CIVIL PROCEDURE CASE RULINGS Neither a dead person nor his estate may be a party plaintiff in

Continuation from handwritten - a court action.

VELUZ VS CA A deceased person does not have such legal entity as is

necessary to bring action so much so that a motion to
Under Section 10, Rule 6 of the 1997 Rules of Civil Procedure, substitute cannot lie and should be denied by the court. An
action begun by a decedent’s estate cannot be said to have
GR: ANY NEW MATTER ALLEGED BY WAY OF DEFENSE IN THE been begun by a legal person.
ANSWER (OR COMMENT AS IN THIS CASE) IS DEEMED
CONTROVERTED SHOULD A PARTY FAIL TO FILE A REPLY MAROHOMSALIC VS COLE
THERETO
Verification is the assurance that the allegations of the petition
EXCEPT in cases where the answer alleges the defense of: have been made in good faith or are true and correct and not
1. usury in which case a reply under oath is required merely speculative.
otherwise the allegation of usury is deemed admitted,
or (N/A now) A pleading may be verified in either of the following – the
2. is based on an actionable document veracity of the allegations may be based on:
a. in which case a verified reply is necessary 1. one’s own personal knowledge
otherwise the genuineness and due execution 2. authentice records or
of said actionable document is generally 3. both
deemed admitted, the filing of a reply is so use of “or” means either or the three will suffice.
merely optional as the new matters raised in
the answer are deemed controverted even Authentic records as a basis for verification bear significance in
without a reply. petitions where the greater portions of the allegations are
based on the records of the proceedings in the court of origin.
RULE 7
Whether the verification should be based on the pleader’s
BUKLURAN NG MANGGAGAWA VS CA personal belief or on authentic records depends on the nature
of the allegations
Section 5, Rule 7 of the Rules of Court reads:
TANJUATCO VS GAKO
Sec. 5. Certification against forum shopping. – The plaintiff or
principal party shall certify under oath in the complaint or other Verification is only a formal, not jurisdictional requisite. Thus,
initiatory pleading asserting a claim for relief, or in a sworn even if the verification is flawed or defective, the court may still
certification annexed thereto and simultaneously filed give it due course if circumstances warrant the relaxation of the
therewith: rule in the interest of justice.
(a) that he has not, therefore, commenced any action or filed
any claim involving the same issues in any court, tribunal or SARI SARI STORE GROUP OF COMPANIES VS PIGLAS KAMAO
quasi-judicial agency and, to the best of his knowledge, no such
other action or claim is pending therein; Noncompliance with Noncompliance with
requirements for verification requirements for non-forum
(b) if there is such other pending action or claim, a complete shopping
statement of the present status thereof; and Noncompliance does not Generally not curable by the
necessarily render the submission after the filing of
(c) if he should, thereafter, learn that the same or similar pleading fatally defective. the petition
action or claim has been filed or is pending, he shall report that The court may order
fact within five (5) days therefrom to the court wherein his correction – strict
aforesaid complaint or initiatory pleading has been filed. compliance may be
dispensed with in order that
FAILURE TO COMPLY WITH THE FOREGOING REQUIREMENTS the ends of justice may be
SHALL NOT BE CURABLE BY MERE AMENDMENT OF THE served.
COMPLAINT OR OTHER INITIATORY PLEADING BUT SHALL BE Formal, not jurisdictional Obligatory but NOT
CAUSE FOR THE DISMISSAL OF THE CASE WITHOUT requirement jurisdictional.
PREJUDICE, UNLESS OTHERWISE PROVIDED, UPON MOTION
AND AFTER HEARING. (codal) The rule on this may be
THE RULE IS THAT THE CERTIFICATION OF NON-FORUM relaxed on the ground of
SHOPPING MUST BE SIGNED BY ALL THE PETITIONERS AND substantial compliance or
THAT THE SIGNING BY ONLY ONE OF THEM IS INSUFFICIENT. compelling reasons.

Although petitioner Tomaroy was authorized by virtue of his Deemed substantially E.G, rule on substantial
position as president of the petitioner union to execute the complied with when one who compliance was applied
certification for and in its behalf, he had no authority to do so has ample knowledge to when the one who signed
for and in behalf of its petitioners-officers, as well as the swear to the truth of the had a common interest with
members of the Board of Directors thereof. allegations in the complaint the other who failed to sign
signs the verification and
ON THE ISSUE ON THE LAWYER’S SIGNATURE when matters have been
Section 3, Rule 7 of the Rules of Court provides that every made in good faith or are
pleading must be signed by the party or counsel representing true and correct.
him. Considering that the union is one of the petitioners, Certification against forum
Tomaroy, as its president, may sign the pleading. For this shopping must be signed by
reason alone, the CA cannot dismiss the petition. all plaintiffs in a case
otherwise those who did not
METRO DRUG DISTRIBUTION VS NARCISO sign will be dropped as
parties – except, when they
Certificate of forum shopping – share a common interest,
In corporations, the certificate must be signed for and on its and invoke a common cause
behalf by a specifically authorized officer or agent who has of action, the signature of
personal knowledge of the facts required to be disclosed. only one is substantial
compliance.
Corporations may perform only through properly delegated Certification must be
individuals – its officers and agents. executed by the PARTY
PLEADER, not by counsel. If
the party pleader is unable
The requirement to sign the certification against forum to sign, he must execute an
shopping applies to corporations as well. The Rules of Court SPA to enable his counsel to
made no distinction between natural and juridical persons. sign on his behalf.

GALINDO VS ROXAS
Section 1, Rule 7 provides that the names of the parties should
be included int eh caption of the original complaint.
HUTAMA VS KCD BUILDERS
While the power of a corporation to sue and be sued is lodged
in the BOD, the president of a corporation may sign the
certificate of non forum shopping and its LONE signature is (2) by filing multiple cases based on the same cause of action
sufficient to fulfill the verififcation requirement. and with the same prayer, the previous case having been finally
resolved (where the ground for dismissal is res judicata); and
UY VS WORKMEN COMPENSATION COMMISSION
(3) by filing multiple cases based on the same cause of action
A verification by the attorney is adequate compliance with rule but with different prayers, or by splitting of causes of action
7, sec 6 it being presumed that facts by him alleged are true to (where the ground for dismissal is also either litis pendentia or
his knowledge in view of the sanctions provided by the rules of res judicata).
court.
The essence of forum shopping is the filing of multiple suits
When the complaint is signed by the attorney, the latter’s oath involving the same parties for the same cause of action, either
couched in the usual form ‘subscribed and sworn to before me simultaneously or successively, for the purpose of obtaining a
…” is substantial compliance. favorable judgment through means other than by appeal or
certiorari.
TORRES VS SPECIALIZED PACKING DEVELOPMENT
CORPORATION Forum shopping does not apply to cases that arise from an
initiatory or original action that has been elevated by way of
As to verification appeal or certiorari to higher or appellate courts or authorities.
Here, only 2 out of 25 signed the verification. But the court (So n/a if on appeal)
held that these 2 sigantories are real parties in interest, and
have sufficient knowledge and belief to swear the truth of the There are 2 aspects of res judicata:
allegations in the petition. This verification was deemed enough 1. Bar by prior judgment
assurance that the matters alleged were made in good faith, 2. Bar by conclusiveness of judgment
true and correct.
As to certificate of non-forum shopping Bar by prior judgment Conclusiveness of judgment
The court ruled that 2 out of 25 was also substantial There is "bar by prior there is "conclusiveness of
compliance. judgment" when, as judgment" where there is an
1) The case was dragged for a long time between the first case in identity of parties in the first
2) The matters alleged in the certificate against forum which the judgment has and second cases, but no
shopping was complied with by non signing petitioners been rendered and the identity of causes of action.
when 21 of them executed in favor of their counsel a second case that is sought
document authorizing the latter to represent them in to be barred, there is an Under this rule, the first
all matters connected with the case. identity of parties, subject judgment is conclusive only
matter, and causes of as to those matters actually
CHAVEZ VS CA action. In this instance, the and directly controverted and
judgment in the first case determined and not as to
Elements of forum shopping: constitutes an absolute bar matters merely involved
1. Identity of parties or at least aprties who represent the to the second action. therein.
same interest in both actions;
2. Identity of rights asserted and relief prayed for, the The judgment or decree on
relief being founded on the same facts. the merits of the court of
3. Identity of the two preceding particulars that any competent jurisdiction
judgment rendered in the other action will, regardless concludes the litigation
of which party is successful, amount to res judicata in between the parties, as well
the action udner consideration. as their privies, and
constitutes a bar to a new
CRISOSTOMO VS SEC action or suit involving the
same cause of action before
The principle of forum shopping applies not only to suits filed same or any other tribunal.
before the courts but also in connection with litigations pending
in courts while an administrative proceeding is pending. Identity of causes of action does not mean absolute identity.

No petitiosn for certiorari, etc is allowed in the IAC where
another petition has been filed or is still pending in the SC.
SAN MIGUEL BUKID VS CITY OF MANDALUYONG
Court may allow subsequent compliance with certification
against forum shopping if there are compelling reasons.
Tests to determine commonality of causes of action:
1. Whether the same evidence would support and sustain
both the first and the second causes of action
2. Whether the defenses in one case may be used to
substantiate the complaint in the other.
FONTANA DEVELOPMENT VS SASCHA VUKASINOVIC

Where there is forum shopping, ALL PENDING CLAIMS ON THE

MD PASIG LAND DEVELOPMENT VS TABLANTE SAME CLAIM must be dismissed.

GR: you need a board reso or sec cert to show you have The penalty is summary dismissal – not only of the petition
authority to sign the certification against forum shopping. pending before this court but also that of the other court.

The court held in a slew of cases that the following officers of a ORIX METRO LEASING AND FINANCE CORPORATION VS
corporation may sign the certification against forum shopping CARDLINE INC
without a board resolution:
1. Chairperson of BOD Cases involved:
2. President 1. RTC – petition for review on certiorari
3. General/acting general manager 2. Petition for prohibition
4. Personnel officer
5. Employment specialist in a labor case. The 1st was filed to review the merits of the RTC’s judgment;
The 2nd respects the finality of the RTC’s judgment on the
STANDARD INSURANCE VS CUARESMA merits but interprets the dispositive portion in a way that would
render the execution unnecessary.
1. Criminal case for reckless imrpduence based on RPC;
2. Civil action for damages based on Art 2176 of the civil Thus, forum shopping is not present.
code.
No forum shopping – the law and rules expressly allow the CITY OF TAGUIG VS CITY OF MAKATI
filing of a separate civil action which can proceed independently
of the criminal action. Simultaneously pursuing an appeal or a motion for
reconsideration and a petition for annulment of judgment is an
EULOGIO VS BELL act of forum shopping.

Forum shopping can be committed in three ways; The general rule is that compliance with the certificate of non-
(1) by filing multiple cases based on the same cause of action forum shopping is separate and independent from the
and with the same prayer, the previous case not having been avoidance of the act of forum shopping itself.
resolved yet (where the ground for dismissal is litis pendentia);
 (3) an act or omission of the defendant in violation of plaintiff's
Litis pendentia Res judicata/prior judgment right with consequential injury or damage to the plaintiff for
The requisites of litis Res judicata or prior which he may maintain an action for the recovery of damages
pendentia are: judgment bars a subsequent or other appropriate relief,
(a) the identity of parties, or case when the following
at least such as representing requisites are satisfied The complaint states a cause of action. Otherwise, the
the same interests in both (1) the former judgment is complaint must succumb to a motion to dismiss on the ground
actions; final; of failure to state a cause of action.
(b) the identity of rights (2) it is rendered by a court
asserted and relief prayed having jurisdiction over the SANTOS VS SANTOS GRAN
for, the relief being founded subject matter and the
on the same facts; and parties; A fact is essential/ ultimate when it cannot be stricken out
(c) the identity of the two (3) it is a judgment or an without leaving the statement of the cause of action
cases such that judgment in order on the merits; inadequate.
one, regardless of which (4) there is — between the
party is successful, would first and the second actions Since the inquiry is into the sufficiency and not the veracity, the
amount to res judicata in the — identity of parties, of analysis should be confined to the 4 corners of the complaint
other. subject matter, and of and no other.
causes of action.
So the pleading should state the ultimate (also evidentiary after
the amendment) facts and not just mere conclusions of law. If
CIR VS APO CEMENT CORPORATION not properly stated, it should be dismissed on the ground of
failure to state a cause of action (now an affirmative defense?
A pleading not verified when it is so required is treated as an Please check. This is not among the grounds to dismiss
unsigned pleaing. An unsigned pleading produces no legal anymore)
effect. However, the court may allow such deficiency to be
remedied when it was due to mere inadvertence and not ASSOCIATION OF FLOOD VICTIMS VS COMELEC
intended for delay.

Section 4, Rule 8 of the Rules of Court mandates that "[f]acts

PALAO VS FLORENTINO INTERNATIONAL showing the capacity of a party to sue or be sued or the
authority of a party to sue or be sued in a representative
There is a need to attach a certification of non forum shopping capacity or the legal existence of an organized association of
before the office of the DG of the IPO persons that is made a party, must be averred."

A certification signed by counsel alone is defective and An unincorporated association, in the absence of an enabling
constitutes a valid cause for dismissal. law, has no juridical personality and thus, cannot sue in the
name of the association.
Natural persons Corporations
In the case of natural However, in the case of the Such unincorporated association is not a legal entity distinct
persons, the Rule corporations, the physical act of from its members. If an association has no juridical personality,
requires the parties signing may be performed, on then all members of the association must be made parties in
themselves to sign the behalf of the corporate entity, the civil action.
certificate of non-forum only by specifically authorized
shopping. individuals for the simple reason
that corporations, as artificial LEONG VS SEE
persons, cannot personally do
the task themselves. Fraud must be substantiated.

The principle of indefeasibility of a torrens title does not furnish

a shield for fraud.
The required certification must be valid at the time of filing the
petition. An invalid certificate cannot be remedied by the
VILLALON VS LIRIO
subsequent submission of a secretary’s certificate that vests
authority only after the petition has been filed.
Mere invocation of the words surreptitiously and fraudulently
does not make the allegation particular without specifiying the
But a liberal application of the rules may be justified if
circumstatnces of the commission and employment of fraud.
compelling reasons are present.
This is how it should have been alleged –
SOCIETE DES PRODUITS, NESTLE, S.A., VS. PUREGOLD PRICE
CLUB, INC
The allegation of fraud would have been averred with
particularity had Lirio alleged, for example, that Villalon
If the real party in interest in a case is a corporation, an officer
removed the equipment under the false pretense that they
can validly sign the certification against forum shopping if he or
needed repair and refurbishing but the equipment were never
she is authorized by the BOD or thru a secretary’s certificate.
returned; or that Villalon removed the merchandise because
Semicon needed to sell them in exchange for new supplies but
DE LIMA VS GUERRERO
no new supplies were bought.
Without the presence of the notary upon signing of the
WESTMONT BANK VS FUNAI PHILIPPINES
verification and the certification against forum shopping, there
is no assurance that the petition was sworn under oath and the
Allegation sample:
the allegations have been made in good faith or are true and
correct.
"Panamax, Ngo, Alba, Yu, Baesa and Resane are impleaded
herein for being mere alter egos, conduits, dummies or
BANCO FILIPINO VS BANGKO SENTRAL
nominees of defendants spouses Antonio and Sylvia Yutingco to
defraud creditors, including herein plaintiff [Westmont].
A bank that has been placed udner receivership may sue and
be sued only through its receiver, PDIC. Thus, its BOD cannot
SC’s assessment – these allegations are merely conclusions of
validly authorize anyone to file suits on its behalf.
law and unsupported by a particular averment.
RULE 8
There is no explanation or narration of facts that would disclose
why the additional defendants are mere alter egos, conduits,
MATHAY VS CONSOLIDATED
dummies or nominees of the original defendants to defraud
creditors, contrary to the requirement of Section 5, Rule 8.
Where the complaint states the ULTIMATE FACTS (under
amendment, also include evidentiary facts) that constitute the
It bears to stress that "while the facts alleged in the complaint
trheee essential elements of a cause of action, namely:
are hypothetically admitted by the defendant, who moves to
dismiss the complaint on the ground of failure to state a cause
(1) the existence of a legal right in the plaintiff,
of action, it must, nevertheless, be remembered that the
hypothetical admission extends only to the relevant and
(2) a correlative legal duty in the defendant, and
material facts well pleaded in the complaint, as well as
inferences fairly deductible therefrom."

Verily, the filing of the motion to dismiss assailing the
sufficiency of the complaint "does not admit :
1. the truth of mere epithets of fraud;
2. nor allegations of legal conclusions;
3. nor an erroneous statement of law;
4. nor mere inferences or conclusions from facts not
stated;
5. nor mere conclusions of law;
6. nor allegations of fact the falsity of which is subject to
judicial notice;
7. nor matters of evidence;
8. nor surplusage and irrelevant matter;
9. nor scandalous matter inserted merely to insult the
opposing party;
10. nor to legally impossible facts;
11. nor to facts which appear unfounded by a record
incorporated in the pleading, or by a document
referred to;
12. nor to general averments contradicted by more
specific averments."
WATERCRAFT VENTURE VS WOLFE
On the allegation of fraud – it must pertain to the execution of
the agreement and must have been the reason which induced
the other party into giving consent which he would not have
otherwise given.
HEIRS OF YABAO VS VAN DER KOLK
Section 4, Rule 8 of the Rules of Court provides that facts
showing the capacity of a party to sue or be sued, or the
authority of a party to sue or be sued in a representative
capacity must be averred in the complaint. The party bringing
suit has the burden of proving the sufficiency of the
representative character that he claims.
If a complaint is filed by one who claims to represent a party as
plaintiff but who, in fact, is not authorized to do so, such
complaint is not deemed filed and the court does not acquire
jurisdiction over the complaint.
MBT VS LEY CONSTRUCTION
An actionable document is a written instrument or document in
which an action or defense is founded. It may be pleaded in
either 2 ways (now 1 way nalang):
(1) by setting forth the substance of such document in the
pleading and attaching the document thereto as an annex,
(THIS WAY NALANG SA AMENDMENT)
(2) by setting forth said document verbatim in the pleading.
YU CHUCK VS KO LING PO
You are not supposed to present evidence anymore to prove
due execution and genuineness, this opens for a cross-
examination by the other party, so the benefit here is waived.
GO TONG VS BPI
How to deny the genuineness and due execution of an
actionable document:
The defendant must declare under oath that he did not sign the
document or that it is otherwise false or fabricated. A plea that
the instrument was procured by fraudulent representation is an
admission both of the genuinesness and due execution of a
document since it seeks to avoid the instrument upon a ground
not affecting either.
"[T]HE ADMISSION OF THE GENUINENESS AND DUE
EXECUTION OF A DOCUMENT MEANS THAT:
1. THE PARTY WHOSE SIGNATURE IT BEARS ADMITS
THAT HE VOLUNTARILY SIGNED THE DOCUMENT OR
IT WAS SIGNED BY ANOTHER FOR HIM AND WITH HIS
AUTHORITY;
2. that at the time it was signed it was in words and
figures exactly as set out in the pleading of the party
relying upon it;
3. that the document was delivered; and
4. that any formalities required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks,
are waived by him.
VDA DE ROJALES VS DIME
Rule 8 sec 8 is applicable in contesting an action or defense
based on a written instrument or document copied or attached
to the pleading – not a MTD.
Generally, a notarized document carries the evidentiary weight
conferred upon it with respect to its due execution and
documents acknowledged before the notary public have
presumption of regularity.
In other words, absent any clear and convincing proof to the
contrary, a notarized document enjoys the presumption of
regularity and is conclusive as to the truthfulness of its
contents.
SPS SY VS WESTMONT BANK
To deny the genuineness and due execution of an actionable
document,
(1) there must be a specific denial in the responsive
pleading of the adverse party;
(2) the said pleading must be under oath; and
(3) the adverse party must set forth what he claims to be
the facts.
Failure to comply with the prescribed procedure results in the
admission of the genuineness and due execution of the
actionable document.
But note, this sec 8 rule 8 should not be applied with absolute
rigidity.
BP OIL AND CHEMICALS VS TOTAL DISTRIBUTION
If a document is not an actionable document, there is no need
to deny its genuineness and execution under oath.
An admission is any statement of fact made by a party against
its interest or unfavorable to the conclusion for which he
contends or is inconsistent with the facts alleged by him.
To be admissible, an admission must
(a) involve matters of fact, and not of law;
(b) be categorical and definite;
(c) be knowingly and voluntarily made; and
(d) be adverse to the admitter' s interests, otherwise it
would be self-serving and inadmissible.
A document is actionable when a defense is grounded upon
such written instrument or document.
In a complaint for collection of sum of money, a termination
agreement is not an actionable document.
FERNANDO VS WESLEYAN
The controversion of ultimate facts must only be by specific
denial. There are three modes by which denial in the answer
raises an issue of fact:
1. The first is by the defending party specifying each
material allegation of fact the truth of which he does
not admit and, whenever practicable, setting forth the
substance of the matters upon which he relies to
support his denial.
2. The second applies to the defending party who desires
to deny only a part of an averment, and the denial is
done by the defending party specifying so much of the
material allegation of ultimate facts as is true and
material and denying only the remainder.
3. The third is done by the defending party who is
without knowledge or information sufficient to form a
belief as to the truth of a material averment made in
the complaint by stating so in the answer.
Any material averment in the complaint not so specifically
denied are deemed admitted except an averment of the
amount of unliquidated damages.
If there is an actionable document, the pleader is required to
set forth the substance of the document and attach the original
or a copy thereof to the pleading (based on amended)
The adverse party is deemed to admit the genuineness and due
execution of the actionable document unless he specifically
denies them under oath, and sets forth what he claims to be
the facts, but the requirement of an oath does not apply when
the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection
of the original instrument is refused.

RULE 9 EFFECT OF FAILURE TO PLEAD
DIONA VS BALANGUE
When the defendant is declared in default, among the
conditions is that:
(e) Extent of relief to be awarded. – A judgment rendered
against a party in default shall not exceed the amount
or be different in kind from that prayed for nor award
unliquidated damages.
The reason is grounded on due process.
LUI VS ZUELLIG
There should be no inexplicable delay in the filing of a motion
to set aside order of default. Even when a motion is filed within
the required period, excusable negligence must be properly
alleged and proven.
Note: now, upon service of summons, you have 30 days to
answer.
A defendant declared in default:
1. loses his or her standing in court.
2. He or she is "deprived of the right to take part in the
trial and forfeits his [or her] rights as a party litigant,"
3. has no right "to present evidence [supporting his or
her] allegations," and
4. has no right to "control the proceedings [or] cross-
examine witnesses."
5. Moreover, he or she "has no right to expect that [the
court] would [act] upon [his or her pleadings]" or that
he or she "may [oppose]motions filed against him [or
her]."
However he does not waive all of his rights as he still has right
to receive notice of subsequent proceedings.
After notice of the declaration of default but before the court
renders the default judgment, the defendant may file, under
oath, a motion to set aside order of default. THE DEFENDANT
MUST PROPERLY:
1. SHOW THAT HIS OR HER FAILURE TO ANSWER WAS
DUE TO FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE
NEGLIGENCE.
2. The defendant must also have a meritorious defense.
Section 3. Default; declaration of. – x x x x
(b) Relief from order of default. – A party declared in default
may at any time after notice thereof and before judgment file a
motion under oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a meritorious
defense. In such case, the order of default may be set aside on
such terms and conditions as the judge may impose in the
interest of justice.
If the defendant discovers his or her default after judgment but
prior to the judgment becoming final and executory, he or she
may file a motion for new trial under Rule 37, Section 1,
paragraph (a) of the 1997 Rules of Civil Procedure.
If he or she discovers his or her default after the judgment has
become final and executory, a petition for relief from judgment
under Rule 38, Section 1 of the 1997 Rules of Civil Procedure
may be filed.119
Appeal is also available to the defendant declared in default. He
or she may appeal the judgment for being contrary to the
evidence or to the law under Rule 41, Section 2 of the 1997
Rules of Civil Procedure.120 He or she may do so even if he or
she did not file a petition to set aside order of default.121
A petition for certiorari may also be filed if the trial court
declared the defendant in default with grave abuse of
discretion.122
The remedies of the motion to set aside order of default,
motion for new trial, and petition for relief from judgment ARE
MUTUALLY EXCLUSIVE, NOT ALTERNATIVE OR CUMULATIVE.
So, only one of the three remedies may be availed.
Thus, if a defendant discovers his or her default before the trial
court renders judgment, he or she shall file a motion to set
aside order of default. IF THIS MOTION TO SET ASIDE
ORDER OF DEFAULT IS DENIED, the defendant declared in
default cannot await the rendition of judgment, and he or she
cannot file a motion for new trial before the judgment becomes
final and executory, or a petition for relief from judgment after
the judgment becomes final and executory.
With a MOTION FOR NEW TRIAL, the defendant must file the
motion within the period for taking an appeal or within 15 days
from notice of the default judgment. Although a default
judgment has already been rendered, the filing of the motion
for new trial tolls the reglementary period of appeal, and the
default judgment cannot be executed against the defendant.
A PETITION FOR RELIEF FROM JUDGMENT is filed after the
default judgment has become final and executory. Thus, the
filing of the petition for relief from judgment does not stay the
execution of the default judgment unless a writ of preliminary
injunction is issued pending the petition’s resolution.
Reliefs and the consequences:
Grant of a motion to set Defendant is given the
aside order of default chance to present evidence
Appeal Defendant has not right to
present evidence and can
only appeal the judgment for
being contrary to plaintiff’s
evidence or the law.
Petition for certiorari does not allow the defendant
to present evidence on his or
her behalf. The defendant
can only argue that the trial
court committed grave abuse
of discretion in declaring him
or her in default.
Thus, should a defendant prefer to present evidence on his or
her behalf, he or she must file either:
1. a motion to set aside order of default,
2. motion for new trial, or
3. a petition for relief from judgment.
PINEWOOD VS EMCO
Notwithstanding this provision
(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated
damages.
In this case a modification of the interests imposed on the
damages awarded by the RTC was pursuant to recent
jurisprudence. Insert cred trans lesson on interest – the nacar
ruling) so it was allowed by the SC.
MOMARCO VS VILLAMENA
UNDER SECTION 3 RULE 9 OF THE RULES OF COURT, THE
THREE REQUIREMENTS TO BE COMPLIED WITH BY THE
CLAIMING PARTY BEFORE THE DEFENDING PARTY CAN BE
DECLARED IN DEFAULT ARE:
(1) that the claiming party must file a motion praying that the
court declare the defending party in default;
(2) the defending party must be notified of the motion to
declare it in default;
(3) the claiming party must prove that the defending party
failed to answer the complaint within the period provided by the
rule.
The default of the defending party cannot be declared motu
proprio.
In implementation of the policy against defaults, the courts
have admitted answers filed beyond the reglementary periods
but before the declaration of default.
CONSIDERING THAT THE PETITIONER WAS NOT YET
DECLARED IN DEFAULT WHEN IT FILED THE ANSWER ON
SEPTEMBER 10, 1998, SHOULD NOT ITS ANSWER HAVE BEEN
ADMITTED?
SC: NO
The CA rightly observed that the petitioner had apparently
forsaken its "expeditious remedy" of moving soonest for the
lifting of the order of default in favor of "wager[ing]" on
obtaining a favorable judgment. The petitioner would not do so
unless it intended to unduly cause delay to the detriment and
prejudice of the respondent.
It does make sense for a defendant without defenses, and who
accepts the correctness of the specific relief prayed for in the
complaint, to forego the filing of the answer or any sort of
intervention in the action at all.
For even if he did intervene, the result would be the same:
since he would be unable to establish any good defense, having
none in fact, judgment would inevitably go against him.
CARSON REALTY VS RED ROBIN
Just note that a motion to set aside order of default should be
under oath.
EDRON VS PROVINCIAL
It may be gleaned from Rule 9, Sec 1 of the Rules of court that
except for the defenses of:
(a) lack of jurisdiction over the subject matter of the case;
(b) litis pendentia;
(c) res judicata; and/or
(d) prescription,
other defenses must be invoked WHEN AN ANSWER OR A
MOTION TO DISMISS IS FILED IN ORDER TO PREVENT A
WAIVER THEREOF. Otherwise stated, if a defendant fails to
raise a defense not specifically excepted in Section 1, Rule 9 of
the Rules of Court either in a motion to dismiss or in the
answer, such defense shall be deemed waived, and
consequently, defendant is already estopped from relying upon
the same in further proceedings.
ALVARADO VS AYALA LAND
A civil action is initiated by filing a complaint in the appropriate
court. WITHIN (30) DAYS AFTER THE SERVICE OF SUMMONS
OR AS DIRECTED BY THE COURT, THE DEFENDANT MUST FILE
AN ANSWER.
A DEFENDANT WHO FAILS TO TIMELY FILE AN ANSWER SHALL
BE HELD IN DEFAULT: "Thereupon, the court shall proceed to
render judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion requires
the claimant to submit evidence."
The filing of a complaint is not in all cases followed by the filing
of an answer. Upon any of the grounds recognized by Rule 16,
Section 1 of the 1997 Rules of Civil Procedure a defendant may
instead seek the immediate dismissal of the complaint.
[nevermind, rule 16 removed]
But note that a motion to dismiss is filed within the time for
BUT BEFORE filing the answer. (so within 30 days pud)
In the answer, affirmative defenses, which take the form of
"confession and avoidance" may also be raised. After the
answer, no new defenses may be raised. AS RULE 9, SECTION
1 STIPULATES "[D]EFENSES AND OBJECTIONS NOT
PLEADED ... IN THE ANSWER ARE DEEMED WAIVED."
It is during trial where evidence to prove the parties' respective
positions on the substantive issues, as tendered in their
pleadings, is received.
Prior to trial, there may be defenses which may be granted
without touching on the merits of the case. This is via the
Motion to Dismiss the grounds for which can be considered with
the hypothetical admission of the allegations in the complaint.
IT IS BASIC, THEN, THAT MOTIONS TO DISMISS ARE NOT TO
BE ENTERTAINED AFTER AN ANSWER HAS BEEN FILED.
But there are exceptions – the grounds in rule 9 sec 1 – JLRP.
The court can still dismiss the claim.
All other grounds are considered waived if not timely invoked.
Idk if this is still applicable but:
Apart from the exceptions recognized in Rule 9, Section 1,
jurisprudence has also clarified that, despite the prior filing
of an answer, an action may still be dismissed on a
ground which only became known subsequent to the
filing of an answer.
Rule 9, Section 1 considers as waived only those "[d]efenses
and objections not pleaded ... in the answer.”
When defenses and objections are pleaded in an answer and
thereafter are restated in a motion to dismiss, the motion
to dismiss' recital of grounds may be repetitive or superfluous,
but no waiver ensues.
It is not so much that the motion to dismiss is valid; rather, the
answer is adequate. Pleading grounds for dismissal in an
answer suffice to effect a situation "as if a motion to dismiss
had been filed"
RULE 10
MERCADO VS SPS ESPINA
It is well established that issues raised for the first time on
appeal and not raised in the proceedings in the lower
court are barred by estoppel.
Points of law, theories, issues, and arguments not brought to
the attention of the trial court ought not to be considered by a
reviewing court, as these cannot be raised for the first time on
appeal.
UNDER SECTION 8, RULE 10 OF THE RULES OF COURT, AN
AMENDED COMPLAINT SUPERSEDES AN ORIGINAL ONE. As a
consequence, the original complaint is deemed withdrawn
and no longer considered part of the record.
PNB VS SPS MANALO
IT IS SETTLED THAT EVEN IF THE COMPLAINT BE DEFECTIVE,
BUT THE PARTIES GO TO TRIAL THEREON, AND THE
PLAINTIFF, WITHOUT OBJECTION, INTRODUCES SUFFICIENT
EVIDENCE TO CONSTITUTE THE PARTICULAR CAUSE OF
ACTION WHICH IT INTENDED TO ALLEGE IN THE ORIGINAL
COMPLAINT, AND THE DEFENDANT VOLUNTARILY PRODUCES
WITNESSES TO MEET THE CAUSE OF ACTION THUS
ESTABLISHED, AN ISSUE IS JOINED AS FULLY AND AS
EFFECTIVELY AS IF IT HAD BEEN PREVIOUSLY JOINED
BY THE MOST PERFECT PLEADINGS.
Likewise, when issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings.
The failure of a party to amend a pleading to conform to the
evidence adduced during trial does not preclude an adjudication
by the court on the basis of such evidence which may embody
new issues not raised in the pleadings, or serve as a basis for a
higher award of damages.
Although the pleading may not have been amended to conform
to the evidence submitted during trial, judgment may
nonetheless be rendered, not simply on the basis of the issues
alleged but also on the basis of issues discussed and the
assertions of fact proved in the course of trial. The court may
treat the pleading as if it had been amended to conform to the
evidence, although it had not been actually so amended.
Thus, a court may rule and render judgment on the basis of the
evidence before it even though the relevant pleading had not
been previously amended, so long as no surprise or prejudice is
thereby caused to the adverse party.
 OLA VS PEOPLE
IT IS CLEAR UNDER SECTION 3, RULE 10 OF THE RULES OF
COURT THAT AFTER A RESPONSIVE PLEADING HAS BEEN
FILED, AS IN THE PRESENT CASE, SUBSTANTIAL AMENDMENTS
MAY BE MADE ONLY BY LEAVE OF COURT. Moreover, such
leave may be refused if it appears to the court that the motion
was made with intent to delay.
CENTRAL BOARD OF LIQUIDATORS VS BANCO FILIPINO
THE PREVAILING RULE ON THE AMENDMENT OF PLEADINGS IS
ONE OF LIBERALITY, WITH THE END OF OBTAINING
SUBSTANTIAL JUSTICE FOR THE PARTIES. HOWEVER, THE
OPTION OF A PARTY-LITIGANT TO AMEND A PLEADING IS NOT
WITHOUT LIMITATION.
If the purpose is to set up a cause of action not existing at the
time of the filing of the complaint, amendment is not allowed.
If no right existed at the time the action was commenced, the
suit cannot be maintained, even if the right of action may have
accrued thereafter.
Rule 10 of the 1997 Revised Rules of Court allows the parties to
supplement their pleadings by setting forth transactions,
occurrences, or events that happened since the date of the
pleading sought to be supplemented.
However, the option of a party-litigant to supplement a
pleading is not without limitation. A supplemental pleading
only serves to bolster or add something to the primary
pleading. Its usual function is to set up new facts that justify,
enlarge, or change the kind of relief sought with respect to the
same subject matter as that of the original complaint.
A supplemental complaint must be founded on the same cause
of action as that raised in the original complaint.
Although in Planters Development Bank v. LZK Holdings &
Development Corporation, the Court clarified that the fact that
a supplemental pleading technically states a new cause of
action should not be a bar to its allowance, still, the matter
stated in the supplemental complaint must have a relation to
the cause of action set forth in the original pleading.
That is, the matter must be germane and intertwined with the
cause of action stated in the original complaint so that the
principal and core issues raised by the parties in their original
pleadings remain the same.
RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS
VELARDE VS SOCIAL JUSTICE SOCIETY
PROPER PROCEEDINGS BEFORE THE RTC (IMPORTANT)
1. The trial court may -- MOTU PROPRIO OR UPON MOTION OF
THE DEFENDANT -- DISMISS A COMPLAINT (or petition, in a
special civil action) that does not allege the plaintiff’s (or
petitioner’s) cause or causes of action.
a) 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.
2. 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, (note under new rules, 30 days) unless a
different period is fixed by the court. The summons shall also
contain a notice that if such answer is not filed,
a) 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.
3. If the answer sets forth a counterclaim or cross-claim, it
must be answered within ten (10) days from service. a) (NOTE
UNDER NEW RULES, 20 DAYS)
a) A reply may be filed within ten (10) days from service
of the pleading responded to (UNDER NEW RULES, 15 DAYS)
4. 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)
5. Meanwhile, a party seeking to recover upon a claim, a
counterclaim or crossclaim -- or to obtain a declaratory relief --
may, at any time after the answer thereto has been served,
move for a summary judgment in its favor.
a) 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.
b) 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.
6. 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.
a) 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.
7. 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.
(NOTE, NO SIMILAR PROVISION ON 5 DAYS RULE
PERTAINING TO MTD BUT ONLY TO BILL OF
PARTICULAR. BUT AS MA’AM SAID, BY ANALOGY, IT
APPLIES.)
8. 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) 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.
9. 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.
a) 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.
10. Thereafter, the CASE SHALL BE SET FOR TRIAL, in which
the 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.
11. 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.
12. 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.
 CRISOLOGO JOSE VS LAND BANK OF THE PHILIPPINES
To admit or to reject an answer filed after the prescribed period
is addressed to the sound discretion of the court.
In fact, Section 11, Rule 11 of the Rules authorizes the court to
accept answer though filed late, thus:
SECTION. 11. Extension of time to plead. – Upon motion and
on such terms as may be just, the court may extend the time
to plead provided in these Rules.
The court may also, upon like terms, allow an answer or other
pleading to be filed after the time fixed by these Rules.
(NOTE: under new rules, the extension is for a period not
greater than 30 days and only once)
As jurisprudence provides, an answer should be admitted
where it had been filed before the defendant was declared in
default and no prejudice is caused to the plaintiff.
PNB VS DEANG MARKETING
It is a basic rule of remedial law that a motion for extension of
time to file a pleading must be filed before the expiration of the
period sought to be extended.
The court's discretion to grant a motion for extension is
conditioned upon such motion's timeliness, the passing of which
renders the court powerless to entertain or grant it.
CHUA VS MADRONA
Here, MBDC cannot be declared in default (for failure to file an
answer) since it still has a pending MR for the order denying its
MTD. With the filing of the MR, the running of the period to file
an answer was interrupted. Thus, the counting of the period
shall only begin to run upon MBDC’s receipt of the Order
denying the motion for reconsideration.
Under Section 4, Rule 16 within which to file the same but in no
case less than five days, computed from her receipt of the
notice of denial of her motion to dismiss. Thus:
SEC. 4. Time to plead. – If the motion is denied, 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 receiptof 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 12 – BILL OF PARTICULARS
REPUBLIC VS SANDIGANBAYAN
It is the office or function, as well as the object or purpose, of a
bill of particulars to:
1. amplify or limit a pleading,
2. specify more minutely and particularly a claim or
defense set up and pleaded in general terms,
3. give information, not contained in the pleading, to the
opposite party and the court as to the precise nature,
character, scope, and extent of the cause of action or
defense relied on by the pleader, and
4. apprise the opposite party of the case which he has to
meet, to the end that the proof at the trial may be
limited to the matter specified, and
5. in order that surprise at, and needless preparations
for, the trial may be avoided, and that the opposite
party may be aided in framing his answering pleading
and preparing for trial.
It has also been stated that it is the function or purpose of a bill
of particulars to define, clarify, particularize, and limit or
circumscribe the issues in the case, to expedite the trial, and
assist the court.
LUCIO TAN VS SANDIGANBAYAN
A bill of particulars becomes part of the pleadings once
accepted. Thus,
(a) Bill a part of pleading. A bill of particulars becomes a part of
the pleading which it supplements. It shall be governed by the
rules of pleading and the original shall be filed with the clerk of
the court.
A seasonable motion therefor interrupts the period within which
to answer:
(b) Stay of period to file responsive pleading- After service of
the bill of particulars or of a more definite pleading, or after
notice of denial of his motion, the moving party shall have the
same time to serve his responsive pleading, if any is permitted
by these rules, as that to which he was entitled at the time of
serving his motion, but not less than five (5) days in any
event (still the same under amended rules).
If the motion is filed beyond that period, it should rightly be
denied .
Where it is, however, filed on time, whether or not the movant
succeeds in his motion, he, the movant, has, as above-
indicated, "the same time to serve his responsive pleading . . .
as that to which he was entitled ... but not less than five (5)
days in any event.
Pending the resolution of these questions, the issues of the
case cannot be said to have been joined, and a party's failure
to attend subsequent hearings does not amount to
failure to prosecute.
A motion for a bill of particulars, not a motion to dismiss, is the
proper remedy against a deficient pleading.
The complaint for which a bill for a more definite statement is
sought, need only inform the defendant of the essential (or
ultimate) (now includes evidentiary) facts to enable him, the
defendant, to prepare an intelligent answer.
NATIONAL WATERWORKS AND SEWERAGE AUTHORITY
VS NWSA
Under Rule 12 of the Rules of Court a party against whom a
complaint has been filed is entitled to compel the plaintiff to
submit a bill of particulars in relation to such allegations of the
latter's pleading as appear to be indefinite and uncertain, and
that the filing of the motion for the purpose suspends the
running of the period for the filing of the corresponding
responsive pleading.
FILIPINAS FABRICATROS VS HON MAGSINO
A filed motion for a bill of particulars renders the running of the
reglamentary period to answer suspended. But this is accurate
only if the motion is sufficient in form and substance.
meaning, it complies with the general requirements of motions
under Sections 4 and 5 of Rule 15 of the Revised Rules of
Court, which explicitly require a motion to accompanied by a
notice of hearing, to be served by the movant on the adverse
parties concerned at least three (3) days before the hearing,
and to state therein the exact time and place of hearing.
[NOTE: section 4 – deleted and sec 5 is now litigious motions]
Based on my recollection, a motion now need not be
accompanied by a notice of hearing since it will be the cort
which will send the notice of hearing. Based on amended rule
15 sec 3 however, it states that – a motion shall:
1. state the relief sought to be obtained
2. grounds upon which it is based and
3. shall be accompanied by supporting affidavits and
other papers.
Section 6 of the same Rule further commands that "no motion
shall be acted upon by the court, without proof of service of the
notice thereof except when the court is satisfied that the rights
of the adverse party or parties are not affected [removed]."
[now sec 7]
These requriements are MANDATORY and the failure to comply
renders the motion fatal.
TANTUICO VS REPUBLIC OF THE PHILIPPINES
The complaint shall contain in a methodical and logical form a
plain, concise and direct statement of the ultimate facts on
which the plaintiff relies for his claim, omitting the statement of
mere evidentiary facts. [note: under the amended rules, you
have to include evidentiary facts]
 Ultimate facts Evidentiary facts
means the essential facts Those facts which are
constituting the plaintiffs necessary for
cause of action. A fact is determination of the
essential if it cannot be ultimate facts; they are the
stricken out without leaving premises upon which
the statement of the cause conclusions of ultimate facts
of action insufficient are based.
Where the complaint states where the allegations of the
ultimate facts that constitute complaint are vague,
the three (3) essential indefinite, or in the form of
elements of a cause of conclusions, the proper
action, namely: (1) the legal recourse would be, not a
right of the plaintiff, (2) the motion to dismiss, but a
correlative obligation of the motion for a bill of
defendant, and (3) the act particulars.
or omission of the defendant
in violation of said legal
right, the complaint states a
cause of action, otherwise,
the complaint must succumb
to a motion to dismiss on
that ground of failure to
state a cause of action.
SPECIFICATION OF TIME, WITHIN TEN (10) DAYS FROM
NOTICE OF THE ORDER.
RULE 13 – FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
E
BRIBONERIA VS CA
The general rule as provided for under Section 2 of Rule 27
(now Section 2, Rule 13) of the Rules of Court is that all notices
must be served upon counsel and not upon party. This is so
because the attorney of a party is the agent of the party and is
the one responsible for the conduct of the case in all its
procedural aspects; hence, notice to counsel is notice to party.
However, the general rule cannot apply where the law
expressly provides that notice must be served upon a definite
person. In such cases, service must be made directly upon the
person mentioned in the law and upon no other in order that
the notice be valid.
Whenever notice is necessary, it must appear that it was
served on the proper person, and there must be strict
compliance with a statute requiring service on a particular
person, so that service on another person is not sufficient.

Section 2 of Rule 27 (now Section 2, Rule 13) of the Rules of

Section 1, Rule 12 of the Rules of Court provides:
Before responding to a pleading or, if no responsive pleading is
permitted by these rules, within ten (10) [calendar] days after
service of the pleading upon him, a party may move for a more
definite statement or for a bill of particulars of any matter
which is not averred with sufficient definiteness or particularity
to enable him properly to prepare his responsive pleading or to
prepare for trial. Such motion shall point out the defects
complained of and the details desired.
Court does not control the mode of service of request for
admission. It should be observed that the orders, motions and
other papers mentioned in said section have this property in
common: they have to be filed with the court. A request for
admission, on the other hand, need not be filed with the court;
it was intended to operate extra-judicially and courts are not
burdened with the duty to determine the propriety or
impropriety of the request for admission.
HEIRS OF MENDOZA VS CA

List of allegations held as conclusions of fact:
(a) the allegations that defendants appellees were "actuated by
ulterior motives, contrary to law and morals, with abuse of their
advantageous position as employers, in gross and evident bad
faith and without giving plaintiff . . . his due, wilfully,
maliciously, unlawfully, and in summary and arbitrary manner",
are conclusions of law, inferences from facts not alleged and
expressions of opinion unsupported by factual premises;
(b) an allegation of duty in terms unaccompanied by a
statement of facts showing the existence of the duty, is a mere
conclusion of law, unless there is a relation set forth from which
the law raises the duty;
(c) an averment . . . that an act was "unlawful" or "wrongful" is
a mere legal conclusion or opinion of the pleader;
(d) the allegation that there was a violation of trust was plainly
a conclusion of law, for "a mere allegation that it was the duty
of a party to do this or that, or that he was guilty of a breach of
duty, is a statement of a conclusion, not of a fact;"
(e) an allegation that a contract is valid or void, is a mere
conclusion of law;
(f) the averment in the complaint that "defendant usurped the
office of Senator of the Philippines" is a conclusion of law — not
a statement of fact — inasmuch as the particular facts on which
the alleged usurpation is predicated are not set forth therein;
(g) the averment that "with intent of circumventing the
constitutional prohibition that 'no officer or employee in the civil
service shall be removed or suspended except for cause as
provided by law', respondents maliciously and illegally for the
purpose of political persecution and political vengeance,
reverted the fund of the salary item . . . and furthermore
eliminated or abolished the said position effective 1 July 1960"
SANTOS VS LIWAG
Section 2, Rule 13 of the 1997 Rules of Civil Procedure provides
that IF ANY PARTY HAS APPEARED BY COUNSEL, SERVICE
UPON HIM SHALL BE MADE UPON HIS COUNSEL UNLESS
SERVICE UPON THE PARTY HIMSELF IS ORDERED BY THE
COURT. Notice or service made upon a party who is
represented by counsel is a nullity. Notice to the client and not
to his counsel of record is not notice in law.
Note: this rule admits of exceptions, such as when the court or
tribunal orders service upon the party or when the technical
defect is waived.
DELOS SANTOS VS ELIZALDE
Jurisprudence provides that unless the change of attorneys is
carried out properly, the counsel of record shall still be
considered as the party’s counsel, and the notice sent to such
counsel shall be considered as notice to the party represented.
PHIL PORTS AUTHORITY VS SARGASSO CONSTRUCTION AND
DEVELOPMENT
Sec. 2, Rule 13 of the Rules of Court explicitly provides that if a
party has appeared by counsel, "service upon him shall be
made upon his counsel or one of them" (italics supplied).
CLEARLY, NOTICE TO ANY ONE OF THE SEVERAL COUNSEL ON
RECORD IS EQUIVALENT TO NOTICE TO ALL AND SUCH
NOTICE STARTS THE TIME RUNNING FOR APPEAL
NOTWITHSTANDING THAT THE OTHER COUNSEL ON
RECORD HAS NOT RECEIVED A COPY OF THE DECISION.
NATIONAL POWER CORPROATION VS LAOHOO
Service to one of plaintiff’s several counsels is sufficient.
When the rule employs the words "his attorneys or one
of them," it can only refer to those employed regardless
of whether they belong to the same law firm or office,
otherwise that meaning would have been expressed
therein.

The allowance of a motion for a more definite statement or bill
of particulars rests within the sound judicial discretion of the
court and, as usual in matters of a discretionary nature.
BANTILLO VS IAC
Where, as in the case at bar, the trial court orders the
amendment after a motion for a bill of particulars has been filed
by the adverse party and heard by the court, THE APPLICABLE
PROVISION IS SECTION 1 OF RULE 12 OF THE RULES OF
COURT: THE AMENDED PLEADING MUST BE FILED WITHIN THE
TIME FIXED BY THE COURT, OR ABSENT SUCH A
PRODUCER’S BANK VS CA
"[w]hen a client employs the services of a law firm, he does not
employ the services of the lawyer who is assigned to personally
handle the case. Rather, he employs the entire law firm. In the
event that the counsel appearing for the client resigns, the firm
is bound to provide a replacement."
Here, the court bound the client to the error/negligence of his
counsel/lawfirm.
SORIANO VS SORIANO
In practice, service means the delivery or communication of a
pleading, notice or some other paper in a case, to the opposite
party so as to charge him with receipt of it and subject him to
its legal effect.
WHEN A PARTY IS REPRESENTED BY COUNSEL OF RECORD,
SERVICE OF ORDERS AND NOTICES MUST BE MADE UPON
SAID ATTORNEY; AND NOTICE TO THE CLIENT AND TO ANY
OTHER LAWYER, NOT THE COUNSEL OF RECORD, IS NOT
NOTICE IN LAW.
Note of the exception: The exception to this rule is when
service upon the party himself has been ordered by the court.
PLDT VS NLRC
In modern multistoried buildings, there may be several hundred
rooms with hundreds of different employees discharging
different functions. A receiving clerk in a given mailing section
may not know the difference between a notice to a lawyer and
the thousands of other communications received by her either
by mail or through personal or commercial messengers and
may not act accordingly. Service upon a lawyer must be
effected at the exact given address of the lawyer and not
in the vicinity or at a general receiving section for an
entire multi-storied building with many offices.
AGUAM VS CA
The rules require that the notice to file the brief be given to the
PARTY APPELLANT. This is because after taking an appeal, the
party may change attorney for purposes of the appeal. Hence,
the notice must be given to the party appellant.
As to a notice served by mail, the court held that “However, the
mail matter must be received by the addressee or his duly
authorized representative Service of papers which includes
every written notice on a person who was a clerk, employee or
one in charge of the attorney's office, is invalid.”
This was discussed in the PPT:
Here, the notice was received by an employee of a realty firm
with which the counsel was sharing office. She was not an
employee of petitioner's counsel. He was a solo practitioner.
In the higher interest of justice, considering that the delay in
filing a motion for extension to file appellant's brief was only for
nine (9) days, and normally, the Court of Appeals would
routinely grant such extension, and the appellant's brief was
actually filed within the period sought, the better course of
action for the Court of Appeals was to admit appellant's brief.
Lapses in the literal observance of a rule of procedure will be
overlooked when they arose from an honest mistake, when
they have not prejudiced the adverse party.
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK VS ORTIZ
It is of course the rule that notices, pleadings, motions and
papers should be served on a party's counsel of record, at the
latter's given address. But it is certain that the counsel is
entirely at liberty to change his address, for purposes of
service, or expressly or impliedly adopt one different from that
initially entered in the record. When he does this, he cannot
afterwards complain that the person who received the
notice, pleading, motion or paper at such new address
did not promptly deliver the same to him or bring it to his
attention.
NATIONAL POWER CORP VS HON TAC-AN
Notices to counsel should be properly sent to his address of
record, and, unless the counsel files a notice of change of
address, his official address remains to be that of his address of
record.
In this case, the service was made at an address which was not
the lawyer’s address of record. The court ruled that:
To consider the service of the order at this address, when he
did not give it to the court as his address for the particular case
in which he entered his appearance, would be to sanction the
service of court processes and orders on counsel wherever he
may have an office. Although some attorneys maintain more
than one office, only the one given by them in their appearance
should be considered his address of record for that particular
case.
Whule it was previously rueld that service on an office in the
same building given by counsel as its address was considered
sufficient because it was shown that counsel had previously
accepted service through this office. That case is therefore
inapplicable to this case.
INDUSTRIAL TIMBER CORP VS NLRC
The date of delivery of pleadings to a private letter-forwarding
agency is not to be considered as the date of filing thereof in
court, and that in such cases, the date of actual receipt by the
court, and not the date of delivery to the private carrier, is
deemed the date of filing of that pleading.
GARVIDA VS SALES
Every pleading before the COMELEC must be printed,
mimeographed or typewritten in legal size bond paper and filed
in at least ten (10) legible copies. Pleadings must be filed
directly with the proper Clerk of Court of the COMELEC
personally, or, by registered mail.
NOTE!!!
Filing a pleading by facsimile transmission is not
sanctioned by the COMELEC Rules of Procedure, much
less by the Rules of Court. A facsimile is not a genuine and
authentic pleading. It is, at best, an exact copy preserving all
the marks of an original. 23 Without the original, there is no
way of determining on its face whether the facsimile pleading is
genuine and authentic and was originally signed by the party
and his counsel.
CUEVAS VS MUNOZ
The transmission by the Hong Kong DOJ of the request for
respondent’s provisional arrest and the accompanying
documents, namely, a copy of the warrant of arrest against
respondent, a summary of the facts of the case against him,
particulars of his birth and address, a statement of the
intention to request his provisional arrest and the reason
therefor, BY FAX MACHINE, MORE THAN SERVES THIS
PURPOSE OF EXPEDIENCY.
The proscription against the admission of a pleading that has
been transmitted by facsimile machine has no application in the
case at bar for obvious reasons.
A. First, the instant case does not involve a pleading; and
B. second, unlike the COMELEC Rules of Procedure which do not
sanction the filing of a pleading by means of a facsimile
machine, P.D. NO. 1069 AND THE RP HONG KONG
EXTRADITION AGREEMENT DO NOT PROHIBIT THE
TRANSMISSION OF A REQUEST FOR PROVISIONAL ARREST BY
MEANS OF A FAX MACHINE.
MCC INDUSTRIAL SAELS VS SSANGYONG
The terms "electronic data message" and "electronic
document," as defined under the Electronic Commerce Act of
2000, do not include a facsimile transmission. Accordingly, A
FACSIMILE TRANSMISSION CANNOT BE CONSIDERED AS
ELECTRONIC EVIDENCE. It is not the functional equivalent of
an original under the Best Evidence Rule and is not admissible
as electronic evidence.
Since a facsimile transmission is not an "electronic data
message" or an "electronic document," and cannot be
considered as electronic evidence by the Court, WITH GREATER
REASON IS A PHOTOCOPY OF SUCH A FAX TRANSMISSION
NOT ELECTRONIC EVIDENCE.
UY VS MEDINA
"SECTION 11. Priorities in modes of service and filing. —
Whenever practicable, the service and filing of pleadings and
other papers shall be done personally. Except with respect to
papers emanating from the court, a resort to other modes must
be accompanied by a written explanation why the service or
filing was not done personally . . ." [note: based on ppt, under
the amended rules, the written explanation for not filing
personally is no longer required].
Under Section 11, Rule 13 of the 1997 Rules of Civil procedure,
personal service and filing is the GENERAL RULE, and resort to
other modes of service or filing, the exception.
Henceforth, whenever personal service or filing is practicable, in
light of the circumstances of time, place and person, personal
service or filing is mandatory.
Only when personal service or filing is not practicable may
resort to other modes be had, which must then be accompanied
by a written explanation as to why personal service or filing
was not practicable to begin with.
GABRIEL VS CA
The written explanation why another mode of service was
resorted to is a MANDATORY AND INDISPENSABLE
REQUIREMENT IN PLEADINGS OR PAPERS FILED BEFORE ALL
THE COURTS OF THE LAND.
Parties must exert their best to effect personal service.
The Rules of Court24 provides that personal service of petitions
and other pleadings is the general rule, while a resort to other
modes of service and filing is the exception.
Strictest compliance with Section 11 of Rule 13 is mandated by
the Court,26 and noncompliance therewith is a ground for the
denial of the petition or the expulsion of the pleading from the
records.
[note: under the amended rules, the written explanation is no
longer required]
DBP VS COA
While Section 6 of Rule 13 of the Rules of Court provides:
SECTION 6. 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.
In this case, the RESIDENT CORPORATE AUDITOR OF THE DBP
IS NEITHER AN OFFICIAL NOR AN EMPLOYEE OF THE DBP. He
does not come within the definition of "clerk or person having
charge" of the office who may be validly served with a copy of
the resolution of the respondent as contemplated by the Rules.
GABRIEL ET AL VS BILON
Section 4, Rule III of the New Rules of Procedure of the NLRC
provides:
SEC. 4. Service of Notices and Resolutions. – (a) Notices or
summons and copies of orders, resolutions or decisions shall be
served on the parties to the case personally by the bailiff
or authorized public officer within three (3) days from
receipt thereof or by registered mail; Provided, That where
a party is represented by counsel or authorized representative,
service shall be made on such counsel or authorized
representative; Provided further, That in cases of decision
and final awards, copies thereof shall be served on both
parties and their counsel ….
For the purpose of computing the period of appeal, the same
shall be counted from receipt of such decisions, awards or
orders by the counsel of record.
Section 6, Rule 13 of the Rules of Court which is suppletory to
the NLRC Rules of Procedure states that: "[s]ervice 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."
The foregoing provisions contemplate a situation wherein
the party to the action is alive upon the delivery of a
copy of the tribunal’s decision. In the present case,
however, petitioner died before a copy of the labor arbiter’s
decision was served upon him. Hence, the above provisions do
not apply.
SOLAR TEAM ENT VS RICAFORT
Sec. 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes
two modes of service of pleadings, motions, notices, orders,
judgments and other papers, namely: (1) personal service; and
(2) service by mail. [now, there’s 5 modes – personal, mail,
courier, email, facsimile] The first is governed by Section 6,
while the second, by Section 7 of said Rule. If service cannot be
done either personally or by mail, substituted service may be
resorted to under Section 8 thereof.
Note: this rule below is no longer applicable but for educational
purposes, here it is
Pursuant, however, to Section 11 of Rule 13, service and filing
of pleadings and other papers must, whenever practicable, be
done personally; and if made through other modes, the party
concerned must provide a written explanation as to why the
service or filing was not done personally.
Note that Section 11 refers to both service of pleadings and
other papers on the adverse party or his counsel as provided
for in Sections 6, 7 and 8; and to the filing of pleadings and
other papers in court.
This explanation was mandatory under the old rules.
TING VS CA
IT IS NECESSARY IN CASES FOR VIOLATION OF BATAS
PAMBANSA BLG. 22, THAT THE PROSECUTION PROVE THAT
THE ISSUER HAD RECEIVED A NOTICE OF DISHONOR.
It is a general rule that when service of notice is an issue, the
person alleging that the notice was served must prove the fact
of service (58 Am Jur 2d, Notice, § 45).
The burden of proving notice rests upon the party asserting its
existence.
Now, ordinarily, preponderance of evidence is sufficient to
prove notice. In criminal cases, however, the quantum of proof
required is proof beyond reasonable doubt.
Hence, for Batas Pambansa Blg. 22 cases, there should be clear
proof of notice.
MOREOVER, IT IS A GENERAL RULE THAT, WHEN SERVICE OF
A NOTICE IS SOUGHT TO BE MADE BY MAIL, IT SHOULD
APPEAR THAT THE CONDITIONS ON WHICH THE VALIDITY OF
SUCH SERVICE DEPENDS HAD EXISTENCE, OTHERWISE THE
EVIDENCE IS INSUFFICIENT TO ESTABLISH THE FACT OF
SERVICE (C.J.S., NOTICE, § 18).
In civil cases, service made through registered mail is proved
by the registry receipt issued by the mailing office and an
affidavit of the person mailing of facts showing compliance with
Section 7 of Rule 13 (See Section 13, Rule 13, 1997 Rules of
Civil Procedure). [same as amended]
If, in addition to the registry receipt, it is required in civil cases
that an affidavit of mailing as proof of service be presented,
then with more reason should we hold in criminal cases that a
registry receipt alone is insufficient as proof of mailing. In the
instant case, the prosecution failed to present the testimony, or
at least the affidavit, of the person mailing that, indeed, the
demand letter was sent.
Likewise, for notice by mail, it must appear that the same
was served on the addressee or a duly authorized agent
of the addressee. In fact, the registry return receipt itself
provides that "[a] registered article must not be delivered to
anyone but the addressee, or upon the addressee's written
order, in which case the authorized agent must write the
addressee's name on the proper space and then affix legibly his
own signature below it."
JOHNSON SND JOHNSON VS CA
THE GENERAL RULE IS THAT SERVICE BY REGISTERED MAIL IS
COMPLETE UPON ACTUAL RECEIPT THEREOF BY THE
ADDRESSEE. The exception is where the addressee does not
claim his mail within 5 days from the date of the first notice of
the postmaster, in which case the service takes effect upon the
expiration of such period. [same as amended]
Inasmuch as the EXCEPTION REFERS TO ONLY CONSTRUCTIVE
AND NOT ACTUAL SERVICE, such exception must be applied
only upon conclusive proof that a first notice was duly sent by
the postmaster to the addressee.
The presumption that official duty has been regularly performed
is not applicable where there is evidence to the contrary, as in
the case at bar.
A CERTIFICATION FROM THE POSTMASTER WOULD BE THE
BEST EVIDENCE TO PROVE THAT THE NOTICE HAS BEEN
VALIDLY SENT. The mailman may also testify that the notice
was actually delivered.
The postmaster SHOULD CERTIFY NOT ONLY THAT THE NOTICE
WAS ISSUED OR SENT BUT ALSO AS TO HOW, WHEN AND TO
WHOM THE DELIVERY THEREOF WAS MADE.
Consequently, it cannot be too much to expect that when the
post office makes a certification regarding delivery of registered
mail, such certification should include the data not only as to
whether or not the corresponding notices were issued or sent
but also as to how, when and to whom the delivery thereof was
made.
ST MARY VS SORIANO
Founded upon public policy and necessity, lis pendens is
intended (1) to keep the properties in litigation within the
power of the court until the litigation is terminated and to
prevent the defeat of the judgment or decree by subsequent
alienation; and
(2) to announce to the whole world that a particular property is
in litigation and serves as a warning that one who acquires an
interest over said property does so at his own risk, or that he
gambles on the result of the litigation over said property.
A trial court has, however, the inherent power to cancel a
notice of lis pendens, under the express provisions of law
"SEC. 7. Substituted Service. - If, for justifiable causes, the
defendant cannot be served within a reasonable time [now
after 3 attempts in 2 different dates] as provided in the
preceding section, service may be effected (a) by leaving
copies of the 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."
In fine, the TWO MODES FOR EFFECTING SUBSTITUTED
SERVICE OF SUMMONS ARE:
(a) by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion; and
(b) by leaving copies at defendant's office or regular place of
business with some competent person in charge thereof.
Among these two modes of substituted service, the sheriff or
the process server may choose that which will more likely
insure the effectiveness of the service.
"The substituted service should be availed only when the
defendant cannot be served promptly in person. Impossibility of
prompt service should be shown by stating the efforts made to
find the defendant personally and the failure of such efforts.
The statement should be made in the proof of service.
The proof of service alluded to is the return required by Section
4 of Rule 14 which reads:
"SEC. 4. Return. - When the service has been completed, the
server shall, within five (5) days therefrom, serve a copy of the
return, personally or by registered mail, to the plaintiff's
counsel, and shall return the summons to the clerk who issued
it, accompanied by proof of service."

As provided for by Sec. 14, Rule 13 of the 1997 Rules of Civil
Procedure, a notice of lis pendens may be cancelled on two
grounds:
1. if the annotation was for the purpose of molesting the
title of the adverse party; or
2. when the annotation is not necessary to protect the
title of the party who caused it to be recorded.
RULE 14 – SUMMONS
Certificate of service of summons by the sheriff is prima facie
evidence of the facts set out in such certificate and to overcome
the presumption arising from the sheriff's return, the evidence
must be clear and convincing.
Note: a return must indicate the following:
(a) indicate the impossibility of service of summons within
a reasonable time,
(b) specify the efforts exerted to locate the petitioners and
(c) state that it was served on a person of sufficient age
and discretion residing therein.

GARCIA VS SWEENEY BD LONG SPAN BUILDERS VS RA AMPELOQUIO

An ordinary summons is a writ of right. In other words, by filing
the petition in an ordinary civil action in the Courts of First
Instance of these Islands, the party filing the same is entitled
to a summons directing the other party to appear and demur or
answer within a definite period.
Any person filing the ordinary petition is entitled to this writ as
of right. But the extraordinary writ of mandamus is a very
different procedure. It is extraordinary in its nature, and unless
the law specifically provides that the clerk may issue a notice to
show cause why it should not issue, the clerk ought not to be
vested with such authority.
OCA VS JUDGE BARROSO
Clerks of court are charged with the duty of issuing writs and
processes incident to pending cases before the court.19 IT IS
THEIR DUTY TO FORTHWITH ISSUE THE CORRESPONDING
SUMMONS TO THE DEFENDANTS UPON THE FILING OF THE
COMPLAINT AND PAYMENT OF THE REQUISITE LEGAL FEES.
As a rule, summons should be personally served on the
defendant. In case of a domestic private juridical entity, the
service of summons must be made upon an officer who is
named in the statute (i.e., the president, managing partner,
general manager, corporate secretary, treasurer, or in-house
counsel), otherwise, the service is insufficient.
[now it’s more specific:
1. president
2. managing partner
3. general manager
4. corp sec
5. treasurer
6. in hosue counsel
7. or in their absence, the secretary]
The impossibility of prompt personal service must be shown by
stating that efforts have been made to find the defendant
personally and that such efforts have failed.

THERE IS NOTHING HERCULEAN IN THE TASK OF ISSUING The statutory requirements of substituted service must be
SUMMONS. IT IS A MINISTERIAL DUTY WHICH CAN BE followed strictly, faithfully and fully, and any substituted service
DISCHARGED BY FILLING IN OF ENTRIES PRO FORMA. other than that authorized by statute is considered ineffective.
SERVICE OF SUMMONS ON THE DEFENDANT IS SIGNIFICANT
FOR THE COURT TO ACQUIRE JURISDICTION OVER HIS OR GOMEZ VS CA
HER PERSON.
In personam In rem/quasi in rem
UMANDA VS SABIO In actions in personam, jurisdiction over the person
summons on the defendant of the defendant is not a
Pursuant to Section 6, Rule 14 of the Revised Rules of Court, must be served by handing a prerequisite to confer
the general rule in this jurisdiction is that summons must be copy thereof to the jurisdiction on the court
served personally on the defendant, it reads: defendant in person, or, if he provided that the court
refuses to receive it, by acquires jurisdiction over the
"SEC. 6. Service in person on defendant. - Whenever tendering it to him. This is res, although summons must
practicable, the summons shall be served by handing a copy specifically provided in be served upon the
thereof to the defendant in person, or, if he refuses to receive Section 7, Rule 14 of the defendant in order to satisfy
and sign for it, by tendering it to him." Rules of Court,14 which the due process
states: requirements.
However, when the defendant cannot be served personally
within a reasonable time after efforts to locate him have failed, SEC. 7. Personal service of
substituted service may be made. Section 7, Rule 14 of the summons.-- The summons
Revised Rules of Court reads: shall be served by handing a
 copy thereof to the In actions in personam against residents temporarily out of the
defendant in person or, if he Philippines, the court need not always attach the defendant’s
refuses to receive it, by property in order to have authority to try the case.
tendering it to him.
Where the plaintiff seeks to attach the defendant’s property
If efforts to find defendant and to resort to the concomitant service of summons by
personally makes prompt publication, the same must be with prior leave, precisely
service impossible, because, if the sole purpose of the attachment is for the court
substituted service may be to acquire jurisdiction, the latter must determine whether from
effected by leaving copies of the allegations in the complaint, substituted service (to persons
the summons at the of suitable discretion at the defendant’s residence or to a
defendant's dwelling house competent person in charge of his office or regular place of
or residence with some business) will suffice, or whether there is a need to attach the
person of suitable age and property of the defendant and resort to service of summons by
discretion then residing publication in order for the court to acquire jurisdiction over the
therein, or by leaving the case and to comply with the requirements of due process.
copies at the defendant's
office or regular place of PAGALARAN VS BAL LATAN
business with some There is no default where no complaint or summons had been
competent person in charge served at the trial.
thereof.15 In substituted
service, it is mandated that PASCUAL VS PASCUAL
the fact of impossibility of
personal service should be In a case where the action is in personam and the defendant is
explained in the proof of in the Philippines, the service of summons may be done by
service. personal or substituted service as laid out in Sections 6 and 7
When the DEFENDANT IN AN Thus, where the defendant is of Rule 14 of the Revised Rules of Court.
ACTION IN PERSONAM IS A a non-resident who is not
NON-RESIDENT WHO DOES found in the Philippines, and personal service of summons should and always be the first
NOT VOLUNTARILY SUBMIT (1) the action affects the option, and it is only when the said summons cannot be served
HIMSELF to the authority of personal status of the within a reasonable time can the process server resort to
the court, personal service of plaintiff; substituted service.
summons within the State is (2) the action relates to, or
essential to the acquisition of the subject matter of which Breakdown of requirements to effect a valid substituted
jurisdiction over his person. is property in the Philippines service:
in which the defendant has
This cannot be done if the or claims a lien or interest; (1) Impossibility of Prompt Personal Service
defendant is not physically (3) the action seeks the
present in the country, and exclusion of the defendant The party relying on substituted service or the sheriff must
thus, the court cannot from any interest in the show that defendant cannot be served promptly or there is
acquire jurisdiction over his property located in the impossibility of prompt service. Section 8, Rule 14 provides that
person and therefore cannot Philippines; or the plaintiff or the sheriff is given a "reasonable time" to serve
validly try and decide the (4) the property of the the summons to the defendant in person, but no specific time
case against him. defendant has been attached frame is mentioned [note: now, there is a time frame - it’s
in the Philippines, summons failure after 3 attempts in 2 different dates]
EXCEPTION may be served
Gemperle vs. Schenker extraterritorially by
wherein service of summons a) personal service out (2) Specific Details in the Return
through the non-resident’s of the country, with leave of
wife, who was a resident of court; The sheriff must describe in the Return of Summons the facts
the Philippines, was held b) publication, also and circumstances surrounding the attempted personal service.
valid, as the latter was his with leave of court; or The efforts made to find the defendant and the reasons behind
representative and attorney- c) any other manner the failure must be clearly narrated in detail in the Return. The
in-fact in a prior civil case the court may deem date and time of the attempts on personal service, the inquiries
filed by the non-resident, sufficient. made to locate the defendant, the name/s of the occupants of
and the second case was the alleged residence or house of defendant and all other acts
merely an offshoot of the done, though futile, to serve the summons on defendant must
first case. be specified in the Return to justify substituted service. The
form on Sheriff’s Return of Summons on Substituted Service
Due process of law requires personal service to support a prescribed in the Handbook for Sheriffs published by the
personal judgment, and, when the proceeding is strictly in Philippine Judicial Academy requires a narration of the efforts
personam brought to determine the personal rights and made to find the defendant personally and the fact of failure.27
obligations of the parties, personal service within the state or a Supreme Court Administrative Circular No. 5 dated November
voluntary appearance in the case is essential to the acquisition 9, 1989 requires that "impossibility of prompt service
of jurisdiction so as to constitute compliance with the should be shown by stating the efforts made to find the
constitutional requirement of due process. defendant personally and the failure of such efforts,"
which should be made in the proof of service.
PCIL VS ALEJANDRO
(3) A Person of Suitable Age and Discretion
Where the defendant is a resident who is temporarily out of the
Philippines, attachment of his/her property in an action in If the substituted service will be effected at defendant’s
personam, is not always necessary in order for the court to house or residence, it should be left with a person of
acquire jurisdiction to hear the case. "suitable age and discretion then residing therein."
28 A person of suitable age and discretion is one who
Section 16, Rule 14 of the Rules of Court reads: has attained the age of full legal capacity (18 years
old) and is considered to have enough discernment to
Sec. 16. Residents temporarily out of the Philippines. – When understand the importance of a summons. "Discretion"
an action is commenced against a defendant who ordinarily is defined as "the ability to make decisions which
resides within the Philippines, but who is temporarily out of it, represent a responsible choice and for which an
service may, by leave of court, be also effected out of the understanding of what is lawful, right or wise may be
Philippines, as under the preceding section. presupposed".

The preceding section referred to in the above provision is
Section 15 which provides for extraterritorial service – (a)
personal service out of the Philippines, (b) publication coupled
with the sending by registered mail of the copy of the summons
and the court order to the last known address of the defendant;
or (c) in any other manner which the court may deem
sufficient.
Thus, to be of sufficient discretion, such person must
know how to read and understand English to
comprehend the import of the summons, and
fully realize the need to deliver the summons and
complaint to the defendant at the earliest
possible time for the person to take appropriate
action.

Thus, the person must have the "relation of

confidence" to the defendant, ensuring that the latter
 would receive or at least be notified of the receipt of
the summons.
The sheriff must therefore determine if the person
found in the alleged dwelling or residence of defendant
is of legal age, what the recipient’s relationship with
the defendant is, and whether said person
comprehends the significance of the receipt of the
summons and his duty to immediately deliver it to the
defendant or at least notify the defendant of said
receipt of summons. These matters must be clearly
and specifically described in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendant’s
office or regular place of business, then it should be
served on a competent person in charge of the place.
Thus, the person on whom the substituted service will
be made must be the one managing the office or
business of defendant, such as the president or
manager; and such individual must have sufficient
knowledge to understand the obligation of the
defendant in the summons, its importance, and the
prejudicial effects arising from inaction on the
summons. Again, these details must be contained in
the Return.
LAUS VS CA
The general rule in this jurisdiction is that summons must be
personally served; pursuant to Section 7, Rule 14 of the
Revised Rules of Court, such personal service is to be
accomplished by "handing a copy thereof to the defendant in
person, or, if he refuses to receive it, by tendering it to him."
However, if this mode of service cannot be effected within a
reasonable time, substituted service may be resorted to under
Section 8 of the same Rule. Section 8 provides:
"SECTION 8. Substituted Service. — If 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
summons at the defendant's dwelling house or 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."
Statutes prescribing modes other than personal service of
summons must be strictly complied with to give the court
jurisdiction, and such compliance must appear affirmatively in
the return.
'The substituted service should be availed only when the
defendant cannot be served promptly in person. Impossibility of
prompt service should be shown by stating the efforts made to
find the defendant personally and the failure of such efforts.
The statement should be made in the proof of service. This is
necessary because substituted service is in derogation of the
usual method of service.
Note:
the statutory requirements of substituted service must be
followed strictly, faithfully, and fully and any substituted service
other than that authorized by the Rules is considered ineffective
JOSE VS BOYON
Type of action Location Means of service
In personam In the Philippines service may be
done by personal
or substituted
service, following
the procedures
laid out in
Sections 6 and 7
of Rule 14 of the
Revised Rules of
Court
In rem/ quasi in Outside the Extraterritorial
rem Philippines service
Personal service of summons is preferred to substituted
service. Only if the former cannot be made promptly can the
process server resort to the latter.
Moreover, the proof of service of summons must
(a) indicate the impossibility of service of summons within
a reasonable time;
(b) specify the efforts exerted to locate the defendant;
and
(c) state that the summons was served upon a person of
sufficient age and discretion who is residing in the
address, or who is in charge of the office or regular
place of business, of the defendant.
It is also essential that the pertinent facts proving these
circumstances be stated in the proof of service or officer's
return itself and only under exceptional terms may they be
proved by evidence aliunde.
Failure to comply with this rule renders absolutely void the
substituted service along with the proceedings taken thereafter
for lack of jurisdiction over the person of the defendant or the
respondent.
Since service of summons, especially for actions in personam,
is essential for the acquisition of jurisdiction over the person of
the defendant, the resort to a substituted service must be duly
justified. FAILURE TO DO SO WOULD INVALIDATE ALL
SUBSEQUENT PROCEEDINGS ON JURISDICTIONAL GROUNDS.
NOTE: EXTRATERRITORIAL SERVICE only applies if the action is
in rem or quasi in rem. . The first is an action against the thing
itself instead of against the defendants person; in the latter, an
individual is named as defendant, and the purpose is to subject
that individuals interest in a piece of property to the obligation
or loan burdening it.
MANOTOC VS CA
there is still a serious nonconformity from the requirement that
the summons must be left with a "person of suitable age and
discretion" residing in defendant’s house or residence. Thus,
there are two (2) requirements under the Rules:
(1) recipient must be a person of suitable age and
discretion; and
(2) recipient must reside in the house or residence of
defendant.
GUANZON VS ARRADAZA
The rules on substituted service specify two modes for effecting
substituted service of summons, to wit:
a) by leaving copies of the 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.
The certificate of service of the process server of the court a
quo is prima facie evidence of the facts as set out therein.25
This is fortified by the presumption of the regularity of
performance of official duty.
To overcome the presumption of regularity of official functions
in favor of such sheriff’s return, the evidence against it must be
clear and convincing. Sans the requisite quantum of proof to
the contrary, the presumption stands deserving of faith and
credit.
CARSON REALTY VS RED ROBIN
If the defendant or respondent is a domestic juridical person,
personal service of summons shall be effected upon its
president, managing partner, general manager, corporate
secretary, treasurer, or in-house counsel wherever he or she
may be found.97
Other modes of serving summons may be done when justified.
Service of summons through other modes will not be effective
without showing serious attempts to serve summons through
personal service. Thus, the rules allow summons to be served
by substituted service only for justifiable causes and if the
defendant or respondent cannot be served within reasonable
time. [3 failed attempts in 2 different dates]
Service of summons by publication in a newspaper of general
circulation is allowed when the defendant or respondent is
designated as an unknown owner or if his or her whereabouts
are "unknown and cannot be ascertained by diligent
inquiry."100 It may only be effected after unsuccessful
attempts to serve the summons personally, and after diligent
inquiry as to the defendant’s or respondent’s whereabouts.
Service of summons by extra territorial service is allowed after
leave of court when the defendant or respondentdoes not
reside or is not found in the country or is temporarily out of the
country.
Failure to state the facts and circumstances that rendered
service of summons impossible renders service of summons
and the return ineffective. In that case, no substituted service
orservice by publication can be valid.
The presumption of regularity in the issuance of the sheriff’s
return does not apply to patently defective returns.
R TRANSPORT VS CA
Service of summons on persons other than those enumerated
in Section 13 of Rule 14 have been held proper on the theory
that those persons served were holding positions of
responsibility and could appreciate the importance of the
papers handed them, and could be expected to deliver the
papers to the proper officer
Thus, we hold that service of summons on petitioner's
Operations Manager was valid. He is an officer who may be
relied upon to appreciate the importance of the papers served
on him. The purpose of Section 13 of Rule 14 was served.
Note however, according to discussion, the enumeration under
amended rule 14, section 12 – is EXCLUSIVE.
EB VILLAROSA VS BENITO
Sec. 11, Rule 14 of the 1997 Rules of Civil Procedure provides
that:
When the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
house counsel. (emphasis supplied).
RULING: Under the new Rules, service of summons upon an
agent of the corporation is no longer authorized.
The designation of persons or officers who are authorized to
accept summons for a domestic corporation or partnership is
now limited and more clearly specified in Section 11, Rule 14 of
the 1997 Rules of Civil Procedure.
The rule now states "general manager" instead of only
"manager"; "corporate secretary" instead of "secretary"; and
"treasurer" instead of "cashier." The phrase "agent, or any of
its directors" is conspicuously deleted in the new rule.
Accordingly, we rule that the service of summons upon the
branch manager of petitioner at its branch office at Cagayan de
Oro, instead of upon the general manager at its principal office
at Davao City is improper.
SANTIAGO VS BPI
The main issue for resolution is whether or not the service of
summons on the branch managers of private respondent's two
separate branches in Dumaguete City constitutes substantial
compliance with Section 11, Rule 14 of the 1997 Rules of Civil
Procedure.
The complaint was filed by petitioners in 2002 when the 1997
Rules of Civil Procedure was already in force.
Section 11, Rule 14 of the 1997 Rules of Civil Procedure
provides:
SECTION 11. Service upon domestic private juridical entity -
When the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
house counsel.
Basic is the rule that a strict compliance with the mode of
service is necessary to confer jurisdiction of the court over a
corporation.
The officer upon whom service is made must be one who is
named in the statute; otherwise, the service is insufficient.
[this applies still under the amended rules]
GV FLORIDA VS TIARA CORP
Section 11, Rule 14 of the Rules of Court provides the
procedure for the issuance of summons to a domestic private
juridical entity. It states:
Sec. 11. Service upon domestic private juridical entity. - When
the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
house counsel.
This enumeration is exclusive. – still applied today.
Service of summons, however, is not the only mode through
which a court acquires jurisdiction over the person of the
defendant. Section 20 of Rule 14 of the Rules of Court states:
Sec. 20. Voluntary appearance. - 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. [but note, it is
different in the amended – it is deemed voluntary appearance if
you include other grounds]
Still, improper service of summons and lack of voluntary
appearance do not automatically warrant the dismissal of the
complaint.
In the present case, the summons was served to Gino-gino, a
financial supervisor of TCC. While she is not one of the officers
enumerated in Section 11 of Rule 14, we find that TCC has
voluntarily appeared before (and submitted itself to) the RTC
when it filed its pre-trial brief without any reservation as to the
court's jurisdiction over it. Thus, it was deemed to have waived
its objection over the jurisdiction.
LUZON IRON DEVT VS BRIDESTONE MINING
Section 12 of Rule 14 of the Revised Rules of Court provides
that "[w]hen the defendant is a foreign private juridical entity
which has transacted business in the Philippines, 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."
under Section 15, Rule 14 of the Rules of Court, extrajudicial
service of summons may be resorted to only when the action is
in rem or quasi in rem and not when the action is in personam.
when the defendant is a foreign juridical entity, service of
summons maybe made upon:
1. Its resident agent designated in accordance with law
for that purpose;
2. The government official designated by law to receive
summons if the corporation does not have a resident
agent; or,
3. Any of the corporation's officers or agents within the
Philippines
[note: based on discussion, resident agent excludes all others]
A wholly-owned subsidiary is a distinct and separate entity from
its mother corporation and the fact that the latter exercises
control over the former does not justify disregarding their
separate personality. – just because it’s a subsidiary, doesn’t
mean it’s an agent you can serve with summons.
SANTOS VS PNOC
Section 14, Rule 14 (on Summons) of the Rules of Court
provides:
SEC. 14. Service upon defendant whose identity or
whereabouts are unknown. – In any action where the
defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court,
be effected upon him by publication in a newspaper of general
circulation and in such places and for such times as the court
may order.
The present rule expressly states that it applies "[i]n 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." Thus, it now applies to any
action, whether in personam, in rem or quasi in rem.
Regarding the matter of the affidavit of service, the relevant
portion of Section 19,13 Rule 14 of the Rules of Court simply
speaks of the following:
… an affidavit showing the deposit of a copy of the summons possible if such defendant is
and order for publication in the post office, postage prepaid, physically present in the
directed to the defendant by registered mail to his last known country. If he is not found
address. therein, the court cannot
acquire jurisdiction over his
Service of summons by publication is proved by the affidavit of person and therefore cannot
the printer, his foreman or principal clerk, or of the editor, validly try and decide the
business or advertising manager of the newspaper which case against him.
published the summons. The service of summons by publication
is complemented by service of summons by registered mail to An exception was laid down
the defendant’s last known address. This complementary in Gemperle v. Schenker 26
service is evidenced by an affidavit "showing the deposit of a wherein a non-resident was
copy of the summons and order for publication in the post served with summons
office, postage prepaid, directed to the defendant by registered through his wife, who was a
mail to his last known address." resident of the Philippines
and who was his
The rules, however, do not require that the affidavit of representatives and
complementary service be executed by the clerk of court. While attorney-in-fact in a prior
the trial court ordinarily does the mailing of copies of its orders civil case filed by him;
and processes, the duty to make the complementary service by moreover, the second case
registered mail is imposed on the party who resorts to service was a mere offshoot of the
by publication. first case.
3. the action seeks the
exclusion of the defendant
from any interest in the
property located in the
Philippines; or
4. the property of the
defendant has been attached
in the Philippines — service
of summons may be effected
by (a) personal service out
of the country, with leave of
court; (b) publication, also
with leave of court, or (c)
any other manner the court
may deem sufficient.

KAWASAKI VS AMORES Here, just please refer to ma’am’s discussion. Basta dili sya sec
17 and 18.
This Court had ruled that extraterritorial service of summons is
proper only in four (4) instances, namely: ROMUALDEZ LICAROS VS LICAROS
(1) when the action affects the personal status of the
plaintiffs: As a rule, when the defendant does not reside and is not found
(2) when the action relates to, or the subject of which is, in the Philippines, Philippine courts cannot try any case against
property within the Philippines, in which the defendant him because of the impossibility of acquiring jurisdiction over
has or claims a lien or interest, actual or contingent; his person unless he voluntarily appears in court. But when the
(3) when the relief demanded in such action consists, case is one of actions in rem or quasi in rem enumerated in
wholly or in part, in excluding the defendant from any Section 15, Rule 14 of the Rules of Court, Philippine courts
interest in property located in the Philippines; and have jurisdiction to hear and decide the case.
(4) when the defendant non-resident's property has been
attached within the Philippines." In such instances, Philippine courts have jurisdiction over the
As defined, "Status means a legal personal relationship, not res, and jurisdiction over the person of the non-resident
temporary in nature nor terminable at the mere will of the defendant is not essential.
parties, with which third persons and the state are concerned"
Jurisdiction over the person of a non-resident defendant in an
Considering the nature of a proceeding for declaratory action in rem or quasi in rem is not necessary.
judgment, wherein relief may be sought only to declare rights
and not to determine or try issues, there is more valid reason The trial and appellate courts made a clear factual finding that
to adhere to the principle that a declaratory relief proceeding is there was proper summons by publication effected through the
unavailable where judgment would have to be made, only after Department of Foreign Affairs as directed by the trial court.
a judicial investigation of disputed issues. Thus, the trial court acquired jurisdiction to render the decision
declaring the marriage a nullity.
Note: injunction, it is a personal action as well as an action in
personam, not an action in rem or quasi in rem. As a personal PAVLOW VS MENDENILLA
action, personal or substituted service of summons on the
defendants, not extraterritorial service, is necessary to confer Jurisprudence has long settled that, with respect to residents
jurisdiction on the court. In an action for injunction, extra- temporarily out of the Philippines, the availability of
territorial service of summons and complaint upon the non- extraterritorial services does not preclude substituted service.
resident defendants cannot subject them to the processes of Resort to substituted service has long been held to be fair,
the regional trial courts which are powerless to reach them reasonable and just.
outside the region over which they exercise their authority.
RAPID CITY REALTY VS VILLA
Extra-territorial service of summons will not confer on the court
jurisdiction or Power to compel them to obey its orders. As a general proposition, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of the court. It is
ASIAVEST VS CA by reason of this rule that we have had occasion to declare that
the filing of motions to admit answer, for additional time to file
In personam In rem/quasi in rem answer, for reconsideration of a default judgment, and to lift
where the action is in jurisdiction over the person order of default with motion for reconsideration, is considered
personam and the defendant of the defendant is not a voluntary submission to the court’s jurisdiction. This, however,
is in the Philippines, the prerequisite to confer is tempered by the concept of conditional appearance, such
summons should be jurisdiction on the court that a party who makes a special appearance to challenge,
personally served on the provided that the court among others, the court’s jurisdiction over his person cannot be
defendant pursuant to acquires jurisdiction over the considered to have submitted to its authority.
Section 7, Rule 14 of the res. Nonetheless summons
Rules of Court. must be served upon the Prescinding from the foregoing, it is thus clear that:
defendant not for the
Substituted service may only purpose of vesting the court (1) Special appearance operates as an exception to the general
be availed of where the with jurisdiction but merely rule on voluntary appearance;
defendant cannot be for satisfying the due
promptly served in person, process requirements. (2) Accordingly, objections to the jurisdiction of the court over
the fact of impossibility of the person of the defendant must be explicitly made, i.e., set
personal service should be forth in an unequivocal manner; and
explained in the proof of
service. (3) Failure to do so constitutes voluntary submission to the
However, in an action in Thus, where the defendant is jurisdiction of the court, especially in instances where a
personam wherein the a non-resident who is not pleading or motion seeking affirmative relief is filed and
defendant is a non-resident found in the Philippines and submitted to the court for resolution.
who does not voluntarily 1. the action affects the
submit himself to the personal status of the NATIONAL PETROLEUM GAS VS RCBC
authority of the court, plaintiff;
personal service of summons 2. the action relates to, or The enumeration of persons to whom summons may be served
within the state is essential the subject matter of which is restricted, limited and exclusive following the rule on
to the acquisition of is property in the Philippines statutory construction expressio unios est exclusio alterius.28
jurisdiction over her person. in which the defendant has Substantial compliance cannot be invoked.29 Service of
24 This method of service is or claims a lien or interest; summons upon persons other than those officers specifically
mentioned in Section 11, Rule 14 is void, defective and not
binding to said corporation.
Here, the court ruled that there was valid and effective service
of summons upon a corpor thrugh its liaison officer who acted
as the agent of the corpo sec.
Sections 6(personal service) and 7(substituted) of the Rules
cannot be construed to apply simultaneously and do not
provide for alternative modes of service of summons which can
either be resorted to on the mere basis of convenience to the
parties for, under our procedural rules, service of summons in
the persons of the defendants is generally preferred over
substituted service.37 Resort to the latter is permitted when
the summons cannot be promptly served on the defendant in
person and after stringent formal and substantive requirements
have been complied with.38 The failure to comply faithfully,
strictly and fully with all the requirements of substituted service
renders the service of summons ineffective.
MARCIAL VS HI CEMENT
A motion that does not comply with the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court is a worthless
piece of paper which the clerk of court has no right to receive
and which the court has no authority to act upon.
It is important, however, to note that these doctrines refer
exclusively to a motion, since a motion invariably contains a
prayer, which the movant makes to the court, which is to
repeat usually in the interest of the adverse party to oppose
and in the observance of due process, the other party must be
given the opportunity to oppose the motion.
In keeping with the principles of due process, therefore, a
motion which does not afford the adverse party the chance to
oppose it should simply be disregarded.
Nevertheless, the three-day requirement is not a hard and fast
rule.31 Where a party has been given an opportunity to be
heard, the time to study the motion and oppose it, there is
compliance with the rule.

The test is the presence of the opportunity to be heard, as well

However, the first motion for extension is fatally defective for
failure to include a prayer or relief; no period for extension was
sought in the motion. Under Section 3,25 Rule 15 of the Rules
of Court, a motion shall state the relief sought to be obtained.
As a result, it is pro forma or a mere scrap of paper and of no
legal effect which the CA may ignore.
SARMIENTO VS ZARATAN
SEC. 4. Hearing of Motion. - Except for motions which the court
may act upon without prejudicing the rights of the adverse
party, every written motion shall be set for hearing by the
applicant.
Every written motion required to be heard and the notice of the
hearing thereof shall be served in such a manner as to ensure
its receipt by the other party at least three (3) days before the
date of hearing, unless the court for good cause sets the
hearing on shorter notice.
as to have time to study the motion and meaningfully oppose
or controvert the grounds upon which it is based.
OPPEN VS COMPAS
Section 8, Rule 15 of the Rules of Court defines an omnibus
motion as a motion attacking a pleading, judgment or
proceeding. A motion to dismiss is an omnibus motion because
it attacks a pleading, that is the complaint.
For this reason, a motion to dismiss, like any other omnibus
motion, must raise and include all objections available at the
time of the filing of the motion because under Section 8, "all
objections not so included shall be deemed waived."
As inferred from the provision, only the following defenses
Under Section 1, Rule 9, are excepted from its application:

As may be gleaned above and as held time and again, the
notice requirement in a motion is mandatory. As a rule, a
motion without a Notice of Hearing is considered pro forma and
does not affect the reglementary period for the appeal or the
filing of the requisite pleading.(note, go back to this, I think the
rule is different as to a notice of hearing)
[a] lack of jurisdiction over the subject matter;
[b] there is another action pending between the same parties
for the same cause (litis pendentia);
[c] the action is barred by prior judgment (res judicata); and

[d] the action is barred by the statute of limitations or

As a general rule, notice of motion is required where a party prescription.
has a right to resist the relief sought by the motion and
----END---
principles of natural justice demand that his right be not
affected without an opportunity to be heard.

The three-day notice required by law is intended not for the

benefit of the movant but to avoid surprises upon the adverse
party and to give the latter time to study and meet the
arguments of the motion

VETTE INDUSTRIAL VS CHENG

Service of a copy of a motion containing a notice of the time

and the place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with these
requirements renders their motions fatally defective. However,
there are exceptions to the strict application of this rule.

MENDEZ VS SHARIA DISTRICT COURT

The notice of hearing is intended to prevent surprise and to
afford the adverse party a chance to be heard before the
motion is resolved by the court. A seasonable service of a copy
of the motion on the adverse party with a notice of hearing
indicating the time and place of hearing is a mandatory
requirement that cannot be dispensed with as this is the
minimum requirement of procedural due process.

A motion that does not contain a notice of hearing is a mere

scrap of paper and presents no question which merits the
attention and consideration of the court. It is not even a motion
for it does not comply with the rules, and, hence, even the
clerk has no right to receive it.

Note: a pro forma motion does not affect the regalmentary

period for appeal or filing of pleading.

ACAMPADO VS COSMILLA
The rules that the notice shall be directed to the parties
concerned, and shall state the time and place for the hearing of
the motion — are mandatory, and if not religiously complied
with, the motion becomes pro forma.