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Civpro Rules 23 To 43 PDF
Civpro Rules 23 To 43 PDF
RULES 23 TO 43
Disclaimer: This is just suppletory to your other study materials since this is What is a “deposition”?
basically just the lecture of Justice Aquino. J It is a written testimony of a witness given in the course of a judicial proceeding, in
The coverage of this lecture: Rules 23 to 45 advance of the trial or hearing upon oral examination or in response to written
Please use the photocopies that Justice gives us cause andun yung mas elaborate interrogatories and where an opportunity is given for cross-examination.
explanation ng mga lectures niya.
Deposition Affidavit
RULE 23 to 28 – MODES OF DISCOVERY
In question and answer format, and is
taken under oath. A narrative.
Why is it called “discovery”?
Because its purpose is principally for evidentiary disclosure. It is necessary for the In place of declaration of a witness. It Submitted to throw ground of
preparation of the pre-trial brief. The rule urges lawyers to avail of these modes of is “almost” a trial outside of court, and hearsay.
discovery para maging maayos yung trial. for a justified use.
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
After the Q&A portion is done, the officer shall require the stenographer to The party who is supposed to ask cannot hold the defendant to testify. In trial,
transcribe. Once it is done, it shall be given to the officer, the deponent shall read, pwedeng witness ni plaintiff si defendant.
and will be asked whether or not he agrees that it is a truthful reproduction, after
signing, the officer will prepare the certificate that the deponent is put under oath, Bakit kailangan yung affidavits ng lahat ng witnesses?
it will be signed by the parties, and the transcript and certification will be sealed in Because some witnesses can turn around, or bayaran ba. Unethical yan, false
an envelope. testimony yan, but it happens. So to prevent it, make sure you take affidavits of all
the witnesses.
How about in trials?
No deposition can be offered in court if not present because sub lang naman sa Rule 23 Rule 25
testimony-in-chief ang deposition. Pag may witness na andon, useless yung In itself a deposition Applies only to the opposite party
deposition. Pwede lang ito gamitin kapag ginamit din ng adverse party—patas
patas lang.
Request for admission
When a party desires to avail himself of this, he will prepare the questions, and the
Example.
questions will be addressed to the opposite party. Only in deposition pwede other
Any allegations should provoke a question from the defendant. If hindi tinanong,
people ang maging deponent. In addition, all prepared questions must be under
he won’t be allowed to prove otherwise. Di na masusubmit yung deed.
oath, with a notice, and it must state the identity of the officer. It is the officer who
will determine the time, place, and date of the taking of the deposition.
It is also important to state in the pre-trial brief yung modes of discovery.
The party asked to answer should be ready with his written answers under oath. It
Inspection and production of documents
must also be furnished.
A written Q&A must be submitted. It must be under oath, and submitted to the Example.
The issue is w/n the plaintiff owns the property for 12 years.
officer who shall read the questions. After everything is furnished, the parties
During the examination in court, the other party asked for an ocular inspection but
asking or the adverse party may use such deposition.
nung nasa property na sila, nakita nila na wala pang 12 years yung mga halaman.
What if there is a failure to avail of this remedy? So it just shows that, wala wala pang 12 years yung ownership.
It shall constitute as a waiver.
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
Mental and physical examination (f) The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce
When the issue pertains to the physical condition or mental condition, this is the evidence upon their original case; and
proper mode of discovery. (g) Upon admission of the evidence, the case shall be deemed submitted for
Examples. decision, unless the court directs the parties to argue or to submit their respective
- Legal separation memoranda or any further pleadings.
- Nullity of marriage If several defendants or third-party defendants, and so forth, having separate
- Crime = insanity defenses appear by different counsel, the court shall determine the relative order
of presentation of their evidence.
Must be proven through examination
Evidence-in-chief – It is where the plaintiff proves the cause of action, and where
In rape cases, it would be the inspection of the defense of the accused. But if the the defendant proves his defense.
party refuses, bawal naman siya pilitin kasi right to privacy din. Although, may
presumption na naisubmit na. Rebuttal evidence – It is the one which destroys or negates the evidence of the
other party (plaintiff). The party has the chance to give a sur rebuttal evidence to
TRIAL destroy or negate the other party (defendant).
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
However, kapag may provisional remedy, when you’re in doubt? Sige lang. A: Counted from filing (duty bound na ito to the motion)
Q: What is new trial?
DEMURRER TO EVIDENCE Q: What is the objective of a motion for new trial?
A: Set aside the judgment and set for a new trial – balewala na yung decision.
It is a remedy for criminal and civil cases. After the plaintiff has presented his case Vacate trial order (Sec. 6)
or prosecution. The defendant or the accused can file. Totality of the evidence of Q: When can a motion for new trial may be filed?
the plaintiff or the proof beyond reasonable doubt pero if kulang to, denial to A: Within the time you file an appeal
demurrer to evidence. Q: From when?
A: Judgment
Q: Time?
JUDGEMENT ON PLEADING
A: 15 days from notice of judgment
Q: Grounds for motion for new trial?
A judgment in which the court, before trial or after joinder of issues, determine the
A: Rule 37, Sec 1
material allegations or walang patent issues. Therefore, the court could render a
Q: What do you mean by fraud (panlilinlang in Filipino)?
judgment on pleading. Dismissal of complaint. Judgment determines na walang
A: Extrinsic fraud (deceit is done outside trial)
issue, edi ma-dismiss lang. Otherwise, there’s no general issue. The court, then,
Q: Meaning?
could render partial judgment.
A: The party was prevented to go to court; the deceit was done outside trial
RULES 36 to 39
Intrinsic fraud – Done within or connected to the case
Q: What is a motion for reconsideration? If a judge is bribed and rendered a decision -> extrinsic
Q: Give an example or situation where MR is the proper remedy? If a lawyer sells out a case -> intrinsic kasi manufactured evidence
Q: What is reconsidered?
A: The judgment or final order Q: What is accident?
Q: Can you reconsider an order? Q: Example?
A: MR for order A: When the party failed to testify cause of stroke, but the court rendered a
Q: An order that dismisses a complaint? What do you call that? decision.
A: Final order – terminates a case
Q: Mistake?
A: Mistake of fact
Final orders -> appealable Q: Example
Interlocutory orders -> generally, not appealable Q: Lahat ba ng mistake pwede?
A: NO. The mistake must be of fact and not of law.
Q: What do you call where the situation where the evidence is insufficient? Q: Example?
A: Failure to present prima facie evidence A: Failing to include a notice of hearing of counsel.
Q: When do you file for MR?
A: Immediately after a prejudicial order or judgment is final and is served. Anytime Kapag mistake of law, hindi yun excusable.
for as long as you receive the order against you.
Q: When?
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
Q: Excusable negligence (qualified by the word excusable, so if the evidence is Before finality? It cannot be executed except through discretionary execution
excusable, not a ground)
A: Gross negligence Remember that the issuance of a writ of execution is a ministerial duty.
Q: Example?
A: Oversight Contents of a dispositive portion of the case
Q: Effect of granting new trial (1) Granting relief
A: Judgment will be set aside. Parties may show newly discovered evidence. Trial (2) Dismissal of the case
de novo na siya, unless there is an agreement that the evidence will remain. (3) Granting/Denying part of the relief paid for
(4) Order for new trial if there is a necessity
Excusable negligence Inexcusable negligence
Obiter dictum – This is only to support the conclusion collaterally. So, this is not
Any kind of failure to observe norms Can happen to anyone as a really necessary. This is only to fortify the conclusion. According to Justice,
in a serious matter. consequence of failure. “pabebe lang”.
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
Final and executory judgment – When a judgment is ready for execution. Lien – It is any official claim or charge against property or funds for payment of a
However, there are decisions which may be final but not executory: debt or an amount owed for services rendered. A lien is usually a formal document
• Certiorari These are not subject to execution because they signed by the party to whom money is owed and sometimes by the debtor who
• Prohibition are all declarations. There is nothing to execute na, agrees to the amount due. A lien carries with it the right to sell property, if
• Declaratory relief self-executory siya. necessary, to obtain the money.
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
Revival of judgment – Ordinarily, an execution can be effected by a motion for a Summary of an enforcement of judgment
writ of execution (good for 5 years to). After that you can no longer ask for such. A judgment has become final when
What you can do naman is to file a motion for a revival of judgment (ito naman for
10 years to)
The winning party files a motion
Remember that yung 5 years and 10 years, separate yan. Hindi yung 10 years
andun na yung 5 years. Hindi. As in 5 years tapos another 10 years.
The court directs an order of writ of execution
Recognition of a foreign judgment – Judgments of foreign courts do not
generally bind persons of other countries, except if there is an action for recognition
of judgment. Once it is recognized, saka lang siya ma-enforce sa Philippines. The clerk of court prepares and signs the writ of execution and the dispositive
Classification of execution
(1) How is it obtained? The clerk of court orders the sheriff to order judgment
§ Execution by motion
§ Execution by independent action
(2) As to the nature of the action of the court of the final judgment The sheriff goes to the serves the writ of execution, demanding payment, from the
§ Ministerial execution losing party
§ Discretionary execution (execution pending appeal)
Payment of sum
What can be executed?
§ If it fails – levy
(1) Final decisions
§ If the sheriff prepares notice upon both parties
(2) Final orders which have obtained finality
o Any person with interest
(3) Interlocutory orders of support pendente lite
o Posted in 3 conspicuous places
§ Specifies the property to be sold
When does a decision of final order attain finality?
§ If the appeal is perfected there is no exclusion
Who can bid?
§ Decisions, which even in appeal does not forbid execution. However, the
§ The creditor and/or owner
following can be executed even during the pendency of the appeal since the
§ Anyone, basically basta the highest bidder is the awardee
rules consider them as one of those executions which cannot be stayed by
appeal:
Remember that if the amount of the sale is more, the sheriff must return the excess
o Decisions on compromise agreement
to the owner. But if it is less, then a proceeding called deficiency judgment will
o Decisions on injunction
be made. Here, another property of the obligor will be levied upon.
o Decisions on receivership
o Decisions on accounting
Decisions for the delivery of real or personal property is the same as the procedure
above, except when the sheriff goes to the defendant (real property) and deliver
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
such property to the plaintiff, the sheriff must first register to the Register of Deeds What if the judgment obligor dies?
the certificate of sale and ask the defendant to create or issue a deed of sale. - Recovery of the property – Judgment obligee files a motion of a writ of
execution pending appeal of the obligor (this is the execution stage). Once
Ministerial execution =/= judge is compelled to grant execution. Hindi yan the the sheriff has levied upon the property, execution continues (selling).
same. Ministerial execution is done when all the requirements are submitted: - Payment of money or damages – Judgment debtor dies. Then the obligee
§ Motion for execution files a money claim with the probate court and if there is no pending probate,
§ Service the obligee shall initiate the probate.
§ Hearing
§ Presentation of the evidence What if the obligee dies?
- The execution continues, it will be prosecuted until the end.
Discretionary execution – After a judgment is rendered and appeal is perfected
(or not), the prevailing party can file a motion for execution. A pending appeal can Execution of judgment
be filed immediately after judgment rendered cause of good reason. - Payment
Here, the sheriff goes to the obligor and ask for payment. If 3 days wala aprin, edi
General Rule: When appeal is perfected, the court who originally rendered hahanap na ng property yung sheriff para i-put on sale. Siyempre yung personal
judgment loses jurisdiction. property muna. If more than yung value ng personal property, okay personal
Exceptions: property na lahat. Pero kapag kulang parin, dun na papasok yung real property.
- Although, pwede pa if andun pa yung records. Kasi andun pa nga diba. But if Kapag sobra naman, you will only choose alin sa mga real property na yun lang.
wala na, edi sa appellate court na. Then saka na magkakaroon ng sale sa public auction.
- The motion has been filed before nawala yung jurisdiction. - Restitution
Here, if personal property lang and it shall be personally delivered by the sheriff.
4 residual powers of the court (despite loss of jurisdiction) However, if real property naman, levy muna then register sa RD para ma-annotate
(1) Approved motion of an execution pending appeal sa TCT.
(2) Approved applications for a party to be considered indigent
(3) Approved compromise agreements Judgment executes trial improvements to be demolished
(4) Issue orders fort eh protection of the rights of the parties - Order of demolition
- Obligor demolishes; if fails edi order of demolition
Suppose that the execution pending appeal has expired, and the RTC has already - This must be with the aid of police officers
transmitted the records to the CA, can the CA act upon that motion? YES.
If the appellate court sustains judgment and a writ of execution. Where to file?
Court a quo (where it originally came from)
How can the court a quo act on a write of execution pending appeal? When the
records are admitted attach nalang a certified true copy and entry of judgment so
it will have basis.
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
When the terceria claims to be the owner the redemption period expires. Pag tapos na yung redemption period, yung last
redemptioner na yung mayari.
The third person shall file an affidavit stating interest and title
How will it be effective?
- Notice
Here, the redemptioner cannot refuse
- Payment
The affidavit shall be submitted to the sheriff
Revival of judgment – 2 kinds of execution
- By motion – execution effective for 5 years (pero kapag hindi na-approve,
The sheriff will submit the affidavit to court (it is NOT the sheriff's duty to keep the certiorari)
property, unless there is a bond)
- By independent action – 10 years naman to, after neto wala na
The auction for injunction must be in a separate case. Remember na separate itong dalawang ito. Different ang 5 years sa 10 years.
Who can redeem? Appeal – A remedy to have a decision of a lower court be reviewed and
- Owner of the property reevaluated to see whether errors of facts or law or both were committed.
- Redemptioners (those who has lien, subsequent to the sale by public auction.
So these are the lien holder, mortgagee 2 types of appeal
- Matter of right – The first appeal
The owner shall redeem from the buyer everything: - Matter of discretion – 2nd appeal and onwards
- Fees
- Taxes Example.
- Magkano exactly binayad 1st – MTC -> RTC = matter of right, you can never reject this
- Interest 2nd – RTC -> CA = mater of discretion, dapat may good reason for denial
Once the owner redeems, that finishes the redemption period. But if the redeemer General Rule: The first appeal cannot be declined
is a subsequent lien holder, other redemptioners can buy it within 6 months before Exception: When it is filed to the CA originally or at its first instance
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
Can appeal be waived? Yes. motion for reconsideration, so as to standardize the appeal periods provided in the
(1) When the appeal is withdrawn Rules of Court and do away with the confusion as to when the 15-day appeal
(2) When the appeal is abandoned period should be counted.
- Ordinary appeal (original jurisdiction) Q: What are the different modes of appeal?
This is initiated by filing a notice of appeal Q: When can someone apply for appeal?
- Petition for review (second appeal na to, usually appellate jurisdiction) Q: What is required of you to do once you file the modes of appeal?
Q: What is the consequence of that?
Review for certiorari (Rule 45) Q: What becomes of the appeal?
CTA, CA, SB -> SC Q: What is the consequence of the perfection of the appeal?
A: When an appeal is perfected, it can no longer seek relief from the same court.
Extent of the review powers of the appellate court Q: When is it deemed perfected?
- Review the matters assigned as errors in ordinary appeals (matters of fact). If Q: When is it finally perfected as an entire case?
no errors, decision is affirmed. A: When the appellee files or does not file (expiration)
- Rule 45 -> SC will determine if the basis of law has GADALEJ (grave abuse) Q: Significance of the perfection of the appeal for the entire case?
A: The Court loses jurisdiction
General Rule: Sa pre-trial idedefine yung issues Q: Consequence?
Exceptions: A: The court can no longer change the decision or continue with the case
- Issues not defined but necessarily connected Q: What are the residual powers of the court?
- Matter which are not discusses, and to be able to resolve them it is necessary Q: Is an appeal perfected with just a notice of appeal?
to serve the ends of justice Q: Record of appeal? When perfected?
- Matters specifically raised in the assignment of errors, except if those errors Q: What is the period?
appear in the case A: 30 days from the receipt of notice
Q: 2 kinds of appeal?
2 grounds for the court a quo to refuse or give due course to an appeal Q: What other cases would require multiple or separate appeals
- Appeal docket fee is not paid A: In cases which fall under the category of special proceedings
- Appeal is time-barred
Separate judgment – 2 or more causes of action, court can render a partial
Notice of appeal – Executed and filed by the appealing party with the decision of judgment
the court and with the compliance of the material dates rule.
Several judgment - 2 or more defendants, complete na yung evidence
Fresh period rule – The Supreme Court declared that a party-litigant should be
allowed a fresh period of 15 days within which to file a notice of appeal in the RTC,
counted from receipt of the order dismissing or denying a motion for new trial or
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
Cases which allow multiple appeals To perfect the appeal, you have to file a notice and record of appeal 30 days from
- Expropriation cases the receipt.
- Partition Notice of appeal – Does not need to be approved
- Extrajudicial partition Record on appeal – Needs to be approved
Q: After a notice of appeal is filled, what is/are the cause/s of action of the court of If there is a motion for reconsideration, the aggrieved party is given a fresh 15-day
origin? period.
Q: Is there a need to approve the modes of appeal?
A: No. Notice lang yun eh. MTC -> RTC
Q: On what grounds can the court deny due course? - Affirm
Lack of jurisdiction
A: (1) Docket fee is not paid during the reglementary period; (2) Appeal is time- - Reverse
barred
Q: Contents of a notice of appeal If the court affirms it will not return the case to the court of origin.
Q: Contents to a record of appeal
Example.
Remember that you can only appeal parts of the decision. MTC dismisses a case by reason of lack of jurisdiction over subject matter. So, the
plaintiff appeals. The RTC has only 3 causes of action:
Perfection of appeal - Affirm – Agrees with the MTC
- Reverses – Disagrees with the MTC
- Remands – For further proceedings
Losing party appeals
When the it is affirmed
- It will be determined w/n RTC has jurisdiction over the case and if there is, the
Losing party files a notice of appeal 15 days from the notice of judgment (this is Rules require the proceedings to be continued.
different from service of judgment because the latter is the actual receipt)
Why should the RTC try?
Can that 15 days be suspended? Because it has jurisdiction now. In addition, it is to avoid multiplicity of suits.
Yes. MR or motion for new trial
However, if there is a reversal the RTC will return the case to the MRC for further
proceedings. The decision of the RTC is appealable to the CA under petition to
If the court gives due course -> the appellant loses relief from that court and such
decision automatically becomes final and executory. review.
When is a record of appeal required? Q: What should the clerk of the MTC do?
(1) In cases where multiple appeals are allowed A: Transmit the records to the RTC together with the receipt of payment to the
(2) Special proceedings appellate court
(3) Special civil actions
There should be an instruction as to what is to be done. But what should the
instruction contain?
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© Murallos 2019-2020
Lectures of Justice Aquino
CIVIL PROCEDURE
RULES 23 TO 43
- The alleged errors committed by the court Once these QJ agencies tender decisions, these decisions are reviewable by the
- The evidence must also be pointed out CA.
What is the remedy of the opposite party? Q: Does the MTC have appellate jurisdiction?
- Motion for reconsideration A: Yes. Tax decisions of the barangay treasurer
- Petition for review with the CA -> Here, the issues must be discussed Q: Review decisions of the COA and COMELEC?
especially those involving the decision of the RTC A: Rule 64 and not by petition by certiorari
In the petition there are no longer the appellant or the appellee, they are now the
petitioners and respondents, respectively. Here, the Court a quo should no longer
be impleaded.
Once the briefs are before the court, the court should examine:
- The prima facie evidence
- The issue of an order giving due course to appeal
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© Murallos 2019-2020
Lectures of Justice Aquino