ that the evidence is insufficient to justify the decision or
§ final order, or that the decision or final order is contrary to law.
o the motion for reconsideration must be accompanied by an affidavit of merit.
• New trial
o The losing party seeking a new trail because of the impairment of his rights, and this
impairment could have been due to:
§ Grounds: it is exclusive
• Fraud -‐ Extrinsic Fraud.
• Accident – Surprise incident/event which prevents the movant from
answering in time Mistake – Error in the actions.
• Excusable negligence – It must be alleged with particular details, and it
pertains to mistake of facts not law
• Newly discovered evidence – an evidence, with the exercise of due
diligence, not produced during trial which may materially alter the decision
of the court.
o Testimonial (needs affidavit of proposed witness)
o Documentary (needs certified true copy)
§ When it is documentary evidence, the document shall be
duly authenticated, meaning we have to prove the
authenticity or genuiness of the document (authorship,
age, execution as to date/place).
o Object (it should be brought to court if it can easily be done. But if
by its nature it cannot be brought to court, it shall be subject of
inspection)
o Note: You can’t expect the court to immediately grant the motion
for new trial based on this ground. The court still needs to
determine whether or not the evidence that will be presented will
constitute a newly discovered evidence.
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.
o The motion for new trail must be accompanied by an affidavit of merit (technical
requirement) where your grounds are stated
o After filing the motion there must be first a hearing to determine whether to grant or deny
the motion. If motion is granted, the court will set the case for trial. And we call that
situation TRIAL DE NOVO. Not everything will be repeated. Only that portion that is affected
by the newly presented evidence shall be the subject of trial.
o Does it contemplate another trial or repeat trial all over again?
§ Not necessarily. The trial may only cover a certain part.
o What will happen if the new trial is granted and a new judgment was rendered?
§ The previous judgment shall be set aside and will set the case for a new trial or trial
de novo
o Is forgotten evidence considered as newly discovered evidence?
§ No..
• NOTE: Motion for New Trial and Motion for Reconsideration
o may both be availed of upon receipt of judgment. In case of denial of the motion, a fresh 15-‐
day period is given, consistent with the ruling in the case of Neypes vs CA. Anyway, courts
have the discretion to lengthen the period within which to file pleadings.
o In Motion for Reconsideration and Motion for New Trial, notice to the other party is
necessary, because this is a HIGHLY LITIGATED MOTION. We first encountered that (term)
when we discussed Rule 15. In case of a highly litigated motion, the two requirements are 3-‐
day notice to the other party and notice to the clerk. The notice is needed so that the
adverse party can prepare and argue intelligently before the court. Exceptions to notice is
when there’s already a prior arrangement and when the matter is of such urgent nature.
o Just for emphasis, Motion for Reconsideration and Motion for New Trial must be
accompanied by an affidavit of merit, which contains the grounds relied upon. We
emphasized this when we discussed the Rule on Default, wherein an affidavit of merit is also
needed. You have to attach the affidavit to the motion. It is a supporting affidavit. You will
encounter affidavit of merit again in Attachment. The court cannot just proceed with
attachment without an affidavit of merit. In such case, the grounds are those provided in
Rule 57.

• Appeal
o if the motion for reconsideration is denied, the losing party may elevate the case to the
higher court the judgment if he believes that the trial court committed errors of fact or law.
The court acts within its jurisdiction.
• Certiorari
o if the losing party believes the court who rendered the judgment gravely abused his
discretion amounting to lack or excess of jurisdiction. (Rule 65)
o Note: the use of discretion must be grave.
o When do we say that the court grave abuse its discretion?
§ the court violated a right prescribed by the constitution.
• Petition for relief
o This is a post-‐judgment remedy or after the judgment becomes final.
o Before filing a petition for relief of judgment the losing party must have fail to avail of the
MR, appeal, new trial and certiorari without his fault. There is no way that a party can
immediately go ahead to petition for relief.
o Grounds: FAMEN

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o In petition for relief, your responsibility as movant is a lot bigger. Because you have to show
that your petition is being filed within two important periods:
§ 60 days (within acquisition of knowledge that judgment has been rendered)
§ And 6 months. The judgment should be entered into the book of entries of
judgment not later than 6 months
§ [Note: For clarity, this means that the petition for relief should be filed within 60
days from the time you found out about the judgment, but in no case shall it exceed
6 months from the time the judgment was entered into the book of entries. The 6-‐
month period is already your last chance and it doesn’t care whether or not you
have notice of the judgment.]
o When you’re now sure that you’re filing the petition within the correct period/s, you should
now ask yourself:
1. Am I filing this because I failed to file a notice of appeal? If your answer is yes, then ask
yourself: Is my failure to file a notice of appeal NOT attributable to me? If it’s due to my
fault, then write it off and forget your petition (it will be denied).
2. Am I filing this because there was no MR/ New Trial? If yes, was the failure to file an
MR/new trial due to my fault? If yes, again, forget about the petition.
“What I’m saying is it’s not easy to go through with the petition for relief. It’s an
extraordinary/highly equitable remedy. Almost “suntok sa buwan” because of the things you
have to hurdle.”
o Petition for relief is not a new case

o Where to file petition for relief?
§ We bring it immediately to the very court that rendered the judment. The court
that rendered the judgment would have to study the petition, because there’s an
attempt to reopen a case that has long been decided. If the court is convinced that
there is a ground to grant the petition and the other party is at the peak of
enforcing his rights pursuant to the decision that was rendered, the proper
provisional remedy applicable is PRELIMINARY INJUNCTION.
o Petition for Relief allows the granting of a Writ of Preliminary Injunction (WPI), There are
two kinds of injunction: Prohibitory and Mandatory.
o Example:
§ Suppose in a case of unlawful detainer, the defendants therein complete entrusted
everything to their counsel upon the latter’s assurance that he will take care of
everything. The defendants did not do anything anymore, they didn’t go to court nor did
they asked updates from their lawyer. And thereafter they lost the case without
knowing. And when they found out, it’s already too late (no more appeal/MR/new trial).
The defendants who lost the case would then have to file a Petition for Relief. But would
it be granted? It depends on whether their plight can be attributed to their own fault. If
the court is convinced that the Petition for Relief is meritorious, and the plaintiff who
won is in the process of coordinating with the sheriff for the purpose of executing the
judgment, the defendant may ask the court for the issuance of a Writ of Preliminary
Injunction (WPI), the purpose of which is to preserve the status quo. But usually, the
TRO is granted ahead of the WPI. Because remember, during the period of the TRO, the
court holds a hearing to determine the propriety of issuing a WPI. The TRO/WPI
(Prohibitory) would have the effect of preventing the sheriff from ousting the
defendants from their land. But what if the plaintiff was so fast and was able to have the
judgment immediately executed? In such case, what should be issued is a Mandatory
WPI to temporarily make the plaintiff leave the land.
o IF GRANTED
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§ If the court finds that the Petition for Relief is sufficient in form and substance to
justify relief, it will order the adverse party to file an answer within 15 days from
the receipt of such order. In case such adverse party fails to file an answer, he may
be held in default.
§ In case the Petition for Relief is granted, we don’t repeat everything all over again.
Only the judgment is vacated. And the parties are put into the situation as if
judgment has yet to be rendered.
§
• Time:
§ MR and new trial– 15 days from receipt of judgment.
§ Appeal – 15 days from the receipt of an adverse judgment.
§ Certiorari – 60 days.
§ Petition for relief-‐ 60 days (within acquisition of knowledge that judgment has been
rendered) And 6 months
o Prescription vs. Laches: The former merely consist of counting of time while in the latter the
party failed to avail of his rights within reasonable time or sleeping over ones rights.

XII. EXECUTION
• Undertaken by the sheriff
• Writ of execution vs writ of attachment
o The Writ of Attachment is almost a “cousin” of Rule 39 (Execution). Execution comes after
the court has decided the case and after which decision has attained finality (final and
executory). Attachment comes in because the movant wants to secure the outcome of the
trial. Execution presupposes that trial is finished, whereas Attachmet does not presuppose
that trial is finished. Attachment may be availed of at the commencement of the action or
before judgment. Why do we say they our cousins? Execution and Attachment both involve
the SEIZURE OF PROPERTIES. The seizure of properties under Execution is intended to satisfy
judgment, while the seizure of properties under Attachment is intended to secure the
outcome of the trial.
• Rule 39 speaks of the implementation of judgment properly known as “Execution.” It’s the stage
where the winning party is allowed to enjoy his victory, the finish line of the trial proper. But victory
sometimes can only be “paper victory.” To avoid such situation, parties usually avail of the provisional
remedy of attachment. As we said earlier, attachment involves the seizure of property belonging to
the defendant. Attachment comes in at the commencement of the action or any time before
judgment.
o Why is attachment allowed as early as the commencement of the action? Because the
plaintiff would like to secure the outcome of the trial. He wants to assure that in the event
that he wins the case, he would enjoy the fruits of his victory, and not a mere “paper
victory.” It is possible that come execution, you can’t get anything from the losing party. In
attachment, the property of the defendant is seized only for safekeeping (not delivered to
the plaintiff) to secure the outcome of the case. Property seized is under custodia legis.
What will happen to the property afterward? In case plaintiff wins, he would get those
property
• So execution comes in when the judgment is already final. Although it would seem that the word
“final” is a bit of a misnomer since there’s still Rule 38 available. Writ of Execution is that which is
issued, upon motion (Motion for the issuance of a Writ of Execution), ordering the sheriff to execute
the judgment. [We relate this again with Rule 15. If it’s a motion, it must be in writing. If it’s a
litigated motion, we set a hearing and we give the other party three days within which to prepare.] In
short, before execution, there’s still need for a hearing.
o Why is hearing still needed for the issuance of a writ?

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It is to hear from the losing litigant what he has to say. He has to be given the
§
chance to say something. About what? About the manner as to which the judgment
could be executed. The losing party, for all we know, may be offering something to
satisfy the judgment
• For example: Instead of a house being levied, the losing litigant may offer
money instead. It is allowable, as long as it is not contrary to law, public
morals.
§ Another reason is one last opportunity within which to strike an amicable
settlement. The truth is up to that point, the court would still be very wecloming to
the possibility of an amicable settlement. At the end of the day, the parties are still
the best judges of their conflict. But we do not say the same thing when we’re
dealing with criminal cases. The only limitation is that the amicable settlement must
not be contrary to law, morals, public policy, etc.
• Execution of Judgment for Money:
o There must be first an immediate demand for payment to the judgment obligor, The officer
shall enforce an execution of a judgment for money by demanding from the judgment
obligor the immediate payment of the full amount stated in the writ of execution and all
lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the
judgment obligee, or any other form of payment acceptable. if the judgment obligee or his
authorized representative is not present to receive payment, the judgment obligor shall
deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the
amounts coming into his possession within the same day to the clerk of court of the court
that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary
account in the nearest government depository bank of the Regional Trial Court of the locality
o Second (satisfying by levy), If the judgment obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode of payment acceptable to the judgment obligee,
the officer shall levy upon the properties of the judgment obligor of every kind and nature
whatsoever which may be disposed, of for value and not otherwise exempt from execution
giving the latter the option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the
option, the officer shall first levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for the judgment
§ Levying: act of separating of property to answer for judgment
§ Levy is effected by proceeding to the Register of Deeds and annotate the title of the
subject property. The judgment and writ of execution must be presented to the
Register of Deeds.
§ If a property is levied, usually, the judgment creditor would be asked how he would
like the property to be treated. Cash or ganyan na lang? If cash, the property would
be sold to public auction after due compliance with the requisites of notices.
• What if there’s a winning bidder? Would it be immediately delivered? If
it’s a personal property, yes. But if it’s a real property, that property shall
be safekept but the winning bidder shall be given a certificate of sale. And
he will wait for one year, within which the owner is given the chance to
redeem the property. But if the property is foreclosed under Act 3135, and
the mortgagee is a bank, it has to wait a period of 90 days, within which
redemption may be effected.
• During the one-‐year period, to whom would the civil fruits pertain? To
the mortgagor or the owner of the property. The one-‐year period is not
absolute. It may be shorten when it is shown that the mortgagor is starting
to destroy/canibalizing (or other acts prejudicial to the party) the property
and in such case, the winning bidder may ask the court to be placed in
possession of the property, provided he puts up a bond. The bond is
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intended to answer for whatever damages the other party would sustain in
the event that the court rules in his favor.
o Third is garnishment: Garnishment refers to the act of taking the assets in the possession of
a third person.
§ Classic example is bank deposits. To do this, the sheriff must send a notice of
garnishment to one branch of the bank and thereafter the notified branch would
alert all the other branches.
• Execution Pending Appeal:
o Execution, as a rule, cannot be allowed in case a Motion for Reconsideration or Appeal is
timely filed. The exception is where the court has a GOOD REASON. Good reason refers to an
urgent/compelling/highly justifiable reason that would convince the court to proceed with
the execution notwithstanding the pendency of the appeal
o Example of good reasons:
§ The subject of he case in perisgable goods.
• case between Pfizer and Company X is with regard to pharmaceutical
products consisting of injectibles, which are perishable. Suppose that Pfizer
won in the RTC level and Company X filed an appeal. The fact that the
injectibles are perishables constitutes as a good reason for granting a
Motion for Execution Pending Appeal. Pfizer must also put up a bond. But
what if the Supreme Court eventually rules in favor of Company X? In such
case, the trial court may issue an order directing Pfizer to
compensate/reimburse/pay damages to Company X. The bond will also
answer for damages. See Sec. 5, Rule 39: “Where the executed judgment
is reversed totally or partially, or annulled, on appeal or otherwise, the trial
court may, on motion, issue such orders of restitution or reparation of
damages as equity and justice may warrant under the circumstances”
§ Old Age
• the case of Gov. Frivaldo wherein Comelec rendered in favor of Frivaldo
which was appealed by his opponent. Only eight months remained before
the expiration of his supposed term so he filed a Motion for Execution
Pending Judgment before the Supreme Court which the latter granted.
Thus, he enjoyed eight months of governorship.
§ Insolvency
o A Motion for Execution Pending Judgment is a highly litigated motion which requires notice
and hearing.
o DATE:
§ If we have a judgment in our favor, we may file a motion for execution within five
years from the date of its entry. If for reasons beyond our control, we have
neglected the five-‐year period, then we can have what is known as REVIVAL OF
JUDGMENT. We can have the judgment executed through revival of judgment.
When we say Revival of Judgment, the five-‐year period has already elapsed. In an
action for revival of the case, we don’t go to the same court that rendered the
judgment. This action will be treated like an ordinary case, it will be subjected to
raffle.
§ Is there an exception to the five-‐year rule? Yes, if the non-‐execution of the
judgment is due to the fault of the losing litigant. He did everything to thwart the
execution. How? By hiding his properties (by transferring titles to defraud the
judgment creditor), by misleading the winning litigant, etc. We then have to
connect this with the rule on preliminary attachment. The act of absconding and
defrauding the creditor will warrant the issuance of the writ of preliminary
attachment. Abscond refers to the act of hiding or taking away the property.

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ADVANCE NOTE:
Preliminary attachment
• One of the remedies that can be availed of despite the action or anytime before judgment, they are
intended to secure the judgment, they do not want a paper victory only. They want to get hold of the
property even if no judgment yet to avoid paper victory.
• Requires bond because this is a very rigorous and harsh writ, and as much as possible the court will
not grant it because it is too excessive.
Preliminary injunction
§ Under rule 58
§ It is a provisional remedy, meaning it is leaning on a main case, an adjuct of the main case. If the main
case is terminated, the provisional remedy is also terminated.
§ Remedy of injunction is issued only if:
1. There’s a clear legal right (right in esse)
2. There’s a threatened act
3. If this threatened act is not stopped, then the party may suffer a grave/irreparable injury
§ If we have this three, the court may be persuaded to issue a writ of preliminary injunction (WPI).
§ You might have heard of the term temporary restraining order (TRO). It’s usually granted by the court
to preserve the status quo before the court can act on the application for WPI. Usually, TRO is
granted before the WPI. TRO may either be 20 days (RTC), 60 days (CA), indefinite (SC). Another
period of TRO is 72 hours issued by Executive Judge of a multi-‐sala court. If it’s a single sala court, the
judge therein may issue the 72-‐hour TRO. It issues if there’s an extreme emergency and there may be
a grave/irreparable injury. But the 72-‐hour period form part of the 20 days. Meaning, if ever it is
extended, 17 days will remain.
§ example: Meralco is threatening to cut your electricity supply within 5 days if you don’t pay a certain
amount it is demanding upon the suspicion that you’re using a jumper, and you have a very ill family
member in your house who’s merely living on a life-‐support equipment. In such case, you may file a
petition for a 72-‐hour TRO with the Executive Judge.
§ Take note: When you file a petition for the 72-‐hour TRO, the case is not yet raffled. After the issuance
of the 72-‐hour TRO, the case will be raffled among the regular judges. Let’s say the case went to
Judge B, he would then have to determine whether he would extend the 72-‐hour TRO, after which a
20-‐day TRO (minus the 72 hours earlier given) may be granted. And within that 20 (or 17 to be exact)
days, the judge would conduct a summary hearing to determine whether or not a WPI should be
issued. Summary because it is urgent; what is at stake is life/liberty of a person.
§
Expropriation
Can only be used when the person refused to sell his land to the government
Sources of contract
• Contracts
• Quasi-‐contract
o Half contract and the other is not
o Example: solitio indebiti-‐-‐ unjust enrichment
• Quasi-‐delict
o Crime which the criminal intent is change to negligence
• Law
• Crime
Vicarious liability
• Liability of the person who is supervising or in superior capacity over one who directly committed the
delict
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• ER-‐EE relationship
Culpa contractual
• Refers to the relationship which has been known as contract of carriage, if the pubic carrier carries
you the presumption is that it will transport you safely towards your destination, if something occurs
along the way like an accident then there is a breach of such contract, the presumption is the carrier
is negligence.

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CIVIL PROCEDURE CLASS: MARCH 28, 2015

There was corporation owned by the spouses Manalo. The corporation took a loan from BPI Alabang Branch,
secured by a promissory note with deed of real estate mortgage. The corporation had its office in Manila. It
has a real property located along Roxas Blvd.
The corporation defaulted, it was not in good faith. This prompted the bank to sue the corporation and the
spouses.
1. Was it proper for the bank to engage the spouses? No. In a collection suit, if it was the corporation
who obtained the loan, it was the corporation who was answerable. A corporation has a personality
distinct and separate from the owners, the spouses.
2. Summonses were sent which were received by
(a) Alma, the sister of the wife, Mrs. Manalo, who happened to be at the latter’s home in Muntinlupa
City.
-‐Recipient must be
a. someone with sufficient age and discretion, and
b. residing therein
In this problem, there was no showing that the sister was a resident therein.

(b)Leonardo de Leon, the in house counsel
-‐he is one of the individuals who are authorized to receive the summons.

3. The spouses went to their lawyer and the latter gave the following advices:
(a) The complaint is dismissible on the ground of lack of cause of action and failure to state a cause
of action. Was the lawyer correct?
-‐No. the ground should have been failure to state a cause of action. Because walang compliance
sa condition precedent. They have an agreement saying that before filing the suit, the matter
shall be first referred to the counsel of the association. Non-‐compliance with a condition
precedent is equivalent to a failure to state a cause of action.
(b) The complaint is dismissible as the spouses are not real party in interest.
-‐Yes, because it was the corporation which obtained the load.
(c) The complaint is dismissible on the ground of improper venue.
-‐ the parties did not agree as to a specific venue. But the indicators state that the case could
either be filed in the National Capital Judicial Region. Makati is within the NCJR.
(d) The complaint is dismissible on the ground that the court has no jurisdiction over the person of
the defendants (the corp and spouses).
-‐The spouses should not have been included. So it is futile to discuss the propriety of acquiring
jurisdiction over the persons of the defendants.
(e) The complaint is dismissible for lack of legal capacity to sue.
-‐ there was no board resolution attached to the complaint. Corporations can only act through its
Board of Directors. In filing of suits, the corporation should be armed with the necessary board
resolution. Otherwise, it will have no legal capacity to sue.
4. Assuming that the spouses were erroneously impleaded, may they move for the dismissal of the complaint
on the ground of misjoinder? Is misjoinder a reason for dismissal? No.
5. Assuming that the court denied the motion to dismiss, may the corporation appeal from such denial? No, an
order denying the motion to dismiss is an interlocutory order. Hence, not appealable. It should be certiorari if
there was grave abuse of discretion.
6. In its answer, the corporation put up the defense that the interest is very high and shocking to the
conscience of man. It prayed for damages at around 2 million. BPI moved for summary judgment. Is it correct?
No. An answer is a pleading. There is no genuine issue at all. The proper remedy is a motion for judgment on
the pleadings.
7. Is the prayer of XYZ corp for the award of damages is in the nature of a compulsory counterclaim? Yes.
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8. During the pre-‐trial, the spouses were able to obtain an admission from the counsel of BPI that XYZ has
personality separate and distinct from its officers. The spouses moved for judgment on the pleadings. Is the
motion proper? No. The proper motion is a motion for summary judgment.
9. Class suit. It was an improper case for class suit. Some died, some were merely hospitalized. If the parties
are not similarly situated we rule out class suit.
10. How do we sue an entity without juridical personality?
11. Period within which further remedies could be obtained. The corporation failed to present its evidence.
You should file a responsive pleading.
Note: We issue a declaration of default when there was failure to file an answer, not evidence.
12. A decision was rendered on Feb 22, it was received on Feb 8, 2015. What is the period from receipt of
decision?
Remedies: Either a motion for reconsideration or appeal, within the 15 day period.
13. Assuming the corp learned of the decision on Feb 28, and discovered further that its counsel received a
copy thereof as early as Feb 7, 2015. The 15 day period has already lapsed.
Remedy: Petition for relief from judgment. It is a remedy that can be availed of after the decision has been
final.
2 periods:
1. 60 days from knowledge that a decision has been rendered
2. 6 months from entry of judgment.
14. Supposing a petition for relief was filed by the corporation, what is the effect of that to BPI’s right to move
for execution of the decision? None. Unless, under rule 37, a writ of preliminary injunction is issued by the
court. In which case, it will stay, suspend, stop the execution of judgment.
15. Where do we file our petition for relief? What court? The same court that rendered the judgment. It does
not require the payment of docket fees.
REVIVAL OF JUDGMENT
-‐The right to revive a judgment is an entirely new cause of action. There has to be a determination again as to
what kind of action are we trying to impose through the revival. If it is a personal action, the rule in venue is at
the residence of either the plaintiff or the defendant at the option or election of the plaintiff. If the cause of
action has something to do with the title to or possession of a real property, venue shall be at the place where
the property or a portion thereof is located or situated.
-‐your action to revive could be going to another court. It is raffled. It is the subject again, for the second time,
of another damages.
If it is an action for revival of judgment, are we going to retry or re-‐examine the case again? No. We do not
repeat everything already presented. The only scope is:
a. WON indeed this judgment was rendered – we are after the authenticity of the judgment.
b. WON this judgment was not enforced within 5years from finality of the judgment upon mere motion
After the lapse of the 5yr period, it can no longer be enforced upon mere motion but by an independent
action. However, Dean Riano said, your 5yr period is not absolute.
The 5yr period may lapse, but still, the judgment may be enforced upon mere motion, if the failure to enforce
the same within the said number of years could be attributed solely to the fault of the losing party. The losing
party tried to do things that thwarted the right of the prevailing party to enforce the judgment.
Your petition for relief must be filed before the same court that rendered the judgment in assail. In an action
to revive, it is to be treated as an independent and new action, in which case, it has to go to the usual course
of law.
In you petition for relief, the decision may not be affected, the implementation will not be affected, unless the
court which the petition for relief of judgment was filed issues a WPI or a Writ of Preliminary Injunction.
Makati Controversy: (Provisional Remedies, Rule 57)
Provisional Remedies are remedies that could be availed of:
1. At the commencement of the action, or
2. At any time before judgment

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They are intended to secure the outcome of the trial. It is intended to see to it that the winning litigant will not
be given a paper judgment or an empty bag. One who is trying to secure a provisional remedy is acting like a
SIGURISTA. You want to make sure that in the event that you win the case, you have something to seize,
garnish, to levy.
We have encountered all these terms under rule 39. Seizure, garnishment, levy. All under execution. Of
course, garnishment and levy refer to execution.
You do not want to hold an empty bag at the end of the day in the event that you are fortunate enough to win
the case.
Your provisional remedies are APRAD
1. Attachment
2. Preliminary Injunction
3. Receivership
4. Alimony or support pendent lite
5. Deposit
Why are we including Deposit when it is not included in the rules? Because by jurisprudence, deposit is now
recognized as a provisional remedy.
The other term for deposit is ESCROW. You put an account or money under ESCROW. You set it aside.
If under escrow, nakasegregate yan. Hindi pwedeng galawin.
Remember the cases against the Marcos Family? The PCGG cases. As soon as certain assets or monies abroad
were discovered, there have been requests that these monies and assets be placed under escrow account. If it
is under escrow, nobody can touch that except upon the order of the court.
Preliminary Injunction
We have encountered Preliminary Injunction when we were taking up petition for relief under Rule 38. The
right to execute the decision could not be stopped because the winning party is entitled to that as a matter of
right. It could not be stopped until and unless a WPI is ordered by the court.
What is a WPI? This a writ that is intended to preserve the status quo. What is the status quo? The situation
before the filing of the case. When you say case, it could be a complaint or petition. What was the situation
before the filing of the petition or complaint? Then that situation should be preserved.
Until when? Until the court was able to fully determine WON the writ indeed should be issued.
You WPI is intended to tie the parties so to speak. So that they cannot move with acts prejudicial to the rights
and interests of the other. The hands of the parties are tied.
Before the court can issue a WPI there is the necessity for the holding of a hearing. Is it always like that? Yes.
What if the issue, or the situation or the problem presented before the court is of extreme urgency such that if
not reserved the situation would result in an irreparable injury to or against the applicant? Then we have a
temporary restraining order.
Why was the TRO not included in the list of provisional remedies? Because before a WPI could be issued, there
must first be a temporary restraining order.
The word “temporary” gives us the idea that it is very much short-‐lived. Sandal lang.
How short-‐lived is short-‐lived?
1. If it is the RTC that issued it – 20 days
2. If it is the CA – 60 days
3. If it is the SC – (only God knows when) it is there until lifted.
When will your TRO come in and when will your WPI?
If the matter is of the extreme urgency, because it may cause an irreparable damage, the court may be
persuaded to issue a TRO.
Your WPI requires a hearing. The other party therefore has to be notified.
In your TRO, the court may or may not notify the other party and resolve to outright or immediately issue the
order. This is addressed to the sound discretion of the court. Judicial discretion is now involved.
If the court resolves to issue a TRO without notifying the other party. What is the situation before the court?
One of extreme urgency.
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Why extremely urgent? Because if not temporarily stopped, there could be an irreparable damage to the
other.
How will the court know that indeed there could be extreme urgency and the possibility of an irreparable
damage? By reading religiously the allegations in the application and by questioning the applicant.
Ex parte or even in the absence of the other party? Yes. Why? Bakit pwedeng hindi magissue ng notice yung
court sa kabila? Will the court not be doubted? Will the court not be suspected of engaging with shenanigans?
Can you not complain later? You may, but the court, according to the rules, may issue that ex parte because of
extreme urgency.
Notifying the other party may defeat the purpose because before the TRO could reach the other party the
threatened act was already committed.
What comes first? The TRO comes first before the WPI.
We said that your TRO is usually 20 days. Why usually? Hindi ba natin pwedeng sabihin that that is really 20?
Because we have another kind of TRO. The 72-‐hour TRO.
The 72-‐hour TRO (3 days) is issued exclusively by 1 person, by the executive judge. The executive judge may
issue the 72-‐hour TRO before the matter is taken to the regular courts and it is up to the next judge later on to
determine WON the 72-‐hour TRO shall be extended.
The 3 days, comprising the 72-‐hours, shall be deducted from the 20 days which ordinary length of time of
validity.
So ano ang gagawin ng court within the 20 days? The court will conduct a summary hearing. If it is a summary
hearing already, the court will have to notify the other party. But the court may not have notified it prior to
the issuance of the TRO.
What will the court hear about during the 20 day period? The court will have to determine the propriety of the
issuing of the WPI which is a lot of work.
TRO is only 20 days kung RTC, 60 kung CA. Yung PI, it is there until it is dissolved or lifted.
What are the factors that we have to take into account before the court could be persuaded in the issue of
either a TRO or a WPI?
1. Existence of a clear legal right or a right in esse
-‐ Whose right is that? The right of an applicant, the suitor or the person wanting to have a TRO.
He must be able to show the court that he has a clear, legal right that entitles him to have a writ.
There is a clear, legal right to be protected.
2. There is a threatened act. Mayroong panakot yung kabila. My sinasabi, may ginagawa na nakakatakot
para sa applicant.
3. If this threatened act is not stopped, then it could give rise to an irreparable injury to the applicant.
Kung hindi mapigil yung ginagawa nung kabila, that could create very serious problems to the
applicant to the extent that an irreparable injury could be sustained.
What do you mean when we say irreparable injury? The irreparable injury would point out to a situation
where the applicant could suffer an injury that could not be translated to money. An injury or damage that is
beyond mathematical computation.
If these elements are present, the court could be persuaded to issue a TRO and then eventually a WPI.
We said the court will conduct a summary hearing, how summary is summary?
In petition for bail (CRIMPRO), the accused who is desires to seek a provisional liberty must conduct or present
his evidence in a summary passion. Mabilisan. Because what is at stake is the possibility of a person being set
free momentarily.
If it is summary, what again are the pieces of evidence that either the prosecution or the defense must
present? The highlights of one’s evidence.
If it is the prosecution which is presenting its evidence, evidence that to show that guilt is strong. If it is the
accused which is presenting its evidence, evidence that will show that guilt is not strong.
If the prosecution has eyewitnesses or star witnesses, then these witnesses will be presented. If the defense
has a very good defense consisting of alibi showing that he was somewhere else, let’s say abroad, hence,
physically impossible for him to commit the crime, then that witness who saw him abroad must be presented.

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It is summary. Pupunta ka agad sa highlight ng ebidensya. In the same manner in the TRO or WPI, only the
highlights of the applicant’s and the other party’s evidence, shall be presented before the court.
We go back again for your petition for bail. We said that whatever was presented during the summary hearing
shall form part of the evidence. It is automatically reproduced during the hearing. In the same manner,
whatever it is that was presented during the summary hearing of the TRO or WPI must be automatically
presented during the main case.
Do not be confused. What main case are we talking about? Because the hearing that we are conducting is
merely on the provisional remedy. The provisional remedy is just an adjunct, kabit lang. naka-‐attach lang. The
adjunct requires something to lean on. Without the main case, the adjunct will be nothing.
Why are we discussing this provisional remedy this early? Because it has something to do with the controversy
in Makati. I am discussing this only for academic purposes. You should not quote me (haha).
What is this TRO issued by the CA and being the object of this war for term now between Jun Jun Binay and
Vice Mayor Peña.
That was a Monday, at 8am, Vice Mayor Peña was positioned to take his oath as the acting city mayor.
The factual background is this: Mayor Junjun Binay was a respondent before the Ombudsman for an alleged
violation of the Anti-‐Graft and Corrupt Practices Act. During the proceedings, the Ombudsman was prevailed
upon to issue a Preventive Suspension.
Preventive suspension, under your Political Law, is not a penalty. It is not a punishment. The very word
preventive gives you the feature that it is not punitive in character although you might argue, what about the
embarrassment? Is that not punitive in character? What about the salaries that are lost? Regardless of that,
jurisprudence says, it is not a penalty. It is not punitive in character.
The Ombudsman was persuaded to issue a preventive suspension. It was supposed to be in force or effective
immediately. Who or which part of the government is the enforcing part? DILG.
On Monday, the DILG was set to serve the preventive suspension order. But what did Mayor Binay do? Junjun
Binay started to hold himself up at the Mayor’s office floor. He barricaded himself, the supporters were there
at the ground floor, the elevators were shot off. Just one elevator was allegedly operating for his supporters.
So on Monday, the camp of Junjun Binay heard that DILG was sent to serve the suspension order.
What was the scenario when the DILG arrived? The DILG arrived with 2500 police. Makati City Hall was shot
st
off the public. The Mayor was there at the 21 floor.
Where the DILG able to serve or hand over the preventive suspension order? No.
Recall our rule on summons. If it was not accepted, what do we do? Tender it.
The preventive suspension order obviously could not be tendered to Mayor Binay.
What did the DILG people do? They resorted to constructive service. How? Pinaskil. By posting copies of the
preventive suspension order in all the conspicuous places of Makati City Hall. Meaning, it was something that’s
impossible for the mayor not to notice that.
After the notice was pasted on the wall, what did Vice Mayor Peña do? He took his oath.
At 11:30am, the CA came up with a TRO directing the respondents, who? the DILG, Ombudsman, to desist
from implementing the suspension order.
What are again the elements that we have to look for before the TRO and WPI can be issued?
1. Existence of a clear legal right or a right in esse
-‐If I am the counsel of Junjun Binay, I will argue that YES I have at this point a clear legal right or right
in esse. Why? Because I am still the incumbent mayor and I am questioning the preventive
suspension order. Until and unless the higher court declares the preventive suspension order illegal,
the presumption is in my favor. I am the duly authorized mayor. I have a clear legal right.
2. There is a threatened act.
-‐what is the threatened act? The threatened act of the DILG that the preventive suspension order will
be served. And if that preventive suspension order is not stopped by the TRO, I’ll be suffering an
irreparable injury.

What is an irreparable injury again? Something that could not be quantified in terms of money. What
is that in so far as Mayor Junjun Binay is concerned? The humiliation. The embarrassment.
3. If this threatened act is not stopped, then it could give rise to an irreparable injury to the applicant.
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So mukhang yung 3 instances that we should look for appear to be present. Perhaps, that division of CA took
note of that. So it issued the TRO.
But look at this. When the TRO finally reached Makati, what was the situation? There were 2 Mayors. Peña has
already taken his oath. So what is there to stop? Technically, it would seem (do not quote me), the act sought
to be prevented is already gone. It was already consummated. Our term for that is Fait accompli. So the threat
sought to be prevented is already gone because Vice Mayor Peña already took his ought. That was the
operative act. When he took his oath, he became, in legal contemplation, the legal acting city mayor. So since
there’s no more threatened act to restrain or stop the TRO is now moot and academic. Walang bias. If it is
moot and academic, the TRO seizes or stops to be effective. That is the interpretation of the DILG Secretary
and the Ombudsman Carpio Morales.
What is the other side of defense? The IBP, during that time, the majority view was, no, the TRO continued to
be effective because what the TRO intended to stop is the preventive suspension. Senator Pimentel said,
“What should be the proper interpretation? The intendment of the law should not have been a case of
paunahan. Hindi ito unahan.” Even when Vice Mayor Peña took his oath, the objective of the petition of
Mayor Junjun Binay is to nullify his preventive suspension. So the objective of the TRO was still there. The TRO
therefore is not yet moot and academic.
We go back to Rule 13, Service of Pleadings. What is the manner of service of pleadings? Personally. If it can’t
be done personally, there should be an accompanied explanation why personal service is not resorted to like
distance, time constraints, lack of messengerial services. If personal service could not be done, the service of
your pleadings could be done through registered mail.
If that is the manner of service in so far as orders, resolutions and pleadings are concerned, was the act of
pasting the notice compliant with the rules? It is not compliant with the rules.
The other side said, if we apply strictly the provisions of the Rules of Court, then do not expect that any official
who is about to be preventively suspended could indeed be preventively suspended. Because they can do
everything within their power to thwart the service to them of the order. But the other side again said, but we
can serve pleadings or orders also by a registered mail. Why did you not resort to that?
The matter is not with the SC, Ombudsan Morales went to the SC seeking a declaration that the TRO issued is
in effect.
This development teaches us as to how these provisional remedies occur.
EXECUTION
The rule is that, a judgment can only be executed once it becomes final. That is the general rule. It is final if the
15 day period has already lapsed.
What is this execution that is called or described as discretionary? It is an execution that is allowed by the
court even if the decision is not yet final. It is called discretionary because it involves wide latitude for the
court’s exercise of its discretion. However, while it is wide in scope, the rules require the presence of the
compelling reason, or what we call as GOOD REASONS.
These good reasons are the justifications why the court should be persuaded to allow the execution of the
decision notwithstanding the fact that the judgment is not final.
Where do we file our motion for execution or motion for discretionary execution? At the same court which
rendered the judgment, provided the court has not yet lost jurisdiction over the RECORDS of the case. The
court is still in physical custody of the records of the case.
What are these records that are important when it comes to executions? The exhibits. Everything. Transcripts.
If it is special proceedings, we have record on appeal. If it is a case a case which requires a submission of a
record on appeal, your 15-‐day period is not applicable because we have a longer period which is 30 days.
So we file a motion for execution pending appeal before the court that rendered the judgment provided the
court can still exercise what is known as RESIDUAL JURISDICTION. Meaning the court has still in possession of
records.
What if the court has already transmitted the records to the next court? Then the motion for discretionary
execution shall be filed before the said next higher court.
PETITION FOR RELIEF
It requires that it be filed with the same court.
Your revival of judgment does not require that the action be filed with the same court. Because the new action
entails a new cause of action which is the revival or right to revive a judgment.

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But your motion for discretionary execution could be filed:

1. Before the same court which rendered the judgment, or
2. Before the next higher court
The only important thing to consider here is WON the court concerned has already the jurisdiction over the
records of the case.
Still on execution, your properties that are exempt. This is just a reading matter. Your books might be exempt
from execution. What if your books are composed of mostly Xeroxed ones? Why are books exempted?
Because you need them in the exercise of your profession and your profession could be your bread and
butter.
The first exempted is your family home. What is a family home? It is CONSTITUTED by the spouses for
purposes of family relations, raising the kids, siblings, etc.
Why is it exempted? Is it to preserve the sanctity of marriage? It is something that is, generally, outside the
reach of the law.
XPN: The family home will be subject to execution in case of:
1. non-‐payment of taxes
2. when the house was used by the occupants or spouses concerned as a subject of a mortgage under
RA 3135 or under any other ordinary obligations incurred by the persons who constituted the same.
If it was pledged or mortgaged, the same can be the subject of execution.
How about salaries? Your compensation as an employee, teacher, etc. are they exempt likewise from
execution?
GR: Yes. Only up to that point that is necessary for your sustenance.
XPN: That portion which is already for your konting gimik, it is already subject to execution.
There has to be a showing that indeed, this portion of your income is intended for your sustenance.
Writ of execution is the order of the court directing the execution of the judgment, ordering the sheriff to
implement such decision. It is addressed to the sheriff for the enforcement of the decision.
Your writ of execution has a lifetime of 5 years because you can have a decision be executed only upon mere
motion within 5 years. If the 5 year period has already lapsed, we can have it executed by an independent
action. Yun na yung revival of judgment.
So the life span is 5 years.
What is writ of possession, it is directive to place in possession to the disputed premises the winning litigant.
The winning litigant is directed by the court through the powers of the sheriff and peace officers, if needed, to
be placed in the disputed premises. Kaya nga possession, the winning litigant is now entitled to possess the
premises subject of the legal dispute.
Your writ of execution is generally for 5 years. What about your writ of possession? It has no life span. It
comes in during land registration cases, cadastral cases, and your violations of RA 3135 concerning mortgage
to a financial or banking institution.
The writ of possession directing the placing into the premises of the winning litigant has no expiry date.
The writ of execution is satisfied:
1. when the sheriff, upon demand, collects the payment from the losing litigant if it is an action for sum
of money.
2. When the sheriff garnishes a property or asset of the losing litigant which is in the possession of a
third person.
3. When the sheriff levies or sets aside a real property for purposes of satisfying judgment
After taking all those properties, the next step is for those properties to be sold in a public auction. The sale
through auction must be preceded by the posting of notices.
Personal properties – in 3 public places for not less than 5 days
Perishable properties – sec 15, Rule 39, by posting the same in 3 public places.
Real property – for 20 days in 3 public places (take note of the longer period AND publication, by publishing
copies for once a week for 2 consecutive weeks in a newspaper of general circulation.
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SPECIAL JUDGMENT – if the judgment directs the demolition, let’s say, of a fence, the court directed that the
defendant was found to have encroached on the property belonging to the plaintiff to demolish likewise the
fence that he has erected, we call that a Special Judgment because it calls for the performance of a certain act.
If the judgment directs the losing litigant to execute a deed of conveyance or deed of sale and the losing
litigant does not follow? What is the remedy? For the court to direct simply the branch sheriff or the branch
clerk of court to be the one to execute the deed of sale, it is as though the defendant himself or herself was
the one who executed the deed of conveyance.
In an ejectment suit, under Rule 70, the defendant was directed to vacate the premises, but the defendant
surreptitiously vacated the premises and returned to the premises that he has already vacated. What is the
remedy against him? To cite him in contempt of court.
If the property subject of the case is a house and lot which was not redeemed within the period for
redemption, what will the obligee (the one who lent money), let’s say a bank do? It can ask the court that the
bank be now placed in the premises. Because it is now the owner of the premises because the borrower was
not able to redeem its property. That means that the court no longer needs to issue a writ of execution but a
writ of possession.
The bank, of course we are not being literal here that the bank could be placed there, it could be the officers, a
constructive positioning of the bank. The writ to be issued by the court there is a writ of possession.
If the writ of possession could not be enforced because the losing litigant continues to stay in the property,
sinangla niya yung bahay, the house was foreclosed, we have a redemption period of 1 year and sometimes 90
days. Without the owner of the house redeeming or purchasing back the property. What happens next is the
bank or the lending institution has to be placed in possession of the property.
If the debtor continues to claim the property and stay there, what will be the remedy of the bank? To take this
occupant to be bodily removed from the premises. It is a harsh remedy but that is your writ of possession. If
you have to take out bodily from the disputed premises, then so be it.
To summarize:
Your writ of execution has a lifetime of 5 years. Your writ of possession has no definite lifetime.
When a writ of execution is disobeyed, the remedy is contempt. When your writ of possession is disobeyed, it
has to be enforced through physical means.
PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON
The sheriff is not duty bound to continue with the execution until and unless the prevailing party puts up an
indemnity bond.
The third party claimant can stop the execution if:
1. the sheriff is not the object of an indemnity bond
2. the third party claimant executes an affidavit of title
The affidavit of title may be threshed out before the same court before the case is pending or such third party
claimant can litigate his claim in a separate or independent action.
What happens during public auction? A public auction is usually set at a certain time 9am-‐ sometimes 2pm.
Usually at the Manila City hall in Manila or any open or conspicuous public place.
Who are entitled to notices?
1. The property owner whose property is about to be sold in auction
2. Any person who are not related to the officers conducting the auction may participate.
Who are these persons prohibited? Relatives of the enforcing officers such as the sheriff. They are likewise
prohibited.
What happens during the auction? The minimum bid shall be disclosed by the hearing officer until the highest
bid is made. The highest bidder will be entitled to what is known as a certificate of sale.
The property is not given immediately to the highest bidder unless the property is personal or perishable in
character.
If it is a real property, all that the highest bidder can recall is a certificate of sale.
Who sins the certificate of sale? The sheriff.
What shall it contain? The fact that that person was the highest bidder and he is the one officially recognized
as such.

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The certificate of sale is good for 1 year before there can be consolidation of ownership if no redemption is
effected.
Who owns the property in legal terms or contemplation pending the redemption? The judgment obligor or the
mortgagor continuous to own the property.
What if the property yield civil fruits? Like rentals. Who owns those rentals? Mortgagee.
What if the mortgagor continuous to cannibalize the property? Then the mortgagee or highest bidder can ask
the court now to be placed in possession even before the lapse of the redemption period. However, that
person who shall be placed in possession thereof shall be required to put up a bond intended to secure the
property owner if the latter in the end resolves to redeem the property.
What if there are several mortgaees? Patung-‐patung yung sangla. Then we have know the rule on junior
encumbrancer and senior encumbrancers.
Junior Encumbrancer – the fact of priority of the order of priority. Encumbrancer number 1 is given priority in
time over encumbrancer number 2 and so on.
Redemption is according to the same order of priority.
If the property is redeemed, what shall include such redemption? It shall include the subject obligation,
including interests, penalties and surcharges.
Attorney’s fees is not included. It is a separate matter that could not be passed on to the mortgagor.
What if the writ of execution could not be implemented because the sheriff could not see any asset or
property belonging to the defendant, but the plaintiff observes that the defendant appears to have the means
to satisfy the writ of execution?
Example: it was a judgment for a collection of sum of money for P500K but the sheriff when he went out could
not see any property belonging to the defendant. No bank assets, no house and lot. No car in his name in the
registry of deeds or LTO. Wala. But the plaintiff is complaining that the defendant is a jet setter, goes back and
forth in Manila and New York, patronizes the big time casinos here, wears expensive clothes and jewelry,
drives fabulous car. But the sheriff could not see anything. There’s nothing to seize, nothing to garnish or levy.
If that is the situation, the plaintiff has a remedy known as the examination of the judgment obligor (Sec. 38,
Rule 39). The obligor here, the losing litigant, is called by the court and asked to explain what is this and what
is that. Who is the owner of the car you are driving, who is responsible for your sustenance, where are you
staying. To make it difficult for the judgment obligor to hide his properties.
If the defendant starts to hide or abscond with his properties because he is expecting that at anytime soon a
case will be field against him then he can resort to the remedy of attachment.
ENFORCEMENT OF FOREIGN JUDGMENTS (Sec. 48, Rule 39)
Q: What is foreign judgment?
A: Judgment that is rendered by a foreign court.
Q: is the judgment in a foreign judgment includes the judgment only?
A: No. It includes final orders. Orders that are ready for implementation.
Q: Can foreign judgments be enforced in this jurisdiction?
A: Yes. It can.

MIJAREZ CASE
He attempted to enforce the foreign judgment. And that court happened to be the Makati RTC. It involves
$420M. Is it capable of pecuniary estimation?
-‐At first glance, yes. But is it really capable of pecuniary estimation? What is the cause of action? The
enforcement of foreign judgment. But the judgment seeks to collect that money. So the root of controversy is
with respect to the payment of the docket fees. Because the dilemma was this, is the basis for the
compensation is the docket fees, or the 420m, can you imagine how much would be paid? Imagine? Magkano
ang babayaran sa Clerk of Court?
st
1 issue: WON Judge Ranada was correct in dismissing the case for nonpayment of the correct docket fee.
Q: So the cause of action class is, take note, the enforcement of the foreign judgment. How do we file the
claim?
A: By filing a complaint for enforcement of a foreign judgment.

Q: Before what court? Do we need to determine the court for purposes of venue?
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A: Yes. we have to determine first the characterization of the action.

Q: Is it a personal action? Or real action? Or an action in personam?
A: Judge Mijarez wanted the Philippine courts to implement the foreign judgment. So it is an action in
personam. Because it is personal to her. The enforcement of judgment is only for her and the other claimants.
The rest of the world, walang pakialam.

Q: if it is an action in personam, what is the rule on venue again?
A: obviously, Judge Mijarez chose Makati. So it was correctly filed. So if you file a case, you file it in the right
venue according to the Rules. And then the usual procedure will happen. The defending party will have to
answer the complaint within 15 days.

Q: how can he dispute the foreign judgment?
A: 1. Sec 48 of Rule 39. Can be assailed or attacked by showing the lack of jurisdiction over the subject matter
or the person of the defendant.
2. notice to the other party.
3. collusion. Connivance between that foreign court and the prevailing party or party desirous of
implementing the foreign judgment.
4. Fraud which is again an extrinsic fraud. It is not intrinsic fraud.
5. mistake of fact which somehow misled the foreign court into coming out with the foreign judgment.

Q: what are we going to prove before the local court? Are we going to tackle again those issues already
disposed of by the foreign court? Uulitin ba natin?
A: No need. In an action to enforce a foreign judgment, there is no need to re-‐litigate the issues or matters
that were already tried before the foreign court.

Q: so are you saying that the scope of the action before the local court is very limited? Imagine, what are we
going to talk about?
A: we have to talk about the authenticity of the judgment. That is the first assignment of the plaintiff.

Q: so since it is a foreign court, how do we prove its authenticity of that judgment? It is not enough for us to
say that “your Honor, this case was decided by the District Court of California.” What do we do?
A: Authentication. We have to authenticate that judgment which means that we have to show proof with
respect to the authenticity of the foreign judgment.

Q: how do we authenticate the judgment?
A: By presenting evidence. The official copy of the judgment as published by that foreign court or foreign land.
The certificating of the custodian of that document .But this certification must pass through the embassy or
consular office concerned. That is the first assignment of the plaintiff-‐ to prove the authenticity of the foreign
judgment.

So when you say authenticity that would likewise subdued to the existence. This judgment exist your honor
because:
1. This is an official publication of the foreign court;
2. we have this certification from the custodian of these documents;
3. These are attested to by the embassy or consular office concerned.

With respect to jurisdiction, that is presumed. We refer to the exercise of jurisdiction of the foreign court. We
look into this matter only if the defendant tries to assail the jurisdiction of the foreign court. In other words,
the burden is on the party assailing that the foreign court has no jurisdiction.

Q: how do we do that?

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A: he has to show proof of rules of the foreign land. The foreign law which calls now for the legal application of
your International Law.

Q: what is this law on comity of nations?
A: must respect each other’s law. There is presumption of good faith of that foreign law.

Q: is the foreign law should be in accordance with our local law?
A: The answer is yes. it must not be offensive to our local law. Our local law must not be offended by that
foreign law. because if that law is at war or clashes with our local law, we cannot respect that foreign law.

Q: but in the absence of showing that this local law is against that foreign law, what is that presumption in
International Law that would apply?
A: doctrine of processual presumption which means that there is presumption that the foreign law is the same
with our local law.

So it seems that the procedure is very short and simple. Because after we are able to determine all these like
(1) judgment is true (2) The opposing party perhaps was not able to discharge its burden, all we have to do is
to seek its implementation.

Q: what is this collusion? We said collusion is connivance. An alliance between the foreign court and the
prevailing litigant. But how would we do that. That is very difficult.
A: It is an appeal on the part of the person trying to dispute the foreign judgment. I:39

Another thing, we need not repeat the issues. Meaning, the plaintiff here, in the local court, will not have to
present again the same evidence, documentary or testimonial that were presented before the foreign court.

Q: so will that preclude the defendant from saying that this document was fake?
A: yes. That would prevent the defendant from saying that this document was fake because the presumption
is that, that foreign court went over these documents. And that validity had been established.

Lack of jurisdiction. We said that lack of jurisdiction over the subject matter or over the person of the
defending party.

Lack of jurisdiction over the subject matter is much easier. Because all you have to do is to show the rules of
that foreign law.

Lack of jurisdiction over the person of the defendant. We can say that “your Honor, contrary to the decision of
that foreign court, I never received a notice.” The defendant can also say that, “Your Honor, the plaintiff was
able to obtain a favorable judgment because I was prevented by plaintiff thru machinations from attending
the trial in California” according to the jurisprudence, that is extrinsic fraud.

It is true that the Rules do not say how to enforce foreign judgment. But we have to follow the usual mode.

Conclusive as to the title of that thing. What is that thing? Is it a real property or a personal property? It could
be either. The title with respect to that things is treated as conclusive.

Q: if it is conclusive, what is its effect to the defendant?
A: the defendant is powerless to refute or dispute the title of the prevailing parties over that particular thing.
You cannot say that “your title is void.” The judgment of the foreign court with respect to that thing, in so far
as title is concerned, is conclusive.

FUJUKI CASE

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Q: IS Fujuki the real party in interest?

A: Yes.

Q: is there a need for the enforcement of a foreign divorce decree obtained by a Filipino abroad?
Take note class the if a Filipino citizen is able to obtain a divorce decree in abroad, in order to pry himself from
the effects of that decree shall be mandated to bring that decree here and be judicially recognized.

Q: how do we enforce again the judgment of the foreign court?
A: it has to be filed as a complaint or a petition.

Q: what is the difference between a complaint and a petition?
A:
Petition: you seek for the establishment of a status, right, or a particular fact. Your petition is more of your
special proceedings and special civil actions
Complaint: If it is governed by the rules on ordinary actions. Or for an enforcement or redress of a right or a
wrong.

Q: to summarize, how do we enforce a foreign judgment?
A:
1. By filling a complaint or petition.
2. Such petition seeks for the enforcement of the foreign judgment.
3. We need not repeat or reexamine, reevaluate, reopen, or retry the evidence presented by the foreign
court. You are bound by that. There is no need to try again the case.
Ideally, it should be a short procedure. We cannot say that the defendant has no more remedies. He has. His
remedies are limited to: want of jurisdiction, collusion, and extrinsic fraud.

IN SUM, If it is a foreign judgment, the cause of action is the foreign judgment itself. Another thing to
remember is, it is important that the foreign judgment does not offend any local law because if it clashes with
the local law, the local court will not allow the enforcement of the foreign judgment. In the absence of
showing that the foreign judgment clashes with the local law, the local court will go with the doctrine of
processual presumption and think that the local law is the same with the foreign judgment.

APPEALS Rule 40.
Your appeal is again another remedial step that loosing litigant can take. We review ourselves, what are the
remedies again of loosing litigant if the judgment is not yet final?
A: 1. File a Motion for Reconsideration
2. notice of appeal. While notice of appeal is there as a remedy of the loosing litigant, note class that this is
just a privilege. It is not an inherent right in favor of any loosing litigant. What do we mean by that?
A: it is a privilege because the law requires the observance of certain matters like:
1. It must be made within the prescribed period. Your reglementary period. None observance of the
reglementary period will waste that privilege. The prescribed period is 15 days.

However you will take note that the 15-‐day period in some exceptional, isolated cases, the SC relaxed
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the rule by giving extension. Meaning, even if the appeal was made, let’s say on the 16 day or on the
th
17 day, the SC allow it because of the overriding consideration substantial justice.

Q: what are these considerations?
A:
1. the novelty of the issues
2. the magnitude of the amount involved
3. the absence of bad faith on the part of the appellant (the one making the appeal) the
party against whom the appeal was made is the appellee)

2
if it is a civil case, and is brought up in to a higher court for an appeal, will the title of the case
remains?
A: no. the title of the case remains but there is an additional description now of the person making
the appeal as appellant. So. Let’s say the case was dismissed by the RTC, and the plaintiff is the
leading party, and when he goes to the higher court, he will now be described as the appellant and
the defendant is now further named as the appellee. Ex: Rodridigo Santos plaintiff-‐appellant and
Marciano Santos-‐defendant-‐appellee.
Q: what are the prescriptions?
A: the appeal must be made with the reglementary period of 15 days. Subject of course to highly
exceptional cases.
2. Payment of the correct docket fees within the same prescribed period of 15 days.

Q: may the court give an extension?
A: yes. just like what we have learned before when we are taking up docket fees that the plaintiff may
ask for an extension. As a matter of fact that court can not just dismissed the case, because we said
the plaintiff shall be given enough time, reasonable time within which tom complete the payment.
But the answer when it comes to appeal case is the same. But that reasonable time does not seem to
be long, it is now limited. It is not that long anymore. It must be made within that 15-‐day period only.
Payment shall be made within the prescribed 15-‐day period only.

3. Material data rule.
The notice of appeal must state the following:
1. The date of the decision;
2. The date when such decision was made;
3. The ground/grounds relied upon in filling the notice of appeal.
What are the grounds?
1. The decision is contrary to law.
2. The decision is contrary to the facts established;
We are talking only of appeal. We are not talking about grave abuse of discretion here, because if
that is your ground, it should be Rule 65. We are talking here of Rule 40.

Q: we review again jurisdictions. What are the courts again?
First level courts
a. Municipal Circuit courts (lowest)
b. Municipal Trial Court
c. Metropolitan Trial Court
Second level courts
a. Regional Trial Court
Third level courts
a. Court of tax appeals
b. Sandiganbayan
c. Court of Tax appeals
Then the Supreme Court

Q: what is the rule when it comes to appeal coming from the first level courts.
A: rule 41.
First level court to the RTC is done by simply filing the notice of appeal.

Q: Where do we file that notice of appeal? Is it the court of origin or the next level court?
A: the court of origin. Meaning, on the first level court.

Q: what do we mean when we say that the appellant has already perfected his appeal?
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A: an appeal is perfected when the person making such an appeal has filed his notice or has make known his
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intention to make an appeal of the adverse decision within the prescribed period. It could be the 6 day, the
th th
7 day, whatever. As long as the act is completed within that 15-‐day period. So if we say on the 5 day the
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appellant filed his notice of appeal, on the 5 day, his right to appeal has been deemed perfected. Perfected
as to him.

Q: what if the other party also appealed the decision of the court? Is it possible that both parties appeal?
A: yes. If both parties are dissatisfied, they can be both appellants. So with respect to the other party so did
not file a notice of appeal, his right to appeal has not yet exercised. The important thing to remember here is
that the notice of appeal must be filed or exercised with the prescribed period of 15 days.

Q: is the re a need for the appellant to notify the other party?
A: yes.

Q: what is this notice for?
A: in order to give the other party the opportunity to object to the notice of appeal.

Q: what could be the points of objection?
A: it could be that the notice of appeal was filed out of time. It could also be that the proper appellate fees
were not paid. It could be that there were violations of the material data.

th
Q: if the notice of appeal was file in the 5 day, may the prevailing party file a motion for execution?
A: note that the court has not yet approved the notice of appeal. If the appeal has not complied with the
requirements we have discussed, the court can disapproved the notice of appeal.

Q: what is the significance of the disapproval? Will the judgment become final?
th
A: not yet. If the 15 day has not yet lapsed, notwithstanding the disapproval of the notice of appeal, the
judgment is not yet final and executor. This is because the appellant whose appeal was disapproved can still
elevate the matter of disapproval to the next higher court.

Q: what if the RTC who exercise the original jurisdiction was the one who issued the alleged decision which is
now the subject of appeal. Is the question of whether or not the appeal was validly perfected is one of fact or
a question of law?
A: to my mind, it is a question of law because when we say it is a question fact all we have to do is to count. If
it is a question of law, that decision of the RTC could be brought directly to the SC via Rule 45.

We go back to Rule 40. So we are dealing here with the first level courts. The order of judgment of the first
level court is to be reviewed by the next higher court via a simple notice of appeal or if it requires special
proceedings, it needs record of appeal.

Q: what is record of appeal?
A: it simply refers to the set of documents that the appellate court may have to seek coming form the court of
origin.

Q: why is the period longer when it comes to record of appeal?
A: because of the more tedious task because all should be reestablish from page 1 when the case started up to
the very end. And all these pages should be certified by the Clerk of Court. In other words, the record could be
thick unlike in other cases where all you have to do is to file that 0ne-‐page notice of appeal.

Q: after the appellant has perfected his appeal within the time provided what is the duty of the clerk of court?
Clerk of court of whom?
A: the clerk of court of the court of origin shall have the duty to transmit. When we say transmit, we do not
refer to the simple act of transmittal but it includes the act of review of the entire records. When we say

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review, that will include the duty to arrange the stenographic notes according to date, the completeness of
the transcript, the completion of the exhibits, etc.

Q: let us assume that the RTC has now received the records of the first level court, what is the duty now of the
clerk of court of the next higher court?
A: it will now include the notice to be sent to the parties, particularly the appellant for the purpose of
submitting the memorandum of appeal that would contain why the lower court has committed an error.

Q: what shall be done with this memorandum?
A: it will be sent to the other party who MAY file his memorandum. That memorandum will answer the
memorandum filed by the appellant. Note of the word MAY. It is not compulsory for the appellee to submit his
counter-‐memorandum. It could be that he is confident with the merits of his case.

Section 8 of Rule 40 is very important. Put a double asterisk there. The RTC during its review, may do two this:
1. It may sustain the decision.
2. Or it may reverse the same.
3. It may modify.
Walang problema kung sustain. The RTC may just affirm the decision. The problem is when the RTC reversed
the decision on the ground that the RTC has no jurisdiction. If the RTC finds that it has no jurisdiction, it just
erroneously assumed jurisdiction notwithstanding the fact that the MTC from the very beginning had no
jurisdiction what will the RTC do?
A: the RTC will treat the case as if it was originally filed before it. IF it has jurisdiction over the case.

Q: what will the RTC do if that is the case?
A: the RTC can proceed with the review and if it seems necessary, he ask the parties to submit additional
memoranda.

Q: can the RTC make direct amendments of the pleadings?
A: Yes, for the purpose of conforming to the evidence that has already been established before the first level
court.

The RTC will not remand the case. The RTC will remand the case only if let’s say the MTC erroneously
dismissed the case on the thinking that it had no jurisdiction, yun pala may jurisdiction ang MTC. If that is the
case, the RTC may simply remand the case for the RTC to proceed to further proceedings.

RULE 41
Your second level court may exercised two kinds of jurisdictions. One is original and the other si appellate.
It is appellate if it is tasked to review decisions rendered by the first level courts.
If it is original, if the case is filed directly to the said RTC.
If the RTC exercises its appellate jurisdiction, that could still be elevated to the CA under Rule 42.

Petition for Review (rule 42)
If petition to review is the appropriate mode, remember of the time that the RTC would exercise appellate
jurisdiction.

Q: what if the RTC exercises original jurisdiction and the decision was elevated to the CA for review?
A: the mode of appeal is ordinary appeal. Mere notice of appeal does suffice. It is not petition for review but
an ordinary appeal.

Q: what happens to the decision of the CA which reviewed the decision of the RTC in its original jurisdiction?
Can it be elevated to the SC?
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A: yes under Rule 45. We call it either petition for review on certiorari or appeal by certiorari, or appeal by writ
of error. But let’s not confuse the three. The most common term was Petition for review on certiorari. Your
rule 45 is different form your Rule 65. Do not be confused by the usage of the term certiorari.

Rule 45-‐ mode of appeal.
-‐It is a continuation of the proceedings that started it all.
-‐filed 15 days from receipt of the adverse decision.
-‐need not require motion for reconsideration.

Rule 65-‐ independent action. It is an original action. It is related to an existing action but it is a special civil
action, it is an independent action.
-‐ It is not the continuation but it is related to the original proceedings.
-‐can be availed of within 60 days.
-‐as a general rule will always require a motion for reconsideration. Take note that MR is a condition sine qua
non for a rule 65 petition.

Q: when is MR be dispensed with?
A: 1. When the subject matter of the case is transcendental character. It is now useless for the petitioner to
discuss again because of the tenor of that decision of the said motion.
3. If time is of the essence
4. If the order is a nullity

Appeal under Rule 43
-‐petition for review from the RTC to CA

Kanina sa Petition for review under Rule 42, we give due regard to the fact that the case started all the way
from the first level.
But under Rule 43, the first level court is not included. The RTC exercises it original jurisdiction. So the mode of
appeal here is ordinary notice of appeal.

Quasi-‐Judicial Bodies, take note of the enumeration in Sec. 1.
Put a double asterisk on section 2 of rule 43. It does not cover cases involving labor cases. They are directly
decided by CA under Rule 65. The case there is St. Martin Funeral Homes. Labor cases are now reviewable by
the CA by Rule 65 petition for certiorari.

April 11, 2015 Civil
Procedure
I think we are about to start the procedure in Court of Appeals? Not yet? In what rule will we start? Rule 43?
Please remember again the residual jurisdiction or the power of the trial court or the lower court to exercise
certain powers after the perfection of the plea but prior to the judgmental of the court. In the other words,
the other side has already indicated his desire to appeal the adverse judgment but the court, for reasons
known to it, has not yet transferred/ transmitted/ elevated the records to the next higher court. If that is the
situation, the lower court can still exercise its power by (1) approving compromise agreement, if there is one;
(2) by allowing the withdrawal of the appeal, if there is change in the heart and mind of the party-‐appellant;
(3) by approving the motion for execution pending appeal, if a motion has been filed, and that should remind
us what are the most important grounds are before a motion for execution pending appeal may be allowed -‐
the existence of a good reason. So these are the authorities or the powers that could be exercised by the trial
court notwithstanding the perfection of appeal. But what is important is, the record are still with the trial
court, they have not been transmitted, ok? It’s still with the trial court. So, forget your execution pending
appeal if the records have been transmitted, let’s say, to the court of appeals or the Supreme Court.

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Ok! I have some notes here which are intended to be for emphasis purposes. If there is a wrong mode
(nagkamali sa pagpili ng mode of appeal), the immediate effect is dismissal of the complaint. Do not be
confused by some authors just in case you find statements to the effect that the records or the appeal should
be transferred word per word to the higher court in the interest of justice. If it is very obvious that the
appellant chose a wrong remedy because perhaps he was of this certain impression, sabihin na nating
insufficient awareness or knowledge of the procedural rule, before the courts allow a disregard of the lapse or
mistake by simply allowing the transfer of the appeal to the proper court. But that has been done away with
by rule 56 of the ROC, to the effect that if there is a wrong venue the effect shall be dismissal of the case. We
repeat, it is not transferring, it is not forwarding of the records to the proper court, the case shall be dismissed
because of the wrong mode of appeal. And in connection with that, I urge you to read the case of Banting v.
Maglapus. The highlight of this case states that a detour from the proper court pursuant to an appeal will not
earn for the errant party a fresh start – this is your so called 15 day period as enunciated in the case of Neypes
v. CA. What does that give us again? It simplifies the rule when it comes to starting all over again but this so-‐
called fresh period of 15 days assume significance more when it comes to denials of motion for new
trial/reconsideration. Because before you have to count again as to when the order really of the court of first
instance denied your motion. From Neypes onwards, you now have the standard 15 day period from the time
you receive the adverse decision, order or resolution, you have the fresh 15 day period within which to avail of
your next remedy. And this Neypes is applicable to rule 40, 42, 43 and 45, so it is now standardized. We have
already avoided the confusion from the time the motion is denied, just simply count 15 days – rule 40, 42, 43
and 45.
Appeals from your quasi-‐judicial bodies, Rule 43. Your quasi-‐judicial bodies are enumerated under section 1
and I leave that to you to know what these are. Note that the mode of appeal here is called petition for review
except those decisions coming from the NLRC. If the case come from NLRC, what is the mode of review? It is
Petition for Certiorari under rule 65. Yun ang ibang iba dito sa rule 43. It sticks out like a sore thumb. So, if it is
from the NLRC, it is via rule 65 because of the case St. Martin Funeral Homes. That is isolated. If it is a labor
case and you want it reviewed, you bring that to CA not via rule 43, although NLRC is included in the
enumeration, but via rule 65. What is a quasi-‐judicial body? We all know that this body exercises judicial
function but not in the same manner as regular courts. They are administrative bodies but while
administrative in character only, they also exercise judicial functions. Is there a hearing? Is there a
presentation of evidence? Is there a rendition of judgment? Yes! They are quasi-‐judicial bodies because, while
they are not courts in the strict sense, they do render decisions or adjudicate cases. If a petition for review
coming from a judicial body is brought to the CA, we now go to the next rule which is the rule of procedure in
the court of appeals. At the CA, there are 2 stages that the justices have to go through. They must observe,
upon receipt of a petition for review, (1) the checking of the formal requisites. We all know what these formal
requisites are. If it is an appeal we are talking about, definitely, a petition for review is the mode of appeal.
The first thing that the justices do is check the timeliness. Is it really the justices who do that? No, we have a
pool of clerks who does. Our pool of clerks has to make suyod. There has to be a sifting of all of it. And the first
one to look for is the timeliness of the appeal. When we speak of timeliness, remember what we have stated
before which is termed as the material data rule. Your material data rule would tell us when the decision was
rendered, when was the same received by the appellant, and what are the grounds for appeal. This must be
found from the face of the petition for review. Of course, the name of the parties, the addresses etc. After
going about these formalities, the justices have to decide whether he/she should dismiss the petition outright.
The dismissal may be due to the fact that (1) it was mot seasonably filed – it was filed out of time; (2) may be
the needed docket fees were not paid but then we have to go back to what we have learned from day 1, if it is
just a simple case of an incomplete payment, justice has the discretion to simply order the appellant to make
the complete payment. However, take note of this discrepancy, if the filing of the case before the office of the
clerk of court, we said that the incomplete payment will not oust the court of its jurisdiction and we learned
the period within which the said payment should be completed must be within the reasonable period of time
and that phrase has been interpreted as before prescription – within the prescriptive period. So what does
that mean? It simply means a longer period. We go back to your appeal, is this the same period the rule refers
to? No! You have to complete the appellate docket fees within the same 15 day period. If you do not complete
the docket fees within this short period of 15 days, then it is bad for you, your petition for review could be
dismissed on the ground of technicality. If the petition for review is totally unmeritorious, because the justice,
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of course, have to go over it, the justice has the discretion to immediately dismiss the case outright. If on its
face the CA is convinced that there seems to be an ounce of merit in the petition for review, then, it will issue
an order directing the other side to submit his comment. What happens first? Or which comes second? Is it
the giving of the comment? Is it directive for the other side to give a comment or to give the petition due
course? Comment muna. But sometimes CA immediately say, there appears to be merit in the petition, the
respondent is hereby given a period of blank days within which to submit his/her comment. What do we call
the document that the appellee has to file in support of his/her positions contrary to what appellant is talking
about – we called that appellee’s brief. When we were in the rule concerning the rules in the RTC, what is the
document again that has to be filed in the RTC if the case originated from the MTC? Memorandum on appeal.
This contains the discussions of the person appealing the adverse decision. In the CA, we call that the
appellee/appellant’s brief. That is similar to your memorandum of the court in the RTC. It contains heavier
arguments in support of your position. The petition for review must contain a brief statement of facts and the
assignment of errors. These assigned errors are the perceived errors committed by the trial court which must
be corrected by the reviewing court. What is the principle which comes to the assignment of error? That
which is not assigned will not be given attention by the reviewee so as not to take much of the time of the
reviewing court and to avoid clutter in the decision of the court. The rules encourage, as much as possible,
only those significant aspects of the case should be addressed by the reviewing court. May the matter not
contained in the assignment of errors be likewise entertained by the reviewing court? Take note, hindi na
kasama sa assignment of errors. Let’s say the assignment is from 1 to 7 but the CA included/touched
something else that is not included in the list of assignment. Can the CA or the SC do that? Yes, if it is
necessary or material to the resolution of the case. The general rule is that only the assigned errors should be
touched upon except – meaning the reviewing court can touch on matters not assigned for purposes of
discussion – if the same is necessary to the material resolution of the case.

PROCEDURE IN THE SC (APPEAL BY CERTIORARI OR PETITION FOR CERTIORARI OR APPEAL BY WRIT OF
ERROR; RULE 45)
If it is under the SC, it is purely question of law. When do we say that a matter is purely question of law? And
who determines that? It is the Supreme Court or the next court which shall determine whether or not what is
presented before it is a matter of question of law or question of fact. How do we guide ourselves in asking the
question if it is a matter of law or a matter of fact? If the matter under resolution is which law is applicable or
what law applies then that is a question of law; question of fact – if the question is something that has to do
with the truthfulness or falsity of an allegation of fact. If it is the SC we are dealing with it should only be a
question of law because the design of the rules of court for purposes of the economy and in order to give the
SC sufficient time to really build on the more substantive cases is that the latter court is not a trier of facts. If
the SC notices that there is something which has to be recalibrated because in the mind of the SC this matter
could not be in court. Suddenly, the initial determination of the SC is ‘yes, this is the question of law’ but along
the way it is confronted to be a question of fact. The SC may remand it to the court of appeals for
determination. Does that mean that entirely/absolutely the SC will never bring up matters touching questions
of fact? One of the exceptions for SC to touch on questions of fact would be kapag hindi nagkasundo, hindi
magkatugma ang findings of fact ng dalawang lower courts. When the finding of facts of the two lower courts
do not jive then the SC can, in its limited jurisdiction in so far as factual matters are concerned, consider the
same. And towards these cases, the supreme court can likewise deal with matters of facts – cases which
involve its original jurisdiction. What are those? Petition for certiorari, petition for prohibition, petition for
mandamus. In these cases, both SC, CA, and RTC, exercise concurrent jurisdiction – concurrent jurisdiction:
either of these courts can take cognizance of the case. But we have to recall our principle of hierarchy of
courts that notwithstanding the concurrence of jurisdiction we do not have the absolute freedom or liberty to
go immediately to the SC or the CA. If it is not a matter that affects national interest the litigant will not/
should not bring immediately the case to the higher courts. It should bring the matter to the regional trial
court. The SC exercises original jurisdiction on cases affecting ambassadors, members of the judiciary,
consuls… In these instances SC precedes evidence. Members of the judiciary – what cases are lodged in the
members of the judiciary? Administrative cases. With respect to criminal cases, yes, with the ombudsman…
but these criminal cases will have to be abated first until and unless the administrative charge is completed.
What if it is a civil case – like when the judge borrowed money and he/she did not pay? What is the cause if

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actin of the complainant? It could be an administrative or civil case. However, the civil case, just like the
criminal case must be abated or have to be suspended, the administrative case against the judge mist be
tackle first. But in most instances the SC encourages that the two cases be tackled simultaneously before the
SC. To think that is the speedier course of action.

EXTENSIONS OF TIME
Before the RTC, the litigant can ask the court for extension of time within which to file in a certain period. In a
petition for review, as intended by the litigant, but, unfortunately, the petition is not yet over or finished. May
he/she ask the CA to extend the period within which the petition for review can be file? Yes, provided, there is
complete payment of the appellate docket fees. CA will accommodate the request, provided that the payment
of appellate docket fees have been completed. Is a petition for review considered an initiatory pleading? It
depends whether the petition of certiorari is filed pending motion of appeal under rule 45 or under rule 65.
May a petition for review, notwithstanding the fact that it is a mode of appeal, required to be accompanied by
a CNFS? Yes! It is a continuation. Is it not considered an initiatory pleading? It can, let’s say, from a quasi-‐
judicial agency... The quasi-‐judicial body came up with a decision that is adversary. And we have learned that
the next step should be to the CA via petition for review. You are now ready for petition for review. Are you
going to consider CNFS? Because from what we have learned, we are thinking, that from day 1 a CNFS is
required in an initiatory pleading na dapat wala. But according to 38, it is not so. Dapat a petition for review, it
has to be accompanied by a CNFS because the aggrieved may file some other case or mull over the idea of
filing another action before another body. With more reason, since the case is now with the next higher court
– malapit na sa dulo, that the court should be assured that this particular litigant, who is seeking attention in
so far as his legal debacle is concerned, give the assurance that it is the only case that has been filed. It is an
assurance with the court as a sign of good faith that you are not trifling with the processes of the court.
Because, really, the, answer should be no more because it is a continuation pero nirequire pa rin, even at this
point, because with more reason should you give the court the assurance that this seemingly late stage is that
you are not trifling with the processes of the court. What is the effect of not attaching of CNFS in your petition
for review? Under the rules, concerning the CA, that would be a ground for the dismissal of the petition for
review.

If a litigant is not satisfied with the disposition of the CA resolves to go to the SC within the 15day period via
petition for certiorari under rule 45, is the litigant assured of immediate attention? No, because of the word,
review is the discretionary. In other words, you cannot expect the SC, simply because you filed it on time, to
pay attention to your appeal. It is just a privilege because SC has to be strict in the acceptance of cases to
which it devotes its precious time. Review by the SC is not an obligation upon the SC notwithstanding the fact
that (1) you file the appeal on time; (2) you paid the requisite fees; still you are assured whether or not the SC
will grant you their discretionary review.
Minute resolutions are one day resolutions containing the gist of its disposition with respect to your appeal. It
is usually an affirmation of the decision being reviewed. The standard or common resolution states that after
judicious scrutiny of the appellee’s raise petition, the court as recommended by the en banc finds no cogent
reason to modify much less reverse the assailed decision… Tapos. Why does the SC have such power? Because
the SC, as a general rule, is bound by the finding of facts of the lower courts. If the lower courts are one or
uniform in their findings of fact that will bind the SC. The SC will not go back and see through it again; it will
adopt the findings of the lower courts. The only time the SC has to go back and see the facts is if there is
contrary position between and among the lower courts with respect to their findings of fact. Kung
magkakatugma ang findings of facts ng lower courts, what is there to disturb? Nothing, the SC shall simply
issue a minute resolution. Now, I told you the tenor of the minute resolution, the question that was raised
with one of my classes is that will that contravene the constitutional construction that the decision to be valid
must contain a statement of facts, issues and finally, the conclusion… The answer is no. There is no
constitutional violation if the SC issues a minute resolution. The SC itself stated that that is a valid disposition
because it could be seen from that disposition that the members of the court went through it and found a
unanimous vote to dismiss the appeal or reiterate simply the decision. Again, review is discretionary on the
part of the SC. Will your 15 day period apply in rule 45? Yes, the petition for review on certiorari. Of course,
we need not deliver from the fact that rule 45, while using the term certiorari, is different from that under rule
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65. Rule 65 is an original action while rule 45 is a continuation. While 65 refers to an original action, it is
connected with the case being reviewed, the only difference is that in rule 65 what we are assailing is an
interlocutory order while in a rule 45 petition, what is being assailed is a final order. In rule 65, one of the
defendants there is the judge who issued the assailed order. The judge, however, is only a nominal party – he
is a saling pusa – because the judge is not required to file his comment; it’s nothing personal. But who takes
the cajoles for the judge? The OSG – the counsel of the state. Does the counsel of the state 100% agrees with
the court? Not really... What instances does the OSG disagree, like say, OSG recommends acquittal of the
accused? Yes, what are the instances when the OSG recommends the acquittal? Yes, there are instances when
OSG recommends the acquittal of the accused. -‐ The court convicted him but to the mind of the OSG, upon
review of the evidence, he is of the contrary posture or opinion/ belief, then the OSG will recommend the
acquittal. When we were taking up crimpro, we said, the counsel for the state is the public prosecutor. It is the
public prosecutor is the one who supervises, controls, directs the criminal case. The fiscal is not out there to
secure conviction, although, ideally dapat lagi siya nakakaconvict – that is better for him. But the finest
moment for a prosecutor is when he rises up and stands before the court and ask for the dismissal of the case.
That is said to be his shining moment kasi fair siya – he is there not to convict but to see that justice is served.
In the same manner, the OSG should be like that. The OSG is there to see that justice is done. For instance,
when the OSG sees that a portion of the land is alienable and disposable, he must stand up to the court… it is
as an exception to your regalian doctrine.

ANNULMENT OF JUDGMENT
Annulment of judgment – post judgment remedy after the judgment has become final. What are post
judgment remedies, again? Rule 38, 47, certiorari because, before you avail of these remedies, the decision is
already final and executory. But if the decision is not yet final and executory, what are the post judgment
remedies? MOTION FOR RECONSIDERATION, NEW TRIAL, APPEAL – all this have to be resorted to within
15days from receipt of the adverse order/judgment. Whereas your petition for relief, petition for annulment
of judgment and certiorari could be availed of – for petition for relief, it could be availed of from knowledge
and 6mos after entry of judgment. Petition of certiorari-‐ 60 days
Annulment of judgment is available within a period of 4years from discovery. If you discovered the judgment
after 4years, you can no longer avail of this. If petition for annulment of judgment cannot be achieved because
of the fact that you have contended with the period and it is shown that the other remedies where not availed
of, not because of the fault of petitioner. For if the court sees or finds that these remedies could be availed of
but for reasons only known to litigant, he did not avail of it, he cannot avail of the petition for review. Do we
have the same attitude when it comes to a petition for annulment? Yes! You must convince the court that,
hey, your honor, I was not able to file an appeal or motion for reconsideration or new trial because of this –
the court determines whether the fault is attributable to you. If the failure is attributable to you or due to your
fault, then there is no way you can seek the annulment of judgment because you are seeking something so
unusual, so big, such that the rules will not ordinarily give it to you. It is a remedy highly equitable that you
have to hurdle the barriers of: (1) 4 years and that (2) you must be able to show the court that the other
available remedies before were not availed of due to no fault on your part. In the same way you have to
discuss it in your petition for relief of judgment. What are the courts that can annul the judgment? If it is a
judgment of the RTC, it is the CA that can annul the judgment. If it is the judgment of the MTC, the RTC is the
proper court to annul the judgment. We go back to petition for relief, in said petition we disregard the
judgment – we are relieved from the ill effects of that decision. Did we not say that during the proceedings for
petition for relief we can ask for an injunctive remedy? Yes, we call it preliminary injunction; either (1)
prohibitory injunction – if we ask somebody to be prohibited from performing the act/ tell somebody to not
do or stop from doing a certain act or; (2) mandatory injunction – if we ask the court to direct a particular
individual or body or agency to perform a mandative or order him. We can also ask preliminary injunction in
petition for annulment of judgment because for all we know the final judgment we are trying to assail is about
to be performed. What is the past lesson we have to think of when it comes to annulment of judgment? Are
we not thinking of motion for execution which is 5 years? What is period for petition for annulment? 4 years
from discovery... Go back to rule 39, we said, a decision may be executed within 5 years upon mere motion.
th
What if on the 4 year you filed a petition for annulment of that judgment and the prevailing party in that
judgment is seeking its implementation? Nagfile na siya ng motion for execution tapoos ikaw nadiscover mo…

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Oops, meron na palang decision na ganito; what do you do to stop the court from implementing the decision?
File a preliminary injunction. Petition for relief must be file before the same court which rendered the assailed
judgment but in your annulment, you do not file it in the same court that rendered the judgment, you file it
with the next higher court. The next higher court has the authority or power to annul or disregard the
judgment. What if the 5 year period has lapsed and you did not file a motion for execution? Revival… The
remedy is to file an action to revive. An action to revive is entirely a new cause of action. Is the principle under
rule 38 which mandates that the filing should be with the same court be observed if it is an action to revive?
No, it is an entirely new case, it has to be bound on. Kapag petition for relief, dadalhin niyo yun sa husgadong
nagbigay ng decision pero kung annulment, hindi, dadalhin mo sa next higher court. Kung action to revive,
hindi rin, not in the same court but it could be filed before any other court. Because your action to revive
could be, say, a decision rendered by the MTC, eh action to revive is not cognizable by first level courts. It is a
case incapable of pecuniary estimation, ergo, it should be with the RTC. (i.e. the action you want to revive is a
collection of sum of money cognizable by the MTC, 10k lang, dahil lagi kang inuuto ng umutang sayo, di mo
inexecute. Then one day, you suddenly woke up, your patience is already zero tapos beyond 5 years na, what
do you do? Action to revive! You file it with the RTC and not MTC.

GROUNDS FOR ANNULMENT OF JUDGMENT
(1) Lack of jurisdiction – either it be: a) lack of jurisdiction over the subject matter; b) lack of jurisdiction
over the person of the defendant; or both. If based on lack of jurisdiction, it should be filed before it
is barred by laches or estoppel. Let’s say, because of improper service of summons… What is the
effect of that again? The court has court has not acquired jurisdiction over the person of the
defendant. What is the effect of this again? Remember that a defendant is declared in default if he
was unable to file his answer within the time frame prescribed by the rules -‐ 15 days if regular
procedure and 10 days for summary procedure. Your defendant could redeem himself if he files a
motion to lift the order of default, kung order palang ang binigay mg court. What if it is a judgment by
default? The remedy of the defendant to salvage himself is a motion to lift the judgment of default
grounded upon FAMEN. FAMEN could also be encountered in your motion for new trial and petition
for relief from judgment. Dito sa tatlog ito maeencounter mo yung FAMEN na yan… Default, new
trial, petition for relief. What did we learn when we took up summons? If the defendant was
improperly served, the court must not acquire jurisdiction over him. What are we saying? The court
has no authority which means the court’s order will have no effect. If the court went on to render the
decision, that decision is null in so far as this defendant is concerned. What is that colorful term the
court used in the nullity of a decision? It is an outlaw that must be slain at first sight. Remember,
annulment of judgment -‐ 4 years from discovery before laches sets in. Laches, what is that? It is
something that prevents someone from asserting a legal right/ an existing legal right because it is too
late for asserting that said right would be a prejudice to the other party. Is there delay? Yes,
unreasonable delay – meaning, you did not do anything; you simply watched idly by. What are the
thing the court have to consider if laches is the matter at hand? It considers degree, considers
proximity to the courts, authorities, or adverse litigant – all these factors. Will financial capability
likewise be considered in appreciating laches? Yes, if you have the means and you did not do
anything. Like when you are a law student and you did not even bother to the false demand of the
credit card company – that is Laches. Is laches therefore a question of evidence? Yes. Is it a question
of fact? Definitely. Does it require proof or presentation of evidence? Yes! So laches, therefore, is not
the same as prescription. Because all we have to do in prescription is count. Is prescription one of the
grounds for a motion to dismiss? Yes. Is prescription waivable? No. Just like, lack of jurisdiction, litis
pendentia, res judicata – if these grounds are not included in your omnibus motion to dismiss can still
be presented or invoked before the court in your answer as an affirmative defense. Laches or
estoppel are similar. Estoppel – it simply refers to one persuaded of something because of your
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actions; you led somebody to this or that because of your actions. Public policy requires that you
should not be permitted to go against what you have represented through your actions.
(2) Extrinsic fraud – anything that prevented the party to have his full day in court or was deprived of due
process because of the artifice/ trickery/ machinations of the prevailing party to which resulted to the
rendition of the decision you seek to annul. For purposes of the annulment of judgment, it is the
prevailing party who commits the fraud; whoever won/prevailed is the one who has perpetuated or
committed the extrinsic fraud.
(3) Lack of due process – if you refer to your codal, it is not included. But in your jurisprudence (arcilona v
CA), lack of due process is now a ground for the annulment of judgment. Is lack of due process not
subsumed by extrinsic fraud? Not quite because of different circumstances presented. There are
many forms of lack of due process, like the presentation of a falsified document or
connivance/unholy alliance of the lawyer of the parties or connivance with the corrupt judge and this
opponent of yours which could lead to your deprivation of due process.

Is annulment of judgment an initiatory pleading and shall require CNFS? Yes, it is an initiatory pleading. It
requires a CNFS and a verified petition. Verification – objective is to assure the court that everything is true,
based on personal knowledge and authentic records and documents. Number of copies? 7 legible copies just
like in the petition for review in the CA. What is the action if the petition to annul the action is filed in the CA,
just like in the preceding rule in your petition for review, the court will have to go through stages – is it timely
filed within this period: within 4years, count the number of copies: 7copies, the material documents: certified
nd
true copy of the decision sought to be lifted. 2 stage: Determine whether or not there is prima facie merit of
the petition in which case the court will require the other party to submit his/her comment. Supposing the
court gave due course to the petition, will the CA have power to conduct trial? Can CA act as a trial court? CA
can direct lower court to receive the evidence. What is that lower court? The court which rendered the
decision sought to be annulled be ordered to receive witnesses or the CA may just allow itself to be the trial
court. In other words,CA can set a case for trial. The RTC before conducting a trial foreset pretrial. Can CA set
the stage for pretial? Yes, we call it preliminary conference. Before CA resolve to set the case for preliminary
conference, is it alright to set case for oral argument? Yes, the counsels are directed to orally expound on their
respective positions and are open to questions from the members of the court. After the oral arguments, the
CA may simply order the matter as submitted for decision if the CA finds that the principal or primary
questions are duly answered and there is nothing more to be clarified. CA can also direct witnesses to come
over and testify or CA can direct the RTC to receive the testimony of the witnesses.

EFFECT OF ANNULMENT OF JUDGMENT
In remedy of petition for new trial, the judgment shall be vacated or set aside if the court is convinced that the
newly discovered evidence advance the reversal of the decision then the judgment shall be vacated. If the
court finds that decision sought to be annulled is indeed is null and void, it shall be vacated or set aside. Which
is the same as that of the remedy of new trial. Will there be orders of restitution? Rule 47, sec 7 -‐ tates that it
is without prejudice to the original action being refiled in the proper court. It is similar to your new trial which
nd
has to be done all over again. 2 paragraph stating… However, where the judgment or final order or
resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the
case as if a timely motion for new trial had been granted therein. When we were having new trial, we said
those affected files by the newly discovered evidence shall stay, hindi apektado, they are not prejudiced or
they are not affected at all by the newly discovered evidence. In the same manner, the cause of depredation
of the petitioner is the introduction of the falsified document then that said document shall be set aside then
the court shall continue with the trial without that falsified document being considered. Like in surgery, kung
ano yung cancerous area yun lang tatanggalin, the rest will have to stay. They are similar, your annulment of
judgment to your new trial, that affected part will be taken away or excised.

PROVISIONAL REMEDIES (APRAD)

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• Attachment
• Preliminary injunction
• Receivership
• Annui/support pende lite
• Deposit
Availed of at the commencement of the action or at any time before judgment. Usually incorporated in the
complaint. Immediately after receiving complaint or petition, the court sees these remedies in as much as they
are incorporated in the complaint or petition, they are urgent in the sense that the court must attend to it
immediately – the court will have to determine whether this petition applied for could be given outright in
which case it is called an ex parte issuance or should be given or denied after due notice to the party, in which
case that is the exact opposite of ex parte proceeding. These provisional remedies are so important or urgent
that the court have to attend to it upon receipt or upon seeing them. The court has options – either the court
grant it outright if the same could be issued ex parte. When do we issue remedies ex parte? When they are
extremely necessary because of an extreme urgency. I used extreme if only to depict to you the kind of
circumstances – ie. There is an urgency or emergency situation, time is of the essence. The court is in panic
mode,; the litigant is, with more reason, to be in panic mode because the matter has to be attended to
immediately. Otherwise, there is a possibility that, if it is an injunction, the act may be created; in attachment,
there is a possibility that this property could already be given because absconding is one of the practice in
your preliminary attachment. The court may or may not grant immediately. If the court resolves to grant, you
can be sure that the reason is urgent. If the court resolves not to grant it, probably there is wavering or there
is doubt in its mind whether or not to grant this. The court's better course of action is to listen to the parties in
which case the court will issue the application for leave.
ATTACHMENT (r.57)
Grounds for attachment are exclusive/specific – meaning these are the only grounds the court must rely upon
if it resolves to grant the prayer for preliminary attachment. If this attachment is described as preliminary,
begun at the commencement of action or any time before the judgment.. So if it is preliminary, is there a
possibility that it should become final? Yes, your attachment may either be preliminary or final. Your
injunction may either be preliminary or final. When does it become a final attachment? If at the end of the
case or after the decision of the judgment has been rendered the court is convinced that the attachment or
seizure of property is now made permanent/ given to the applicant with permanency. Why with permanency?
In order to satisfy the obligation which is the subject of the case.
*See sec. 57, sec. 1
What are you attaching? Property. What kind of property can you attach? Personal or real. Why do you want
to attach/seize at the commencement or at the start of the case? Because you want to make sure that your
victory is a victory in its real sense. In other words, you want to make sure that you are taking something else
after the end of the case. In what action can you ask for preliminary attachment? Sec 1(a) action to collect
sum of money – filed to which court? Depending on amount, an action for damages – probably because of an
contact violated (culpa contractual) or a crime committed (delict) or a quasi-‐contract that was not honored.
You can file a preliminary attachment in the MTC if it is below 400, can you file with the RTC? Yes, with more
reason that we can do that before the RTC. Let's say you are a creditor for the sum of 10Billion and the debtor
is observed by a friend that he is now hiding his properties by making fictitious deeds of sale making it appear
that the properties are no longer within their midst when the truth of the matter is, it is still theirs. There are
so many individuals doing that. To protect yourself, you can ask the court to issue a preliminary attachment.
So it is an action for sum of money, say 5million, you're told that this debtor is transferring his lot to his
cousin… What do you call that action? Defendant is trying to abscond with his property. He is trying to conceal
or is trying to remove or dispose his properties. Sec 1(a) action for recovery of specified money – what you are
after is distinct. It is not subject to suspensive condition, the amount is specific or distinct. For damages, what
you are seeking are moral or actual damages not exemplary. For instance, a bank manager was tempted to
tamper with the bank’s file and simultaneously took millions and millions of pesos and deposited them abroad
which was subject to recover a sum of money in a civil case… Is this likewise a subject for a criminal case for
estafa? Yes. Could it be both estafa and a civil case at the same time? Remembering your crimpro, if a criminal
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case is filed it carries with it a likewise filing of a civil action. What is prohibited in that principle? It could be
that you are filing a criminal case and a civil case…w hat is prohibited? Recovering damages – double recovery,
dibs? You may recover from your civil case but you cannot recover the same amount of money in your
criminal case. In other words, your objective in your criminal case perhaps is just the penalty – you want this
guy to be incarcerated, that's all. But incur civil case, you want to be paid back. You can file both criminal case
or civil case or file it simultaneously. But if you file simultaneously, take note that there can be no private
prosecutor in a criminal case – they public prosecutor handles it. So your attachment now is available in your
criminal and civil cases. The usual criminal cases where the litigant asks the preliminary attachment is estafa.
You can likewise file for a preliminary attachment in a BP 22 case. “… A party who is about to depart from the
Philippines with the intent to defraud creditors.” – How are we going to allege fraud in our pleadings? It has to
be alleged with the specifics. You cannot just tell the court that this defendant is guilty of fraud… You have to
state why you believe that you are defrauded by this defendant. Is fraud an intent which is in one’s state of
mind? Yes. Perhaps you can show the court of the defendant’s intent to defraud by showing his repeated
promise to perform his obligation but none one instance did he show his sincerity, he is nowhere to be found
– these circumstances will indicate an intent to defraud the creditor. “About to depart the Philippines” – that
is easy to prove. If the defendant is a holder of a valid passport, has a record of going to another place abroad,
and there is a certification from the immigration that this person is about to leave, then you can ask likewise
from the court a preliminary attachment. What is the attitude of the court when it comes to preliminary
attachment? We said that this is a harsh remedy because you r won't yet sure whether you will win the case
but you already want to take the property. There is a possibility the other party will be subjected to plain
embarrassment by taking another's property as a fulfillment for an obligation the court has not yet impose
upon him. That is why the attitude of the court towards this remedy is one of strictness – meaning, as much as
possible, the court will resolve every doubt against the applicant. It simply means that the applicant has the
burden of proving that indeed the ground relied upon exists. Every doubt the court will entertain in its mind
shall be resolved against the applicant because this remedy is a harsh remedy. Is this remedy similar to
execution? Parang, it is al last a cousin of execution. When is execution possible again? When the judgment
has become final and executory… But here in attachment, the case has just been file and yet you are already
taking away the property of the defendant. Remember that the same, being preliminary only, is merely
temporary since there is a possibility that the order may be lifted. Lifted – meaning, disregard the decision,
disregard the attachment. That is why it is preliminary. But while preliminary this may become final if the
court resolves to give this party to the winning litigant. The defendant likewise can ask for the issuance of the
preliminary attachment. On what grounds? Why should a defendant allowed to ask for the same remedy?
Because he might have a counterclaim (a defendant’s claim in connection with the subject matter/ arising
from the same transaction). What if the defendant has a valid counterclaim? He can protect himself by asking
for a writ of preliminary attachment. Remember that your writ of preliminary attachment is available to your
plaintiff and the defendant… Only if said defendant has a valid counterclaim. But what kind of counterclaim? It
applies to both permissive or compulsory counterclaim. What will the court do upon receiving the application?
Court may immediately grant the same… Kailan nga ulit igragrant? If it is urgent. Now, if it is urgent and the
court resolves to grant it, is it ex parte? Yes, it is ex parte because the other side is not yet notified but that is
just one of the options… The court may also not grant the same. If the court resolves to grant the same, the
plaintiff is given an order granting his prayer for preliminary attachment and at the same time a writ of
attachment shall be issued in his favor. Going back to rule 39, who is the court official? Sheriff. Your writ of
execution is different from your writ of attachment. As you know, an execution is a directive to the sheriff to
satisfy the judgment/commanding him too seize the properties if the order of the judgment rendered of the
court shall be satisfied. Your writ of preliminary attachment is a directive to the sheriff to seize in the
meanwhile these properties – meaning, Kunin mo MUNA. Whereas in your rule 39, this property is ordered to
be seized and then delivered to the prevailing party. So your rule 39 is final in the sense that your judgment is
already final but your writ of attachment is temporary or for the mean time. If the court resolves, let’s say,
papakinggan ko yung Kabila bago ako magiissue ng writ of attachment… then the court opted not to go ex
parte the court opted to notify first the other party. Bakit may pagkakataon na binibigay na kagad yun writ of
attachment? Kasi diba sabi natin there is urgency. Eh bakit may pagkakataon din na yung court sasabihan yung
other party na, hey may writ of attachment dito, why? Because the court may have some questions it wish to
clarify. The court sees the need or observes the need to confound or clarify certain questions. In other words,

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there are matters not sufficiently alleged in the allegation. For instance, we go back to the general rule of
fraud, if fraud is the ground it must be alleged with specificity/details. But for instance, when the court read
your writ of attachment, the fraud was not specific, it was generally averted… The court has reason to notify
and ask the other party to clarify the same. After notifying the other part and the can then decide whether or
not a writ of attachment shall be issued because every doubt shall be resolved against the applicant. No writ
of preliminary attachment shall be issued without the applicant putting up an attachment bond. In your
provisional remedies you can see that the courts requires a bond. Why? Because these remedies are rigorous
– masaklap ang writ of attachment, your preliminary injunction is harsh, these remedies are harsh. This bond
is intended to answer the damages the other party – the person whom against the writ is given -‐ may suffer if
the court determines na oops di ko pala dapat inissue yung writ. The amount of the bond should be at least
equivalent to the subject of the attachment. Let’s say the plaintiff is recovering 4million, the bond should be at
least 4million. Is the amount of the bond subject to the sound discretion of the court? Yes. If it is discretionary,
is there a possibility that the same be lower? Yes. Is it possible that Thea court can increase the same? Yes, if
the court sees the need to do so. If a person wishes to file for a writ of preliminary attachment, he must state
the ground relied upon. He must discuss that ground in full detail in his affidavit of merit. Remedy of the
defendant on the issue writ of attachment? The defendant can ask for the lifting of the writ of attachment.
How? By putting up a counter bond.

Paragraph B – “in an action for money/property embezzled or fraudulently misapplied or converted to his
own use”
What is that action for property? Action for recovery. Such money or property was embezzled or fraudulently
misapplied or converted to his own use – in short, estafa nga. Misapplication, conversion…. Inari mo yung
Hindi mo pag mamay-‐ari, ginamit mo ang Hindi mo dapat ginamit. Who are those guilty of this? Public officers.
Could it be the secretary of this department it head of an office? Yes. Kunwari ikaw yung head ng office ng
bank and you embezzled money, definitely you could be charged for estafa and then this prayer for writ of
preliminary attachment. Let’s say you are the secretary or officer of a corporation, may you be subjected to a
writ of preliminary attachment? Yes if the money or goods entrusted to you we converted by you from your
own benefit. A lawyer whose custody of the assets of a client were entrusted but by grave abuse of confidence
embezzled that, may attorney be an object of a preliminary attachment? Definitely. “Factor/broker/agent or
clerk or by a person in a fiduciary capacity” – this person was entrusted with assets and yet that trust was
broken. Jurisprudence will show you that ang object nito ay usually yung mga taong pinagkatiwalaan.

Paragraph C
The object of particular provision is both real and personal property. Compare this to your rule on replevin…
Attachment Replevin
Object Par. C) Real or personal Personal property only – meaning,
it is capable of manual delivery
Bond At least equivalent to the Twice or double the value of the
obligation subject of the case property sought to be taken
i.e. Car sought to be under
replevin is 300k – the bond to be
posted shall be double the value
which is 600k
Property sought to be attached Defendant It could be the defendant or the
belongs to plaintiff

PARAGRAPH D
What is the timeline? At the time fraud in the debt or obligation was incurred. We look for circumstance that
would indicate that from day one the debtor never intended to pay. Talagang yung kalokohan niya makikita na
from the very beginning. His resolve not to pay could be seen already from the very beginning. For instance,
yung check inissue mo ngayon dito sa store owner and because of that said store owner released to you the
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goods. When the check was presented, it was drawn from a closed account, can you see fraud in the very
beginning? Yes, because you can see that from the fact that the drawer or maker of the check knew that his
check will bounce or dishonored because his account is already closed. We can see here that fraud was
present at the very start. The debtor here is guilty of fraud from the time the obligation was contracted. How
about mere failure to pay? The plaintiff has been repeatedly going to your house but still you were not able to
raise amout to pay back your obligation, can the plaintiff now ask writ of attachment? No, no, no! mere failure
to pay the debt or obligation will not warrant the issuance of the writ of attachment. You might be misled into
thinking that all failure to collect will warrant the issuance of the writ of attachment… no! The grounds under
rule 57 are specific! As a matter of fact, they court grants an application of this writ but you think it is not
under the grounds provided, that is an improvident/irregular issuance of preliminary attachment that will lead
to the lifting of the preliminary attachment. It will result to the lifting because the ground relied upon the
court for the issuance of the writ of attachment is not upon what is provided in rule 57. Another way of lifting
is putting up a counter bond. If you put up a counter bond, the court will lift the attachment. The property
that was already attached will be released kasi the applicant now cannot complain na oops, wala akong
security. Speaking of security, you can also pray for a writ of preliminary attachment if the debt is not secured.
Otherwise, if the debt is secured, you cannot ask for a writ of preliminary attachment. Umutang ka sa bank,
the bank usually ask for a collateral… the collateral is intended to protect the bank. Let’s say you are remiss in
your payment, the bank cannot ask for a writ of preliminary attachment because it is a secured creditor. The
bank has its own remedy… either file for collection or foreclose.

PARAGRAPH F
Correlate with your rule on summons. If the defendant does not reside or is outside the country, the summons
is served… extraterritorial or publication. Take note that now, the right to serve summons by publication is
available now to all kinds of action (in personam, in rem, quasi in rem). Ngayon ang publication available na sa
lahat ng klase ng suit. If the person is not in the country to date, paano tayo makakaattach? We attach the
property that is within the country! What is the effect of that? The court obviously did not acquire jurisdiction
over the person of the defendant but through attachment we acquire jurisdiction over the res – the thing or
property object of the complaint. What then is the significance of this? That empowers the court to proceed
against that property. How? By seizing it constructively. If it is a real property it shall be under custodia legis. It
shall be the power of the court to go further... kapag nakuha na yung thing, can the court proceed to trial?
Yes, but over the thing only and not the person of the defendant.

SECTION 2 CONTENTS OF ORDER GRANTING THE PRELIMINARY ATTACHMENT
Order must contain the fact that there was an application and the ground relied upon is among those
enumerated under rule 57
This application was proven by the testimony of so and so if there was a presentation of oral arguments or by
the presentation of documents.
Because of this consideration the court was convinced there is a ground to issue the grant of preliminary
attachment wherefore let the writ direct the sheriff to seize or attach properties real or personal that belong
to the defendant to the court for safekeeping. More or less ganoon ang content ng order.
What will the court do with this order? This order granting the writ, writ itself, complaint and the summons
shall be simultaneously served or delivered to the defendant or adverse party. We call this contemporaneous
service of this four important document. All these are delivered to the defendant all at the same time because
the former practice of simply delivering the writ alone is not practical considering that the defendant might
make himself scarce.

SECTION 5 MANNER OF ATTACHING THE PROPERTY
The manner is similar to that of your execution. However, under execution, the sheriff will ordinarily give the
defendant the chance to pay or the opportunity to choose as to how to address the obligation. But in your
attachment, time is of the essence. The sheriff here must dispatch without delay. The sheriff, without delay,
must serve the writ because the property could be disposed of, concealed or removed. May the sheriff seize
the property by virtue of the writ of preliminary attachment without first giving the summons? Dapat mauna
yung summons.

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SECTION 6
Under your rule 39, the sheriff is likewise obliged to submit a return to tell the court whether or not he has
seized the property. Under your section 6, mabilis ulit! Without delay shall make a return to the court. You can
see here that, unlike in your writ of execution in which the sheriff appears to be more relaxed kasi tapos
naman na yung kaso wala ng danger nab aka yung writ ay temporary lang, in attachment the rules keep
stating the phrase “without delay” – with haste or reasonable dispatch.

What shall be attached? Real or personal. If the land has fruits, that too, shall be included in the attachment.
i.e. Your land in nueva ecija is yielding palay, so kasama par in yung palay following the principle of “accessory
follows the principal.”

PRELIMINARY ATTACHMENT

Justice: We were talking about attachment last saturday. We have tackled the grounds... manner of
attaching... may I [just reemphasize][1] again, with respect to the need for a [contemporing][2] service,
contemporing the service with respect to what again-‐-‐the complaint itself, the complaint containing the
application for the issuance of a writ of attachment... but do not be confused when we say that the complaint
will sometime be accompanied by, what is known as, an affidavit of merit. An affidavit of merit is usually a
separate page. That is why it is entitled 'affidavit of merit' or sometimes the prayer for the issuance of that
writ is not contained in a separate affidavit, but is incorporated in the allegations in the complaint itself. So it
could be: one, there is no affidavit of merit attached to it but the prayer is incorporated or included in the
allegations in the complaint; or, second, there is a separate page entitled affidavit of merit containing what?-‐-‐
the grounds enumerated under Rule 57. Of course when we say 'grounds enumerated in Rule 57,' it does not
mean just a parroting or plain repetition of what is stated. There could be a quotation verbatim of the ground
relied upon and then the accompanying explaination; or that the applicant is expanding why he is trying to
avail of this ground. The example we have given last saturday is fraud. We say that fraud should not be alleged
generally, but rather with specifics. What is the fraud contemplated under Rule 57? [Answer]: Fraud at the
time of the contracting of the subject obligation. In other words, what fraud must be existing at the very time
or the very moment when the obligation was occurred or contracted? It could not be fraud that took place
after the obligation. The defraudation, or rather the misrepresentation, by the applicant is the very efficient
cause of defraudation. Don not forget, i told you, that mere failure or inability to pay ones debt is not
synonymous or equivalent to fraud.

How do we attach? We said, "we simply go for the seizure of a property that is there, and that property could
either be personal or real. If it is personal, of course, the physical taking is not difficult to imagine. But if the
property concerned is real, the only way that the same could be seized, quote-‐unquote on the word seized, is
through the proper annotation with the Register of Deeds.

Okay, when we were taking up the rule on Execution Pending Appeal, one of the good reasons that we have
mentioned is when the property subject to the execution is perishable. Again we encounter that description of
a property under Sec.11 of Rule 57/ Take note that Sec.11 specifically mentions perishable property. So what
happens if the property attached is perishable? [Answer]: Then with more reason that the Sheriff, or the Court
for that matter, should be acting in more expeditious manner. These properties that are perishable should
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immediately be subjected to sale, if not an auction-‐-‐sale through auction because of the characteristic of the
property. And speaking again of auction, may we have a little review of what we have learned on Rule 39, how
do we conduct public auction? [Answer]: Of course there must be first, the prior notice. If the subject matter
to be auctioned is personal, it is enough that we post notices in conspicuous places. Is there a separate need
to send a notice to the owner of the property? The answer is yes-‐-‐for purposes of due process, and for the
purpose of enabling this party to redeem the property or to settle his obligation. But if the property to be
auctioned is real, what is the rule again? It is not enough that we satisfy ourselves with mere posting of
notices. But rather, the notice must be made through publication-‐-‐publication through the newspaper of
general circulation and notices in the very conspicuous places where the property is located.

[Why is it very hot?]...It really is so hot outside... Particularly at the Court of Appeals today! Because as you
may have already heard from the media, the CA is at the center of the on-‐going storm. Alright, i'm going to tell
you this not because i'm the member of the institution, but i think you deserve to hear this. Teaching
Injunction from day one, I remember that this class also is one of the classes where I discussed the TRO that
was issued in favor of Mayor Binay. May i just relate to you this to what we have discussed in class. I've been
very stressful on this when we were tackling up the lesson on fraud. Fraud as i have been telling you is
something that you will always encounter when it comes to FAMEN (because the F there pertains to fraud).
And fraud, as we have learned, is an extrinsic fraud. Not the intrinsic one, but extrinsic. We have repeatedly
reminded ourselves, class, that when we say extrinsic fraud, we refer to that kind of fraud that deprived the
losing party his right to full due process-‐-‐his day in court was taken away from him by the prevailing party. The
prevailing party obviously was the one who perpetrated the fraud that is why he won. Alright, we said that
when we allege fraud the specifics are needed. It is not enough that we allege it in a very general way.
Meaning, it is not enough to say that fraud was perpetrated or hoisted upon you. You have to give the details.
Now Sen. Trillanes was alleging or continuing to say that the TRO was given by the 6th division of the CA
composed of the ff justices: Chairman Justice Reyes, the senior member Justice Acosta, and the junior
member Justice Peralta. According to Sen. Trillanes, the TRO was issued in exchange for a monetary
consideration and the amount is P25M each-‐-‐allegedly for the two justices. Firstly, i have to tell you class, that
the CA, just like the SC, is a collegial court. When we say collegial, what does it mean? It means that the action,
as reflected by the resolutions or decisions, is the action of the entire court. It is not the action of just an
individual or single justice. So if a division of the CA is composed of 3, then the resolution granting the
application for the issuance of the writ of preliminary injunction, is the action of three members. Okay, we go
back to the main accusation of Sen. Trillanes. He said, "money chains hands." What kind of fraud is that?
[Answer]: Extrinsic fraud because if that is the truth, the government, as represented by the DILG and the
Ombudsman, was deprived of its opportunity to fully explain its side before the courts. If it is true that there is
a connivance between the justices and the Binays, obviously there was extrinsic fraud. Now how do we allege
that? It is not enough for Sen. Trillanes to say that there was bribery-‐-‐which is equivalent to fraud. He has to
come up with specifics. When we say specifics, what are these? [Answer]: What were the circumstances
behind the giving of the money... Who are around when the money was given... Where was it given... What
time was it given... And lastly, and this is the most important one, how did Sen. Trillanes come to know this? In
other words, the question begs another question. Who is this informant? Is he revealing this informant so far?
Is he saying to the media as to who was the source? Up to this time, he only managed to say "a reliable
source." Will that be enough? That will not be enough. But obviously the senator is pondering to public
opinion. The legal community, of course, knows better because we want something beyond the allegation that
there was bribery. Bribery is equivalent to extrinsic fraud. You cannot just allege fraud up to that point, we
want specifics, we want details. This is not in defense of my colleagues. I'm not even telling you to believe
them because the 6th division of the CA has already issued its statement. It is up to you. Because all of you are
students of the law. You should be able to have a demarkation line between the layman, the man on the
street, and between the students who would like to be called students of the law. In other words, the least i
can expect from you is-‐-‐be very analytical. try to go a little bit higher than the layman on the street. Of course,
you will be entitled to your own opinions, but at the end of the day, you should be able to piece things

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together in relation to what we learn from in this school. Who will be investigating the justices? You are done
with your Political Law 1... there are 3 branches of the government: Executive, Legislative, and the Judiciary.
What is this principle of checks-‐and-‐balances? One is there to check the other. However, the highest principle
of checks-‐and-‐balances is the assurance that one is independent of the other. What does the Constitution say
about the members of the judiciary? Only the Supreme Court has the power and authority to discipline such
members. Now, is Sen. Trillanes liable for anything with all those statements he is giving? No because of the
principle of parliamentary immunity. But up to when? There is again a demarkation line. We have to concern
ourselves with the penalty. Anyway, the SC has the exclusive power to try such justices. But will that prevent
the justices to honor the invitation? No, the justices can always go there if they so desire. But if opt not to go
there, invoking the constitutional principle of checks-‐and-‐balances, then that is their legal right. The IBP has
issued a statement to detect that it will, likewise, conduct its own investigation. After which, it will submit its
finding to the SC. ANd it will likewise invite Sen. Trillanes to shed light on the matter. If you ask whats my
personal opinion about this... If you're in doubt, what is the safest course of action to take?-‐-‐give the benefit
of the doubt. The presumption is always in favor of good faith. If things exist equally on the balance, evidence
wise, you give the presumption in favor of positive things. So the presumption is in favor of the justices so far.

Alright, discharge, Sec. 12. When we believe that the property was improperly seized or attached-‐-‐or if we
want our property to be given back-‐-‐the remedy is for the lifting of the writ of attachment. That lifting of the
writ of attachment is called 'discharge of a writ of attachment.' What will the defendant do if he wants the
WOA to be discharged? You will have to file a motion to lift/bar/discharge the writ of preliminary attachment.
What shall be alleged or what are the grounds to lift the WOA? [Answer]: I told you this last saturday: one,
when the ground relied upon by the court is not those listed under Sec.1Rule57. We call that improvident
issuance of the WOA. That adjective improvident, was encountered by us when we were taking up
arraignment during our criminal procedure. If the accused made at once plea of guilt, we call that improvident
plea of guilt. It simply means that the same was made without the benefit of intelligent decision. So if the
court haphazardly granted the WOA, and the ground is not among those included in Sec.1, then there was an
improvident granting of the WOA. So the movant here will have to state in his motion the ground relied upon.
Another ground for the lifting is when the attachment bond issued is insufficient. Once again, how much is the
bond we have to post? [Answer]: At least equivalent to the subject obligation or the subject of the claimed. If
the property is P4M, then the bond must be P4M. If the property sought to be attached is P10M, the applicant
cannot just post P3M or P5M. If that is the case, the defendant will have a cause or reason to seek the lifting
because the attachment bond was insufficient. But if it is the insufficiency of the bond that the movant is
concerned with, may the court be empowered to direct the applicant an additional bond? The answer is yes.
That lies within the discretion of the court. If the court believes that all the matter can be solved by simply
directing the applicant or the plaintiff to put up an additional bond, then the court can do that. If there is a
motion to discharge, is there a need to subject the same for hearing? Yes-‐-‐all the time! I am very emphatic on
this because there are plenty of judges who are administratively sanctioned because of this. The judge was
hasty in lifting the WOA without conducting the requisite hearing. You should be very alert on this when there
is a motion to discharge the attachment bond, whenever there is a petiotion for bail, where the penalty is
afflictive, always there has to be a requisite of hearing. Failure to conduct this hearing is a ground for
administrative disciplinary sanctions.

Alright, Sec.13, discharge of attachment on other grounds. What could be this other grounds? If there are
other grounds aside from writ was improperly issued and the bond was insufficient, then the court has to
likewise set this for hearing. What are these other grounds? [Answer]: The attachment is, for one, excessive.
What do you mean by that? Well, the subject of the obligation, let say, is P5M, but what is the amount of the
property attached?-‐-‐P10M. There could be a partial discharge of the WOA up to P5M because we have to see
to it that the amount originally claimed is attached. So if the attachment is excessive, there must be a
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discharge of the excess. Will the court be expected to immediately discharge upon a mere showing that
indeed the attachment was excessive? No, the other side, particularly the applicant, shall have his day in
court-‐-‐he will be asked for his comment, he will be allowed to submit his affidavit of the matter.

Alright, Sec.14. We encounter again this 3rd person. Is it not that under Rule 39, we refer to the remedy of
terceria, or the third-‐part claimant. The same third-‐party claimant is now again present under the Rule57.
Under Rule39, we have learned that if the sheriff, in the course of his execution, suddenly finds himself being
opposed by a 3rd person who claims that he is the owner, what will the sheriff do? We learned that the sheriff
will have to stop and go back to the court and inform the latter about this claim of this 3rd person. ANd then
what will happen? The plaintiff shall be obligated to put up an indemnity bond. That indemnity bond is
intended to protect the sheriff from possible liability if it is shown later that he erroneously executed the writ
of execution-‐-‐if we are talking of Rule39. Now under Rule 57, the same principle applies. If the sheriff, while in
the process of attaching the properties of the defendant, again encounters a 3rd person, the sheriff will have
to entertain the claim of the 3rd person if the latter executes an affidavit of title. Affidavit of title where the
claimant states therein the basis of his right. What will the court do? The court may entertain that particular
claim of the 3rd person in the same case or the 3rd person, just like under Rule39, may opt to prosecute his
claim in a different independent action. it is in that independent action where he could likewise vindicate his
claim.

Alright, Sec.15 already speaks of a scenario where the preliminary attachment will now becomes a final
attachment. It becomes a final attachment if the applicant, for the issuance of the WOPA, finally secures a
judgment in his favor. Ibig sabihin, nanalo na siya. If that is the situation, the property that is attached may
now be used to satisfy the judgment. How is it satisfied? Again we have to correlate this with Rule39. We
studied under Rule39 that the sheriff will satisfy the judgment by: first, he must give a notice to the losing
party and then ask the latter to pay-‐-‐give the latter an opportunity to pay. The losing litigant, we said, may pay
either in cash or in check. This payment shall be delivered to the clerk of court. If the defendant does not make
any or does not make the option known, then the sheriff may proceed to attach first personal properties, and
latter on, followed by real properties. After which, if nothing is still heard from the losing litigant, set the
property for public auction. If no personal property is available for the sheriff's seizure, for purposes of the
execution, what shall be ran after by the sheriff? [Answer]: The real properties. Is the sheriff correct in
proceeding immediately against the real property? No, there has to be, first, a showing that the personal
properties were exhausted. So the same process is repeated under Sec15. But look at paragraph (b). Of course
in paragraph (a), we have to give priority, as usual, to the perishable properties that were attached. Under
paragraph (b), the law speaks of a remaining balance. It is important to correlate this with your rule on
partition. If the property to be sub-‐divided is the object of eventual disagreement among the co-‐owners, then
the remedy of the court is to eventually sell the property. But that part which is more that enough to cover the
claim of one co-‐owner shall be given to the others. The same thing is true if there is a balance after the selling
of the property. To whom shall the balance go if there is an excess? Of course it shall go back to the judgment
obligor as we have learned under Rule39. If it is an attachment we are talking of, the judgment obligor is the
party whose property is attached. The sheriff is duty bound to submit his return. What is return again? It is a
report. A report to the court informing the latter as to what happened after the attachment. Under Rule39,
what is the timeline for the sheriff? 30 days. But in attachment, what is the period given to the sheriff within
which to submit to the court the results of the attachment? It must be within a period of 10 days.

So, Sec.16 is subsumed. Remember this all the time, just like in execution, if there is an excess, always, such
excess, must be delivered to the judgment obligor. The same thing is true when it comes to your attachment.

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Now, we go to Sec.17. We said that one of the ways of lifting the WOPA is to put up a counter-‐bond-‐-‐counter-‐
bond posted by the judgment obligor or the person whose property was attached. If the counter bond was put
up by the defending party, and the court approved such counter bond. And which reason of such approval, the
court lifted or discharged the WOPA, that counter bond shall continue to bind the defendant. That counter
bond shall continue to exist in favor of the attaching party or the plaintiff. The counter bond is intended to
answer for whatever judgment that the court may eventually issue. So pwedeng later on, the sheriff, if the
plaintiff won the case, will not go out and look for properties that could be seized because the counter bond
could now be given to the plaintiff by way of satisfying the judgment. Of course, there is no more preliminary
attachment to speak of because the court has already lifted or discharged the preliminary attachment. But
what if the court did not lift the WOPA and the property just remained there in custodia legis? That property
will be used to satisfy the judgment. In which case, what happens to the WOPA? That will become a final
attachment. Note that when we reach injunction, your preliminary injunction could likewise have the
possibility of ripening to a final or permanent injunction.

Okay, we go back to the case of Mayor Binay. What did the CA do initially? It issued a Temporary Restraining
Order. The objective of a TRO is to preserve the status quo. Whatever it is that i told you before, when i
discussed this for the first time, and whatever it is that i will be telling you tonight concerning injunction,
should be read later on in conjunction with the upcoming decision of the SC. The oral arguments started this
morning. So you can hope that pretty soon, the SC will submit a decision discussing the things that we are
learning today:
• What is a TRO? What is its purpose?
• What precedes the issuance of a WTI? Which is the TRO. The TRO comes first
• The TRO gives the court the opportunity to study whether or not a writ of preliminary injunction shall be
issued.
• Requisites of a preliminary injunction?
• Existence of a legal right
• Threatened act
• Irreparable injury
The SC is expected to discuss these 3 requisites. Alright, we go back to preliminary attachment. So your PA can
ripen into a final attachment. But we only speak of final attachment after judgment has been rendered. And
after such judgment has become final and executory. If the court, during the proceedings, opted or was
persuaded to lift the writ of preliminary attachment, what is remaining security for the plaintiff?-‐-‐the counter
bond. The writ of attachment is intended to secure the winning litigant. The winning litigant could either be
the plaintiff or the defendant. But almost always, a writ of attachment is prayed for the plaintiff. When can
again he do that? At the commencement of the action or at any time before judgment. But you have to
remind yourself that this WOA is likewise available to the defendant with respect to his counterclaim. Note
this very well, writ of preliminary attachment is not exclusive to the plaintiff. It is also available to the
defendant.

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Alright, Sec.19. The plaintiff applied for a WOPA and he was able to convince the court. But eventually at the
end, the plaintiff lost the case. What will happen to the attached properties? Under Sec.19 it shall be delivered
back, all the proceeds of the sale, all the money collected or received by the sheriff under the order of
attachment shall be delivered to the party against whom the attachment was issued. What if the case took 5
years to finish, and allthewhile, the attached properties were with the court under custodia legis? Will the
winning party be entitled to damages?Damages are given on the basis of primarily bad faith. Damages are
awarded because of the preposition that there was bad faith. Was there bad faith when the preliminary
attachment was issued? Obviously, none! It was a usual judicial course. And besides, an attachment bond was
issued by the plaintiff-‐applicant. What did we say before? The attachment bond is intended to answer for
whatever damages the losing litigant may suffer, or when eventually, or finally, the court relieves that such
attachment should not have been issued. So its just a matter of returning back what has been attached-‐-‐no
interest, no damages-‐-‐because of the attachment bond.But you have to correlate this with Sec.20. Claim for
damages on account of improper, irregular, or excessive attachment. Now, there is only one person who is
involved here-‐-‐the sheriff. This presupposes that the attention of the court was never called because if the
attention of the court was called concerning these excessive attachment, then there is no need for the
application of Sec.20.

Are there properties exempt from attachment? Yes! Just like the same properties that are exempt from
execution under Rule39. There is this remark that Attachment is the cousin of Execution. It is just that
Attachment is indeed a very harsh remedy because there is no judgment yet. And yet, the properties are
already seized.

What is the lifetime of a writ of preliminary attachment? This is a very good question because under Rule39,
what did we learn concerning the right to execute judgment? We can have it executed upon mere motion
upon 5 years from receipt of final judgment. And if the 5 year period has already lapsed, we have 10 years
within which to revive the action. We said that your TRO is good for 20 days if issued by the RTC, 60 days if
issued by the CA, and indefinite if issued by the SC. Your preliminary injunction is indefinite until dissolved or
lifted. Now your writ of attachment is good until, according to one case (Chusuy v. CA), the debt is paid. In
short, WOA does not expire. It is good until the obligation is paid. Your warrant of arrest, in your criminal
procedure, what is its duration? No fixed lifetime, but search warrant is strictly 10 days (however it is alive
indefinitely).

PRELIMINARY INJUNCTION

Still on TRO. May we go back on the process. We said if there is an urgency, there is a need to tie the hands of
the parties, there is a need to preserve the status quo, ask the court for the issuance of a TRO. We said that
the regular court can issue a TRO. And that presupposes that the case was regularly raffled among the sitting
judges. But if the matter is so urgent, and the matter has to be attended to prior to raffle, because it is
extremely urgent, the executive judge of the whole multi sala court station, has the authority to issue a 72-‐
hour TRO. This kind of TRO is available or issuable only by the executive judge. This 72hr TRO shall be
deducted from the 20 day lifetime of your regular TRO. Your 72hr TRO is only available in case of extreme
urgency and such is scuffled by the possibility of an irreparable injury. May a TRO be issued ex parte? The
answer is yes, just like your attachment. This is a judgment calls for the exercise of judicial discretion. May a
TRO be issued with notice? Yes! But your writ of preliminary injunction is always with notice. It can never be

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issued ex parte. A writ of preliminary injunction that is issued ex parte is a void WPI. It gives rise to grounds for
administrative sanctions against the judge. What does the court do within the 20 day period? The court will
have to conduct a summary hearing for the purpose of determining whether a writ of preliminary injunction
shall be issued. Why, what is the lifetime of your WTI? It is indefinite. In other words, it is good until dissolved
or lifted. However, note that there is an administrative circular issued by the SC, enjoining judges to dispose of
the case in its entirety not later than 6 months if a WPI was issued. What is the rationale for that? In order to
avoid judicial abuse. In what sense? Because the court may use that as a reason not to attend to a case.

What if within the 20 day period, the court resolved not to issue a WPI, what happens to the TRO issued? It
becomes vacated. We go back again to the TRO issued by the CA 6th division. Diba the CA issued a TRO good
for 60 days. But during the hearing, the 6th division issued another resolution, this time, granting a WPI. We
said that the duration of which is indefinite. It is good until it is dissolved. But we reverse that, lets modify the
situation. What if the CA 6th division instead of issuing a WPI, denied the same, what happens to the TRO? It
becomes vacated by operation of law. We need not wait for the expiration date of 60 days. We said that the
TRO is good for 20 days, now, is it none extendable? Generally, yes. And that seems to be the prevailing legal
ground. None extendable ung TRO. But in one exceptional case, the SC allowed an extension upon motion of
the parties and provided for, according to the SC, reduced their motion into writing. And in that particular
case, the circumstances were unique. The parties told the court that they need more time to preserve the
status quo because they are arranging the possibility of an amicable settlement. So if only for that reason, it
seems that the answer is yes, we can ask the court for such extension. So long as the parties moved for such
an extension; if the parties reduced that into writing so that they would not blame the court later; and,
number 3, for that very objective of possibly settling the case amicably.

Just like your preliminary attachment, your WPI has been described as a harsh remedy. It simply tells us that
as much as possible, the issuance of the WPI is the exception. In other words, it is more often that the courts
do not issue a WPI because the requirements are stringent. It is the burden of the applicant to prove that the
cardinal elements of a WPI are present. If there is a doubt on the part of the court to the existence of these 3
requisites, then the attitude of the court is to resolve against the applicant.

So, we have learned that injunction is more of an exception. Is injunction exclusive to civil cases? Injunction is
also available in criminal cases. Ow wait, i almost forgot, is attachment in criminal cases, is this allowed? Yes, it
is allowed. It is likewise available. Most of the time, it is in estafa cases. Or is it available also in reckless
imprudence resulting to death? Yes, because your WPA, take note, is available in situations where the is an
obligation arising from the 5 sources of obligation. Your WPI is also available in criminal cases. However, note
that the norm is, we cannot, as a rule, enjoin a criminal prosecution. So lets say the Department of Justice is
conducting a preliminary investigation, you cannot, as a rule, ask a court to enjoin or stop the DOJ in
proceeding with the investigation. But there are exceptions to that if the intended prosecution is actually for
persecution. Then there could be a prayer, and it is granted for preliminary injunction. If the law, subject to
the criminal case is eventually declared unconstitutional, then it could likewise be resorted to. Meaning a WPI
is likewise proper. If an ordinance has been declared invalid, injunction is likewise proper. Among the rules
that we have already tackled, under what post-‐judgment remedy may a WPI be availed of? It is petition for
relief under Rule38. It is a post judgment remedy where judgment is already final. Your WPI is available in an
action for a petition for relief of judgment. Is WPI available in an action for annulment of judgment under
Rule47? the answer is yes. You file your petition for relief within 4 years from discovery. What are the grounds
again? Lack of jurisdiction, extrinsic fraud, and by virtue of jurisprudence, lack of due process
(Barcelona?orMarcelona? v. CA).
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May injunction, be likewise, be availed of in a petition for certiorari? In a petition for prohibition? In a petition
for mandamus? The answer is definitely.

"Think before you click"... Before coming over, i was resolving a case against Tulfo. The party complainant is a
lawyer who filed a complaint for libel. Tulfo depicted the lawyer as one who fixed the expropriation case that
the NAPOCOR filed. He said that the officers, particularly the lawyer...

Where can we enforce the WPI? If it is issued by the lower courts, it is enforceable within its territorial
jurisdiction. So lets say RTC Manila, that is enforceable only within its territorial jurisdiction. But if it is issued
by the CA or the SC, it is enforceable within the entire country. The same thing is true with your writ of habeas
corpus. If it is issued by the lower courts, that is only enforceable within the territorial jurisdiction of the
issuing court. But if it is issued by the 2 higher courts, that is enforceable nationwide. That is why, right now,
with respect to family court cases involving custody of minors, the better thing to do now, is file them directly
to the CA because the minor has the possibility of being brought to one place to another. By the way, still
speaking of jurisdiction, note that petitions for habeas corpus, certiorari, mandamus, and prohibition are
concurrent with the SC and the CA. So is your petition for issuance of writs of habeas data, and amparo. The
SC as well as the CA and the RTC have original jurisdiction.

We have discussed repeatedly your concept of irreparable injury. The best way to remember it is... it is
irreparable if the same is beyond quantification, beyond mathematical computation. In other words, it cannot
be converted in a particular amount.

If a WPI has been issued, is the remedy of the party against whom it is issued similar to those that are
available in the issuance of WPA? We recall, what are the grounds again for the discharge of WPA? [Answer]:
Improvident issuance, attachment bond was insufficient. Are these grounds similar to the dissolution of WPI?
The answer is yes. The party whom the writ was issued may likewise ask the court to lift the preliminary
injunction if: one, there was no injunction ground; two, the ground relied upon is arbitrary (arbitrary when the
requisites are absent).

Okay, your WPA must be served together with the complaint, summons, and writ itself, the order granting the
writ. What if there is a WPI? Your WPI is preceded by TRO. The prevailing practice is that if a TRO is issued, the
same, like a WPA, shall likewise be accompanied by the complaint, summons, order granting the TRO, and the
order itself. These two must be simultaneously served to the adverse party.

What is the bond for in a WPI? Just like what we learned in your WPA, this is intended to answer for whatever
damages the other party may suffer in the event that the court finds out that it should not have issued the
WPI. What is the extent of the bond? The same rule in attachment, it should be at least equivalent to the
amount subject to the case. What if the bond is not posted, what could be the effect? The application for WPI

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shall be considered abandoned. One of the things i have to emphasize is the fact that your writ of injunction is
not solely a provisional remedy. It could also be a complaint/cause of action in itself. This is illustrated when
the objective of the plaintiff is to see to it that this person or defendant is prohibited from committing an act.

There are two kinds of injunction: one, prohibitory or to stop an act; the other is mandatory, in which case, we
ask the defendant to perform.

In an ejectment suit, we will see later under Rule70 that the 1st level court is empowered to issue a WPI. This
injunction is mandatory. And this is illustrated when the defendant, for instance starts to construct or
introduce improvements within the premises where he is sought to be ejected from. In this case, the court can
ask the defendant to stop, or rather, to undo the fence he has already constructed. In which case, the
injunction here is mandatory. The defendant is being made to perform an act.

RECEIVERSHIP

Who is a receiver? When is a receiver needed? When is it necessary? A receiver is somebody who is
disinterested in the property or the subject of the case. Disinterested in the sense that he is not at all biased in
favor of one of the litigants Disinterested that he is not related at all to any of the litigants. Related in a sense
that it could be by blood, it could be a relation by consanguinity, it could be a relation professionally or
academically.

What is the purpose of a receiver? He is there to see to it that the property subject of the litigation is not
dissipated, diminished or wasted. In other words, he is there presumably to see to it that the property is
preserved.

When is the appointment of a receiver warranted? It is warranted when one of the litigants appear to be not
taking care of the property, appear to be exposing such property to danger.

When may the appointment of a receiver be made? This is a provisional remedy, take note. It can be made
anytime at the commencement of the action or before the issuance of the judgment.
Is your receiver similar to a guardian? What is the function of the guardian? Is he not there to protect likewise
the interest of the ward? The guardian is there to protect the interest of the ward. As a matter of fact, when is
a guardian needed again, if we are dealing with a minor? The guardian is different from a receiver because
your receiver is there simply to protect the property. Your guardian is there to protect the ward. But almost
always, they are similar in the sense that both of them should not be, or should not have been convicted in a
crime involving moral turpitude. That is not difficult to imagine because something is entrusted to them. They
were chosen because presumably they could be relied upon, they are trustworthy. From whom shall the court
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select a receiver? The judge must select from a list or suggestions from the litigants themselves. Ordinarily, on
your rule on guardianship, the court cannot simply appoint a person to act as a guardian. But the court can
immediately appoint somebody to act as a guardian ad litem. There is a difference between a regularly
appointed guardian and a guardian ad litem. A regularly appointed guardian comes in after the usual petition
for guardianship. In other words, the objective of that petition is to see the fitness of that person to act as a
guardian, and nothing more. But in your guardian ad litem, the court acts because there is something urgent.
The duration, in a regular guardianship, is long-‐-‐usually characterized as permanence. But your guardian ad
litem is merely temporary. The court acted in a pro hac vice capacity. Your receiver, as i told you, is selected
from a list of nominees of the litigants. The plaintiffs will have a set of his own, the defendants will have a set
of his own. And then it is up to the court to select from the list of nominees.

Before a receiver could be appointed, it is necessary that it puts up a bond. We need a bond when it comes to
attachment, we need a bond when it comes to execution, particularly when the sheriff is about to seize a
property, we need a bond when it comes to preliminary injunction, we need a bond when it comes to replivin,
we again need a bond when it comes to

Okay, Replivin! But before we continue or start with replivin, recall again the basic provisions on Attachment. I
told you that before. Your Attachment as we said, repeatedly, is the cousin of your Writ of Execution under
Rule 39. Your Attachment involves seizure—and what is being seized here could either be personal and real
property. What could be attached is real or personal property. But in replivin, what is important to remember
all the time is what is being seized is only personal property.

In your Attachment, most of the time the subject of the writ is a property that belongs to the defendant. But
remember that I told you likewse that your Attachment is not exclusive to the defendant. Even the property of
the plaintiff, in the event of a counter-‐claim, could likewise be the subject of attachment. In your Replivin suit,
on the other hand, the property is belonging to the defendant.

Another thing to remember is that in your Attachment there is no specific bond. This is solely addressed to the
sound discretion of the court. The same thing is true when it comes to your injunction. But when it comes to
Replivin, the rules require that the bond should be posted is at least double the value of the property. The
value of the bond to be posted under your Rule 60 should be twice the value of the property. And we said that
this value of the property could be seen from the affidavit of merit that the plaintiff has to attach to his
complaint.

Did I tell you before that the court is not at all bound by what is stated in his Affidavit of Merit? Meaning, that
court is free to inquire whether the value of the property stated in the affidavit is indeed the actual value. We
the courts, for instance, ask property bidders, bank officials, and car dealers if what is stated by the applicant
is reliable or accurate.

The owner of the property sought to be Replivin is the plaintiff. In Attachment, one of the manner through
which the lifting of the attachment bond can be made by means of filing a counter bond. We can do the same
thing in Replivin. Meaning, we can ask the court to redeliver the property to the person from whome the same
was Replivin by posting a counter bond. We call that a “redelivery bond.” But there is a period to be observed
whenever the defendant would like the property to be redelivered back to him. The attempt to have the
property redelivered must be made not later than 5 days from seizure of the property.

What is the first thing that an applicant for Replivin must allege in his complain? That he or she is the owner of
the property sought to be replivin. And what justifies the owner’s attempt to get back the property? That the
property was unjustly taken or was unjustly been detained.

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May a property that is the object of a court order/custodia legis be the object of Replivin? We answered that
before when we were taking up Attachment. We said that if the properties under custodia legis, there’s no
way that you can have that attached. But there’s nothing that prevents the sheriff from receiving a writ of
constructive attachment. How does a sheriff do that? He can do it by simply giving a copy of the writ of
attachment to the officer or employee who is having custody of the property sought to be attached—or in this
case, sought to be replivin. And then that writ shall be left to that particular employee or officer. And then a
return of report shall be made by the sheriff to the effect that he was not able to take the property because it
was under custodia legis but the writ was left to the person having custody of the same. So in short, there is
constructive implementation of the writ. We repeat, while there is no physical taking of the property, there is,
for all legal intents and purposes, an effective implementation of the writ. How is it done? We repeat, by
simply leaving a copy of the order granting the application for the issuance of the writ and the writ itself. If
that is signed by the custodian, then that’s it. For all legal intents and purposes, the writ is served or
implemented.

Now, we said that your Attachment can be availed of both by the plaintiff and the defendant—the defendant
if he has a counter-‐claim. In your Replivin, may I correct my stand earlier. The same thing can likewise be
availed of by the defendant if he has a counter-‐claim. You have to refresh your minds again to the two kinds of
counter-‐claim. One is compulsory, the other one is permissive. Another thing to remember in Replivin is the
subject matter of the writ is personal property.

What if there is a conflicting claim of ownership after the filing of the suit for Replivin? If you were diligent
enough in going out over the assigned rules, you may have reached the rule on Interpleader. If there are two
conflicting claimants, what is that remedy of the person caught in the middle? For him to file a complaint for
Interpleader—forcing the two conflicting claimants to resolve the matter among themselves with the
assistance of the court. But if, such conflicting claims of ownership arises during the pendency of a Replivin
suit, there is no need to file a separate case for Interpleader. That conflicting claim can now be resolved in the
same case of Replivin.

Did I assign to you cases on Replivin? Okay, again, we go back to Rule 39. We said before, what if in the middle
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of the execution or implementation of the writ, a 3 person appears. We call it terceria. The same thing, again
could arise during the implementation of a writ of replivin. The sheriff is about to replivin or take back the
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property, when oppps, a 3 person appears and says, “I am the owner of this property.” What we have
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learned under Rule 39, when it comes to 3 party claims, you still apply in Replivin. The same thing will also
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apply in the rule on Attachment. What will the sheriff do if there is a 3 party claimant? The sheriff will have
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to pause for a while, go back to court, submit a return, and inform the court that there is a 3 person making
an adverse claim. So what will the applicant do, meaning the plaintiff, upon receiving that report from the
sheriff? That applicant or plaintiff shall put up an indemnity bond. That indemnity bond is posted to protect
the sheriff from whatever suits or damages that may be filed against him in the event of full implementation
of the writ. After putting up the indemnity bond, the sheriff is now free to proceed with the implementation of
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the writ, notwithstanding the presence of the 3 party claimant. But will the whole thing stop there? No, the
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3 party claimant has the option to whether or not he will pursue his claim in the same case (kahit execution
stage, yes) or has the option to file an independent or separate case.

Your Replivin is in the nature of a provisional remedy. Is that the case all the time? It could be a provisional
remedy, it could be also a main action by itself—just like your Injunction. Your Injunction could be, at the same
time, a main complaint in itself or simply a provisional remedy. So if the main case is dismissed, because your
Replivin is a provisional remedy, what happens to this provisional remedy of Replivin? That provisional
remedy, just like the other provisional remedies, will likewise loss their effect. They loss their force or efficacy
upon the dismissal of the main case.

Did I assign to you the case of Campoverde[?] in Receivership? Receivership will never apply in cases where
the claim is for the sustenance or medical needs of an octogenarian [a person who is from 80-‐89 years old].
Your receivership applies in order to reserve or prevent the wastage or dissipation of all the properties subject
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to the case. But who will be appointed as the receiver? He is a 3 person who is disinterested. What did I
assign as so far as Receivership is concerned? Ah, okay Expropriation.

Very important on Expropriation. You have to recall what you have learned as basic principles on
constitutional… [sorry natakpan ng flipping paper sound ung voice ni justice]. Anyway there are two phases or
two stages in Expropriation. The first one is very important, without that the case will not proceed—the
dertermination of the purpose of the exporpriation. Because, always, it is intended for public use. So the
public character must first be assertained. But did I not tell you that, the Expropriation is not always the
remedy? That comes in only as a coercive remedy. The first thing that must be done is to make an offer to buy.
Whose offer is it? The offer is from the Government. They approach the owner, ask he or she is interested in
selling the property for a price determined by the government. If there is no problem, then fine, the ordinary
deed of sale shall be agreed upon. There is no need for Expropriation. Expropriation comes in only if the
owner refuses to sell. The government resorts to coercion because of the overriding public purpose. So what is
that case I gave you? Topacio case…

[Start of recitation]
• Atty Topacio: “Justice Ong is not qualified to be appointed because not natural born citizen”
• Topacio ordering OSG to file a quo warranto against…
o [Justice Laguilles] What is this remedy of quo warranto?
o [Answer] It is a remedy availd of if an officer does not have a clear right to hold office.
o [JL] So we’re talking about a public officer? His right to occupy a particular office. Alright, so
in this case, Atty Topacio clears that Justice Ong is not actually qualified to sit as a justice of
Sandiganbayan because according to him he is not a natural born Filipino citizen.
• Justice Ong is contending that he is currently a Filipino citizen and that his citizenship in his birth
certificate was an error.
o [JL] And because of that he is actually filling a petition for correction of an entry in his birth
certificate
• The issue in this case was whether or not the quo warranto filed by Atty Topacio is valid.
o [JL] The question is the qualification of the incumbent. The question is the “right to occupy
the seat.” What did I tell you? What is the literal meaning or translation of the phrase ‘quo
warranto?’ Answer, “BY WHAT RIGHT.” By what right are you occupying that seat. That is the
question that is profounded in a suit for quo warranto. Alright, Justice Ong said, “Hey, the
truth of the matter is that I have already filed a petition for correction of my birth certificate.
It is actually pending before the RTC.” So, did Atty Topacio succeed in convincing the OSG to
file a quo warranto suit?
o [A] No, he was not successful in convincing the OSG. The OSG must see that the best interest
of the government is limited by the law. In this case, the OSG did not see that interest and
that they could not wait for the decision of the RTC.
• The main issue regarding quo warranto is that… The SC said that the quo warranto filed by Atty
Topacio will is unmeritorious because a quo warranto may not be assailed collaterally. It must be a
direct attack to the clear right of the officer.
o [JL] So what we’re saying here is that, if we’re trying to question the qualifications of the
incumbent, we must see to it that we have a main case. And that main case is the quo
warranto action. We cannot make it a sub-‐issue or a secondary topic in a particular action. If
you’re doing that, it is as if you’re saying that you’re doing it collaterally. What is needed is
that there must be a direct action or a direct attack. Just like your TCT, as you may have
learned in your Property. You have learned that if you want to attack a title you must file a
drect action in court annulling that title. You cannot raise that in an action to recover
possession because to do so would be allowing a collateral attack. So a quo warranto suit
must be a direct suit. Meaning, it is for that purpose alone that you are filing this particular
suit. Your main objective is to attack the qualifications of the incumbent.

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• It says here that the proper remedy is to seek for the nullification of the appointment rather than a
quo warranto.
o [JL] How do we differentiate a quo warranto remedy from that of an election protest?
o [A] A quo warranto may be availed of in an election case if the officer is already assumed and
proclaimed in the office by the board of canvassers.
o [JL] But what if the concern of the complainant is the conduct of the elections?
o [A] The proper remedy is an election protest.
[End of recitation]

What other cases? I am giving you now the option to choose a case. Vellarde case, Declaratory relief. That is a
very good case. What is SJS? Are you referring to “THE” Mike Velarde? Who was the judge there? She was the
judge of RTC Manila. But she’s not there anymore. She has already retired. Okay, we are now in Declaratory
Relief which is a very important provision also. Take note class that this particular rule has two parts. The first
part deals with procedural. If we are dealing with the procedural process, we are concerned with—what are
the objects there again—D,W,C,I. So what is this process or aspect of your Declaratory Relief?
• [Sorry sobrang hina nung boses. Wala ako marinig sa nag rerecite]
• [My digest]
o Brother Mariano “Mike” Velarde v. Social Justice Society
Facts:
SJS, a political party, filed a Petetition for Declaratory Relief against Velarde and his co-‐
respondents. SJS sought the interpretation of the constitutional provision on the separation
of church and state; and a declaratory judgment on the constitutionality of the acts of
religious leaders endorsing a candidate for an elective office, or urging or requiring the
members of their flock to vote for a specific candidate. Respondents sought the dismissal of
the Petition on the ground that it does not state a cause of action and that there is no
justiciable controversy. However, the court a quo opined that the endorsement of specific
candidates in an election to any public office is a clear violation of the separation clause
thus the Declaratory Relief was granted. The Decision did not contain a statement of facts
and a dispositive portion. This prompted Velarde to file a Clarificatory Motion and a Motion
for Reconsideration. In response, the trial court denied it and issued an Order claiming that
the Decision did not make a dispositive portion because a dispositive portion is required only
in coercive reliefs.
Issue:
Whether or not the issuance of the Declaratory Relief is proper.
Held:
An acion for Declaratory Relief should be filed by a person interested under a deed, a will, a
contract or other witten instrument, and whose rights are affected by a statute, an
executive order, a regulation or an ordinance. The purpose of the remedy is to interpret or
to determine the validity of the written instrument and to seek a judicial declaration of the
parties’ rights or duties thereunder. The essential requisites of the action are as follows: (1)
there is a justiciable controversy; (2) the controversy is between persons whose interests are
adverse; (3) the party seeking the relief has a legal interest in the controversy; and (4) the
issue is ripe for judicial determination. SJS premised its action on mere speculations,
contigent events, and hypothetical issues that had not yet ripen into an actual controversy. A
justiciable controversy is an existing case or controversy that is appropriate or ripe for
judicial determination, not one that is conjectural or merely anticipatory. SJS Petition for
Declaratory Relief fell short of this test. It miserably failed to allege an existing controversy
or dispute between the petitioner and the respondents therein. Futher, the Petition did not
sufficiently state what specific legal right of the petitioner was violated. SJS merely
speculated or anticipated without factual moorings that, as religious leaders, the petitiouner
and his co-‐respondents below had endorsed or threatened to endorse a candidate or
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candidates for elective offices. It does not suffice to constitute a justiciable controversy. It
merely sought an opinion of the trial court on whether the speculated acts of religious
leaders endorsing elective candidates for political offices violated the constitutional principle
on the separation of church and state. SJS did not ask for a declaration of its rights and
duties.
• [JL] Before what court can we file a petition for Declaratory Relief? Only the Regional Trial Court.
Exclusively the RTC. Did you notice, we have several cases where the SC is saying that the RTC could
have concurrent or shared jurisdiction but not in this case. Your Declaratory Relief is exclusively
cognizable in the RTC. Alright, continue.
• [JL] So lets make this clear, class. Do you ever wonder why Mike Velarde and co. were the
respondents in this case? Because during those times every election, members of the el shaddai were
forced to contend politicaly. Meaning they have reached a point where they could really deliver the
votes just like Iglesia ni Cristo. So naturally, the local candidates will be going to the offices of Mike
Velarde. And Mike Velarde et al would, often times, endorse or make public announcements as to
who they are supporting. And then this group, the SJS wanted a judicial declaration whether or not
Mike Velarde et al, under the concept of the separation of Church and State, could validly make
political endorsements. So they filed a petioton before the RTC of Manila seeking that judgment.
• [JL] One of the phrases you have mentioned is justiciable controversy. Is it not that it is required
before a petition for Declaratory Relief could be filed? That is required! As a matter of fact, that is one
of the elements that one has to look for before this remedy could be availed of. What do you mean
by that? You say it is anticipatory because we want to prevent something. Gusto natin ipatigil na jan
bago pa lumaki. It is an anticipatory relief. The courts or the parties to this petition are expecting that
a bigger spark could be there before their eyes. Thus, they are seeking the prevention of the court in
order to put a stop to this controversy. Alright, so in this case, Villanueva et al filed for the dismissal
of the petition because… Wait, what were the grounds for dismissal? Their argument is that there
was no cause of action and that there was no justiciable controversy.
• [JL] Did you notice how the court quoted extensively the decision of the RTC?... But quoted it in what
manner? Was the SC ingressed as to how the RTC wrote its decision? No, not at all. As a matter of
fact, the court, if you observed was a bit sarcastic. Did you notice that?
• [JL] Okay, who is the ponente again in that decision? It was Chief Justice Panganiban. Alright, in that
decision of CJ, he took time to outline again the basic framework with respect to the development of
the civil case. He took time to start everything, in so far as the civil case is concerned, with the
existence of a cause of action down the line. Why is it necessary for him to do that as far as
Declaratory Relief is concerned?
o [Trying my best to hear it. Sorry kung walang sense] Answer: In this case, the court said that
SJS has no legal standing/interest in filing the provision. So the petition for Declaratory Relief
is invalid because it must be filed by any person who is interested under an instrument or his
rights were affected by a statute, eo, and ordinance. So the court outlined the procedure
that must be followed because, in this case, the judge did not include the dispositive portion
in his decision.
[End of recitation]

Who would like to recite on the second case? SJS. This is a very good case for Declaratory Relief. The SC
outlined the propriety of that action.

• They filed a petition for Declaratory Relief…
o [JL] Because?
o [A] Because the SJS were questioning the acts of petitioners violate the doctrine of
separation of church and state.
o [JL] They want the court to make a declaration whether or not the act of indorsing certain
politicians violate the constitutional doctrine of separation of church and state

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• Velarde et al filed a motion to dismiss contending that there was no cause of action and there is no
justiciable controversy.
o [JL] When do we say that the Petitioner has no cause of action?
o [A] There’s no cause of action when there is no violation of right, no damage to such right
sustained by the plaintiff
o [JL] So Velarde was saying “ano ang personality ninyo para ma file ang kasong ito?” And that
motion to dismiss was denied. The petitioner filed a motion for reconsideration. But that too
was denied. We can file MR within 15 days from receipt of adverse order or resolution. And
what happened next? Is a motion to dismiss a responsive pleading?
o [A] No ma’am.
o [JL] No it is not. A motion to dismiss is not an answer. It is not a responsive pleading. So if a
motion to dismiss is denied, what is the remedy of the defendant?
o [A] He has to file his answer.
o [JL] Do not forget that. And then what happened next?
o [A] They filed a petition for certiorari under Rule 45 because it was a pure question of the
law.
o [JL] Did you notice that they skipped the CA? Becase they were raising a pure question of
law. What did we say before in Rule 45? The SC entertains that if what is brought before it is
a manner that is purely of law. Okay, so what happened?
o [A] The petitioners were questioning the validity of the Declaratory Relief. The court ruled
that: no, the petition for Declaratory Relief did not raise a justiciable controversy because
the SJS failed to allege the legal right. As regards cause of action, the court ruled that the
elements of cause of action should not be applied in Declaratory Relief because a petition
for Declaratory Relief presupposes that there has been no actual breach of rights. The court
said that the breach of violation should be impending or imminent.
o [JL] Impending or imminent; what do you mean? It is about to take place, correct? Yes, it is
about to take place. That is why we call it justiciable controversy. It is something that the
courts could validly entertain because the possibility of litigation is already there. Was there
already a violation of one’s right? No, there is no violation yet of one’s right. What happens
if, during the pendency of the action for Declaratory Relief, a right was violated? The action
for Declaratory Relief ceases. It is automatically converted into an ordinary action. Does that
mean that this remedy is an anticipatory remedy?
o [A] Yes ma’am. It seeks to prevent the violation of one’s right.
o [JL] Do you agree that it is intended to put an end to a controversy? Yes! It seeks to put an
end to a controversy. Do you agree, therefore, that it is a pacifying function? When we say
pacifying function, the purpose is to stop the parties because the parties are pacified. So,
what happened after the denial of the MR? What did the SC say? Alright, you recall what we
have learned under the Rule on Judgment. There is a basic constitutional provision as to how
a judgment or decision should appear. What did Justice Panganiban say?
o [A] [sorry sobrang hina talaga ng boses] clearly, distinctly identify the facts and the law on
which it is based. The judge, in denying the Motion to Dismiss, did not state the reason.
o [JL] Alright, there was no dispositive portion. Okay, we go back to what we learned in
Judgment. What is that dispositive portion? Why is it important that a decision must have
this? The dispositive portion immediately gives the reader. And later on, the sheriff will
implement the decision—the long and short of the judgment. Ibig sabihin, by simply looking
at the dispositive portion, the reader knows immediately what is the result of the litigation.
Here the judge did not have a dispositive portion. She merely ended her decision by saying
“So ordered.” Okay, what did the SC say? Oh, this reminds me again. What is the rule when
there is a conflict between the dispositive portion and the judgment itself? As a general rule,
the decision or the body will prevail.
o [JL] Okay, your petition for Declaratory Relief, while an anticipatory remedy, must likewise
follow the procedure prescribed for an ordinary civil case. As outlined by Justice Panganiban,
what is that?
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[2b: batch 2013][CIV PRO REVIEWER JUSTICE LAGUILESS] 1

o [A *taken from the case*]

§ The trial court may—motu proprio or upon motion of the defendant—dismiss a
complaint that does not allege the plaintiff’s cause or causes of action. A complaint
or petition should contain “a plain, concise and direct statement of the ultimate
facts on which the party pleading relies for his claim or defense. It should likewise
clearly specify the relief sought. Upon the filing of the complaint/petition and the
payment of the requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants or the respondents, with a directive
that the defendant answer within 15 days, unless a different period is fixed by the
court. The summons shall also contain a notice that if such answer is not filed, the
plaintiffs/petitioners shall take a judgment by default and may be granted the relief
applied for. The court, however, may—upon such terms as may be just—allow an
answer to be filed after the time fixed by the Rules. If the answer sets forth a
counterclaim or cross-‐claim, it must be answered within ten (10) days from service.
A reply may be filed within ten (10) days from service of the pleading responded to.
When an answer fails to tender an issue or admits the material allegations of the
adverse party’s pleading, the court may, on motion of that party, direct judgment
on such pleading (except in actions for declaration of nullity or annulment of
marriage or for legal separation). Meanwhile, a party seeking to recover upon a
claim, a counterclaim or crossclaim—or to obtain a declaratory relief—may, at any
time a fter the answer thereto has been served, move for a summary judgment in its
favor. Similarly, a party against whom a claim, a counterclaim or crossclaim is
asserted—or a declaratory relief sought—may, at any time, move for a summary
judgment in its favor. After the motion is heard, the judgment sought shall be
rendered forthwith if there is a showing that, except as to the amount of damages,
there is no genuine issue as to any material fact; and that the moving party is
entitled to a judgment as a matter of law. Within the time for·∙but before·∙filing the
answer to the complaint or petition, the defendant may file a motion to dismiss
based on any of the grounds stated in Section 1 of Rule 16 of the Rules of Court.

During the hearing of the motion, the parties shall submit their arguments on the
questions of law, and their evidence on the questions of fact. After the hearing, the
court may dismiss the action or claim, deny the motion, or order the amendment of
the pleadings. It shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable. In every case, the resolution shall state
clearly and distinctly the reasons therefor. If the motion is denied, the movant may
file an answer within the balance of the period originally prescribed to file an
answer, but not less than five (5) days in any event, computed from the receipt of
the notice of the denial. If the pleading is ordered to be amended, the defendant
shall file an answer within fifteen (15) days, counted from the service of the
amended pleading, unless the court provides a longer period. After the last pleading

has been served and filed, the case shall be set for pretrial, which is a mandatory
proceeding. A plaintiff’s/petitioner’s (or its duly authorized representative’s) non-‐
appearance at the pretrial, if without valid cause, shall result in the dismissal of the
action with prejudice, unless the court orders otherwise. A similar failure on the
part of the defendant shall be a cause for allowing the plaintiff/petitioner to
present evidence ex parte and the court to render judgment on the basis thereof.

The parties are required to file their pretrial briefs; failure to do so shall have the
same effect as failure to appear at the pretrial. Upon the termination thereof, the
court shall issue an order reciting in detail the matters taken up at the conference;
the action taken on them, the amendments allowed to the pleadings; and the
agreements or admissions, if any, made by the parties’ regarding any of the matters
considered. The parties may further avail themselves of any of the modes of
discovery, if they so wish. Thereafter, the case shall be set for trial, in which the

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parties shall adduce their respective evidence in support of their claims and/or
defenses. By their written consent or upon the application of either party, or on its
own motion, the court may also order any or all of the issues to be referred to a
commissioner, who is to be appointed by it or to be agreed upon by the parties. The
trial or hearing before the commissioner shall proceed in all respects as it would if
held before the court. Upon the completion of such proceedings, the commissioner
shall file with the court a written report on the matters referred by the parties. The
report shall be set for hearing, after which the court shall issue an order adopting,
modifying or rejecting it in whole or in part; or recommitting it with instructions; or
requiring the parties to present further evidence before the commissioner or the
court. Finally, a judgment or final order determining the merits of the case shall be
rendered. The decision shall be in writing, personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on which it is based, signed
by the issuing magistrate, and filed with the clerk of court.
o [JL] Number one, Cause of Action. Next? Filing of the complaint. What shall be accompanied
in the complaint? Verification and [sorry pero di ko marinig (58:24)]. Next? After filing of the
complaint, summons shall be served. What happens if the summons is improperly served?
The court will not acquire jurisdiction. Next? Defendant “may” file an answer. Why “may”?
Because he has other options. Next? File an aswer, otherwise he can be declared in default.
Now, what are the remedies available if one is declared in default? FAMEN. Next? When do
we say that a pleading tenders no issue? What do we mean by that? It means that there is
no genuine issue. And so what happens if there is no genuine issue? Judgment on the
pleadins or summary judgment. What is the basic difference between the two? When we say
judgment on the pleadings, we see the non-‐existence of a genuine issue from the pleadings.
What are these pleadings? Complaint, answer, reply, counter-‐claim… Yes, dun mo makikita
ung absence ng genuine issue. But what if such absence could be seen from admission,
depositions, affidavits? What is proper? Summary judgment! Alright, next? [inulit lang talaga
ni justice ung decision sa taas]
o [JL] May there be execution in petition for Declaratory Relief? May the judgment of the
court be executed? There is no executory process in your Declaratory Relief. In other words,
what will the court give to the parties? Merely a statement of the rights and obligations. But
these statements could not be an object of a writ of execution. There is no executory
process because this remedy is merely intended to pacify the parties. Anything you’d like to
add?
o [A] The court held that the petition for Declaratory Relief is not the proper remedy since the
petition does not involve a contract. The SJS actually alleged that they [Velarde et al] are
acting in violation of a constitutional provision. However, I did not see any ruling regarding
that matter. Another one is that the court enumerated the ideal contents of the decision.
One, it must have a statement of the case. Two, is the statement of facts. Three, issues or
assignment of errors; Four, court ruling which, as a rule, each issue must be considered
separate; and five, dispositive portion. In this case, the RTC judge merely gave the historical
background of the provision on the separation of church and state.
[End of recitation]

Before we leave Declaratory Relief, what is the other portion of the rule? The first one deals with your deed,
will, or any other written instrument. And the second portion deals with the other similar remedies. What are
the other similar remedies? Action for the reformation of an instrument, action for quieting of title to real
property or remove clouds therefrom, and action for consolidation of ownership.

Okay, expropriation. What is that? Meralco case

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• On October 29, 1974, MERALCO filed an Expropriation case against the defendants for the
construction of a transmission line over the property. The property consists of 237,321 sqm. It is
located in Pasig City. The defendants filed a Motion to Dismiss questioning Meralco’s legal existence.
They alleged that the corporate existence of Meralco expired in 1969. Also they alleged that the areas
sought to be expropriated is excessive. The court issued an order authorizing Meralco to take
possession of the property. On July 30, 1976, the defendants filed a motion to withdraw the deposit
of Meralco in the PNB for the amount of the expropriation. They said that they were entitled to be
paid P40/sqm. However, the court denied it. On October 13, 1979, Meralco sold its properties to
NAPOCOR. Meralco then filed a motion to exclude them from the case stating that it has transmitted
all its lines over the expropriation to Napocor. On Feb 1980, the court issued an order appointing
members as Commissioners for the appraisal of the properties. The powers of the commissioners are:
decide which amount of just compensation to be paid to the defendants. They also have the power to
inspect the properties. They have the power to compel the attendance of witnesses. They also the
power to hold witnesses in contempt if they refuse. The defendants filed another motion to
withdraw. The court granted it. Another motion to withdraw was filed, and was subsequently
granted. In these two motions, Meralco opposed. Then the defendants filed a motion to increase the
amount of just compensation. Then subsequently, the lower court issued a motion for execution
pending appeal thus, requiring Meralco to deposit P52M representing the consideration paid by
Napocor.
• [JL] In what circumstances may there be execution pending appeal?
• [A] First, it must be for good cause, stated in an affidavit filed with the court and after approval of the
court.
• [JL] So, what are the requisites before there could be an execution pending appeal? Asside from good
cause or reason, what else is needed? Is there a necessity for the issuance of a special order? Before
what court may there be execution pending appeal?
• [A] Before the court which hears the case before it has transmitted the records of the case or the
appellate court. [Continue with the case] Meralco filed a petition for Preliminary Injunction before
the SC seeking to enjoin the respondent judge for enforcing the order. The SC issued a TRO. Meralco
argued that respondent judge disregarded the procedure when it issued an order declaring the
amount of just compensation without appointing a Board of Commissioners. The SC held that the
appointment of at least 3 commissioners is mandatory in expropriation cases.
• [JL] Briefly, what is the procedure to be observed when it comes to filing of expropriation case?
• [A] First there must be an offer to buy the property. If the offer was declined, it would resort to other
ways of purchasing the property. If the other ways are also declined, then it would file an
expropriation case to enforce the power of eminent domain.
• [JL] What is the first stage?
• [A] Expropriation cases has two stages. First is the determination if there is a power to expropriate.
Second is the determination of justcompensation. The first should establish its authority to
expropriate. It should also establish that the property to be expropriated will be used for public
purpose. The second one is the determination of just compensation. Just compensation is the
payment for the property expropriated. Compensation does not merely mean that the amount of
payment is reasonable but also the time of payment must also be within the reasonable time.
[Contine with the case] The SC held that the applicable laws are Section 5 and 8 of Rule 67 of ROC. It
enumerated the procedure in the appointment of the Board of Commissioners and ascertaining just
compensation. The SC held that the same is mandatory and that the lower court judge committed
grave abuse of discretion when it ascertained the property on the basis of a joint venture agreement
on subdivision and housing projects which is not a proper source. The purpose of the agreement is
merely speculative. Eventhough the court may provide its own determination of just compensation,
the appointment of Board of Commissioners is still mandatory.
[End of recitation]

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Okay, any other case? Okay, we have one more on expropriation and then after that lets proceed with out
snacks. The case of Bradillon.

• Barangay Masili filed a complaint for eminent domain for the purpose of expropriating 144sqm land
owned by petitioner. The expropriation was for the purpose of the construction of the multi-‐purpose
hall. The first complaint was filed before the MTC which was dismissed for lack of interest for the
failure of the respondent and his council to appear. The second complaint was opposed by way of
Motion to Dismiss on the ground of res judicata. The RTC judge issued an order denying the MD
holding that the MTC which ordered the dismissal of the complaint had no jurisdiction over the
expropriation proceeding. On appeal, the CA dismissed the petition and held that the RTC did not
commit grave abuse of discretion. The issue is whether the MTC has jurisdiction over expropriation
cases. And whether the dismissal of that case is considered as res judicata. The SC ruled that, as
regards the jurisdiction, the petitioner here is claiming that the value of the land is only P11,448 and
so that the MTC has jurisdiction. The appellate court said that it is worth P28,960 and so the MTC
does not have jurisdiction. The ruling of the court said that the expropriation case does not involve a
recovery of a sum of money. Rather, it deals with the exercise of the government of its authority and
its right to take property for public use. As such, it is incapable of pecuniary estimation, and
therefore, it should be filed with the RTC. The court said that it is true the value of the property to be
expropriated is estimated in monetary terms for the court is duty bound to determine the just
compensation. However, the sum is only incidental to the expropriation case.
• [JL] How much should the government post before taking over the property?
• [A] At least 15% of the market value of the property sought to be expropriated.
• [JL] What if, in the end, the court states that the expropriation is unwarranted? What happens to the
defendant? He was already ousted because the government posted 15%. The defendant should be
placed back in the possession of the property. What about the assets that he lost? He shall likewise
be entitled to recover damages. Remember what we have taken up under Rule 39. What are the
remedies in case of reverse judgment? Restitution, Indemnification, Reparation for Damages, etc.
Okay, what is the ending of the Bradillon case?
• [A] As regards res judicata, the petitioner claims that…
• [JL] By the way, before we tackle res judicata, who shall be impleaded in a complaint for
expropriation? Who shall be the parties there? Is it enough that we implead the property owner?
• [A] Those who may have interest of the subject property.
• [JL] What if the government is uncertain as to the owner of the property? What is the remedy of the
government? It shall implead also the neighboring owners. Is the judgment in expropriation case in
need of an executory? Yes, with more reason! Because, you see, upon the filing of the complaint for
expropriation, the government can be authorized to enter for as long as it is able to pay 15% of the
fair market value of the property. If the judgment has been rendered in favor of the government,
with more reason that the government shall be allowed to enter and take possession of the property.
Entry and possession of the property will never be delayed by an appeal. It is immediately executory.
What are the other judgments immediately executory? Judgmentes in
I(injunction)R(receivership)A(accounting?)S(support pendente lite)!
[End of recitation]

Take note the difference between Accion Reinvindicatoria, Accion Publiciana, Accion Interdictal.

CIVPRO –MAY 12, 2015

DECLARATORY RELIEF
What is the main or principal purpose of the petition for declaratory relief? Is this as adversarial as the other
petitions that we have taken up? Or is this simply resorted to as what they call anticipatory remedy? Meaning,
the petition is intended to pacify the parties who are about to be, would be disputants. They are there about
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to engage in a legal fistfight but fortunately for this rule or petition the parties may resort to obtain some kind
of tranquilizing reading the jurisprudence of declaratory relief.

Why tranquilizing? Why anticipatory?
-‐because it is intended to pacify the parties

Why? What were the parties doing?
-‐they are about to engage themselves in a legal fight but not yet, they have that remedy.
-‐instead of binding themselves to engage in a legal kaso, they would rather have the court make a declaration
as to their RIGHTS OR OBLIGATIONS concerning the statute deed, contract, or will.
-‐instead of them going to court, because their rights have not been violated yet, they could go to court but not
as adversary parties or adversarial litigants but litigants “WHO SEEK GUIDANCE” from the courts.

Why guidance?
-‐because they are seeking declaration of their rights

What if the court has made a declaration?
-‐it is expected that the parties will simply keep quiet because they are now aware what their rights are

Read: Velarde vs SJS Case

Writ of Possession vs Writ of Execution (Rule 39)
Writ of execution
-‐ Will come in after the court has already rendered a decision and its decision is already final and executory.
The prevailing party is about to enjoy the fruits of his victory.
-‐ It seeks to implement the decision
Writ of possession
-‐an order of the court directing the sheriff to place a person in possession of a real or personal property
because this person may or could have prevailed in a judgment for foreclosure.

2 Kinds of Foreclosures
1. Judicial
-‐ The foreclosure is done through the court process.
-‐ There is a case filed, a hearing, submission of the parties of their respective sets of evidence,
exchange of pleadings, reception of testimonial evidence, or presentation of witnesses.
2. Extrajudicial
-‐ Outside of the court

GR: The foreclosure should be JUDICIAL.
-‐it has to pass through the courts.
XXPN: It becomes extrajudicial only by way of exception if the parties themselves have agreed that the
foreclosure shall be extrajudicial in character.

Where do we see this agreement of the parties that foreclosure should be extrajudicial?
-‐in the very DEED OF MORTGAGE that they have executed.
-‐it is in their contract itself which gives a stipulation that in the event of default or non-‐payment and in the
event that the creditor elects foreclosure, the foreclosure could be done extrajudicially.
-‐With this agreement, there’s no other way that the foreclosure can be done extrajudicially.
-‐if there’s a doubt, if the contract is silent, always the rule should be for JUDICIAL FORECLOSURE
-‐but if there’s an express agreement between the parties that the matter could be subjected to an
extrajudicial foreclosure, then that should be followed.

If it is extrajudicial foreclosure, what RA governs?

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-‐RA 3135

How is extrajudicial foreclosure done?
-‐

(We go back to the) Rule on execution
-‐the sheriff will usually go to the losing party and ask him to elect any of the forms, manner or methods of
satisfying the obligation. The party could elect payment in case or check, by giving his personal or real
property.
-‐if the losing litigant does not elect any of these, then it is up to the sheriff to implement the writ, to go after
(first) the real and (lastly) the personal.

If the property has been seized by the sheriff, what happens?
-‐the prevailing litigant will be asked, oh okay lang ba to sayo? Will you be asked if you’re okay with the
property?
-‐if the prevailing party says, yes I will be taking that in order to satisfy my claim, then fine. The property could
be given to the prevailing litigant

But if the prevailing litigant wants monetary consideration or the satisfaction of its obligation, then that item,
thing or property that was seized by the sheriff should be or could be subjected to an auction.

What is the BASIC REQUISITE for an AUCTION?
-‐there should first be PUBLICATION
-‐notice or publication
-‐publication, depending upon the property sought to be auctioned.
-‐there is no way the parties can waive publication
-‐even if the parties agree in writing that in order to economize, to free themselves from the monetary
hardships that publication usually entails, there should be publication because non-‐publication would result to
a VOID AUCTION.

Why?
-‐because publication is intended for the benefit of third persons or creditors of the parties, not for the benefit
of the parties themselves.

If it is a real property that was auctioned what shall be given to the prevailing party declared as the highest
bidder?
-‐CERTIFICATE OF SALE
Certificate of Sale
-‐nothing but an evidence of the fact that the prevailing party was the winner during the public auction.

What happens during the redemption period?
-‐the losing litigant can have RIGHT OR EQUITY OF REDEMPTION

Right of Redemption
-‐if it is extrajudicial

Equity of Redemption
-‐if it is judicial

Within the 1 year period, to who will the CIVIL FRUITS of the property go to?
-‐still to the DEBTOR
-‐because pending redemption, the debtor or he losing litigant remains to be the owner of the property
-‐Accessory follows the principal
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-‐even if the winning litigant has for his favor the redemption, the civil fruits shall go to the losing litigant
because pending redemption, the owner of the property remains to be the losing litigant.

What could be the civil fruits?
-‐rentals, interests, income, anything that will give rise to an advantage or benefit in favor of the property
owner

After the lapse of the 1 year period, what happens to the ownership?
-‐the ownership is consolidated in favor of the winning litigant (CONSOLIDATION OF OWNERSHIP)
-‐If the property is covered by a TCT, that title now will go or will be transferred to the winning litigant.
-‐the old title will be transferred
-‐by force of law, the winning litigant is now the owner

Let’s assume that no redemption was effected within the grace period allowed by law (1year). The debtor or
mortgagor remains to be in possession of the property. What will the prevailing litigant or the new owner do?
-‐he shall be placed in possession of that property by means of a WRIT OF POSSESSION

Writ of Possession
-‐an order of the court directing the SHERIFF to place the winning litigant in possession of the property subject
of foreclosure.

How will the sheriff do that?
-‐by placing the new owner now in possession of the subject premises.
-‐the sheriff has no option but to dispossess the losing litigant who continues to claim.
-‐the sheriff may take defendant or losing litigant BODILY IF NECESSARY.
-‐usually with the assistance of the police authorities

Under Rule 39, by seizure.
-‐seizing assets, garnishing assets

We co-‐relate this with Rule 71. What if the defendant refuses to obey? He does not honor the writ of
possession? Can we site the litigant in contempt?
-‐No, because the writ of possession is not actually directed to the defendant. It is directed to the sheriff.

What is contempt?
-‐the disobedience of the lawful order of the court or the commission of an action that subjects the court to
disrepute
2 Kinds of Contempt
1. Direct
2. Indirect
-‐disobedience to a order of the court

In your Rule on execution, before a court may issue a writ of execution, there has to be what?
-‐a motion (Sec. 1, Rule 39)
-‐this motion MUST BE SET FOR HEARING. All the time.

Why?
-‐per express provision of the law
-‐it must comply with the 3 day notice requirement in order to give the adverse party the opportunity within
which to meet intelligently the arguments of the other side.

May there still be a need for a motion if what the prevailing party wants is a writ of possession?
-‐Yes, there must still be a motion.

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What is the court’s duty when confronted with a motion for the issuance of a writ of possession?
GR: ministerial
-‐there’s no room for discretion.
-‐all that the court is left to do is to sign the writ of possession.
-‐it does not involve discretion

XPN: if there is a third party claimant showing proof of title to the property
-‐only in this instance
-‐title: not necessarily a TCT, any document will be enough to stop the court from issuing the writ of possession

If the foreclosure was done extrajudicially, there’s non-‐involvement of the court here. Will there still be a need
to go to court for purposes of obtaining a writ of possession?
-‐yes, because nobody can issue a writ of possession except the court.

Is there a judicial proceeding in the strict sense?
-‐None.
-‐when the court acts on a motion for the issuance of a writ of possession, that is not a judicial proceeding

What do we call it?
-‐the action of the prevailing party in going to court trying to obtain a writ of possession is but an incident to
the transfer of ownership.

Writ of Execution
-‐there has to be a motion with notice to the other party because it has to be subjected to a hearing

Motion for the issuance of a writ of possession
-‐does not require notice to the other party

You may be encountering situations when the judge asks if there’s a need to conduct a hearing with notice to
the other party, but it’s only a motion for the issuance of a writ of possession.
-‐Go to the records and determine for yourself whether there is a third party complainant.
-‐if there’s a third party claimant, tell your judge.
-‐conduct a hearing for the simple purpose of knowing from the third-‐party claimant what is his/her basis in
expressing objection to the writ of possession.

The rules on publication are stringent.
-‐it will not usually ban person in possession of documents or proof showing ownership.
-‐his remedy is to go to court and make a claim.

Third-‐party or Terceria
-‐third party claim

rd
What if during the hearing, the court is convinced that oo nga, itong taong ito (3 party) ang may-‐ari? That the
title of the winning litigant is not authentic?
-‐the court may now deny the issuance of a writ of possession

What is the remedy of the prevailing party?
-‐it will file an independent action (Possessory Action).

What is that Possessory action?
-‐it could be ejectment or any other judicial remedy that seeks recovery of his legal possession of the property

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Discussion on: Chailease Case

-‐The court has no business going over the merits of the petition or motion for the issuance of a writ of
possession
-‐its power during the issuance of a writ of possession is very limited

Ex parte petition or motion for the issuance of a writ of possession vs petition or motion for the issuance of a
writ of possession
-‐there’s no need to use ex parte because the literal meaning of that is in the absence of the other party.
-‐There’s no obligation on the part of the winning litigant to notify the prevailing party.
-‐You should simply label or entitle your motion as Petition or motion for the issuance of a writ of possession
-‐issuance of the writ is but an incident of the transfer of property

What is JUDICIAL FORECLOSURE?

How do we institute?
-‐it is a COMPLAINT for foreclosure
-‐there’s a need to issue summons for the mortgagor to answer the complaint
If it is an extrajudicial foreclosure, where do we file a petition for extrajudicial foreclosure?
-‐it depends on the value of the property

If it is an extrajudicial foreclosure, is there a need to notify the mortgagor?
-‐Yes

For what purpose?
-‐to give the mortgagor the chance to redeem the property

What particular office does the mortgagee go to in order to initiate or start extrajudicial foreclosure
proceedings?
-‐Office of the Ex-‐officio Sheriff

Office of the Ex-‐officio Sheriff
-‐usually the overall clerk of court (OCC)

What must be brought to the attention of the OCC
1. There’s a debt
2. A mortgage was entered between the parties (deed of mortgage)
3. There’s an agreement in that mortgage that when the debtor defaulted in its obligation, the
mortgage will be extrajudicially foreclosed
4. Despite demands for the payment of the obligation, no payment was made by the debtor.
5. Mortgagee seeks recourse from the OCC

Procedure for Auction (Personal Prop)
-‐posting of notices is enough, no need for publication in a newspaper of general circulation

Where do we post?
-‐a public place that is CONSPICUOUS to everybody
-‐the likelihood that this notice will be read or seen by anyone is high
-‐e.g. municipal buildings

Who is an encumbrancer?
-‐the mortgagee

Who is a senior encumbrancer?

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-‐first creditor, first mortgagee

-‐sakanya unang isinangla ang property
-‐yung sumunod JUNIOR ENCUMBRANCER

How is redemption done if there is a senior or junior encumbrancer?
-‐first encumbrancer

If there’s a redemption, what must be paid?
1. The debt
2. Interests
3. Costs of the sale or auction

Will costs of sale include attorney’s fees?
GR: No
-‐anything that is supported by document of receipt that pertains to the conduct of the auction sale, must be
included in the payment

Discussion on: PNB vs Nepomuceno case
-‐publication is mandatory
-‐Failure to publish the notice of sale constitutes a jurisdictional defect, which invalidates the sale
-‐Petitioner and respondents have absolutely no right to waive the posting and publication requirements of Act
No. 3135.
-‐the statutory requirements of posting and publication are mandated, not for the mortgagors benefit, but for
the public or third persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure proceedings is
not even necessary, unless stipulated.

RULE 65
-‐not concerned with the correctness or wisdom of the decision or judgment of the court

Period for the filling of petition for certiorari?
-‐60 days

May it be extended?
GR: No.
XPN: if there are compelling or urgent reasons for the extension then the court may be compelled to for the
exercise of its discretion to extend.

What does your Writ of Certiorari seek to correct?
-‐errors of jurisdiction

Why?
-‐either there could be an excess or lack of jurisdiction causing the judgment to be null and void.

If the objective is to challenge the CORRECTNESS OR WISDOM of the resolution of the court, what is you
remedy?
-‐ordinary appeal

Certiorari will never be a substitute for the remedy of a lost appeal
-‐if the appeal is already lost, probably because of inadvertence, negligence or oversight, it is not Rule 65.

Certiorari Under Rule 65 vs Rule 65
Rule 65
-‐an original action
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-‐has nothing to do with the first case, although related to the first case because something arose in the first
case that gave rise to a petition for certiorari
-‐they can co-‐exist
-‐if there’s a restraining order issued by the court handling the petition, then the first case must stop

Bakit nothing to do?
-‐because your certiorari can proceed on its own

Is the fact that there’s a petition for certiorari is an automatic reason for the stoppage of the case?
-‐No.

Your petition for certiorari, as a rule, requires the filing of a MOTION FOR RECONSIDERATION
-‐it is a condition sine qua non

What is the purpose of the motion for reconsideration?
-‐to give the court a second chance to reassess its position on the matter

GR: No motion for reconsideration, you cannot file a petition for certiorari
XPN:
1. When the decision, order, or resolution is on its face a PATENT NULLITY (no need for an MP, you can
immediately go to certiorari)

When is there patent nullity?
-‐if the court has no jurisdiction
-‐you can see from the decision itself that the same is a VOID decision

2. An exercise in futility

If you can see that the lower court ha extensively discussed its possession, has taken a rigid stance on the
matter that it is practically impossible to persuade him to reverse.

3. Urgent necessity
4. Time is of the essence
5. Property subject matter is perishable

Perishable property
-‐execution pending appeal
-‐there is an urgency

6. Transcendental interest

It affects the life of the whole populace.

Are we allowed to disregard the hierarchy of courts?
-‐Yes. Always.
Because the matter is something that is of utmost significance

7.Purely questions of law

Before the SC
If the matter originally arose from an order of the RTC you skip the CA and go directly to the SC on a pure
question of law.

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What if a petition for certiorari is filed, the adverse party will file what?
-‐a COMMENT
Is it automatic for the higher court to direct the other side to submit its comment?
-‐No.
-‐the court will have to study or go cursorily over the petition and see whether it is compliant in terms of form
and substance.

If the court is concerned to the form, what are we talking about?
-‐the timeliness of the petition
-‐was it filed within the 60 day period?
-‐was it really a certiorari in the strict sense? Or was it merely resorted to as a remedy for a lost appeal?

What is the order of the decision being assailed?
-‐A copy of the order being assailed must be attached to the petition and such must be a certified true copy

If all these things have been complied with, the court may direct the respondent (not defendant) to file his or
her comment.

Who else is included in the petition for certiorari?
-‐the judge who rendered or penned the assailed decision, order or resolution
-‐there is another party here, not only the adverse party but also the respondent court
-‐however, a court of judge here is only a NOMINAL PARTY

Nominal Party
-‐by name only, because there’s nothing personal

So if the court is impleaded, who answers for the court?
-‐the OSG

What is the attitude of the judge who was impleaded in a petition for certiorari?
-‐nothing

Who are the respondents in a petition for certiorari?
-‐Sec. 5, Rule 65
-‐we have a TRIBUNAL

What is a TRIBUNAL?
-‐a court
-‐a board that hears or receives evidence
-‐an officer exercising judicial or quasi-‐judicial functions

If the respondent court is the one exercising quasi-‐judicial functions
-‐we are referring to ADMINISTRATIVE BODIES
-‐these administrative bodies, however, can exercise judicial functions.

Basic requisite: The respondent must either exercise either judicial or quasi-‐judicial functions

PROHIBITION

What is the Writ of Prohibition?
-‐to prhibit

Who is being prohibited? Sino ang respondent sa writ of prohibition?
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-‐Tribunal, corporation, board, officer or persons exercising judicial or quasi-‐judicial functions

What in effect are we saying when we are saying you are being prohibited from this or that?
-‐TO DESIST FROM FURTHER PROCEEDINGS
-‐because they have no jurisdiction

Prohibition is intended the respondent to stop from proceeding because it has NO JURISDICTION.

How are we going to compare this to writ of injunction?
-‐Elements of injunction: we enjoin the person from proceeding or committing an act because that threatened
act, if not stopped, will cause irreparable injury.

In writ of prohibition, we stop the respondent because in the first place he has no authority to do what he is
trying to do. He has no jurisdiction, no power to do what he is intending to do or what he is doing.

Within what period may we file a petition for prohibition?
-‐also 60 days (just like certiorari)

Before what court can we file a petition for prohibition?
-‐RTC

Can we not file that before the first level court if we say the respondent is a brgy kagawad?
-‐No.
-‐A petition for prohibition is ALWAYS filed before the RTC or the next higher court because that is also
incapable of pecuniary estimation

PROHIBITION VS INJUNCTION
An injunction is directed against a party to the action
-‐ The one that you are stopping is a party to the action
In prohibition, it is directed to the court or tribunal, directing it to refrain or stop from performing an act over
which it has no jurisdiction to perform.

MANDAMUS
-‐mandate
-‐ministerial
-‐the court mandates the performance of an act

What is the partner of your mandatory injunction?
-‐prohibitory injunction

What do we mean when we say ministerial?
-‐there’s no involvement of discretion
-‐the court has nothing to do but act or perform

Discussion on: Angcangco vs Ombudsman
-‐Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act required to be done
when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, there being no other plain, speedy, and adequate remedy in the
ordinary course of law
-‐Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief
use and not a discretionary duty. It is nonetheless likewise available to compel action, when refused, in

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matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a
particular way or the retraction or reversal of an action already taken in the exercise of either

What will you invoke if your right to a speedy trial is violated?
-‐violation of your right to due process

Judicial foreclosure – we have EQUITY OF REDEMPTION. This is the right of the mortgagee to save his property
via redemption. The period is 90-‐120 days. However, if the mortgagee which resorted to banking institution
the period is 1 year. If it is an ordinary JF, meaning the parties or litigants are individuals and natural person
the period is 90-‐120 days. The reckoning point is from ENTRY OF JUDGMENT. So it subsumes that there is an
MR or appeal but the same were denied and the judgment granting the foreclosure is already final and
executory.
We said, generally, that the 1 year period of redemption is mandatory. But there is an exception if the
mortgagor during the period of redemption started destroying, defacing, and damaging the property. The
mortgagor is now allowed to take the property even the 1 year period have not elapsed yet. But there is one
requirement-‐ the mortgagee has to put up a BOND if the 1 year have not elapsed. But if the period is already
over, and NO REDEMPTION-‐ then WRIT OF POSSESSION. But said writ has to be applied for. You cannot
expect the court to immediately issue the said writ. It has to be applied for by the mortgagor who is now the
owner. We said that the application and the subsequent issuance of the writ is but an incident to the
foreclosure. WRIT OF POSSESSION IS A SPECIAL CASE-‐ it is not a judicial proceedings.
Extra-‐judicial foreclosure comes in only if there is an agreement to resort to that. It is govern not by Rule 68
but by Public Act 3135.
EXPROPRIATION-‐ you cannot just amend your complaint. …Ordinarily in your rule 10 on amendment. We said
that amendment is a matter of right or discretion. Right before the filing of a responsive pleading or answer
and ceases to be the case if the same had already been filed in which case it is upon the discretion of the
court. In expropriation, you start with filing a complaint. The opposing party may or may not file an answer.
The amendment in the answer must always be with LEAVE OF COURT. ALWAYS. The rationale for that is all
possible delays towards the acquisition of the property by the govt should be avoided. Because what is at
stake here is PUBLIC INTEREST. So, no amendment of the ANSWER W/O LEAVE OF COURT.
PARTITION
There’s one basic thing that we must address first before we can have partition-‐ CO-‐OWNERSHIP and that you
are a co-‐owner.
2 Stages:
1. CO-‐OWNERSHIP-‐ there has to be documentary evidence to this effect. No self-‐serving testimony.
2. SUSCEPTIBILITY TO BEING DIVIDED. The subject of co-‐ownership is not just real properties but also personal
ones.

Once there is judicial approval to the terms and conditions of the parties then that will be the basis of
partition. It will only be approved by the court. If one of the terms of conditions is not acceptable to one of the
parties? That party can ask the court to rule on its objections. if there is a decision on that issue, a final one at
that, it could be appealed and certiorari. So the ruling of the court along the way could be subject of multiple
appeal. There could be a multiple appeals in Partition. If there are multiple appeals there could be multiple
judgment. Judgment w/ respect to co-‐owner A and judgment w/ respect to co-‐owner B.
May the parties simply sit down and decide on the terms of partition? YES. We call that Extra-‐judicial
foreclosure.
REQUIREMENT OF EXTRAJUDICIAL PARTITION: (No need for the approval of the court)
-‐PUBLICATION (to protect the interest of creditors. You give chance to say their piece before the registry of
deeds could effect the partition.)

BUYING OFF-‐ you can buy the rights of your co-‐owners.
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PROJECT or PLAN OF PARTITION-‐ the schedule of the partition. The extend of the property and to whom it will
go to. It will be submitted to the court and it will be studied by it. It can approve or deny the same.
COMMISSIONERS-‐ the court may or may not adopt its findings. The court may seek other authorities and may
not be bound by it. So in effect, the judgment for partition are; NAME OF THE CO-‐OWNERS, THE DESCRIPTION
OF THE PROPERTY, MANNER OF THE DIVISION, METES AND BOUNDS OR EXTENT OF THE PROPERTY
PERTAINING TO THE EACH CO-‐OWNER.
Is the judgment of partition final? YES AND THEREFORE APPEALABLE.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
2 WAYS BY WHICH RECOVERY OF POSSESION OF PROPERTY COULD BE EFFECTED:
1.ACCION INTERDICTAL-‐ if the dispossession has not yet lasted for more than one year. It is a generic term. It
would contemplate-‐ FORCIBLE ENTRY AND UNLAWFUL DETAINER. The equivalent term in English is
EJECTMENT.
FE-‐ the entry is illegal from the very beginning. Entry is through FORCE, INTIMIDATION, THREATS, STEALTH,
STRATEGY.
UD-‐ Possesion is legal in the beginning because of CONTRACT OR TOLERANCE. The possession becomes illegal
if perhaps the contract already ended or you committed acts that perhaps are violative of the terms of the
contract. Ex: CONTRACT OF LEASE.
TOLERANCE-‐ you were allowed. Your stay was tolerated by the owner of the property.
2.ACCION PUBLICIANA-‐ if dispossession of property already lasted more than a year. The moment the
tolerance is withheld, then your stay becomes illegal. The remedy is UNLAWFUL DETAINER.
ONE YEAR PERIOD-‐ This period is very important as to determing which ACCION is proper. If you have
squatted in a property for let’s say 8 mos. The owner can file an action against you for forcible entry w/in 1
year. Is there a need to send a letter of demand? NO. an intruder should not be given the corteousy of a letter
of demand. But if you are a lessee, and the lessee no longer have the power to stay because the contract have
already expired or failure to pay the rentals for the last three months, there is a need to send a letter of
demand. If there is failure to pay, the demand letter must contain two things-‐ TO PAY AND TO VACATE.
But what if the reason is just the contract has already expired? Then there’s no need to send the letter for
demand. Because it is expected that the defendant is aware of the fact that he has to vacate because his
contract already expired.
But what if you are occupying a room in a nearby dorm, you have been paying in a monthly basis. What is the
duration of your contract of lease? Month to month. It is expected that the contract expires at the end of
every month. What if he continue to lease that in a monthly basis and the owner allowed him? Then there is
what we call—TACITA RECONDITION (IMPLIED LEASE).
Which court has the exclusive jurisdiction to try FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES?
MTC/MeTC. ABSOLUTE. NO OTHER COURTS CAN TRY.
What is the nature of proceedings? SUMMARY. FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES are
considered as perturbations of society. They may be potential sources of trouble. There could be endless
wragglings when it comes to possession of property.
SUMMARY PROCEDURE-‐ NO MOTION FOR EXTENSIONS. NO MOTION TO DISMISS. NO BILL FOR PARTICULARS.
THEY ARE PROHIBITED PLEADINGS. BECAUSE THEY ARE ANATHEMA TO THE NATURE OF SUMMARY
PROCEEDINGS. THEY WILL ONLY PROTRACT THE PROCEEDINGS.
Within how many days to file answer? 10 days from receipt of the complaints and summons.
What If the dispossession already lapsed for more than a year? The accion is no longer summary. You go to
the remedy of ACCION PUBLICIANA. IF the objective is to recover the POSSESSION and NOTHING MORE.
IF YOUR OBJECTIVE IS ALSO TO RECOVER OWNERSHIP-‐ THEN IT IS ACCION REINVIDICATORIA.
IF ACCION PUBLICIANA AND REINVIDICATORIA-‐ the proper court now is the RTC and no longer the first level
courts.
What kind of action is FORCIBLE ENTRY AND UNLAWFUL DETAINEr? REAL ACTIONS because they involve real
property. What is the VENUE THEN? WHERE THE PROPERTY IS LOCATED. IS THIS ABSOLUTE? It is. ALWAYS.
THIS ACTUALLY AN EXCEPTION w/ respect to other cases which involve REAL PROPERTIES the venue could be
subject of stipulation of the parties.

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May the court touch on matters concerning ownership even if the main objective of an unlawful detainer case
or forcible entry is only material possession? YES THE COURT MAY TOUCH ON MATTERS REGARDING
OWNERSHIP NOT WITHSTANDING THE FACT THAT THE OBJECT IS JUST THE RECOVERY OF POSSESION. The
pronouncement concerning ownership is only provisional.
if a decision is rendered by a court, is it immediately executory? Yes. It must be immediately executed.
WAYS TO STOP THE IMMEDIATE EXECUTION?
1. PERPECT AN APPEAL
2. PUT UP A SUPERSEDEAS BOND (suppose to cover for the rentals, money judgment)
3. Deposit your periodic rents for the upcoming rentals.
The absence of one will warrant the immediate execution. If all these 3 things are done by the losing party, the
RTC resolve the appeal on the seventh month and the RTC sustained the MTC, can the defendant again put up
a notice of appeal, pay the bond, deposit periodically and expect not to be thrown out from the leased
property? Can he do it for the second time around? No. notwithstanding the fact that the decision is not yet
final and executory the decision can now be implemented. It is immediately executor without prejudice to
the outcome of the appeal before the CA.
if the losing litigants is not giving up, he went to the CA. what is the mode of appeal? PETITION FOR REVIEW
under RULE 42. When the case originated from the lowest court it is PETITION FOR REVIEW. If talo sa CA,
inakyat sa SC, the mode now is PETITION FOR REVIEW ON CERTIORARI UNDER RULE 45.
WHO ARE BOUND BY THE DECISION IN A EJECTMENT SUIT? The decision will likewise bind the defendants and
all persons claiming right under it. Who are these? Boarders, guests, intruders. We know that the rule is YOU
CANNOT ENFORCE A JUDGMENT TO THOSE WHO ARE NOT PARTY TO A CASE. THAT WOULD VIOLATIVE TO
ONE’S RIGHT TO DUE PROCESS. BUT NOT IN EJECTMENT.
RULE 71
CONTEMPT
BUILT-‐IN POWER OF THE COURTS. So there will always be respect to judicial process and authority of the
courts because there will be anarchy/BANANA REPUBLIC.
2 KINDS OF CONTEMPT
DIRECT-‐ act committed before the judge.
INDIRECT-‐ the violation was committed because there is refusal or disobedience to the court’s order.
Citing a person in contempt should be done sparingly. Meaning it should be the last resort. The court shall
never use it for vindictive purposes just to show authority. the court uses it only in appropriate cases.
CLASSIFICATIONS OF CONTEMPT
Direct-‐CRIMINAL IN NATURE
REMEDY OF PERSON CITED FOR DIRECT CONTEMPT-‐ TO FILE A CERTIORARI OF PROHIBITION. The order is
immediately executory unless the contempnor files a BOND. You can see the amount of bond on the order
itself.
Indirect-‐ CIVIL IN NATURE-‐ the remedy is APPEAL.
HOW CONTEMPT IS INITIATED? THRU VERIFIED PETITION. IS THERE A NEED FOR CERTIFICATE OF NON-‐FORUM
SHOPPING AND VERIFICATION. YES. BOTH. Because it is an initiatory pleading or a new case. With docket fees.

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1

CIVIL PROCEDURE AND CRIMINAL PROCEDURE

Joinder of cause of action

o Accused die before arraignment

• action that arise from delict

them are heirs of doctors, lawyers, teachers and etc.

o Rules: it must be filed and tried in:

§ The court of last resort

• How does it acquire jurisdiction over the res?

ü Legal meaning: the act of providing a party with a copy of the

o Ordinary civil case-­‐ 15 days-­‐-­‐extendable, but it requires a motion

§ Example: misplaced of notice

§ Judgment is based on the merits, hence the judgment is

dismissal of the complaint under this section shall be without

Object: Taking of testimony of another party.

• 2 parts of the judgment

o Petition for relief is not a new case

CIVIL PROCEDURE CLASS: MARCH 28, 2015

But your motion for discretionary execution could be filed:

Q: IS Fujuki the real party in interest?

• What is a TRO? What is its purpose?

• Requisites of a preliminary injunction?

• Existence of a legal right

o [A *taken from the case*]

Discussion on: Chailease Case

-­‐first creditor, first mortgagee

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o Ordinary civil case-‐ 15 days-‐-‐extendable, but it requires a motion

o [A taken from the case]

-‐first creditor, first mortgagee