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ATTY. BRONDIAL NOTES ON REMEDIAL LAW REVIEW I
Civil Procedure
I. JURISDICTION
How do you distinguish residual jurisdiction from residual prerogative?
What is residual jurisdiction? Jurisdiction of a court in spite losing its
jurisdiction because of the perfection of an appeal still retains it for
purposes of preserving the rights of the parties.
A is the plaintiff and B is the defendant. Trial court ruled in favor B. A
appeals. Before the records are transferred to the appellate court, the
trial court retains jurisdiction.
How can that particular trial court exercise such jurisdiction? Can an
execution be granted ex parte? No. On what action can the trial court act
upon? Motion for execution pending appeal. Once appeal is perfected,
and the records of the case have been transmitted to the appellate court,
there is no more exercise of residual jurisdiction. But in case of execution
as a matter of right, once jurisdiction is lost, it can never be regained.
Nonetheless, under Rule 39, the writ of execution can be granted by the
trial court only.
How can the trial court, if it has already lost its jurisdiction, still exercise
the same? In the exercise of residual jurisdiction.
What is residual prerogative?
There are 3 principles involved in concurrent jurisdiction:
1. Hierarchy of Courts;
2. Supreme Court is not a trier of facts; and
3. Transcendental Importance
General rule: Jurisdiction is conferred by law.
Exception: The jurisdiction of Supreme Court is conferred by the
Constitution.
Remedial Law Review I – Civil Procedure
1987 Constitution, Article VIII, Section 5. The Supreme Court shall
have the following powers: xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and orders of
lower courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
(Note: this is the exclusive original jurisdiction of the Supreme Court.)
b. All cases involving the legality of any tax, impost, assessment, or toll,
or any penalty imposed in relation thereto. (Note: This refers to SC‘s
appellate jurisdiction. So this power to Review, Reverse, Revise,
Modify and Affirm is within the appellate powers of the jurisdiction of
the
Supreme Court.)
c. All cases in which the jurisdiction of any lower court is in issue.
d. All criminal cases in which the penalty imposed is reclusion perpetua
or higher. (Note: The ―or higher‖ clause no longer applies because
the death penalty is suspended)
e. All cases in which only an error or question of law is involved.
3. Assign temporarily judges of lower courts to other stations as
public interest may require. Such temporary assignment shall not exceed
six months without the consent of the judge concerned.
4. Order a change of venue or place of trial to avoid a miscarriage
of justice.
5. Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance
to the under-privileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and
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quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. How could it be an original action when it is certiorari? Certiorari there
refers to Rule 65 because Rule 65 is a special civil action, it is not a
6. Appoint all officials and employees of the Judiciary in mode of appeal.
accordance with the Civil Service Law.
What is a mode of Appeal by certiorari? Rule 45. So the statement there
―Review‖, ―Reverse‖, ―Revise‖, ―Modify‖ or ―Affirm‖ must be on appeal—ordinary appeal or certiorari---appeal by certiorari---it cannot
defined separately and distinctly: be a special civil action because it is appellate jurisdiction of the
Supreme Court.
1. Review – consists of Reverse, Revise, Modify or Affirm. The term
review is a catch-all provision. Review means to take cognizance of In civil actions, you do not go to the Supreme Court by ordinary appeal.
the decision, but does not cover resolution of the lower body. In criminal actions, there is notice by appeal to the Supreme Court. There
Review means to look into. is no more automatic appeal because of the removal of the death
penalty, but it does not mean you can no longer appeal to the Supreme
2. Reverse – overturn a favorable judgment to an unfavorable one or Court. You can still do so by notice of appeal and when you speak of the
vice versa Constitution, it applies to both civil and criminal cases.

3. Revise – revision, not a simple amendment Lourdes L. Eristingcol vs CA: Petitioner is an owner of a residential lot
in Urdaneta Village, Makati City. On the other hand, [respondent
4. Modify – modification or amendment Randolph] Limjoco, [Lorenzo] Tan and [June] Vilvestre were the former
president and chairman of the board of governors, construction
5. Affirm – accept the decision of the lower body committee chairman and village manager of [Urdaneta Village
Association Inc.] UVAI, respectively. UVAI is an association of
―on appeal or certiorari‖ – to what kind of appeal is it referring to? homeowners at Urdaneta Village.

The word ―appeal‖ is by ordinary appeal. The word ―certiorari‖ is
―appeal by certiorari‖ as a mode of appeal under Rule 45 because
when you speak of ―review, revise, reverse, modify, or affirm‖ it is in the
exercise of appellate jurisdiction of the SC; it must have come from a
lower court and not an original action under Rule 65 which is a special
civil action and not a mode of appeal.
The modes of appeal under Rule 41 section 2 are:
1. Ordinary Appeal;
2. Petition for review; and
3. Appeal by certiorari
But the kind of certiorari mentioned is a mode of appeal because when
you speak of Review, Reverse, Revise, Modify and Affirm, it is the
exercise of appellate jurisdiction.
Remedial Law Review I – Civil Procedure
Petitioners action against UVAI, Limjoco, Tan and Vilvestre is founded on
the allegations that in compliance with the National Building Code and
after UVAI‘s approval of her building plans and acceptance of the
construction bond and architect‘s fee, Eristingcol started constructing a
house on her lot with ―concrete canopy directly above the main door
and highway‖; that for alleged violation of its Construction Rules and
Regulations (or ―CRR‖) on ―Set Back Line‖ vis-a-vis the canopy
easement, UVAI imposed on her a penalty of P400,000 and barred her
workers and contractors from entering the village and working on her
property; that the CRR, particularly on ―Set Back Line,‖ is contrary to
law; and that the penalty is unwarranted and excessive.
The parties reached a temporary settlement whereby UVAI, Limjoco, Tan
and Vilvestre executed an undertaking which allowed Eristingcol‘s
workers, contractors and suppliers to leave and enter the village, subject
only to normal security regulations of UVAI.

UVAI, Limjoco, Tan and Vilvestre filed a motion to dismiss on ground of
lack of jurisdiction over the subject matter of the action. They argued that
it is the Home Insurance Guaranty Corporation (HIGC) which has
jurisdiction over intra-corporate disputes involving homeowners
associations, pursuant to Exec. Order No. 535, Series of 1979, as
amended by Exec. Order No. 90, Series of 1986.
Petitioner alleged, among others, that UVAI, Limjoco, Tan and Vilvestre
did not comply with the mandatory provisions of Secs. 4 and 6, Rule 15
of the 1997 Rules of Civil Procedure and are estopped from questioning
the jurisdiction of the RTC after they voluntarily appeared therein ―and
embraced its authority by agreeing to sign an Undertaking.‖
RTC denied the MTD holding that its jurisdiction may not be assailed
―after they voluntarily entered their appearance, sought reliefs therein,
and embraced its authority by agreeing to sign an undertaking to desist
from prohibiting (Eristingcol‘s) workers from entering the village.‖ It
applied the doctrine enunciated in Tijam v. Sibonghanoy. CA dismissed
the complaint for lack of jurisdiction.
Issue:
Whether it is RTC or Housing and Land Use Regulatory Board (HLURB)
having jurisdiction over the subject matter of the complaint.
Ruling:
HLURB. As regards the defendants‘ supposed embrace of the RTC‘s
jurisdiction by appearing thereat and undertaking to desist from
prohibiting Eristingcol‘s workers from entering the village, suffice it to
state that the invocation of the doctrine in Tijam, et al. v. Sibonghanoy, et
al. is quite a long stretch.
The factual milieu obtaining in Tijam and in this case are worlds apart. As
found by the CA, defendants‘ appearance before the RTC was pursuant
to, and in compliance with, a subpoena issued by that court in connection
with petitioner‘s application for a TRO. On defendants‘ supposed
agreement to sign the Undertaking allowing petitioner‘s workers,
contractors, and suppliers to enter and exit the village, this temporary
settlement cannot be equated with full acceptance of the RTC‘s authority,
as what actually transpired in Tijam.
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The landmark case of Tijam is, in fact, only an exception to the general
rule that an objection to the court‘s jurisdiction over a case may be raised
at any stage of the proceedings, as the lack of jurisdiction affects the
very authority of the court to take cognizance of a case. In that case, the
Surety filed a Motion to Dismiss before the CA, raising the question of
lack of jurisdiction for the first time—15 years after the action was
commenced in the CFI of Cebu. Indeed, in several stages of the
proceedings in the CFI, as well as in the CA, the Surety invoked the
jurisdiction of said courts to obtain affirmative relief, and even submitted
its case for a final adjudication on the merits. Consequently, it was barred
by laches from invoking the CFI‘s lack of jurisdiction.
To further highlight the distinction in this case, the TRO hearing was held
on February 9, 1999, a day after the filing of the complaint. On even
date, the parties reached a temporary settlement reflected in the
Undertaking. 15 days thereafter, defendants, including Limjoco, filed a
MTD. Certainly, this successive and continuous chain of events cannot
be characterized as laches as would bar defendants from questioning the
RTC‘s jurisdiction.
Duero vs CA: According to Duero, private respondent Bernardo Eradel
occupied Gabriel Duero‘s land in Surigao del Sur. As shown in the tax
declaration, the land had an assessed value of P5,240. Despite repeated
demands, Eradel refused to leave. Duero filed before the RTC a
complaint for Recovery of Possession and Ownership against Eradel and
Apolinario and Inocencio Ruena. Duero and Ruenas executed a
compromise agreement, stating that the Ruenas bound themselves to
respect the ownership of Duero. Eradel was not a party to the
agreement, and he was declared in default for failure to file his answer to
the complaint. Duero presented his evidence ex parte. RTC ruled in his
favor.
Eradel filed a Motion for New Trial, alleging that he has been occupying
the land as a tenant of Artemio Laurente, Sr. He explained that he turned
over the complaint and summons to Laurente in the honest belief that as
landlord, the latter had a better right to the land and was responsible to
defend any adverse claim on it. However, RTC denied the motion for
new trial.
A RED Conflict Case, an administrative case between Duero and
applicant-contestants Romeo, Artemio and Jury Laurente, remained

pending with the Office of the Regional Director of the DENR in Davao
City. It was forwarded to the DENR in Agusan del Sur. Duero filed before
the RTC a Petition for Relief from Judgment, reiterating the same
allegation in his Motion for New Trial. He averred that unless there is a
determination on who owned the land, he could not be made to vacate
the land. Also, the judgment of the RTC was void inasmuch as the heirs
of Artemio, who are indispensable parties, were not impleaded. The
grandchildren of Artemio who were claiming ownership of the land, filed a
Motion for Intervention. RTC denied the motion. RTC denied the Petition
for Relief from Judgment. In an MR, Duero alleged that the RTC had no
jurisdiction over the case, since the value of the land was only P5,240
and therefore it was under the jurisdiction of the MTC. RTC denied the
MR.
Duero filed a Motion for Execution, which the RTC granted. Entry of
Judgment was made of record and a writ of execution was issued by the
RTC. Duero filed his petition for certiorari before the CA. CA gave due
course to the petition, maintaining that Eradel is not estopped from
assailing the jurisdiction of the RTC when Eradel filed with said court his
MR And/Or Annulment of Judgment.
Issue:
Whether private respondent was estopped from assailing the jurisdiction
of the RTC after he had filed several motions before it.
Ruling:
No. It was Duero who filed the complaint before the RTC, believing that
the RTC had jurisdiction. RA 769117 amending BP 129 had already
become effective, such that jurisdiction already belongs not to the RTC
but to the MTC. Eradel, an unschooled farmer, in the mistaken belief that
since he was merely a tenant of the Artemio, his landlord, gave the
summons to a Hipolito Laurente, one of the heirs of Artemio, who did not
do anything about the summons. For failure to answer the complaint,
Eradel was declared in default. He then filed a Motion for New Trial in the
RTC and explained that he defaulted because of his belief that the suit
ought to be answered by his landlord. He stated that he had evidence to
prove that he had a better right than Duero because of his long,
continuous and uninterrupted possession as bona-fide tenantlessee. But
his motion was denied. He tried an alternative recourse. He filed before
the RTC a Motion for Relief from Judgment. RTC denied his motion,
hence he moved for reconsideration of the denial. In his MR, he raised
Remedial Law Review I – Civil Procedure
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for the first time the RTC's lack of jurisdiction. This motion was denied.
Eradel raised the issue of lack of jurisdiction, not when the case was
already on appeal, but when the case, was still before the RTC that ruled
him in default, denied his motion for new trial and for relief from
judgment, and denied his 2 MRs. After RTC still refused to reconsider the
denial of Eradel's motion for relief from judgment, it went on to issue the
order for entry of judgment and a writ of execution.
The lack of jurisdiction of the court over an action cannot be waived by
the parties, or even cured by their silence, acquiescence or even by their
express consent. Further, a party may assail the jurisdiction of the court
over the action at any stage of the proceedings and even on appeal.
RTC should have declared itself barren of jurisdiction over the action.
Even if Eradel actively participated in the proceedings before said court,
the doctrine of estoppel cannot still be properly invoked against him
because the question of lack of jurisdiction may be raised at anytime and
at any stage of the action. As a general rule, the jurisdiction of a court is
not a question of acquiescence as a matter of fact, but an issue of
conferment as a matter of law. Also, neither waiver nor estoppel shall
apply to confer jurisdiction upon a court, barring highly meritorious and
exceptional circumstances.
Estoppel must be applied only in exceptional cases, as its misapplication
could result in a miscarriage of justice. Duero filed his complaint before a
court without appropriate jurisdiction. Eradel, a farmer whose tenancy
status is still pending before the administrative agency, could have
moved for dismissal of the case on jurisdictional grounds. But the farmer
could not be expected to know the nuances of jurisdiction and related
issues. This farmer ought not to be penalized when he claims that he
made an honest mistake when he initially submitted his motions before
the RTC, before he realized that the controversy was outside the RTC's
cognizance. To hold him in estoppel as the RTC did would amount to
foreclosing his avenue to obtain a proper resolution of his case. He
would be evicted from the land prematurely, while RED Conflict Case
would remain unresolved. Such eviction on a technicality if allowed could
result in an injustice, if it is later found that he has a legal right to till the
land he now occupies as tenant-lessee.
Gonzaga vs CA: Facts: In 1970, petitioners purchased a parcel of land
from private respondent Lucky Homes, Inc. The lot was specifically
denominated as Lot No. 19 and was mortgaged to SSS as security for

their housing loan. Petitioners started the construction of their house on
Lot No. 18, as private respondent mistakenly identified Lot No. 18 as Lot
No. 19. Private respondent informed petitioners of such mistake but the
latter offered to buy Lot No. 18 to widen their premises. Thus, petitioners
continued with the construction of their house. However, petitioners
defaulted in the payment of their housing loan from SSS. Lot No. 19 was
foreclosed by SSS and petitioners‘ certificate of title was cancelled and a
new one was issued in the name of SSS. After Lot No. 19 was
foreclosed, petitioners offered to swap Lot Nos. 18 and 19 and
demanded from private respondent that their contract of sale be
reformed and another deed of sale be executed with respect to Lot No.
18, considering that their house was built therein. However, private
respondent refused. Thus, petitioners filed, on June 13, 1996, an action
for reformation of contract and damages with the RTC.
On January 15, 1998, RTC dismissed the complaint for lack of merit.
RTC held that the reformation of instruments or the swapping of Lot 18
and Lot 19 is no longer feasible considering that plaintiff is no longer the
owner of Lot 19, otherwise, defendant will be losing Lot 18 without any
substitute therefore. Upon the other hand, plaintiff will be unjustly
enriching himself having in its favor both Lot 19 which was earlier
mortgaged by him and subsequently foreclosed by SSS, as well as Lot
18 where his house is presently standing. What plaintiff had bought
from the defendant is Lot 19 which parcel of land has been properly
indicated in the instruments and not Lot 18 as claimed by the plaintiff.
The contracts being clear and unmistakable, they reflect the true
intention of the parties, besides the plaintiff failed to assail the contracts
on mutual mistake, hence the same need no longer be reformed.
On June 22, 1998, a writ of execution was issued by the trial court.
Thus, on September 17, 1998, petitioners filed an urgent motion to
recall writ of execution, alleging that RTC had no jurisdiction to try the
case as it was vested in the Housing and Land Use Regulatory Board
(HLURB) pursuant to PD 957 (The Subdivision and Condominium
Buyers Protective Decree). Conformably, petitioners filed a new
complaint against private respondent with the HLURB. Likewise, on
June 30, 1999, petitioner-spouses filed before the CA a petition for
annulment of judgment, on the ground that RTC had no jurisdiction to
try and decide the Civil Case.
Remedial Law Review I – Civil Procedure
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CA denied the petition for annulment of judgment, relying mainly on the
jurisprudential doctrine of estoppel as laid down in the case of Tijam vs.
Sibonghanoy.
Issue: Whether or not the principle of estoppel may be applied even
though RTC had no jurisdiction to decide the Civil Case.
Ruling: Yes. While an order or decision rendered without jurisdiction is a
total nullity and may be assailed at any stage, active participation in the
proceedings in the court which rendered the order or decision will bar
such party from attacking its jurisdiction. As we held in the leading case
of Tijam vs. Sibonghanoy: ―A party may be estopped or barred from
raising a question in different ways and for different reasons. Thus we
speak of estoppel in pais, or estoppel by deed or by record, and of
estoppel by laches. Xxx It has been held that a party cannot invoke the
jurisdiction of a court to secure affirmative relief against his opponent
and, after obtaining or failing to obtain such relief, repudiate, or question
that same jurisdiction x x x x [T]he question whether the court had
jurisdiction either of the subject matter of the action or of the parties was
not important in such cases because the party is barred from such
conduct not because the judgment or order of the court is valid and
conclusive as an adjudication, but for the reason that such a practice
can not be tolerated –– obviously for reasons of public policy.‖
A party‘s active participation in all stages of the case before the trial
court, which includes invoking the court‘s authority to grant affirmative
relief, effectively estops such party from later challenging that same
court‘s jurisdiction.
It was petitioners themselves who invoked the jurisdiction of the RTC by
instituting an action for reformation of contract against private
respondents. It appears that, in the proceedings before the trial court,
petitioners vigorously asserted their cause from start to finish. Not even
once did petitioners ever raise the issue of the court‘s jurisdiction during
the entire proceedings which lasted for 2 years. It was only after RTC
rendered its decision and issued a writ of execution against them in
1998 did petitioners first raise the issue of jurisdiction ─ and it was only
because said decision was unfavorable to them. Petitioners thus
effectively waived their right to question the courts jurisdiction over the
case they themselves filed.

Petitioners should bear the consequence of their act. They cannot be
allowed to profit from their omission to the damage and prejudice of the
private respondent. This Court frowns upon the undesirable practice of a
party submitting his case for decision and then accepting the judgment
but only if favorable, and attacking it for lack of jurisdiction if not.
Public policy dictates that this Court must strongly condemn any
doubledealing by parties who are disposed to trifle with the courts by
deliberately taking inconsistent positions, in utter disregard of the
elementary principles of justice and good faith. There is no denying that,
in this case, petitioners never raised the issue of jurisdiction throughout
the entire proceedings in the trial court. Instead, they voluntarily and
willingly submitted themselves to the jurisdiction of said court. It is now
too late in the day for them to repudiate the jurisdiction they were
invoking all along.
Escobal vs Garchitorena: Petitioner was conducting surveillance
operations on drug trafficking at a beerhouse. He got involved in a
shooting incident, resulting in the death of Rodney Nueca. An amended
Information was filed with the RTC charging petitioner with murder. RTC
preventively suspended petitioner from the service under PD No. 971, as
amended by PD 1847. General Headquarters of the PNP preventively
suspended the petitioner from the service until the case was terminated.
Petitioner was arrested by virtue of a warrant issued by the RTC but he
posted bail and was granted temporary liberty. Petitioner pleaded not
guilty to the offense charged. Petitioner filed a Motion to Quash the
Information alleging that as mandated by CA No. 408, in relation to
Section 1, PD No. 1822 and Section 95 of RA No. 6975, the court
martial, not the RTC, had jurisdiction over criminal cases involving PNP
members and officers.
Pending the resolution of the motion, petitioner requested the Chief of
the PNP for his reinstatement. Under RA No. 6975, his suspension
should last for only 90 days, and, having served the same, he should
now be reinstated. Petitioner filed a motion in the RTC for the lifting of
the order of suspension. RTC denied the motion. Trial proceeded, and
the prosecution rested its case. Petitioner presented his evidence. He
filed an MTC. Citing Republic v. Asuncion, he argued that since he
committed the crime in the performance of his duties, the
Sandiganbayan had exclusive jurisdiction over the case.
Remedial Law Review I – Civil Procedure
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RTC denied the MTD. It, however, ordered the conduct of a preliminary
hearing to determine whether or not the crime charged was committed
by the petitioner in relation to his office as a member of the PNP. The
prosecution manifested that it was no longer presenting any evidence in
connection with the petitioner‘s motion. Its evidence showed that the
petitioner did not commit the offense charged in connection with the
performance of his duties as a member of the Philippine Constabulary.
RTC declared that the petitioner committed the crime charged while not
in the performance of his official function. RTC added that upon the
enactment of R.A. No. 7975, the issue had become moot and
academic. The amendatory law transferred the jurisdiction over the
offense charged from the Sandiganbayan to the RTC since the
petitioner did not have a salary grade of ―27‖ as provided for in or by
Section 4(a)(1), (3) thereof. RTC nevertheless ordered the prosecution
to amend the Information pursuant to the ruling in Republic v. Asuncion
and R.A. No. 7975. The amendment consisted in the inclusion of an
allegation that the offense charged was not committed by the petitioner
in the performance of his duties/functions, nor in relation to his office.
The petitioner filed a MR of the order. He asserted that R.A. No. 7975
could not be applied retroactively. RTC declared that based on the
petitioner‘s evidence, he was on official mission when the shooting
occurred. RTC ordered the public prosecutor to file a Re-Amended
Information and to allege that the offense charged was committed by the
petitioner in the performance of his duties/functions or in relation to his
office; and, conformably to R.A. No. 7975, to thereafter transmit the
same, as well as the complete records with the stenographic notes, to
the Sandiganbayan.
The Presiding Justice of the Sandiganbayan ordered the Executive Clerk
of Court to return the records of Criminal Case to the court of origin.
Under P.D. No. 1606, as amended by R.A. No. 7975, the RTC retained
jurisdiction over the case, considering that the petitioner had a salary
grade of ―23.‖ Furthermore, the prosecution had already rested its case
and the petitioner had commenced presenting his evidence in the RTC;
following the rule on continuity of jurisdiction, the latter court should
continue with the case and render judgment therein after trial.
Issue:

Whether or not the Presiding Justice of the Sandiganbayan properly
remanded the case to the RTC.
Ruling:
Yes. The petitioner contends that when the amended information was
filed with the RTC on February 6, 1991, P.D. No. 1606 was still in effect.
Under Section 4(a) of the decree, the Sandiganbayan had exclusive
jurisdiction over the case against him as he was charged with homicide
with the imposable penalty of reclusion temporal, and the crime was
committed while in the performance of his duties. He further asserts that
although P.D. No. 1606, as amended by P.D. No. 1861 and by R.A. No.
7975 provides that crimes committed by members and officers of the
PNP with a salary grade below ―27‖ committed in relation to office are
within the exclusive jurisdiction of the proper RTC, the amendment thus
introduced by R.A. No. 7975 should not be applied retroactively. This is
so, the petitioner asserts, because under Section 7 of R.A. No. 7975,
only those cases where trial has not begun in the Sandiganbayan upon
the effectivity of the law should be referred to the proper trial court.
The private complainant agrees with the contention of the petitioner. In
contrast, the Office of the Special Prosecutor contends that the Presiding
Justice of the Sandiganbayan acted in accordance with law when he
ordered the remand of the case to the RTC. It asserts that R.A. No. 7975
should be applied retroactively. Although the Sandiganbayan had
jurisdiction over the crime committed by the petitioner when the amended
information was filed with the RTC, by the time it resolved petitioner‘s
motion to dismiss on July 31, 1995, R.A. No. 7975 had already taken
effect. Thus, the law should be given retroactive effect.
The jurisdiction of the court over criminal cases is determined by the
allegations in the Information or the Complaint and the statute in effect at
the time of the commencement of the action, unless such statute
provides for a retroactive application thereof. The jurisdictional
requirements must be alleged in the Information. Such jurisdiction of the
court acquired at the inception of the case continues until the case is
terminated.
Under Section 4(a) of P.D. No. 1606 as amended by P.D. No. 1861, the
Sandiganbayan had exclusive jurisdiction in all cases involving the
following:
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(1) Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00 ….
However, for the Sandiganbayan to have exclusive jurisdiction
under the said law over crimes committed by public officers in
relation to their office, it is essential that the facts showing the
intimate relation between the office of the offender and the
discharge of official duties must be alleged in the Information. It is
not enough to merely allege in the Information that the crime charged
was committed by the offender in relation to his office because that
would be a conclusion of law.[22] The amended Information filed with the
RTC against the petitioner does not contain any allegation showing the
intimate relation between his office and the discharge of his duties.
Hence, the RTC had jurisdiction over the offense charged when on
November 24, 1995, it ordered the re-amendment of the Information to
include therein an allegation that the petitioner committed the crime in
relation to office. R.A. No. 7975 amending P.D. No. 1606 was already in
effect and under Section 2 of the law:
In cases where none of the principal accused are occupying positions
corresponding to salary grade ―27‖ or higher, as prescribed in the said
RA No. 6758, or PNP officers occupying the rank of superintendent or
higher, or their equivalent, exclusive jurisdiction thereof shall be vested in
the proper RTC, MeTC, MTC, and MCTC, as the case may be, pursuant
to their respective jurisdiction as provided in BP Blg. 129.
Under the law, even if the offender committed the crime charged in
relation to his office but occupies a position corresponding to a salary
grade below ―27,‖ the proper RTC or MTC, as the case may be, shall
have exclusive jurisdiction over the case. In this case, the petitioner was
a Police Senior Inspector, with salary grade ―23.‖ He was charged with
homicide punishable by reclusion temporal. Hence, the RTC had

exclusive jurisdiction over the crime charged conformably to Sections 20
and 32 of BP Blg. 129, as amended by Section 2 of R.A. No. 7691.
The petitioner‘s contention that R.A. No. 7975 should not be applied
retroactively has no legal basis. It bears stressing that R.A. No. 7975 is
a substantive procedural law which may be applied retroactively.
Asia’s Emerging Dragon vs DOTC: Doctrines: There is no question as
to the jurisdiction of the RTC of Pasig City over the subject matter and
parties in Civil Case No. 66213. The RTC can exercise original
jurisdiction over cases involving the issuance of writs of certiorari,
prohibition,mandamus, quo warranto, habeas corpus and injunction. 51 To
recall, the Petition of AEDC before the RTC of Pasig City was for the
declaration of nullity of proceedings, mandamus and injunction. The RTC
of Pasig City likewise had jurisdiction over the parties, with the voluntary
submission by AEDC and proper service of summons on the DOTC
Secretary and the PBAC Chairman and members.
Special rights granted to original proponent in public biddings. The
special rights or privileges of an original proponent come into play only
when there are other proposals submitted during the public bidding of
the infrastructure project. As can be gleaned from the plain language of
the statutes and the IRR. The original proponent has: (1) the right to
match the lowest or most advantageous proposal within 30 working days
from note thereof, and (2) in the event that the original proponent is able
to match the lowest or most advantageous proposal submitted, then it
has the right to be awarded the project. The second right or privilege is
contingent upon the actual exercise by the original proponent of the first
right or privilege. Before the project could be awarded to the Original
proponent, he must have been able to match the lowest or most
advantageous proposal within the prescribed period. Hence, when the
original proponent is able to timely matched the lowest or most
advantageous propos. With all things being equal, it shall enjoy
preference in the awarding of the infrastracture project.
It is without question that in a situation where there’s no other
competitive bid submitted for the BOT project that the project would be
awarded to the original proponent thereof. However, when there are
competitive bids submitted, the original proponent must be able to match
the most advantageous or lowest bid; only when it is able to do so will
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the original proponent enjoy the preferential right to the award of the
project over the other bidder.
It is already an established fact in AGAN V. PIATCO (2004) that AC
failed to match the more advantageous proposal submitted by PIATCO
by the lime the 30-day working period expired on 28 November 1996.8
and since it did not exercise its right to match the most advantageous
proposal within the prescribed period, it cannot assert its right to be
awarded the project.
Facts: AEDC submitted an unsolicited proposal (original proponent) to
the Government through the DOTC/[Manila International Airport Authority
(MIAA)] for the development of NAIA International Passenger Terminal III
(NAIA IPT III) under a build-operate-and-transfer arrangement pursuant
to RA 6957 as amended by RA 7718 (BOT Law).
The consortium composed of People's Air Cargo and Warehousing Co.,
Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and
Security Bank Corp. (Security Bank) (collectively, Paircargo Consortium)
also submitted their competitive proposal to the PBAC. PBAC awarded
the project to Paircargo. AEDC objected.
In Agan Case, SC rules that in view of the absence of the requisite
financial capacity of the Paircargo Consortium, predecessor of
respondent PIATCO, the award by the PBAC of the contract for the
construction, operation and maintenance of the NAIA IPT III is null and
void.
In Gingoyon Case, Government filed an expropriation case as regards
NAIA IPT III, which the Court granted.
Because of these rulings, AEDC claims that, being the recognized and
unchallenged original proponent of the NAIA IPT III Project, it has the
exclusive, clear, and vested statutory right to the award thereof.
A petition for mandamus was filed by AEDC.
Substantial Issue: AEDC is not entitled to a writ of mandamus, there
being no specific, certain, and clear legal right to be enforced, nor duty to
be performed that is clearly and peremptorily enjoined by law or by
reason of official station. While the Court may concede that AEDC, as
the original proponent, already expended resources in its preparation

and negotiation of its unsolicited proposal, the mere fact thereof does not
entitle it to the instant award of the NAIA IPT III Project. AEDC was
aware that the said project would have to undergo public bidding, and
there existed the possibility that another proponent may submit a more
advantageous bid which it cannot match; in which case, the project shall
be awarded to the other proponent and AEDC would then have no
means to recover the costs and expenses it already incurred on its
unsolicited proposal. It was a given business risk that AEDC knowingly
undertook.
Procedural Issues:
Late filing
The present claim of AEDC is rooted in the Decision of this Court in
Agan. However, AEDC filed the Petition at bar only 20 months after the
promulgation of the Decision in Agan on 5 May 2003. As the revised
Rules now stand, a petition for certiorari may be filed within 60 days from
notice of the judgment, order or resolution sought to be assailed. 42
Reasonable time for filing a petition for mandamus should likewise be for
the same period. The filing by the AEDC of its petition for mandamus 20
months after its supposed right to the project arose is evidently beyond
reasonable time and negates any claim that the said petition for the
extraordinary writ was the most expeditious and speedy remedy
available to AEDC.
Res judicata
AEDC's Petition is that it is already barred by res judicata. AEDC entered
into a compromise agreement with the Government.
Because of the compromise agreement among the parties, there was
accordingly a judicial settlement of the controversy, and the Order, dated
30 April 1999, of the RTC of Pasig City was no less a judgment on the
merits which may be annulled only upon the ground of extrinsic fraud.
Thus, the RTC of Pasig City, in the same Order, correctly granted the
dismissal of Civil Case No. 66213 with prejudice. AEDC, however,
invokes the purported pressure exerted upon it by then President Joseph
E. Estrada, the alleged fraud committed by the DOTC, and paragraph 2
in the afore-quoted Joint Motion to Dismiss to justify the non-application
of the doctrine of res judicata to its present Petition.
There is res judicata because:
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9
First, the Order of the RTC of Pasig City, dismissing Civil Case No.
66213, was issued on 30 April 1999. The Joint Motion to Dismiss,
deemed a compromise agreement, once approved by the court is
immediately executory and not appealable.
Second, the Order of the RTC of Pasig City dismissing Civil Case No.
66213 pursuant to the Joint Motion to Dismiss filed by the parties
constitutes a judgment on the merits.
Third, there is no question as to the jurisdiction of the RTC of Pasig
City over the subject matter and parties in Civil Case No. 66213.
The RTC can exercise original jurisdiction over cases involving the
issuance of writs of certiorari, prohibition,mandamus, quo
warranto, habeas corpus and injunction. To recall, the Petition of
AEDC before the RTC of Pasig City was for the declaration of
nullity of proceedings, mandamus and injunction. The RTC of
Pasig City likewise had jurisdiction over the parties, with the
voluntary submission by AEDC and proper service of summons on
the DOTC Secretary and the PBAC Chairman and members.
Lastly, there is, between Civil Case No. 66213 before the RTC of Pasig
City and the Petition now pending before this Court, an identity of parties,
of subject matter, and of causes of action.
Agan vs PIATCO: The contract for the construction and operation for the
NAIA IPT III was awarded to PIATCO. Petitioners, who are employees of
service providers at the MIAA and NAIA Terminal I and II, and service
providers themselves, assail:
a. the provisions in the 1997 Concession Agreement and the ARCA
which grant PIATCO the exclusive right to operate a commercial
international passenger terminal within the Island of Luzon, except
those international airports already existing at the time of the
execution of the agreement.
b. The contracts further provide that upon the commencement of
operations at the NAIA IPT III, the Government shall cause the
closure of Ninoy Aquino International Airport Passenger Terminals I
and II as international passenger terminals.

c. With respect to existing concession agreements between MIAA and
international airport service providers regarding certain services or
operations, the 1997 Concession Agreement and the ARCA
uniformly provide that such services or operations will not be carried
over to the NAIA IPT III and PIATCO is under no obligation to permit
such carry over except through a separate agreement duly entered
into with PIATCO.
d. With respect to the petitioning service providers and their
employees, upon the commencement of operations of the NAIA IPT
III, they allege that they will be effectively barred from providing
international airline airport services at the NAIA Terminals I and II as
all international airlines and passengers will be diverted to the NAIA
IPT III. The petitioning service providers will thus be compelled to
contract with PIATCO alone for such services, with no assurance
that subsisting contracts with MIAA and other international airlines
will be respected.
Respondent PIATCO further alleges that this Court is without jurisdiction
to review the instant cases as factual issues are involved which this
Court is ill-equipped to resolve.
Moreover, PIATCO alleges that submission of this controversy to this
Court at the first instance is a violation of the rule on hierarchy of courts.
They contend that trial courts have concurrent jurisdiction with this Court
with respect to a special civil action for prohibition and hence, following
the rule on hierarchy of courts, resort must first be had before the trial
courts. Further, arbitration proceedings filed by PIATCO have already
commenced.
Issue: Whether direct resort to the Supreme Court was a proper
remedy;
Ruling:
YES. The rule on hierarchy of courts will not also prevent this Court
from assuming jurisdiction over the cases at bar. The said rule may
be relaxed when the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for
the exercise of this Court’s primary jurisdiction. It is easy to discern
that exceptional circumstances exist in the cases at bar that call for the
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relaxation of the rule. Both petitioners and respondents agree that these
cases are of transcendental importance as they involve the construction
and operation of the country‘s premier international airport. Moreover, the
crucial issues submitted for resolution are of first impression and they
entail the proper legal interpretation of key provisions of the Constitution,
the BOT Law and its Implementing Rules and Regulations. Thus,
considering the nature of the controversy before the Court, procedural
bars may be lowered to give way for the speedy disposition of the instant
cases.
Liga ng mga Barangay vs Atienza: Liga is the national organization of
all the barangays in the Philippines, which pursuant to Section 492 of RA
No. 7160 (LGC), constitutes the duly elected presidents of
highlyurbanized cities, provincial chapters, the metropolitan Manila
Chapter, and metropolitan political subdivision chapters.
Section 493 of that law provides that ―the liga at the municipal, city,
provincial, metropolitan political subdivision, and national levels directly
elect a president, a vice-president, and 5 members of the board of
directors.‖ All other matters not provided for in the law affecting the
internal organization of the leagues of LGUs shall be governed by their
respective constitution and by-laws, which must always conform to the
provisions of the Constitution and existing laws. Liga adopted and ratified
its own Constitution and By-laws to govern its internal organization. Liga
adopted and ratified its own Election Code. Liga came out with its
Calendar of Activities and Guidelines in the Implementation of the Liga
Election Code of 2002, setting the synchronized elections for highly
urbanized city chapters, such as the Liga Chapter of Manila, together
with independent component city, provincial, and metropolitan chapters.
Respondent City Council of Manila enacted Ordinance No. 8039, Series
of 2002, providing for the election of representatives of the District
Chapters in the City Chapter of Manila and setting the elections for both
chapters 30 days after the barangay elections. Liga sent respondent
Mayor of Manila a letter requesting him that said ordinance be vetoed
considering that it encroached upon, or even assumed, the functions of
the Liga through legislation, a function which was clearly beyond the
ambit of the powers of the City Council. Mayor signed and approved the
city ordinance.
Issue:

Whether or not the Liga properly filed the case directly with the Supreme
Court.
Ruling:
No. Although the instant petition is styled as a petition for certiorari, in
essence, it seeks the declaration by this Court of the unconstitutionality
or illegality of the questioned ordinance and executive order. It, thus,
partakes of the nature of a petition for declaratory relief over which this
Court has only appellate, not original, jurisdiction. As such, this petition
must necessary fail, as this Court does not have original jurisdiction over
a petition for declaratory relief even if only questions of law are involved.
Even granting arguendo that the present petition is ripe for the
extraordinary writ of certiorari, there is here a clear disregard of the
hierarchy of courts. No special and important reason or exceptional and
compelling circumstance has been adduced by the petitioner or the
intervenor why direct recourse to this Court should be allowed.
This Court‘s original jurisdiction to issue a writ of certiorari (as well as of
prohibition, mandamus, quo warranto, habeas corpus and injunction) is
not exclusive, but is concurrent with the RTC and CA in certain cases.
People v. Cuaresma: This concurrence of jurisdiction is not to be taken
as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard of that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first
level (―inferior‖) courts should be filed with the RTC, and those against
the latter, with the CA. A direct invocation of the SC‘s original jurisdiction
to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the petition.
This is a policy necessary to prevent inordinate demands upon SC‘s time
and attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of the Court‘s
docket.
Santiago v. Vasquez: the propensity of litigants and lawyers to disregard
the hierarchy of courts in our judicial system by seeking relief directly
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from this Court must be put to a halt for two reasons: (1) it would be an
imposition upon the precious time of this Court; and (2) it would cause an
inevitable and resultant delay, intended or otherwise, in the adjudication
of cases, which in some instances had to be remanded or referred to the
lower court as the proper forum under the rules of procedure, or as better
equipped to resolve the issues because this Court is not a trier of facts.
SC will not entertain direct resort to it unless the redress desired cannot
be obtained in the appropriate courts, and exceptional and compelling
circumstances justify the availment of the extraordinary remedy of writ of
certiorari, calling for the exercise of its primary jurisdiction. Petitioner‘s
reliance on Pimentel v. Aguirre is misplaced because the nonobservance
of the hierarchy-of-courts rule was not an issue therein. Besides, what
was sought to be nullified in the petition for certiorari and prohibition
therein was an act of the President, which would have greatly affected all
LGUs. When an act of the legislative department is seriously alleged to
have infringed the Constitution, settling the controversy becomes the
duty of this Court. The same is true when what is seriously alleged to be
unconstitutional is an act of the President, who in our constitutional
scheme is coequal with Congress.
Hannah Serrana vs Sandiganbayan: Petitioner was a student of the
UP-Cebu (government scholar) appointed by President Joseph Estrada
as a student regent of UP, to serve a one-year term. Petitioner, with her
siblings and relatives, registered with the SEC the Office of the Student
Regent Foundation, Inc. (OSRFI). One of the projects of the OSRFI was
the renovation of the Vinzons Hall Annex. Estrada gave P15,000,000 to
the OSRFI as financial assistance for the proposed renovation. The
source of the funds was the Office of the President. The renovation of
Vinzons Hall Annex failed to materialize. The succeeding student regent
filed a complaint for Malversation of Public Funds and Property with the
Office of the Ombudsman. Ombudsman found probable cause to indict
petitioner and her brother Jade Ian Serana for estafa.
Petitioner moved to quash the information: (a) the Sandiganbayan has
no jurisdiction over estafa; (b) petitioner is not a public officer with Salary
Grade 27 and she paid her tuition fees; (c) the offense charged was not
committed in relation to her office; (d) the funds in question personally
came from President Estrada, not from the government.

Sandiganbayan denied petitioner‘s motion for lack of merit.
Accusedmovant‘s claim that being merely a member in representation of
the student body, she was never a public officer since she never
received any compensation nor does she fall under Salary Grade 27, is
of no moment, in view of the express provision of Section 4 of RA No.
8249 which provides:
Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
(A) x x x (1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade "27" and
higher, of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
x x x x (g) Presidents, directors or trustees, or managers of
governmentowned or controlled corporations, state universities or
educational institutions or foundations.
Thus, Sandiganbayan has original exclusive jurisdiction over all offenses
involving the officials enumerated in subsection (g), irrespective of their
salary grades, because the primordial consideration in the inclusion of
these officials is the nature of their responsibilities and functions.
Issue
Whether or not the Sandiganbayan may try a government scholaran**
accused, along with her brother, of swindling government funds.
Ruling:
Yes. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as
amended, not by R.A. No. 3019, as amended. R.A. No. 3019 is a penal
statute approved on August 17, 1960. The said law represses certain
acts of public officers and private persons alike which constitute graft or
corrupt practices or which may lead thereto. Pursuant to Section 10 of
R.A. No. 3019, all prosecutions for violation of the said law should be
filed with the Sandiganbayan. R.A. No. 3019 does not contain an
enumeration of the cases over which the Sandiganbayan has jurisdiction.
In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals
not with the jurisdiction of the Sandiganbayan but with prohibition on
private individuals. P.D. No. 1606, as amended, defines the
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jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended,
defines graft and corrupt practices and provides for their penalties.
Petitioner UP student regent is a public officer. Petitioner claims that she
is not a public officer with Salary Grade 27; she is, in fact, a regular
tuition fee-paying student. This is bereft of merit. It is not only the salary
grade that determines the jurisdiction of the Sandiganbayan. The
Sandiganbayan also has jurisdiction over other officers enumerated in
P.D. No. 1606. While the first part of Section 4(A) covers only officials
with Salary Grade 27 and higher, its second part specifically includes
other executive officials whose positions may not be of Salary Grade 27
and higher but who are by express provision of law placed under the
jurisdiction of the said court. Petitioner falls under the jurisdiction of the
Sandiganbayan as she is placed there by express provision of law.
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan
with jurisdiction over Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or
educational institutions or foundations. Petitioner falls under this
category. As the Sandiganbayan pointed out, the BOR performs
functions similar to those of a board of trustees of a non-stock
corporation. By express mandate of law, petitioner is, indeed, a public
officer as contemplated by P.D. No. 1606. Moreover, it is well established
that compensation is not an essential element of public office. At most, it
is merely incidental to the public office. The administration of the UP is a
sovereign function in line with Article XIV of the Constitution. UP
performs a legitimate governmental function by providing advanced
instruction in literature, philosophy, the sciences, and arts, and giving
professional and technical training. Moreover, UP is maintained by the
Government and it declares no dividends and is not a corporation
created for profit.
The offense charged was committed in relation to public office, according
to the Information. Petitioner argues that even assuming that she is a
public officer, the Sandiganbayan would still not have jurisdiction over the
offense because it was not committed in relation to her office. According
to petitioner, she had no power or authority to act without the approval of
the BOR. She adds there was no Board Resolution issued by the BOR
authorizing her to contract with then Estrada; and that her acts were not
ratified by the governing body of the state university. Resultantly, her act
was done in a private capacity and not in relation to public office.

It is axiomatic that jurisdiction is determined by the averments in the
information. More than that, jurisdiction is not affected by the pleas or the
theories set up by defendant or respondent in an answer, a motion to
dismiss, or a motion to quash. Otherwise, jurisdiction would become
dependent almost entirely upon the whims of defendant or respondent.
The information alleged, in no uncertain terms that petitioner, being then
a student regent of U.P., "while in the performance of her official
functions, committing the offense in relation to her office and taking
advantage of her position, with intent to gain, conspiring with her brother,
JADE IAN D. SERANA, a private individual, did then and there wilfully,
unlawfully and feloniously defraud the government x x x."
Clarit Garcia vs Sandiganbayan: To recover unlawfully acquired funds
and properties in the amount of P143,052,015.29 that retired Maj. Gen.
Carlos F. Garcia, his wife, petitioner Clarita, children Ian Carl, Juan Paulo
and Timothy Mark had allegedly amassed and acquired, the Republic,
through the Office of the Ombudsman (OMB), pursuant to RA 1379, filed
with the Sandiganbayan (SB) on October 29, 2004 a petition for the
forfeiture of those properties. Civil Case No. 0193 was followed by the
filing of another forfeiture case, docketed as Civil Case No. 0196, this
time to recover funds and properties amounting to P202,005,980.55. Civil
Case No. 0196 would eventually be raffled also to the Fourth Division of
the SB. Civil Case No. 0193 shall be referred to as Forfeiture I and Civil
Case No. 0196 as Forfeiture II.
Prior to the filing of Forfeiture II, but subsequent to the filing of Forfeiture
I, the OMB charged the Garcias and 3 others with violation of RA 7080
(plunder) under an Information dated April 5, 2005 which placed the
value of the property and funds plundered at P303,272,005.99. Docketed
as Crim. Case No. 28107, the Information was raffled off to the Second
Division of the SB. The plunder charge, as the parties‘ pleadings seem to
indicate, covered substantially the same properties identified in both
forfeiture cases.
Issue 1:
Whether or not SB 4Th Division has jurisdiction over the subject matter of
Forfeitures I and II as both cases are covered or included in the plunder
case against the Garcias.
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Ruling:
Yes, the plunder case did not absorb the forfeiture cases. Petitioner
claims that the filing of the main plunder case, with its automatic
forfeiture mechanism in the event of conviction, ousted the SB 4th
Division of its jurisdiction over the subject matter of the forfeiture cases.
The inclusion of the forfeiture cases with the plunder case is necessary,
so petitioner claims, to obviate possible double jeopardy entanglements
and colliding case dispositions. Prescinding from these premises,
petitioner would ascribe grave abuse of discretion on the SB 4th Division
for not granting its separate motions to dismiss the 2 forfeiture petitions
and/or to consolidate them with the plunder case on the foregoing
ground.
Petitioner‘s posture respecting Forfeitures I and II being absorbed by the
plunder case, thus depriving the 4th Division of the SB of jurisdiction over
the civil cases, is flawed by the assumptions holding it together, the first
assumption being that the forfeiture cases are the corresponding civil
action for recovery of civil liability ex delicto. As correctly ruled by the SB
4th Division in its May 20, 2005 Resolution, the civil liability for forfeiture
cases does not arise from the commission of a criminal offense, thus:
Such liability is based on a statute that safeguards the right of the State
to recover unlawfully acquired properties. The action of forfeiture arises
when a ―public officer or employee [acquires] during his incumbency an
amount of property which is manifestly out of proportion of his salary x x
x and to his other lawful income x x x.‖ Such amount of property is then
presumed prima facie to have been unlawfully acquired. Thus ―if the
respondent [public official] is unable to show to the satisfaction of the
court that he has lawfully acquired the property in question, then the
court shall declare such property forfeited in favor of the State, and by
virtue of such judgment the property aforesaid shall become property of
the State. x x x
EO 14, Series of 1986, albeit defining only the jurisdiction over cases
involving ill-gotten wealth of former President Marcos, his immediate
family and business associates, authorizes under its Sec. 3 the filing of
forfeiture suits under RA 1379 which will proceed independently of any
criminal proceedings. The Court, in Republic v. Sandiganbayan,
interpreted this provision as empowering the Presidential Commission on
Good Government to file independent civil actions separate from the
criminal actions.

A forfeiture case under RA 1379 arises out of a cause of action separate
and different from a plunder case, thus negating the notion that the crime
of plunder absorbs the forfeiture cases. In a prosecution for plunder,
what is sought to be established is the commission of the criminal acts in
furtherance of the acquisition of ill-gotten wealth. On the other hand, all
that the court needs to determine, by preponderance of evidence, under
RA 1379 is the disproportion of respondent‘s properties to his legitimate
income, it being unnecessary to prove how he acquired said properties.
The forfeitable nature of the properties under the provisions of RA 1379
does not proceed from a determination of a specific overt act committed
by the respondent public officer leading to the acquisition of the illegal
wealth.
Given the foregoing considerations, petitioner‘s thesis on possible double
jeopardy entanglements should a judgment of conviction ensue in Crim.
Case 28107 collapses entirely. Double jeopardy, as a criminal law
concept, refers to jeopardy of punishment for the same offense,
suggesting that double jeopardy presupposes two separate criminal
prosecutions. Proceedings under RA 1379 are, to repeat, civil in nature.
As a necessary corollary, one who is sued under RA 1379 may be
proceeded against for a criminal offense. Thus, the filing of a case under
that law is not barred by the conviction or acquittal of the defendant in
Crim. Case 28107 for plunder.
Issue 2:
Whether or not Sandiganbayan acquired jurisdiction over the persons of
petitioner and her children.
Ruling 2:
No. Petitioner argues that the SB did not acquire jurisdiction over her
person and that of her children due to a defective substituted service of
summons. Sec. 7, Rule 14 of the 1997 Revised Rules of Civil Procedure
clearly provides for the requirements of a valid substituted service of
summons, thus: SEC. 7. Substituted service.—If the defendant cannot
be served within a reasonable time as provided in the preceding section
[personal service on defendant], 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.
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A court must acquire jurisdiction over a party for the latter to be bound by
its decision or orders. Valid service of summons, by whatever mode
authorized by and proper under the Rules, is the means by which a court
acquires jurisdiction over a person.
Summons for Forfeitures I and II were served personally on Maj. Gen.
Carlos Flores Garcia, who is detained at the PNP Detention Center, who
acknowledged receipt thereof by affixing his signature. Substituted
service of summons for both Forfeitures I and II were made on petitioner
and her children through Maj. Gen. Garcia at the PNP Detention Center.
However, such substituted services of summons were invalid for being
irregular and defective.
In Manotoc v. Court of Appeals, we broke down the requirements to be:
(1) Impossibility of prompt personal service, i.e., the party relying
on substituted service or the sheriff must show that defendant cannot
be served promptly or there is impossibility of prompt service within a
reasonable time. Reasonable time being ―so much time as is
necessary under the circumstances for a reasonably prudent and
diligent man to do, conveniently, what the contract or duty requires that
should be done, having a regard for the rights and possibility of loss, if
any[,] to the other party.‖ Moreover, the sheriff must show several
attempts for personal service of at least 3 times on at least 2 different
dates.
(2) Specific details in the return, i.e., the sheriff must describe in
the Return of Summons the facts and circumstances surrounding the
attempted personal service.
(3) Substituted service effected on a person of suitable age and
discretion residing at defendant‘s house or residence; or on a
competent person in charge of defendant‘s office or regular place of
business.
From the foregoing requisites, it is apparent that no valid substituted
service of summons was made on petitioner and her children, as the
service made through Maj. Gen. Garcia did not comply with the first 2
requirements mentioned above for a valid substituted service of
summons. Moreover, the third requirement was also not strictly

complied with as the substituted service was made not at petitioner‘s
house or residence but in the PNP Detention Center where Maj. Gen.
Garcia is detained, even if the latter is of suitable age and discretion.
Hence, no valid substituted service of summons was made.
The stringent rules on valid service of summons for the court to acquire
jurisdiction over the person of the defendants, however, admits of
exceptions, as when the party voluntarily submits himself to the
jurisdiction of the court by asking affirmative relief. In the instant case,
the Republic asserts that petitioner is estopped from questioning
improper service of summons since the improvident service of
summons in both forfeiture cases had been cured by their (petitioner
and her children) voluntary appearance in the forfeiture cases. The
Republic points to the various pleadings filed by petitioner and her
children during the subject forfeiture hearings. We cannot subscribe to
the Republic‘s views.
Special appearance to question a court‘s jurisdiction is not voluntary
appearance (Sec. 20, Rule 14). The pleadings filed by petitioner in the
subject forfeiture cases do not show that she voluntarily appeared
without qualification. Petitioner filed the following pleadings in Forfeiture
I: (a) motion to dismiss; (b) motion for reconsideration and/or to admit
answer; (c) second motion for reconsideration; (d) motion to consolidate
forfeiture case with plunder case; and (e) motion to dismiss and/or to
quash Forfeiture I. And in Forfeiture II: (a) motion to dismiss and/or to
quash Forfeiture II; and (b) motion for partial reconsideration.
The foregoing pleadings, particularly the motions to dismiss, were filed
by petitioner solely for special appearance with the purpose of
challenging the jurisdiction of the SB over her person and that of her 3
children. Petitioner asserts therein that SB did not acquire jurisdiction
over her person and of her 3 children for lack of valid service of
summons through improvident substituted service of summons in both
Forfeiture I and Forfeiture II. This stance the petitioner never abandoned
when she filed her motions for reconsideration, even with a prayer to
admit their attached Answer Ex Abundante Ad Cautelam dated January
22, 2005 setting forth affirmative defenses with a claim for damages. And
the other subsequent pleadings, likewise, did not abandon her stance
and defense of lack of jurisdiction due to improper substituted services of
summons in the forfeiture cases. Evidently, from the foregoing Sec. 20,
Rule 14 of the 1997 Revised Rules on Civil Procedure, petitioner and her
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15
sons did not voluntarily appear before the SB constitutive of or equivalent
to service of summons.
Platinum Tours and Travel, Inc. vs Panlilio: Platinum filed a complaint
for a sum of money with damages against Pan Asiatic Travel Corporation
(PATC) and its president Nelida Galvez. Platinum sought to collect
payment for the airline tickets which PATC bought from it. RTC of Makati
City, Branch 62, rendered a judgment by default in favor of Platinum and
ordered PATC and Galvez to solidarily pay Platinum. A writ of execution
was issued on motion of Platinum. Pursuant to the writ, Manila Polo Club
Proprietary Membership Certificate in the name of Galvez was levied
upon and sold.
Jose Panlilio filed a motion to intervene in the Civil Case claiming that
Galvez had executed in his favor a chattel mortgage over her shares of
stock in the Manila Polo Club to secure her loan and that Galvez had
already delivered to him the stock certificates. RTC denied Panlilio‘s
motion for intervention because (1) a decision had already been
rendered in this case and that the only matters at issue is the propriety of
the execution; (2) it will only delay or prejudice the adjudication of the
rights of the original parties; and, (3) the Intervenor‘s rights may be fully
protected in a separate action.
RTC declared the execution sale null and void due to irregularities in the
conduct thereof.
Panlilio filed against Galvez a collection case with application for a writ of
preliminary attachment of the Manila Polo Club shares. The case was
raffled to Branch 146 of the RTC of Makati City. Panlilio again attempted
to intervene in the other Civil Case, this time by incorporating in his
complaint a motion to consolidate both Civil Cases.
Judge Salvador Tensuan of Branch 146 granted the motion for
consolidation on condition that Judge Roberto Diokno of Branch 62
would not object thereto. Judge Diokno allowed the consolidation of the 2
cases and setting for hearing Panlilio‘s application for a writ of
preliminary attachment.
Platinum moved to reconsider the order of Judge Diokno but its motion
was denied.

Platinum filed a petition for certiorari at the CA assailing, among others,
the order of Judge Diokno allowing the consolidation of Civil Cases. CA
annulled the assailed order but left it to Judge Diokno to decide whether
to return the Civil Case to Judge Tensuan, or to keep it in his docket and
decide it as a separate case. Platinum filed a motion for partial
reconsideration of the decision of the CA, praying that the Civil Case be
returned to Branch 146 or re-raffled to another RTC Branch of Makati.
Said motion was denied.
Issue:
Whether or not RTC-Branch 62‘s basis for acquiring jurisdiction over the
civil case was extinguished when Judge Diokno‘s July 23, 1996 order
allowing the consolidation of the two cases was annulled and set aside.
Ruling:
No. Since jurisdiction is the power to hear and determine a particular
case, it does not depend upon the regularity of the exercise by the court
of that power or on the correctness of its decisions.
Panlilio‘s collection case falls within the jurisdiction of the RTC of Makati,
Branch 62. The fact that the CA subsequently annulled Judge Diokno‘s
order granting the consolidation, did not affect the jurisdiction of the court
which issued the said order.
―Jurisdiction‖ should be distinguished from the ―exercise of
jurisdiction.‖ Jurisdiction refers to the authority to decide a case, not the
orders or the decision rendered therein. Accordingly, where a court has
jurisdiction over the person and the subject matter, as in the instant case,
the decision on all questions arising from the case is but an exercise of
such jurisdiction. Any error that the court may commit in the exercise of
its jurisdiction is merely an error of judgment which does not affect its
authority to decide the case, much less divest the court of the jurisdiction
over the case.
Moreover, the instant petition is premature and speculative. Had
Platinum waited until Judge Diokno decided on what to do with Civil
Case No. 96-365, the parties would have been spared the trouble and
the expense of seeking recourse from this Court, which in turn would
have had one petition less in its docket. The unfounded fear that Civil
Case No. 96-365 would unduly delay the final resolution of Civil Case
Remedial Law Review I – Civil Procedure
16
No. 94-1634, if the former were retained by Branch 62, made Platinum
act with haste.
Manila Bankers vs Ng Kok Wei: Respondent Eddy Ng Kok Wei is a
Singaporean businessman who ventured into investing in the Philippines.
On November 29, 1988, respondent, in a Letter of Intent addressed to
petitioner, expressed his intention to purchase a condominium unit at
Valle Verde Terraces. On December 5, 1988, respondent paid petitioner
a reservation fee of P50,000 for the purchase of a 46-square meter
condominium unit valued at P860,922.00. On January 16, 1989,
respondent paid 90% of the purchase price or P729,830.00.
Petitioner executed a Contract to Sell in favor of the respondent. The
contract expressly states that the condominium unit ―shall substantially
be completed and delivered‖ to the respondent ―within 15 months‖ from
February 8, 1989 or on May 8, 1990, and that ―(S)hould there be no
substantial completion and fail(ure) to deliver the unit on the date
specified, a penalty of 1% of the total amount paid (by respondent) shall
be charged against (petitioner)‖.
Considering that the stipulated 15-month period was at hand, respondent
returned to the Philippines in April, 1990.
In a letter dated April 5, 1990, petitioner informed respondent of the
substantial completion of his condominium unit, however, due to various
uncontrollable forces (such as coup d‗ etat attempts, typhoon and steel
and cement shortage), the final turnover is reset to May 31, 1990.
Meanwhile, on July 5, 1990, upon receipt of petitioner‘s notice of delivery
dated May 31, 1990, respondent again flew back to Manila. He found the
unit still uninhabitable for lack of water and electric facilities.
Once more, petitioner issued another notice to move-in addressed to its
building administrator advising the latter that respondent is scheduled to
move in on August 22, 1990.
On October 5, 1990, respondent returned to the Philippines only to find
that his condominium unit was still unlivable. Exasperated, he was
constrained to send petitioner a letter dated November 21, 1990
demanding payment for the damages he sustained. Petitioner ignored

such demand, prompting respondent to file with the RTC, Makati City, a
complaint against the former for specific performance and damages.
During the pendency of the case, respondent finally accepted the
condominium unit and on April 12, 1991, occupied the same. Thus,
respondent‘s cause of action has been limited to his claim for damages.
RTC found petitioner liable for payment of damages due to the delay in
the performance of its obligation to the respondent. CA affirmed and
denied the MR.
Issue:
Whether or not RTC has jurisdiction over the case.
Ruling:
Yes. On petitioner‘s contention that the RTC has no jurisdiction over the
instant case, Section 1 (c) of PD No. 1344, as amended, provides:
―SECTION 1. – In the exercise of its functions to regulate the real
estate trade and business and in addition to its powers provided for in
Presidential Decree No. 957, the National Housing Authority [now
Housing and Land Use Regulatory Board (HLURB) shall have exclusive
jurisdiction to hear and decide cases of the following nature: x x x
C. Cases involving specific performance of contractual and statutory
obligations filed by buyers of subdivision lots or condominium units
against the owner, developer, dealer, broker or salesman. x x x.‖
Thus, it is the HLURB which has jurisdiction. We have consistently held
that complaints for specific performance with damages by a lot or
condominium unit buyer against the owner or developer falls under the
exclusive jurisdiction of the HLURB.
While it may be true that the RTC is without jurisdiction over the case,
petitioner‘s active participation in the proceedings estopped it from
assailing such lack of it. It is an undesirable practice of a party
participating in the proceedings and submitting its case for decision and
then accepting the judgment, only if favorable, and attacking it for lack of
jurisdiction, when adverse.
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Here, petitioner failed to raise the question of jurisdiction before the RTC
and CA. In effect, petitioner confirmed and ratified RTC‘s jurisdiction
over this case. Certainly, it is now in estoppel and can no longer
question the RTC‘s jurisdiction.
GSIS vs Santiago: Deceased spouses Jose Zulueta and Soledad
Ramos obtained various loans secured by 4 real estate mortgages from
GSIS (Period: Sept. 1956 – Oct. 1957; Amount: 3.1M). They failed to pay
so GSIS foreclosed the mortgages.
Some of these properties were later sold in a public auction at a bid price
of 5.2M. 91 lots were expressly excluded from the auction since the lots
were sufficient to pay for all the mortgage debts. The sale was annotated
in such a way that the excluded lots from the auction are specifically
indicated.
An Affidavit of Consolidation of Ownership was executed by defendant
GSIS over Zulueta‘s lots, including the lots, which as earlier stated, were
already excluded from the foreclosure. GSIS sold these properties to
Yorkstown Development Corporation which sale was disapproved by the
Office of the President. The sold properties were returned to GSIS and
they began disposing every lot.
Antonio Zulueta and Eduardo Santiago (represented Zulueta) executed
an agreement whereby the former transferred all his rights and interests
over the excluded lots. Pursuant to this agreement, Santiago wrote a
demand letter to GSIS for the return of 81 excluded lots.
Reconveyance (RTC): GSIS argues that the action was barred by
Statute of Limitations and/or Laches, and that the complaint did not
state a cause of action. Santiago died during the pendency of the trial
so his wife replaced him. Court decided in favor of Santiago – 78 lots
(sorry hindi inexplain ng case kung bakit pabawas ng pabawas yung
lots). CA affirmed. MR denied.
GSIS argues: (1) that there was no proof of bad faith nor could fraud or
malice be attributed to the petitioner when it erroneously caused the
issuance of certificates of title over the subject lots despite the fact that
these were expressly excluded from the foreclosure sale; (2) an action
for reconveyance based on implied or constructive trust prescribes in
ten years from the time of its creation or upon the alleged fraudulent

registration of the property, in this case when the ownership was
consolidated to GSIS. The action was instituted more than fourteen
years later; (3) the properties were not returned because no such
obligation exists under the loan and mortgage agreement.
SC: At the outset, it bears emphasis that the jurisdiction of this Court in
a petition for review on certiorari under Rule 45 of the Rules of Court, as
amended, is limited to reviewing only errors of law. This Court is not a
trier of facts. Case law has it that the findings of the trial court
especially when affirmed by the CA are binding and conclusive upon
this Court. Although there are exceptions to the said rule, we find no
reason to deviate therefrom. By assailing the findings of facts of the trial
court as affirmed by the CA, that it acted in bad faith, the petitioner
thereby raised questions of facts in its petition.
Katon vs Palanca: DOCTRINE: Where prescription, lack of jurisdiction
or failure to state a cause of action clearly appear from the complaint
filed with the trial court, the action may be dismissed motu proprio by
the Court of Appeals, even if the case has been elevated for review on
different grounds. Verily, the dismissal of such cases appropriately ends
useless litigations.
Before us is a Petition for Review under Rule 45 of the Rules of Court,
assailing the December 8, 2000 Decision and the November 20, 2001
Resolution of the Court of Appeals in CA-GR SP No. 57496.
FACTS: On August 2, 1963, herein Petitioner Katon filed a request with
the District Office of the Bureau of Forestry in Puerto Princesa, Palawan,
for the re-classification of a piece of real property known as Sombrero
Island. Then Asst. Director of Forestry informed the Director of Lands,
Manila, that since the subject land was no longer needed for forest
purposes, the same is therefore certified and released as agricultural
land for disposition under the Public Land Act.
Records show that on November 8, 1996, [R]espondent Juan Fresnillo
filed a homestead patent application for a portion of the island. Records
also reveal that [R]espondent Jesus Gapilango filed a homestead
application. Respondent Manuel Palanca, Jr. was issued Homestead
Patent on March 3, 1977 of Sombrero Island. Respondents aver that
they are all bona fide and lawful possessors of their respective portions
and have declared said portions for taxation purposes and that they have
Remedial Law Review I – Civil Procedure
18
been faithfully paying taxes thereon for twenty years. Respondents
contend that the petitioner has no legal capacity to sue insofar as
the island is concerned because an action for reconveyance can
only be brought by the owner and not a mere homestead applicant
and that petitioner is guilty of estoppel by laches for his failure to
assert his right over the land for an unreasonable and unexplained
period of time.
In the instant case, petitioner seeks to nullify the homestead
patents and original certificates of title issued in favor of the
respondents covering certain portions of the Sombrero Island as
well as the reconveyance of the whole island in his favor. The
petitioner claims that he has the exclusive right to file an
application for homestead patent over the whole island since it was
he who requested for its conversion from forest land to agricultural
land."
Respondents filed their Answer with Special and/or Affirmative Defenses
and Counterclaim in due time. On June 30, 1999, they also filed a Motion
to Dismiss on the ground of the alleged defiance by petitioner of the trial
court‘s Order to amend his Complaint so he could thus effect a
substitution by the legal heirs of the deceased, Respondent Gapilango.
The Motion to Dismiss was granted by the RTC in its Order dated July
29, 1999.
Petitioner‘s Motion for Reconsideration of the July 29, 1999 Order was
denied by the trial court in its Resolution dated December 17, 1999, for
being a third and prohibited motion. In his Petition for Certiorari before
the CA, petitioner charged the trial court with grave abuse of discretion
on the ground that the denied Motion was his first and only Motion for
Reconsideration of the aforesaid Order.
Ruling of the Court of Appeals: Instead of limiting itself to the
allegation of grave abuse of discretion, the CA ruled on the merits. In
the Assailed Resolution, the CA acknowledged that it had erred when it
ruled on the merits of the case. Nonetheless, the Complaint was
dismissed motu proprio by the challenged Resolution of the CA Special
Division of five members – with two justices dissenting – pursuant to its
"residual prerogative" under Section 1 of Rule 9 of the Rules of
Court.

Issues
1. Is the Court of Appeals correct in resolving the Petition for
Certiorari based on an issue not raised (the merits of the case) in
the Petition?
2. Is the Court of Appeals correct in invoking its alleged ‗residual
prerogative‘ under Section 1, Rule 9 of the 1997 Rules of Civil
Procedure in resolving the Petition on an issue not raised in the
Petition?"
The Court’s Ruling: The Petition has no merit.
Propriety of Ruling on the Merits: This is not the first time that
petitioner has taken issue with the propriety of the CA‘s ruling on the
merits. The CA even corrected itself in its November 20, 2001
Resolution. Suffice it to say that the appellate court indeed acted ultra
jurisdictio in ruling on the merits of the case when the only issue that
could have been, and was in fact, raised was the alleged grave abuse of
discretion committed by the trial court in denying petitioner‘s Motion for
Reconsideration. Settled is the doctrine that the sole office of a writ of
certiorari is the correction of errors of jurisdiction. Such writ does not
include a review of the evidence, more so when no determination of the
merits has yet been made by the trial court, as in this case.
IMPORTANT! Dismissal for Prescription and Lack of Jurisdiction:
Petitioner has confused what the CA adverted to as its "residual
prerogatives" under Section 1 of Rule 9 of the Rules of Court with the
"residual jurisdiction" of trial courts over cases appealed to the CA.
Under Section 1 of Rule 9 of the Rules of Court, defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived, except when (1) lack of jurisdiction
over the subject matter, (2) litis pendentia, (3) res judicata and (4)
prescription are evident from the pleadings or the evidence on
record. In the four excepted instances, the court shall motu proprio
dismiss the claim or action.
On the other hand, "residual jurisdiction" is embodied in Section 9 of
Rule 41 of the Rules of Court. The "residual jurisdiction" of trial courts is
available at a stage in which the court is normally deemed to have lost
jurisdiction over the case or the subject matter involved in the appeal.
This stage is reached upon the perfection of the appeals by the parties or
upon the approval of the records on appeal, but prior to the transmittal of
Remedial Law Review I – Civil Procedure
19
the original records or the records on appeal.In either instance, the trial
court still retains its so-called residual jurisdiction to issue protective
orders, approve compromises, permit appeals of indigent litigants, order
execution pending appeal, and allow the withdrawal of the appeal.
The CA’s motu proprio dismissal of petitioner’s Complaint could
not have been based, therefore, on residual jurisdiction under Rule
41. Undeniably, such order of dismissal was not one for the
protection and preservation of the rights of the parties, pending the
disposition of the case on appeal. What the CA referred to as
residual prerogatives were the general residual powers of the
courts to dismiss an action motu proprio upon the grounds
mentioned in Section 1 of Rule 9 of the Rules of Court and under
authority of Section 2 of Rule 1 of the same rules.
Jurisdiction over the subject matter is conferred by law and is determined
by the allegations in the complaint and the character of the relief sought.
The question is, did the Complaint sufficiently allege an action for
declaration of nullity of the free patent and certificate of title or,
alternatively, for reconveyance? Or did it plead merely for reversion? The
Complaint did not sufficiently make a case for any of such actions,
over which the trial court could have exercised jurisdiction.
In an action for nullification of title or declaration of its nullity, the
complaint must contain the following allegations: 1) that the contested
land was privately owned by the plaintiff prior to the issuance of the
assailed certificate of title to the defendant; and 2) that the defendant
perpetuated a fraud or committed a mistake in obtaining a document of
title over the parcel of land claimed by the plaintiff. In these cases, the
nullity arises not from fraud or deceit, but from the fact that the director of
the Land Management Bureau had no jurisdiction to bestow title; hence,
the issued patent or certificate of title was void ab initio.
In an alternative action for reconveyance, the certificate of title is also
respected as incontrovertible, but the transfer of the property or title
thereto is sought to be nullified on the ground that it was wrongfully or
erroneously registered in the defendant‘s name. As with an annulment of
title, a complaint must allege two facts that, if admitted, would entitle the
plaintiff to recover title to the disputed land: (1) that the plaintiff was the
owner of the land, and (2) that the defendant illegally dispossessed the
plaintiff of the property. Therefore, the defendant who acquired the

property through mistake or fraud is bound to hold and reconvey to the
plaintiff the property or the title thereto.
In the present case, nowhere in the Complaint did petitioner allege
that he had previously held title to the land in question. On the
contrary, he acknowledged that the disputed island was public land,
that it had never been privately titled in his name, and that he had
not applied for a homestead under the provisions of the Public
Land Act. This Court has held that a complaint by a private party
who alleges that a homestead patent was obtained by fraudulent
means, and who consequently prays for its annulment, does not
state a cause of action; hence, such complaint must be dismissed.
Neither can petitioner’s case be one for reversion. Section 101 of
the Public Land Act categorically declares that only the solicitor
general or the officer in his stead may institute such an action. A
private person may not bring an action for reversion or any other
action that would have the effect of canceling a free patent and its
derivative title, with the result that the land thereby covered would
again form part of the public domain.
Consequently, the dismissal of the Complaint is proper not only
because of lack of jurisdiction, but also because of the utter
absence of a cause of action, a defense raised by respondents in their
Answer.(Section 2 of Rule 3 of the Rules of Court)
Finally, assuming that petitioner is the proper party to bring the action for
annulment of title or its reconveyance, the case should still be dismissed
for being time-barred. Clearly, the suit was brought way past ten
years from the date of the issuance of the Certificate, the
prescriptive period for reconveyance of fraudulently registered real
property.
Pecson vs COMELEC: Pecson and Cunanan were candidates for the
mayoralty position in the Municipality of Magalang, Province of
Pampanga in the May 2007 elections. Cunanan was proclaimed the
winning candidate, garnering a total of 12,592 votes as against Pecson‘s
12,531, or a margin of 61 votes. Cunanan took his oath and assumed
the position of Mayor of Magalang. Soon thereafter, Pecson filed an
election protest with the RTC.
Remedial Law Review I – Civil Procedure
20
The RTC rendered a Decision in Pecson‘s favor. The RTC ruled that
Pecson received a total of 14,897 votes as against Cunanan‘s 13,758 – a
vote margin of 1,139.
Cunanan received a copy of the Decision on November 26, 2007 and
filed a Notice of Appeal the day after. The RTC issued on November 27,
2008 an Order noting the filing of the notice of appeal and the payment of
appeal fee and directing the transmittal of the records of the case to the
Electoral Contests Adjudication Department (ECAD) of the COMELEC.
Pecson, on the other hand, filed on November 28, 2007 an Urgent
Motion for Immediate Execution Pending Appeal, claiming that Section
11, Rule 14 of the Rules of Procedure in Election Contests before the
Courts Involving Elective Municipal and Barangay Officials (Rules) allows
this remedy.
The RTC granted Pecson‘s motion for execution pending appeal via a
Special Order dated December 3, 2007 (Special Order) but suspended,
pursuant to the Rules, the actual issuance of the writ of execution for
twenty (20) days.
Cunanan filed with the COMELEC a Petition for Application of
Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary
Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in
his petition that: (1) the RTC Decision did not clearly establish Pecson‘s
victory or his (Cunanan‘s) defeat – a requirement of Section 11, Rule 14
of the Rules; among other reasons, the number of votes the RTC tallied
and tabulated exceeded the number of those who actually voted and the
votes cast for the position of Mayor, and (2) the RTC had constructively
relinquished its jurisdiction by the issuance of the Order dated
November 27, 2007 directing the transmittal of the records of the case.
The Second Division of the COMELEC issued on January 4, 2008 a
60day TRO directing: (1) the RTC to cease and desist from issuing or
causing the issuance of a writ of execution or implementing the Special
Order; and (2) Cunanan to continue performing the functions of Mayor of
Magalang.
The COMELEC‘s Second Division denied Cunanan‘s petition in a
Resolution dated March 6, 2008. It ruled that: (1) the resolution of the
motion for execution pending appeal is part of the residual jurisdiction of
the RTC to settle pending incidents; the motion was filed prior to the

expiration of the period to appeal and while the RTC was still in
possession of the original record; and (2) there is good reason to justify
the execution of the Decision pending appeal, as Pecson‘s victory was
clearly and manifestly established.
Pecson thus asked for the issuance of a writ of execution via an ExParte
Motion. Despite Cunanan‘s opposition, the RTC granted Pecson‘s
motion and issued the writ of execution on March 11, 2008. Pecson
thereafter assumed the duties and functions of Mayor of Magalang.
On Cunanan‘s motion, the COMELEC en banc issued its Resolution
dated May 21, 2008 reversing the ruling of the Second Division insofar
as it affirmed the RTC‘s findings of good reasons to execute the decision
pending appeal. It affirmed the authority of the RTC to order execution
pending appeal; it however nullified the March 11, 2008 writ of execution
on the ground that the RTC could no longer issue the writ because it had
lost jurisdiction over the case after transmittal of the records and the
perfection of the appeals of both Cunanan and Pecson (to be accurate,
the lapse of Pecson‘s period to appeal).
Threatened to be unseated, Pecson asked, as interim relief, for the
issuance of a Status Quo Order.
ISSUE
Whether or not the writ of execution the RTC issued on March 11, 2008
was void because the RTC could no longer issue the writ because of the
lapse of the period for appeal, and because the RTC no longer held the
records of the election contest which had then been transmitted to the
ECAD-COMELEC.
HELD
No. The writ of execution issued by the RTC is a mere administrative
enforcement medium of the Special Order – the main order supporting
Pecson‘s motion for the issuance of a writ of execution. The writ itself
cannot and does not assume a life of its own independent from the
Special Order on which it is based. Certainly, its nullification does not
carry with it the nullification of the Special Order. This consequence
does not of course hold true in the reverse situation – the nullification of
the Special Order effectively carries with it the nullification of its
implementing writ and removes the basis for the issuance of another
implementing writ. In the present case, the reality is that if and when we
Remedial Law Review I – Civil Procedure
21
ultimately affirm the validity of the Special Order, nothing will thereafter
prevent the RTC from issuing another writ.
Another legal reality is that the COMELEC is wrong in its ruling that the
RTC could no longer actually issue the writ on March 11, 2008 because it
no longer had jurisdiction to do so after the appeal period lapsed and
after the records were transmitted to the ECAD-COMELEC. That the
RTC is still in possession of the records and that the period to appeal (of
both contending parties) must have not lapsed are important for
jurisdictional purposes if the issue is the authority of the RTC to grant a
Special Order allowing execution pending appeal; they are requisite
elements for the exercise by the RTC of its residual jurisdiction to validly
order an execution pending appeal, not for the issuance of the writ itself.
This is clearly evident from the cited provision of the Rules which does
not require the issuance of the implementing writ within the above limited
jurisdictional period. The RTC cannot legally issue the implementing writ
within this limited period for two reasons: (1) the cited twenty-day waiting
period under Section 11(b); and (2) the mandatory immediate transmittal
of the records to the ECAD of the COMELEC under Section 10 of the
Rules.
Other than the clarity of Pecson‘s victory under the RTC Decision, the
Special Order cited good and special reasons that justified an execution
pending appeal, specifically: (1) the need to give as much recognition to
the worth of a trial judge‘s decision as that which is initially given by the
law to the proclamation by the board of canvassers; (2) public interest
and/or respect for and giving meaning to the will of the electorate; and (3)
public policy – something had to be done to deal a death blow to the
pernicious grab-the-proclamation-prolong-the-protest technique often, if
not invariably, resorted to by unscrupulous politicians who would render
nugatory the people‘s verdict against them.
The term for mayor consists of only three (3) years. One year and six
months has lapsed since the May 2007 election; thus, less than two
years are left of the elected mayor‘s term. The election protest, while
already decided at the RTC level, is still at the execution-pending-appeal
stage and is still far from the finality of any decision on the merits, given
the available appellate remedies and the recourses available through
special civil actions.

II. RULES 1 TO 5 (inc. 1991 Revised Rule on Summary Procedure)
RULE 1
General Provisions
Section 1. Title of the Rules. — These Rule shall be known and cited
as the Rules of Court. (1)
Section 2. In what courts applicable. — These Rules shall apply in all
the courts, except as otherwise provided by the Supreme Court. (n)
Section 3. Cases governed. — These Rules shall govern the
procedure to be observed in actions, civil or criminal and special
proceedings.
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong, (1a, R2)
A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject to the
specific rules prescribed for a special civil action. (n)
(b) A criminal action is one by which the State prosecutes a
person for an act or omission punishable by law. (n)
(c) A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact. (2a, R2)
Section 4. In what case not applicable (CLINE). — These Rules shall
not apply to election cases, land registration, cadastral, naturalization
and insolvency proceedings, and other cases not herein provided for,
except by analogy or in a suppletory character and whenever
practicable and convenient. (R143a)
Section 5. Commencement of action. — A civil action is commenced
by the filing of the original complaint in court. If an additional
Remedial Law Review I – Civil Procedure
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defendant is impleaded in a later pleading, the action is commenced
with regard to him on the date of the filing of such later pleading,
irrespective of whether the motion for its admission, if necessary, is
denied by the court. (6a)
Section 6. Construction. — These Rules shall be liberally construed
in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. (2a)
A. Actions: meaning and commencement
When is an action commenced? Upon the timely payment of the correct
docket fees.
Rule 1, Section 5. Commencement of action. — A civil action is
commenced by the filing of the original complaint in court. If an additional
defendant is impleaded in a later pleading, the action is commenced with
regard to him on the dated of the filing of such later pleading, irrespective
of whether the motion for its admission, if necessary, is denied by the
court.
1. Alday vs. FGU Insurance– 350 SCRA
2. Mercado vs. CA, 569 SCRA
3. Proton Pilipinas vs. Banque Nationale de Paris, 460 SCRA
4. Ruby Shelter Builders vs. Formaran, 578 SCRA 283
5. St. Louis University vs. Cobarrubias, 626 SCRA 649 *
6. Gipa vs. Southern Luzon Institute, 726 SCRA, June 18, 2014 *
7. Sy-Vargas vs. Estate of Ogsos, 805 SCRA (2016)
8. Camaso vs. TSM Shipping Inc., 807 SCRA (2016)
Ruby Shelter Builders & Realty Dev. Corp. vs Formaran: Petitioner
obtained a loan from respondents Romeo Tan and Roberto Obiedo,
secured by REM. In a MOA, Tan and Obiedo granted petitioner an
extension. In the event that petitioner is able to redeem any of the
parcels of land, the Deed of Absolute Sale covering the said property
shall be nullified and have no force and effect; and Tan and Obiedo shall
then return the owner‘s duplicate of the TCT to petitioner and also
execute a Deed of Discharge of Mortgage. However, if petitioner is
unable to redeem the parcels of land within the period, Tan and Obiedo

could already present the Deeds of Absolute Sale to the Register of
Deeds so Tan and Obiedo could acquire TCTs to the properties in their
names.
Upon filing its Complaint with the RTC, petitioner paid P13,644.25 for
docket and other legal fees, as assessed by the Office of the Clerk of
Court. The Clerk of Court initially considered the case as an action
incapable of pecuniary estimation and computed the docket and other
legal fees due thereon according to Section 7(b)(1), Rule 141 of the
Rules of Court.
Tan filed before the RTC an Omnibus Motion in which he contended that
the Civil Case involved real properties, the docket fees for which should
be computed in accordance with Section 7(a), not Section 7(b)(1), of
Rule 141 of the Rules of Court, as amended by A.M. No. 04-2-04-SC.
Since petitioner did not pay the appropriate docket fees, RTC did not
acquire jurisdiction.
Tan asked the RTC to issue an order requiring petitioner to pay the
correct docket fees; and should petitioner fail to do so, to deny and
dismiss the prayer of petitioner for the annulment of the Deeds of
Absolute Sale for having been executed in contravention of the law or of
the MOA as pactum commisorium ( Automatic  appropriation  by  the  Court certain facts and circumstances, keeping its Complaint safely
creditor  of  the  thing pledged or mortgaged upon the failure of the
debtor to pay the principal obligation). If it was a real action the docket
fees would have been P720,392.60.
SC: Real action. To resolve the issue of whether petitioner paid the
correct docket fees, it is necessary to determine the true nature of its
Complaint. The nature of an action is determined by the allegations in the
body of the pleading or Complaint itself, rather than by its title or heading.
However, the Court finds it necessary, in ascertaining the true nature of
the Civil Case, to take into account significant facts and circumstances
beyond the Complaint of petitioner, facts and circumstances which
petitioner failed to state in its Complaint but were disclosed in the
preliminary proceedings before the court a quo.
Petitioner persistently avers that its Complaint is primarily for the
annulment of the Deeds of Absolute Sale. Based on the allegations and
reliefs in the Complaint alone, one would get the impression that the titles
to the real properties still rest with petitioner; and that the interest of Tan
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and Obiedo in the same lies only in the Deeds of Absolute Sale sought to
be annulled.
Petitioner failed to mention in its Complaint that Tan and Obiedo already
had the MOA, which clearly provided for the execution of the Deeds of
Absolute Sale, registered on the TCTs over the parcels of land, then still
in the name of petitioner. After Tan and Obiedo had the Deeds of
Absolute Sale notarized and presented to the Register of Deeds, they
were already issued TCTs over the real properties, in their own names.
Tan and Obiedo have also acquired possession of the properties,
enabling them to demolish the improvements thereon.
It is, thus, suspect that petitioner kept mum about these facts and
circumstances. Even though the MOA was supposed to have long been
registered on its TCTs over the parcels of land, petitioner did not pray for
the removal of the same as a cloud on its title. In the same vein, although
petitioner alleged that Tan and Obiedo forcibly took physical possession
of the properties, petitioner did not seek the restoration of such
possession to itself. And despite learning that Tan and Obiedo already
secured TCTs over the properties in their names, petitioner did not ask
for the cancellation of said titles. The only logical and reasonable
explanation is that petitioner is reluctant to bring to the attention of the
worded, so as to institute only an action for annulment of Deeds of
Absolute Sale. Petitioner deliberately avoided raising issues on the title
and possession of the real properties that may lead the Court to classify
its case as a real action.
The allegations and reliefs petitioner sought in its Complaint appears to
be ultimately a real action, involving as they do the recovery by petitioner
of its title to and possession of the parcels of land from Tan and Obiedo.
A real action is one in which the plaintiff seeks the recovery of real
property; or, as indicated in what is now Section 1, Rule 4 of the Rules of
Court, a real action is an action affecting title to or recovery of
possession of real property.
While it is true that petitioner does not directly seek the recovery of title
or possession of the property, his action for annulment of sale and his
claim for damages are closely intertwined with the issue of ownership of
the building which, under the law, is considered immovable property, the
recovery of which is petitioner's primary objective. An action for the

annulment or rescission of a sale of real property does not operate to
efface the fundamental and prime objective and nature of the case,
which is to recover said real property. It is a real action. Unfortunately,
and evidently to evade payment of the correct amount of filing fee,
Manalo never alleged in the body of his amended petition, much less in
the prayer portion thereof, the assessed value of the subject res, or, if
there is none, the estimated value thereof, to serve as basis for the
receiving clerk in computing and arriving at the proper amount of filing
fee due thereon, as required under Section 7 of this Court‘s en banc
resolution of 04 September 1990.
St. Louis University, Inc. vs Cobarrubias: Cobbarubias is an associate
professor of petitioner and a member of the Union. She was placed on
forced leave by petitioner pursuant to a provision in the CBA which
provides that: ―Section 7.7. For teaching employees in college who fail
the yearly evaluation, the following provisions shall apply: (a) Teaching
employees who are retained for 3 cumulative years in 5 years shall be on
forced leave for 1 regular semester during which period all benefits due
them shall be suspended.‖ Cobbarubias resorted to the grievance
machinery, but failed to resolve the dispute. Respondent then filed a
case for illegal forced leave or suspension with the NCMB. Parties
eventually submitted the case for VA. VA dismissed the case.
Respondent received the VA‘s decision on November 20, 2007.
On December 5, 2007, Cobarrubias filed with the CA a petition for review
under Rule 43, but failed to pay the required filing fees and to attach to
the petition copies of the material portions of the record. CA dismissed
the petition on January 14, 2008 due to procedural lapses. Respondent
received the CA resolution on January 31, 2008. On February 15, 2008,
respondent filed a motion for reconsideration and attached to her motion
copies of the material portions of the record and the postal money orders
for P4,230.00. She argued that the ground upon which her petition was
dismissed was technical. CA reinstated her petition finding that
respondent substantially complied with the rules by paying the appeal fee
in full and attaching the proper documents in her motion for
reconsideration. SLU insists that the VA decision had already become
final for failure of respondent to pay the docket fees on time.
SC: Whether or not jurisdiction was acquired by the appellate court by
virtue of the timely filing and payment of the correct docket fees.
Cobarrubias‘ petition should NOT be reinstated because of her failure to
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24
pay the appeal fee within the reglementary period. Appeal is not a natural
right but a mere statutory privilege. Thus, appeal must be made strictly in
accordance with the provision set by law. Rule 43 provides that appeals
from the judgment of the VA shall be taken to the CA, by filing a petition
for review within 15 days from the receipt of the notice of judgment.
Furthermore, upon the filing of the petition, the petitioner shall pay to the
CA clerk of court the docketing and other lawful fees; noncompliance
with the procedural requirements shall be a sufficient ground for the
petition‘s dismissal. Thus, payment in full of docket fees within the
prescribed period is not only mandatory, but also jurisdictional.
Cobarrubias filed her petition for review on December 5, 2007, 15 days
from receipt of the VA decision on November 20, 2007, but paid her
docket fees in full only after 72 days, when she filed her MR on February
15, 2008 and attached the postal money orders forP4,230.00.
Undeniably, the docket fees were paid late, and without payment of the
full docket fees, Cobarrubias‘ appeal was not perfected within the
reglementary period.
Viewed in this light, procedural rules are not to be belittled or dismissed
simply because their non-observance may have prejudiced a party's
substantive rights; like all rules, they are required to be followed.
However, there are recognized exceptions to their strict observance,
such as: (1) most persuasive and weighty reasons; (2) to relieve a litigant
from an injustice not commensurate with his failure to comply with the
prescribed procedure; (3) good faith of the defaulting party by
immediately paying within a reasonable time from the time of the default;
(4) the existence of special or compelling circumstances; (5) the merits of
the case; (6) a cause not entirely attributable to the fault or negligence of
the party favored by the suspension of the rules; (7) a lack of any
showing that the review sought is merely frivolous and dilatory; (8) the
other party will not be unjustly prejudiced thereby; (9) fraud, accident,
mistake or excusable negligence without the appellant's fault; (10)
peculiar, legal and equitable circumstances attendant to each case; (11)
in the name of substantial justice and fair play; (12) importance of the
issues involved; and (13) exercise of sound discretion by the judge,
guided by all ―the attendant circumstances. Thus, there should be an
effort, on the part of the party invoking liberality, to advance a reasonable
or meritorious explanation for his/her failure to comply with the rules.

No such explanation has been advanced. Other than insisting that the
ends of justice and fair play are better served if the case is decided on its
merits, Cobarrubias offered no excuse for her failure to pay the docket
fees in full when she filed her petition for review. Cobarrubias‘ omission
is fatal to her cause.
In Ruby Shelter, the focus was the payment of the correct amount of the
docket fees; In Cobarrubias, the emphasis was the timely payment. The
court acquires jurisdiction over the case upon the filing of the complaint
AND timely payment of the correct docket fees.
Proton Philippines vs Banque Nationale de Paris (BNP): Proton
availed of the credit facilities of BNP and executed a corporate guarantee
of the extent of US$2 million to guarantee its obligation. Under their trust
agreement, Proton would receive imported motor vehicles and hold them
in trust for BNP, to be applied to its obligations to it in case the vehicles
are not sold, Proton would return them to BNP with the documents of
title.
Proton failed to deliver the proceeds and to return the unsold motor
vehicles. Proton‘s guarantors refused to pay its obligation so BNP filed a
complaint ordering them to pay the initial amount of US$2 million with
accrued interest and other related charges. RTC Makati Clerk of Court
assessed the docket fees at P352,000. The petitioners filed a motion to
dismiss the complaint by BNP for failure to pay the correct docket fees
thus preventing the RTC from acquiring jurisdiction over the case. In
addition, the petitioners allege the prematurity of the complaint since
BNP did not priorly send a demand letter.
RTC denied the motion to dismiss and the subsequent MR. The CA
denied the appeal by way of certiorari stating that Section 7(a), Rule 141
of the Rules of Court excludes interest accruing from the principal
amount being claimed in the pleading in the computation of the
prescribed filing fees. CA denied their MR.
The petitioners argue that pursuant to Administrative Circular 11-94,
interests claimed should be included in the computation of the docket
fees. Thus since BNP underpaid, RTC never acquired jurisdiction over
the case.
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Issues: Should the computation for payment of docket fees have
included the interest claimed by the complainant? Yes.
Did the trial court fail to acquire jurisdiction over the case for insufficient
docket fees? No.
SC: When the complaint was filed in 1998, Rule 141 had been amended
by Administrative Circular 11-94.
In Manchester Development Corp. vs. CA, this Court held that the court
acquires jurisdiction over any case only upon payment of the prescribed
docket fees. However, that the ruling in Manchester was clarified in Sun
Insurance Office, Ltd vs. Asuncion when this Court held that in the former
there was an effort to defraud the government in avoiding to pay the
correct docket fees, whereas in the latter the plaintiff demonstrated his
willingness to abide by paying the additional fees as required.
Respondent merely relied on the assessment made by the Clerk of
Court which turned out to be incorrect. Respondent prayed for ―accrued
interest subsequent to August 15, 1998 until finally fully paid.‖ The
complaint having been filed on September 7, 1998, respondent‘s claim
includes the interest from August 16, 1998 until such date of filing.
Respondent did not, however, pay the filing fee corresponding to its
claim for interest from August 16, 1998 until the filing of the complaint on
September 7, 1998. As priorly discussed, this is required under Rule 141,
as amended by Administrative Circular 11-94, which was the rule
applicable at the time. Thus, as the complaint currently stands,
respondent cannot claim the interest from August 16, 1998 until
September 7, 1998, unless respondent is allowed by motion to amend its
complaint within a reasonable time and specify the precise amount of
interest petitioners owe from August 16, 1998 to September 7, 1998 and
pay the corresponding docket fee.
Mercado vs CA: Leonides Mercado had been distributing respondent
San Miguel Corporation‘s (SMC‘s) beer products since 1967. In 1991,
SMC extended to him a P7.5 million credit line allowing him to withdraw
goods on credit. To secure his purchases, Mercado assigned 3 China

Banking Corporation (CBC) certificates of deposit amounting to P5
million to SMC and executed a continuing hold-out agreement stating:
―Any demand made by [SMC] on [CBC], claiming default on my/our part
shall be conclusive on [CBC] and shall serve as absolute authority for
[CBC] to encash the [CBC certificates of deposit] xxx, whether or not I/we
have in fact defaulted on any of my/our obligations with [SMC], it being
understood that the issue of whether or not there was factual default
must be threshed out solely between me/us and [SMC].‖ He also
submitted 3 surety bonds from Eastern Assurance and Surety
Corporation (EASCO) for P2.6 million.
SMC notified CBC that Mercado failed to pay for the items he withdrew
on credit. Citing the continuing hold-out agreement, it asked CBC to
release the proceeds of the assigned certificates of deposit. CBC
approved SMB‘s request and informed Mercado. Mercado filed an action
to annul the continuing hold-out agreement and deed of assignment in
the RTC. He claimed that the continuing hold-out agreement allowed
forfeiture without the benefit of foreclosure. It was therefore void pursuant
to Article 2088 of the Civil Code. Moreover, Mercado argued that he had
already settled his recent purchases on credit but SMC erroneously
applied the said payments to his old accounts not covered by the
continuing hold-out agreement (i.e., purchases made prior to the
extension of the credit line).
SMC filed its answer with counterclaim against Mercado. It contended
that Mercado delivered only 2 CBC certificates of deposit amounting to
P4.5 million and asserted that the execution of the continuing hold-out
agreement and deed of assignment was a recognized business practice.
Furthermore, because Mercado admitted his outstanding liabilities, SMC
sought payment of the lees products he withdrew (or purchased on
credit) worth P7,468,153.75. SMC filed a third-party complaint against
EASCO. It sought to collect the proceeds of the surety bonds submitted
by Mercado.
Mercado filed an urgent manifestation and motion seeking the dismissal
of the complaint. He claimed that he was no longer interested in
annulling the continuing hold-out agreement and deed of assignment.
RTC denied the motion. Instead, it set the case for pre-trial. Thereafter,
trial ensued. RTC dismissed the complaint and ordered Mercado and
EASCO (to the extent of P2.6 million or the value of its bonds) to jointly
and severally pay SMC P7,468,153.75.
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Mercado and EASCO appealed to the CA, insisting that Mercado did not
default in the payment of his obligations to SMC. CA affirmed the RTC
decision in toto. Mercado and EASCO both moved for reconsideration
but their respective motions were denied. EASCO filed a petition for
review on certiorari in this Court but eventually agreed to settle its liability
with SMC. The petition was terminated. Meanwhile, Mercado passed
away and was substituted by his heirs, petitioners Racquel, Jimmy,
Henry, Louricar and Virgilio Mercado. Petitioners subsequently filed this
petition asserting that the CA erred in affirming the RTC decision in toto.
The said decision (insofar as it ordered Mercado to pay SMC
P7,468,153.75) was void. SMC‘s counterclaim was permissive in nature.
Inasmuch as SMC did not pay docket fees, the RTC never acquired
jurisdiction over the counterclaim.
SC: RTC acquired jurisdiction although SMC did not pay docket fees. A
counterclaim (or a claim which a defending party may have against any
party) may be compulsory or permissive. A counterclaim that (1) arises
out of (or is necessarily connected with) the transaction or occurrence
that is the subject matter of the opposing party‘s claim; (2) falls within the
jurisdiction of the court and (3) does not require for its adjudication the
presence of third parties over whom the court cannot acquire jurisdiction,
is compulsory. Otherwise, a counterclaim is merely permissive.
When Mercado sought to annul the continuing hold-out agreement and
deed of assignment, he in effect sought to be freed from them. While he
admitted having outstanding obligations, he nevertheless asserted that
those were not covered by the assailed accessory contracts. For its part,
aside from invoking the validity of the said agreements, SMC therefore
sought to collect the payment for the value of goods Mercado purchased
on credit. Thus, Mercado‘s complaint and SMC‘s counterclaim both
touched the issues of whether the continuing hold-out agreement and
deed of assignment were valid and whether Mercado had outstanding
liabilities to SMC. The same evidence would essentially support or refute
Mercado‘s claim and SMC‘s counterclaim.
Based on the foregoing, had these issues been tried separately, the
efforts of the RTC and the parties would have had to be duplicated.
SMC‘s counterclaim, being logically related to Mercado‘s claim, was
compulsory in nature. Consequently, the payment of docket fees was not
necessary for the RTC to acquire jurisdiction over the subject matter.

RULE 2
Cause of Action
Section 1. Ordinary civil actions, basis of. — Every ordinary civil
action must be based on a cause of action. (n)
Section 2. Cause of action, defined. — A cause of action is the act or
omission by which a party violates a right of another. (n)
Section 3. One suit for a single cause of action. — A party may not
institute more than one suit for a single cause of action. (3a)
Section 4. Splitting a single cause of action; effect of. — If two or
more suits are instituted on the basis of the same cause of action, the
filing of one or a judgment upon the merits in any one is available as
a ground for the dismissal of the others. (4a)
Section 5. Joinder of causes of action. — A party may in one
pleading assert, in the alternative or otherwise, as many causes of
action as he may have against an opposing party, subject to the
following conditions:
(a) The party joining the causes of action shall comply with
the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions
governed by special rules;
(c) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder may
be allowed in the Regional Trial Court provided one of the
causes of action falls within the jurisdiction of said court and
the venue lies therein; and
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(d) Where the claims in all the causes action are principally
for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction. (5a)
Section 6. Misjoinder of causes of action. — Misjoinder of causes of
action is not a ground for dismissal of an action. A misjoined cause of
action may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately. (n)
Rule 2, Section 1. Ordinary civil actions, basis of. — Every ordinary
civil action must be based on a cause of action.
What is a cause of action?
Rule 2, Section 2. Cause of action, defined. — A cause of action is the
act or omission by which a party violates a right of another.
Where lies the court of action? In the defendant. Rule 6, Section 3: The
complaint is the pleading alleging the plaintiff's cause or causes of action.
There is a contradiction. How do you resolve this?
If the cause of action is the act or omission in violation of the right of the
other, it is in the defendant. But the definition of complaint says it is the
plaintiff‘s cause of action. Rule 6 pertains to the remedy of the plaintiff;
it‘s not really a cause of action but a right of action. Thus, the right of
action is with the plaintiff. But there can never be a right of action without
the cause of action. What triggers the right of action is the defendant‘s
cause of action because the plaintiff can only go to court once his right
has been violated.
But this has something to do with civil actions. The Rules govern not only
civil actions but also criminal actions and special proceedings. How do
you distinguish?
Rule 1, Section 3. Cases governed. — These Rules shall govern the
procedure to be observed in actions, civil or criminal and special
proceedings.

(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.
A civil action may either be ordinary or special. Both are governed by the
rules for ordinary civil actions, subject to the specific rules prescribed for
a special civil action.
(b) A criminal action is one by which the State prosecutes a person for
an act or omission punishable by law.
(c) A special proceeding is a remedy by which a party seeks to establish
a status, a right, or a particular fact. (Example: settlement of the estate)
In civil actions, there are 5 parties: (1) plaintiff, (2) defendant, (3)
codefendant, (4) third- fourth- fifth- party defendant, and (4) intervenor.
In criminal actions, there can only be 2 parties: (1) Republic of the
Philippines, and (2) the accused.
In special proceedings, there is only 1 party: the petitioner. But when one
opposes, he becomes an oppositor akin to a defendant. Exception: In
habeas corpus, writ of amparo, writ of habeas data and writ of kalikasan,
there must be a respondent.
B. Rule 2
One suit for a single cause of action
Rule 2, Section 3. One suit for a single cause of action. — A party
may not institute more than one suit for a single cause of action.
Any party to a case can never file 2 cases based on 1 act or omission by
the defendant in violation of the right of the plaintiff.
If A, the plaintiff, leases unto B a parcel of land for a period of 5 years.
Upon the expiration of the period of 5 years, the obligation of B is to
return the parcel of land to A. B does not return the parcel of land. There
is only one violation: failure to return the parcel of land to A. How may A
violate the principle of one suit for a single cause of action? If A files (1)
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an action for the recovery of the property and (2) another case for
damages for failure to surrender the property.
Splitting a single cause of action
When there is a splitting of a single cause of action, what is the remedy
of B? A motion to dismiss under Rule 16.
Rule 16, Section 1, (e) That there is another action pending between the
same parties for the same cause;
Rule 2, Section 4. Splitting a single cause of action; effect of. — If
two or more suits are instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in any one is available as
a ground for the dismissal of the others.
But if judgment has already been rendered, the remedy of B is motion to
dismiss on the ground of res judicata.
Rule 16, Section 1, (f) That the cause of action is barred by a prior
judgment xxx
Joinder of causes vs Joinder of parties
There are 4 requirements for joinder of causes of action:
Rule 2, Section 5. Joinder of causes of action. — A party may in one
pleading assert, in the alternative or otherwise, as many causes of action
as he may have against an opposing party, subject to the following
conditions:
(a) The party joining the causes of action shall comply with the rules
on joinder of parties;
Rule on joinder of parties: Rule 3, Section 6. Permissive joinder of
parties. — All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of transactions
is alleged to exist, whether jointly, severally, or in the alternative, may,
except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the

action; but the court may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed or put to expense in
connection with any proceedings in which he may have no interest.
(b) The joinder shall not include special civil actions or actions
governed by special rules;
(c) Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be allowed in
the Regional Trial Court provided one of the causes of action falls within
the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes action are principally for
recovery of money, the aggregate amount claimed shall be the test of
jurisdiction.
(Note: This is called the totality rule)
B, the defendant, borrowed money from A, the plaintiff, in the amount of
P150,000 in January. Again, he borrowed P150,000 from A in May. By
December, B borrowed P1,000,000 from A secured by real estate
mortgage (Rule 68). May A join his causes of action against B? Yes.
What action? The 1st and 2nd are for sum of money. The 3rd may be an
action for foreclosure or recovery of the sum of money (P1,000,000).
Suppose A decided to file 3 actions for sums of money, what is the
aggregate amount? P1,300,000. Where should it be filed? With the RTC.
Is that mandatory on the part of A to file 3 cases against B? No.
If A chooses to file 3 cases, where would he file them? 1st and 2nd must
be filed with the MTC. The 3rd must be filed with the RTC.
What is the jurisdictional amount under R.A. 7691?
RTC has jurisdiction over:
Real actions:
Assessed value of the property outside Metro Manila > P20,000
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Assessed value of the property inside Metro Manila > P50,000
Exception: MTC has jurisdiction over forcible entry and unlawful
detainer cases.
Personal actions:
Demand or the value of the property outside Metro Manila > P100,000
Demand or the value of the property inside Metro Manila > P200,000
If A joins the causes of action of sum of money, sum of money and
foreclosure of real estate mortgage, is that a proper joinder of causes of
action? No, because Rule 2, Section 5 (b) states that the joinder shall not
include special civil actions.
The remedy of B is (NOT A MOTION TO DISMISS) to file a motion to
amend (or omit?) or ex parte to drop. Also the court itself can drop it
because the court cannot proceed.
Rule 2, Section 6. Misjoinder of causes of action. — Misjoinder of
causes of action is not a ground for dismissal of an action. A misjoined
cause of action may, on motion of a party or on the initiative of the court,
be severed and proceeded with separately.
A is a resident of QC and B is a resident of Manila. The real property
which is offered as security in the real estate mortgage is located in
Baguio. Where should the case be filed/ what is the venue of the action?
If 1st action and 2nd action are for sum of money, 3 rd action is for recovery
of real property, can you join them? Yes. The venue is at the option of
the plaintiff. You can join real and personal actions; there is no
prohibition under joinder of causes of action. However, you cannot join
an ordinary civil action with a special civil action. That has to be dropped.
B. Parties to Civil Actions
RULE 3
Parties to Civil Actions

Section 1. Who may be parties; plaintiff and defendant. — Only
natural or juridical persons, or entities authorized by law may be
parties in a civil action. The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-claimant, or the third (fourth,
etc.) — party plaintiff. The term "defendant" may refer to the original
defending party, the defendant in a counter-claim, the cross-
defendant, or the third (fourth, etc.) — party defendant. (1a)
Section 2. Parties in interest. — A real party in interest is the party
who stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended
in the name of the real party in interest. (2a)
Section 3. Representatives as parties. — Where the action is
allowed to be prosecuted and defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be
included in the title of the case and shall be deemed to be the real
property in interest. A representative may be a trustee of an expert
trust, a guardian, an executor or administrator, or a party authorized
by law or these Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to
the principal. (3a)
Section 4. Spouses as parties. — Husband and wife shall sue or be
sued jointly, except as provided by law. (4a)
EXN:
1. Cases against each other
2. Subject matter of the case is part of their individual property
Section 5. Minor or incompetent persons. — A minor or a person
alleged to be incompetent, may sue or be sued with the assistance of
his father, mother, guardian, or if he has none, a guardian ad litem.
(5a)
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Section 6. Permissive joinder of parties. — All persons in whom or
against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as defendants
in one complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the action; but
the court may make such orders as may be just to prevent any
plaintiff or defendant from being embarrassed or put to expense in
connection with any proceedings in which he may have no interest.
(6n)
Section 7. Compulsory joinder of indispensable parties. — Parties in
interest without whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants. (7)
Section 8. Necessary party. — A necessary party is one who is not
indispensable but who ought to be joined as a party if complete relief
is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action. (8a)
Section 9. Non-joinder of necessary parties to be pleaded. —
Whenever in any pleading in which a claim is asserted a necessary
party is not joined, the pleader shall set forth his name, if known, and
shall state why he is omitted. Should the court find the reason for the
omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such
party.
The non-inclusion of a necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein
shall be without prejudice to the rights of such necessary party. (8a,
9a)

Section 10. Unwilling co-plaintiff. — If the consent of any party who
should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint.
(10)
Section 11. Misjoinder and non-joinder of parties. — Neither
misjoinder nor non-joinder of parties is ground for dismissal of an
action. Parties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage the action and
on such terms as are just. Any claim against a misjoined party may
be severed and proceeded with separately. (11a)
Section 12. Class suit. — When the subject matter of the controversy
is one of common or general interest to many persons so numerous
that it is impracticable to join all as parties, a number of them which
the court finds to be sufficiently numerous and representative as to
fully protect the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest. (12a)
Section 13. Alternative defendants. — Where the plaintiff is uncertain
against who of several persons he is entitled to relief, he may join any
or all of them as defendants in the alternative, although a right to
relief against one may be inconsistent with a right of relief against the
other. (13a)
Section 14. Unknown identity or name of defendant. — Whenever
the identity or name of a defendant is unknown, he may be sued as
the unknown owner heir devisee, or by such other designation as the
case may require, when his identity or true name is discovered, the
pleading must be amended accordingly. (14)
Section 15. Entity without juridical personality as defendant. — When
two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant, the name and addresses of the
persons composing said entity must all be revealed. (15a)
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Section 16. Death of party; duty of counsel. — Whenever a party to
a pending action dies, and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give the name and
address of his legal representative or representatives. Failure of
counsel to comply with his duty shall be a ground for disciplinary
action.
-When a party dies, WON A or B, during case, the lawyer must cause
the substitution of the party within a certain period of time
-THE SUBSTITUTION DOES NOT REQUIRE THE APPOINTMENT
OF AN EXECUTOR OR ADMINISTRATOR
-when a person dies he those not need be substituted by
his estate, he can be substituted by any heirs outright
-if the lawyer does not substitute, case will not be
dismissed , the defendant must cause the substituion
-must inform the court for the purpose of substation
-in personam does not survive-
-sum of money- action survives
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified
time to procure the appointment of an executor or administrator for

the estate of the deceased and the latter shall immediately appear for
and on behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. (16a, 17a)
Section 17. Death or separation of a party who is a public officer. —
When a public officer is a party in an action in his official capacity and
during its pendency dies, resigns, or otherwise ceases to hold office,
the action may be continued and maintained by or against his
successor if, within thirty (30) days after the successor takes office or
such time as may be granted by the court, it is satisfactorily shown to
the court by any party that there is a substantial need for continuing
or maintaining it and that the successor adopts or continues or
threatens to adopt or continue to adopt or continue the action of his
predecessor. Before a substitution is made, the party or officer to be
affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an
opportunity to be heard. (18a)
-No automatic substitution because it is dependent upon the
successor of the pub officer WON he wants to continue the action
-
Section 18. Incompetency or incapacity. — If a party becomes
incompetent or incapacitated, the court, upon motion with notice, may
allow the action to be continued by or against the incompetent or
incapacitated person assisted by his legal guardian or guardian ad
litem. (19a)
Section 19. Transfer of interest. — In case of any transfer of interest,
the action may be continued by or against the original party, unless
the court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original
party. (20)
Section 20. Action and contractual money claims. — When the
action is for recovery of money arising from contract, express or
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implied, and the defendant dies before entry of final judgment in the
court in which the action was pending at the time of such death, it
shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in these
Rules for prosecuting claims against the estate of a deceased
person. (21a)
-The defendant dies pendente lite and the action is only on money
claims based on contract, express or implied CASE WILL NOT BE
DISMISSED
Section 21. Indigent party. — A party may be authorized to litigate
his action, claim or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the party is one who
has no money or property sufficient and available for food, shelter
and basic necessities for himself and his family.
Such authority shall include an exemption from payment of docket
and other lawful fees, and of transcripts of stenographic notes which
the court may order to be furnished him. The amount of the docket
and other lawful fees which the indigent was exempted from paying
shall be a lien on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time
before judgment is rendered by the trial court. If the court should
determine after hearing that the party declared as an indigent is in
fact a person with sufficient income or property, the proper docket
and other lawful fees shall be assessed and collected by the clerk of
court. If payment is not made within the time fixed by the court,
execution shall issue or the payment thereof, without prejudice to
such other sanctions as the court may impose. (22a)
More than twice the monthly minimum wage, not an owner of a
property of an assessed property
Section 22. Notice to the Solicitor General. — In any action involving
the validity of any treaty, law, ordinance, executive order, presidential
decree, rules or regulations, the court, in its discretion, may require

the appearance of the Solicitor General who may be heard in person
or a representative duly designated by him.
Rule 3, Section 1. Who may be parties; plaintiff and defendant. —
Only natural or juridical persons, or entities authorized by law may be
parties in a civil action. The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)
— party plaintiff. The term "defendant" may refer to the original defending
party, the defendant in a counter-claim, the cross-defendant, or the third
(fourth, etc.) — party defendant.
What pleadings can parties file?
 Plaintiff- complaint,
How can person be a party of a case?
-Natural, juridical, entities authorized by law
- real parties in interest
Who may be parties? Natural persons (what makes you a natural person
is your intellect of will), juridical persons (those which are created by law
like a corporation), entities authorized by law (ex. estate, or the totality of
a decedent‘s assets and liabilities). Still, they cannot sue until they are
real parties in interest.
Rule 3, Section 2. Parties in interest. — A real party in interest is the
party who stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in the
name of the real party in interest.
Who is not a party in interest? A third party in a contract. In an action for
breach of contract, only those who are privy to the contract are real
parties in interest.
Under Rule 3, there are only 2 kinds of parties: indispensable parties and
necessary parties.
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Indispensable parties vs necessary parties
An indispensable party is one without whom there can be no final
determination of the case while a necessary party is one without whom
there can be no complete determination of the case.
Rule 3, Section 6. Permissive joinder of parties. — All persons in
whom or against whom any right to relief in respect to or arising out of
the same transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise provided
in these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such plaintiffs
or to all such defendants may arise in the action; but the court may make
such orders as may be just to prevent any plaintiff or defendant from
being embarrassed or put to expense in connection with any proceedings
in which he may have no interest.
Rule 3, Section 7. Compulsory joinder of indispensable parties. —
Parties in interest without whom no final determination can be had of an
action shall be joined either as plaintiffs or defendants.
-no final determination of the case
-exclusion will cause null and void, impleaded and not impleaded
Rule 3, Section 8. Necessary party. — A necessary party is one who is
not indispensable but who ought to be joined as a party if complete relief
is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action.
-no complete determination of the case
-effect: can still specific right
 34
China Bank
-Are mortagee and mortgagor indispensable parties?
if the cause of action is nullity of mortgage. Gr: Mortgagor and
mortgagee are Indispensable parties

XPN: The real owner of the mortgaged property, which was

fraudulently mortgaged, and the mortgagee

The real mortgagee or real mortgagor. It was discovered

Relucio vs Lopez: Can there be a final determination of the case

without Relucio? Yes. Can there be a complete determination of the case
without Relucio? Yes. The allegation of the plaintiff is some names were
registered in the name of Relucio. Since they are in the name of Relucio,
then those properties are outside the scope of the action.

Lopez filed a petition for appointment as sole administrator of conjugal

properties against Alberto Lopez and Relucio in RTC Makati. She alleged
that she was legally married to Alberto, but he abandoned her and their 4
legitimate children, that he arrogated unto himself full and exclusive
control and administration of the conjugal properties, that he spends
such for his sole benefit, and that after abandoning her, he maintained an
illicit relationship and cohabited with Relucio. During their cohabitation,
they amassed a fortune, and Lopez alleges that such were acquired
principally through the actual contribution of money, property and
Cacayuran case
industry of Alberto, with minimal, if not nil, actual contribution from
-The RPII is the municipality
Relucio. She alleges that Alberto excluded her and their children from
-The exclusion of the municipality will cause the the case to be nullified any fruits or income derived from the conjugal properties. He also
or no effect allegedly sold, alienated, etc., properties belonging to the conjugal
partnership.
De Castro case
-Co-owners Relucio filed a Motion to Dismiss; there was no cause of action against
-There is distinction of parties her. MTD was denied; she is impleaded as a necessary or indispensable
-if they are all indispensable if defendants party because some of the properties are registered in her name and
-plaintiff Other co-owners because the presumption, if one files a case, Alberto, or solely in her name. Relucio filed an MR, but was denied. She
he file on behalf of all the co-owners filed a petition for certiorari with the CA, who likewise denied the petition,
-the collection suit based on agency, the co-owners are not as well as the subsequent MR.
indispensable parties, check the cause of action
SC: Relucio is not an indispensable or necessary party. The first cause
of action is for judicial appointment as administratrix. The administration
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of the property of the marriage is entirely between the spouses, to the
exclusion of all other persons. There is no right-duty relation between
Lopez and Relucio that would support a cause of action. The second
cause of action is for an accounting, which is arises from or is an incident
of marriage. As Relucio has nothing to do with the marriage, no cause of
action can exist. The third cause of action is for forfeiture of Alberto's
share in the property mentioned. It does not involve the issue of validity
of the co-ownership between Alberto and Relucio. The issue is whether
there is basis in law to forfeit Alberto‘s share, if any there be, in property
co-owned by him with Relucio. The asserted right to forfeit extends to
Alberto's share alone. Lopez sought support, but a stranger cannot be
compelled to give support. As to the claim for moral damages, the claim
is against Alberto. To sustain a cause of action for moral damages, the
complaint must have the character of an action for interference with
marital or family relations under the Civil Code.
A real party in interest is one who stands ―to be benefited or injured by
the judgment of the suit.‖ Relucio would not be affected by any judgment.
If Relucio is not a real party in interest, she cannot be an indispensable
party. An indispensable party is one without whom there can be no final
determination of an action.
Nor can Relucio be a necessary party in the Special Proceedings. A
necessary party is one who is not indispensable but who ought to be
joined as party if complete relief is to be accorded those already parties,
or for a complete determination or settlement of the claim subject of the
action.
China Banking Corp vs Oliver: Pangan Lim, Jr. and Mercedes Oliver
(Oliver 1) applied for a loan, offering as collateral a lot covered by a TCT
in the name of Oliver, which Chinabank approved. The mortgage was
duly registered and annotated on the original title under the custody of
the Registry of Deeds and on the owner‘s duplicate copy in the bank‘s
possession.
Respondent, claiming that she is Mercedes Oliver (Oliver 2), filed an
action for annulment of mortgage and cancellation of title with damages.
Respondent claimed that: she was the registered and lawful owner of the
land; the owner‘s duplicate copy of the title had always been in her
possession; and she did not apply for a loan or surrender her title to
Chinabank. Respondent prayed that: the owner‘s duplicate copy
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35
surrendered to Chinabank as well as the original title with the Registry of
Deeds be cancelled; the mortgage be declared null and void; and the
Registry of Deeds be ordered to issue a new and clean title in her name.
Chinabank argues that it was indispensable for Oliver 2 to implead
mortgagor Oliver 1. Respondent‘s complaint before the trial court was
one for cancellation of the transfer certificate of title in petitioner‘s
possession. According to petitioner, the issue below is the genuineness
of the titles, which is intertwined with the issue of ownership. This being
the case, said the petitioner, the mortgagor Oliver 1 must necessarily be
impleaded for she is the registered owner. Petitioner argues that
mortgagor Oliver 1 is in a better position to defend her title. She stands to
suffer if it is declared fake.
SC: Oliver 1 is not an indispensable party. Oliver 1 is a party in interest,
for she will be affected by the outcome of the case. She stands to be
benefited in case the mortgage is declared valid, or injured in case her
title is declared fake. However, Oliver 1‘s absence from the case does
not hamper the trial court in resolving the dispute between Oliver 2 and
petitioner.
Oliver 2‘s allegations in the complaint shows that it was for annulment of
mortgage due to petitioner‘s negligence in not determining the actual
ownership of the property, resulting in the mortgage‘s annotation on the
TCT in the Registry of Deeds‘ custody. To support said allegations,
Oliver 2 had to prove (1) that she is the real Mercedes Oliver referred to
in the TCT, and (2) that she is not the same person using that name who
entered into a deed of mortgage with the petitioner. This, Oliver 2 can do
in her complaint without necessarily impleading the Oliver 1. Hence,
Oliver 1 is not an indispensable party in the case filed by Oliver 2.
[T]hat a party is not indispensable to the suit if his interest in the
controversy or subject matter is distinct and divisible from the interest of
the other parties and will not necessarily be prejudiced by a judgment
which does complete justice to the parties in court. Chinabank has
interest in the loan which, however, is distinct and divisible from the
mortgagor‘s interest, which involves the land used as collateral for the
loan. Further, a declaration of the mortgage‘s nullity in this case will not
necessarily prejudice mortgagor Oliver 1. The bank still needs to initiate
proceedings to go after the mortgagor, who in turn can raise other
defenses pertinent to the two of them.

A party is also not indispensable if his presence would merely permit
complete relief between him and those already parties to the action, or
will simply avoid multiple litigation, as in the case of Chinabank and
Oliver 1. The latter‘s participation in this case will simply enable
Chinabank to make its claim against her in this case, and hence, avoid
the institution of another action.
[S]ince Oliver 1 is not an indispensable party, Section 7, Rule 3, which
requires compulsory joinder of indispensable parties in a case, does not
apply. Instead, it is Section 11, Rule 3, that applies. Non-joinder of
parties is not a ground for dismissal of an action. Parties may be added
by order of the court, either on its own initiative or on motion of the
parties.
Lotte Philippines Co., Inc. vs De la Cruz: Lotte is a domestic
corporation where respondents are among those who were hired and
assigned to the confectionery facility. On 14 December 1995 - and yearly
thereafter until the year 2000 - 7J Maintenance and Janitorial Services
(7J) entered into a contract with Lotte. In compliance with the terms and
conditions of the service contract, and to accommodate the needs of
Lotte for personnel/workers to do and perform "piece works,"
respondents, among others, were hired and assigned to Lotte as
repackers or sealers. However, either in October, 1999 or on February 9,
2000, Lotte dispensed with their services allegedly due to the
expiration/termination of the service contract by with 7J.
Respondents lodged a labor complaint against Lotte and 7J where the
LA rendered judgment declaring 7J as their employer. On appeal, NLRC
affirmed the LA. Respondents filed a petition for certiorari in the CA,
insisting that their employer is Lotte. Lotte denied that respondents were
its employees and prayed that the petition be dismissed for failure to
implead 7J. CA reversed and set aside the rulings of the LA and the
NLRC thereby declaring Lotte as the real employer and that 7J who
engaged in labor-only contracting was merely the agent of Lotte.
Issue: W/N 7J is an indispensable party and should have been
impleaded in respondents‘ petition in the CA.
SC: Yes. An indispensable party is a party in interest without whom no
final determination can be had of an action, and who shall be joined
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either as plaintiffs or defendants. The joinder of indispensable parties is
mandatory. The presence of indispensable parties is necessary to vest
the court with jurisdiction, which is "the authority to hear and determine a
cause, the right to act in a case".
Without the presence of indispensable parties to a suit or proceeding,
judgment of a court cannot attain real finality. The absence of an
indispensable party renders all subsequent actions of the court null and
void for want of authority to act, not only as to the absent parties but
even as to those present.
7J is an indispensable party. It is a party in interest because it will be
affected by the outcome of the case. LA and NLRC found 7J solely liable
as the employer. CA rendered Lotte jointly and severally liable with 7J,
who was not impleaded, by holding that the former is the real employer.
Its decision directly affected 7J.
Navarro vs Escobido: In September 12, 1998, respondent Karen Go
filed 2 complaints before the RTC for replevin and/or sum of money with
damages against Navarro. Karen prayed that the RTC issue writs of
replevin for the seizure of 2 motor vehicles in Navarro‘s possession.
Navarro leased from plaintiff a certain motor vehicle as evidenced by a
LEASE AGREEMENT WITH OPTION TO PURCHASE entered into by
and between KARGO ENTERPRISES, then represented by its Manager,
GLENN GO, and ROGER NAVARRO. Navarro issued post dated
checks. All checks bounced.
Navarro alleges that even if the lease agreements were in the name of
Kargo Enterprises, since it did not have the requisite juridical personality
to sue, the actual parties to the agreement are himself and Glenn Go.
Since it was Karen Go who filed the complaints and not Glenn Go, she
was not a real party-in-interest and the complaints failed to state a cause
of action.
Navarro posits that the RTC erred when it ordered the amendment of the
complaint to include Glenn Go as a co-plaintiff, instead of dismissing the
complaint outright because a complaint which does not state a cause of
action cannot be converted into one with a cause of action by a mere
amendment or a supplemental pleading. In effect, RTC created a cause

of action for Karen Go when there was none at the time she filed the
complaints.
Issue: Whether Karen T. Go is the real party in interest, considering that
it was her husband who signed the lease agreement and the lease
contracts were in Kargo Enterprises‘ name, a trade name without a
juridical personality.
SC: Yes. The central factor in appreciating the issues presented in this
case is the business name Kargo Enterprises. The name appears in the
title of the Complaint where the plaintiff was identified as "KAREN T. GO
doing business under the name KARGO ENTERPRISES," and this
identification was repeated in the first paragraph of the
Complaint.Paragraph 2 defined the business KARGO ENTERPRISES
undertakes. Paragraph 3 continued with the allegation that the defendant
"leased from plaintiff a certain motor vehicle" that was thereafter
described. Significantly, the Complaint specifies and attaches as its
integral part the Lease Agreement that underlies the transaction between
the plaintiff and the defendant. Again, the name KARGO ENTERPRISES
entered the picture as this Lease Agreement provides: This agreement,
made and entered into by and between: ―GLENN GO, of legal age,
married, herein referred to as the LESSOR-SELLER; representing
KARGO ENTERPRISES as its Manager,‖ thus, expressly pointing to
KARGO ENTERPRISES as the principal that Glenn represented. In other
words, by the express terms of this Lease Agreement, Glenn did sign the
agreement only as the manager of Kargo Enterprises and the latter is
clearly the real party to the lease agreements.
As Navarro correctly points out, Kargo Enterprises is a sole
proprietorship, which is neither a natural person, nor a juridical person,
as defined by Article 44 of the Civil Code: The following are juridical
persons: (1) The State and its political subdivisions; (2) Other
corporations, institutions and entities for public interest or purpose,
created by law; their personality begins as soon as they have been
constituted according to law; (3) Corporations, partnerships and
associations for private interest or purpose to which the law grants a
juridical personality, separate and distinct from that of each shareholder,
partner or member.
FIRST POINT: pursuant to Section 1, Rule 3 of the Rules, Kargo
Enterprises cannot be a party to a civil action. Who then is the proper
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37
party to file an action based on a contract in the name of Kargo
Enterprises?
Juasing Hardware v. Mendoza: Finally, there is no law authorizing sole
proprietorships like petitioner to bring suit in court. The law merely
recognizes the existence of a sole proprietorship as a form of business
organization conducted for profit by a single individual, and requires the
proprietor or owner thereof to secure licenses and permits, register the
business name, and pay taxes to the national government. It does not
vest juridical or legal personality upon the sole proprietorship nor
empower it to file or defend an action in court. Thus, the complaint in the
court below should have been filed in the name of the owner of Juasing
Hardware. The allegation in the body of the complaint would show that
the suit is brought by such person as proprietor or owner of the business
conducted under the name and style Juasing Hardware. The descriptive
words "doing business as Juasing Hardware" may be added to the title of
the case, as is customarily done.
This conclusion should be read in relation with Section 2, Rule 3 of the
Rules.
SECOND POINT: As the registered owner of Kargo Enterprises, Karen is
the party who will directly benefit from or be injured by a judgment in this
case. Contrary to Navarro‘s contention, Karen is the real party-ininterest,
and it is legally incorrect to say that her Complaint does not state a cause
of action because her name did not appear in the Lease Agreement that
her husband signed in behalf of Kargo Enterprises.
THIRD POINT: Glenn and Karen Go are effectively co-owners of Kargo
Enterprises and the properties registered under this name; hence, both
have an equal right to seek possession of these properties. Applying
Article 484 of the Civil Code, which states that "in default of contracts, or
special provisions, co-ownership shall be governed by the provisions of
this Title," we find further support in Article 487 of the Civil Code that
allows any of the co-owners to bring an action in ejectment with respect
to the co-owned property.
In sum, in suits to recover properties, all co-owners are real parties in
interest. However, pursuant to Article 487 of the Civil Code and relevant
jurisprudence, any one of them may bring an action, any kind of action,
for the recovery of co-owned properties. Therefore, only one of the

coowners, namely the co-owner who filed the suit for the recovery of the
co-owned property, is an indispensable party thereto. The other
coowners are not indispensable parties. They are not even necessary
parties, for a complete relief can be accorded in the suit even without
their participation, since the suit is presumed to have been filed for the
benefit of all co-owners.
Either of the spouses Go may bring an action against Navarro to recover
possession of the Kargo Enterprises-leased vehicles which they co-own.
This conclusion is consistent with Article 124 of the Family Code,
supporting as it does the position that either spouse may act on behalf of
the conjugal partnership, so long as they do not dispose of or encumber
the property in question without the other spouse‘s consent.
FOURTH POINT: Glenn Go is not strictly an indispensable party in the
action to recover possession of the leased vehicles, he only needs to be
impleaded as a pro-forma party to the suit, based on Section 4, Rule 4 of
the Rules.
Even assuming that Glenn Go is an indispensable party to the action, we
have held in a number of cases that the misjoinder or non-joinder of
indispensable parties in a complaint is not a ground for dismissal of
action. The proper remedy when a party is left out is to implead the
indispensable party at any stage of the action. The court, either motu
proprio or upon the motion of a party, may order the inclusion of the
indispensable party or give the plaintiff opportunity to amend his
complaint in order to include indispensable parties. If the plaintiff to
whom the order to include the indispensable party is directed refuses to
comply with the order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion. Only upon
unjustified failure or refusal to obey the order to include or to amend is
the action dismissed.
Rule 3, Section 9. Non-joinder of necessary parties to be pleaded. —
Whenever in any pleading in which a claim is asserted a necessary party
is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
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The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary party.
Rule 3, Section 10. Unwilling co-plaintiff. — If the consent of any party
who should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint.
Rule 3, Section 11. Misjoinder and non-joinder of parties. — Neither
misjoinder nor non-joinder of parties is ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage the action and on such terms as
are just. Any claim against a misjoined party may be severed and
proceeded with separately.
Class suit
Rule 3, Section 12. Class suit. — When the subject matter of the
controversy is one of common or general interest to many persons so
numerous that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and representative as to
fully protect the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest.
Rule 3, Section 3. Representatives as parties. — Where the action is
allowed to be prosecuted and defended by a representative or someone
acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real property in interest. A
representative may be a trustee of an expert trust, a guardian, an
executor or administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except when
the contract involves things belonging to the principal.
Examples: guardian, administrator, executor. They are not the parties in
interest. They only filed the case for the parent/the minor children. The

rule provides that when a representative party files a case, it is
mandatory that the parties in interest must be named.
Bar question: How do you distinguish a representative party from a
class suit? This question is wrong because they have no common line of
distinction. You cannot distinguish a suit from a party. So you have to
decipher what is really being asked here. What is being asked here is:
distinguish a representative party from a party in a class suit.
What are the requirements in a class suit? The cause of action is
common to many parties and the parties are so numerous that it is very
impractical to bring them all before the court.
A party in a class suit is one representing a class which has common
issues to be threshed out while a representative party is not really a party
in interest. He is only representing one who is the real party in interest.
Death or separation of a party
In a suit, where a party dies, whether he is the plaintiff or the defendant,
what does the rule provide during the pendency of the case? It is the
obligation of the lawyer of the decedent to inform the court about the
death within thirty days. If he does not, that is not a ground for the
dismissal of the case. The adverse party‘s counsel is now obligated to do
the job of the counsel for the decedent.
In the first case, where the counsel for the decedent has the duty to
inform the court, he has to substitute that without the appointment of an
executor or administrator. But when it is the counsel of the adverse party
who substitutes, it is required that there must be an executor or
administrator appointed.
The appointment of the executor or administrator cannot be done easily
by motion. You have to file a separate petition for that under settlement
of estate proceeding.
There is a sanction on the part of the lawyer who does not comply with
this obligation.
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To compare that with section 17, it includes resignation and
incompetence and it refers to a public officer. The public officer MAY (not
mandatory) substitute or discontinue the case.
Rule 3, Section 16. Death of party; duty of counsel. — Whenever a
party to a pending action dies, and the claim is not thereby extinguished,
it shall be the duty of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give the name and
address of his legal representative or representatives. Failure of counsel
to comply with his duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty (30)
days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time to
procure the appointment of an executor or administrator for the estate of
the deceased and the latter shall immediately appear for and on behalf of
the deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs.
Rule 3, Section 17. Death or separation of a party who is a public
officer. — When a public officer is a party in an action in his official
capacity and during its pendency dies, resigns, or otherwise ceases to
hold office, the action may be continued and maintained by or against his
successor if, within thirty (30) days after the successor takes office or
such time as may be granted by the court, it is satisfactorily shown to the
court by any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or threatens to
adopt or continue to adopt or continue the action of his predecessor.
Before a substitution is made, the party or officer to be affected, unless
expressly assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard.

Transfer of interest
Rule 3, Section 19. Transfer of interest. — In case of any transfer of
interest, the action may be continued by or against the original party,
unless the court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original party.
De la Cruz vs Joaquin: Pedro Joaquin filed a Complaint for the recovery
of possession and ownership, the cancellation of title, and damages,
against petitioners in the RTC. Joaquin alleged that he had obtained a
loan from them on June 29, 1974, payable after 5 years. To secure the
payment of the loan, he executed a Deed of Sale for a parcel of land in
favor of petitioners. The parties also executed another document entitled
―Kasunduan‖ which showed the Deed of Sale to be actually an
equitable mortgage. Sps De la Cruz contended that this document was
merely an accommodation to allow the repurchase of the property, a right
he failed to exercise.
RTC ruled in Joaquin‘s favor, declaring that the parties had entered into
a sale with a right of repurchase. Joaquin had made a valid tender of
payment on 2 separate occasions to exercise his right of repurchase.
Accordingly, petitioners were required to reconvey the property upon his
payment.
Sustaining the RTC, CA noted that the parties executed the Kasunduan
to express the terms and conditions of their actual agreement. CA denied
reconsideration and ordered a substitution by legal representatives, in
view of Joaquin‘s death on December 24, 1988. Petitioners assert that
the RTC‘s Decision was invalid for lack of jurisdiction. They claim that
Joaquin died during the pendency of the case. There being no
substitution by the heirs, the RTC allegedly lacked jurisdiction over the
litigation.
Issue: Whether RTC lost jurisdiction over the case upon the death of
Pedro Joaquin.
SC: No. When a party to a pending action dies and the claim is not
extinguished, the Rules of Court require a substitution of the deceased
(Section 16 of Rule 3). The rule on the substitution of parties was crafted
to protect every party‘s right to due process. The estate of the deceased
party will continue to be properly represented in the suit through the duly
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appointed legal representative. Moreover, no adjudication can be made
against the successor of the deceased if the fundamental right to a day in
court is denied.
The Court has nullified not only trial proceedings conducted without the
appearance of the legal representatives of the deceased, but also the
resulting judgments. In those instances, the courts acquired no
jurisdiction over the persons of the legal representatives or the heirs
upon whom no judgment was binding.
This general rule notwithstanding, a formal substitution by heirs is not
necessary when they themselves voluntarily appear, participate in the
case, and present evidence in defense of the deceased. These actions
negate any claim that the right to due process was violated.
In Chittick v. CA, failure of the heirs to substitute for the original plaintiff
upon her death led to the nullification of the trial court‘s Decision. The
latter had sought to recover support in arrears and her share in the
conjugal partnership. The children who allegedly substituted for her
refused to continue the case against their father and vehemently
objected to their inclusion as parties. Because he died during the
pendency of the case, they were bound to substitute for the defendant
also. The substitution effectively merged the persons of the plaintiff and
the defendant and thus extinguished the obligation being sued upon.
The present case is not similar, much less identical, to the factual milieu
of Chittick. The rule on the substitution by heirs is not a matter of
jurisdiction, but a requirement of due process. When due process is not
violated, as when the right of the representative or heir is recognized and
protected, noncompliance or belated formal compliance with the Rules
cannot affect the validity of a promulgated decision. Mere failure to
substitute for a deceased plaintiff is not a sufficient ground to nullify a trial
court‘s decision. The alleging party must prove that there was an
undeniable violation of due process.
The records of the present case contain a ―Motion for Substitution of
Party Plaintiff‖ dated February 15, 2002, filed before the CA. The prayer
states as follows: ―WHEREFORE, it is respectfully prayed that the Heirs
of the deceased plaintiff-appellee as represented by his daughter
Lourdes dela Cruz be substituted as party-plaintiff for the said Pedro
Joaquin.

―It is further prayed that henceforth the undersigned counsel for the
heirs of Pedro Joaquin be furnished with copies of notices, orders,
resolutions and other pleadings at its address below.‖
Evidently, the heirs of Pedro Joaquin voluntarily appeared and
participated. CA had ordered his legal representatives to appear and
substitute for him. The substitution even on appeal had been ordered
correctly. In all proceedings, the legal representatives must appear to
protect the interests of the deceased. After the rendition of judgment,
further proceedings may be held, such as a motion for reconsideration or
a new trial, an appeal, or an execution.
Considering the foregoing circumstances, the Motion for Substitution
may be deemed to have been granted; and the heirs, to have substituted
for the deceased, Pedro Joaquin. There being no violation of due
process, the issue of substitution cannot be upheld as a ground to nullify
the trial court‘s Decision.
Carabeo vs Dingco: The parties entered into a contract of sale of a
parcel of land for P38,000. The respondents paid P10,000 initial payment
upon signing the contract with the balance to be paid in September 1990.
Respondents handed in parts P9,100 of the balance despite the
petitioner asking them not to do so yet because the latter had to settle a
―squabble‖ over the land. After the dispute over the land‘s registration
was settled, the respondents offered to pay the balance, but the
petitioner declined acceptance. The respondents filed a complaint with
the katarungan pambarangay. No settlement was reached so the
respondents filed for specific performance with the RTC. Petitioner stated
in his answer that the sale was void for lack of an object certain since the
kasunduan did not specify the metes and bounds of the land. The
petitioner also alleged that even if the kasunduan were valid, the
respondent‘s failure to comply with their reciprocal obligation to pay the
balance of the purchase price would render the action premature.
Prior to the decision of the case, the petitioner died. Records do not
show that his counsel informed the RTC of his death and that the proper
substitution was effected. RTC ruled in favor of the respondents ordering
the petitioner to sell his rights over the property. CA affirmed. The motion
for reconsideration was denied so the present petition was filed by the
deceased‘s son.
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Issue: Should the petition of the respondents have been dismissed on
the ground of the death of the original petitioner?
SC: No. Respecting the argument that the petitioner‘s death rendered
the respondents‘ complaint against him dismissible, Bonilla vs. Barcena
enlightens: ―The question as to whether an action survives or not
depends on the nature of the action and the damages sued for. In the
causes of action which survive, the wrong complained of affects primarily
and principally property and property rights, the injuries to the person
being merely incidental, while in the causes of action which do not
survive, the injury complained of is to the person, the property and rights
of property affected being incidental.‖
Respondents are pursuing a property right arising from the kasunduan,
whereas petitioner is invoking nullity of the kasunduan to protect his
propriety interest. Assuming arguendo, however, that the kasunduan is
deemed void, there is a corollary obligation of the petitioner to return the
money paid by respondents, and since the action involves property
rights, it survives.
Trial on the merits was already concluded before petitioner died. Since
RTC was not informed of the petitioner‘s death, it may not be faulted for
proceeding to render judgment without ordering his substitution. Its
judgment is thus valid and binding upon petitioner‘s legal representative
or successors-in-interest, insofar as his interest in the property subject of
the action is concerned.
In another vein, the death of a client immediately divests the counsel of
authority. Thus, in filing a Notice of Appeal, petitioner‘s counsel of record
had no personality to act on behalf of the already deceased client who, it
bears reiteration, had not been substituted as a party after his death. The
trial court‘s decision had thereby become final and executor, no appeal
having been perfected.
Contractual Money claims
Rule 3, Section 20. Action and contractual money claims. — When
the action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in the court
in which the action was pending at the time of such death, it shall not be

dismissed but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person.
When the defendant dies, pendente lite, the case shall not be dismissed
but shall move on up to entry of judgment. This is a U-turn from the 1960
Rules of Court where the case must be dismissed. The reason is to
expedite the proceeding.
A final judgment is different from an entered judgment. Even if there is an
appeal, the appeal continues. Even if there is a petition for review after
the appeal, the petition continues. It must conclude up to entry of
judgment.
After entry of judgment, what is the next move of the judgment obligee?
Ordinarily, you avail of Rule 39 (Execution of Judgment). Here, do you
avail of Rule 39? No. there is a cross-reference to Rule 86, which
provides the 4 matters claimable under the estate:
1. All claims for money against the decent, arising from contract,
express or implied, whether the same be due, not due, or
contingent;
2. All claims for funeral expenses;
3. Expense for the last sickness of the decedent, and
4. Judgment for money against the decent.
Rule 87 is an action for or against executors or administrators. All other
actions except those which are claimable against the estate may be
brought for or against the executor or administrator.
Section 20 must always be correlated with Rule 86 and 87 to see a bird‘s
eye view of the entire provisions.
So if you file it as a claim against the estate, how do you go about it?
A vs B, this is a contractual money claim. B borrowed P1,000,000 from
A. This is a contract of loan. B did not pay so A filed a case for sum of
money based on contract (contractual money claim). B died. The case
must continue up to entry of judgment. When there is already an entry of
judgment, what should A do? He cannot avail of Rule 39/ he cannot go to
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court and file a motion for execution because the defendant here already
died.
He must file it as a claim against the estate. How? You cannot claim
against the heirs of the decedent. It must be claimed against the estate.
The heirs are different from the estate. If the heirs would be representing
the estate, that would be another matter.
How will the judgment obligee, A, file a claim against the estate of B?
There is a procedure under Rule 86.
If there is already a pending settlement of the estate, it would be easier.
If there is no pending settlement of the estate of the decedent, A should
file a settlement of estate proceeding. Is A authorized to do that? Yes.
Who may file a settlement of the estate? A creditor may do so.
But if there is already a pending settlement of the estate, A should just
submit a copy of the judgment together with the entry of judgment. Under
settlement of estate proceedings, you apply for preference of credits.
A is riding his car along Roxas Boulevard and he collided with another
car driven by B, and nobody would like to accept obligation or liability. A
filed a case for sum of money against B. B, pendente lite, dies. Can you
apply Section 20? No, Section 20 deals with contractual money claims.
There is no contract in this case.
If B is a taxi driver and A is his passenger, this becomes a contractual
money claim (based on the contract of transportation) if A files a suit.
D. Venue of actions: real and personal actions
The venue of an action is what the law or rule provides (Example: Give a
law providing for the venue of an action: Rule 66 or petition for quo
warranto, where the venue is the residence of the respondent. In a
special proceeding for guardianship, the venue is the residence of the
ward. In adoption, the venue is the residence of the prospective adopter.
In these cases, you cannot agree otherwise).
In the absence of any rule, the agreement of the parties will govern. See
Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld

In the absence of any agreement, you distinguish whether the action is
real or personal. If it is a personal action, the venue is the residence of
the plaintiff, or any of the plaintiffs, or the residence of the defendant, or
any of the defendants, at the option of the plaintiff. If it is a real action,
the venue is where the property is located.
Rule 4, Section 1. Venue of real actions. — Actions affecting title to or
possession of real property, or interest therein, shall be commenced and
tried in the proper court which has jurisdiction over the area wherein the
real property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.
Rule 4, Section 2. Venue of personal actions. — All other actions may
be commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where he
may be found, at the election of the plaintiff.
Rule 4, Section 3. Venue of actions against nonresidents. — If any of
the defendants does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff, or any property of
said defendant located in the Philippines, the action may be commenced
and tried in the court of the place where the plaintiff resides, or where the
property or any portion thereof is situated or found.
Rule 4, Section 4. When Rule not applicable. — This Rule shall not
apply.
(a) In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the filing of
the action on the exclusive venue thereof.
Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld: Venue
stipulation is just for the convenience of the parties. It is not restrictive
unless it includes an exclusivity clause. The word ‗shall‘ does not denote
that the stipulation is exclusive. A stronger word than shall must be used.
Words that may be used: ―exclusive‖, ―in no other place‖.
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Schonfeld was a non-resident Canadian citizen. He was employed by
Pacific Consultants International of Japan (PCIJ) as Sector Manager of
PPI in the Philippines. His salary was paid partly by PPI and PCIJ.
Henrichsen, president of PPI and director of PCIJ, transmitted a letter of
employment to Schonfeld requesting him to accept and affix his
conformity. The letter provides: in case of any question of interpretation
of the conditions of employment, as well as any question arising between
the employee and the company which is in consequence of or connected
with his employment, which cannot be settled amicably, should be finally
settled by the Court of Arbitration in London through written submissions.
Schonfeld arrived in the Philippines and was given the status of a
resident alien. Later, Henrichsen informed Schonfeld that his
employment had been terminated effective August 4, 1999. He was,
however, informed via email to stay put in his job until even after August
5 until such time that he would be able to report on certain projects and
discuss all the opportunities he had developed. He continued his work
until October 1, 1999.
Schonfeld filed several money claims with PPI, and also filed a complaint
for illegal dismissal with the Labor Arbiter. PCIJ and PPI filed a Motion to
Dismiss on the ground of improper venue: He was a Canadian citizen,
employed and dismissed by PCIJ whose principal office is in Japan, and
the letter of employment was executed in Japan. Under lex loci
contractus, the complaint should have been filed in Tokyo. Also, the
parties agreed that any employment-related dispute should be brought
before the London Court of Arbitration.
LA found that the contract of employment was controlling; the case
should be submitted to the jurisdiction of the court of arbitration in
London. The NLRC likewise agreed with the LA. The CA ruled in favor of
PPI and PCIJ. Even under the contract of employment, the parties were
not precluded from bringing a case related thereto in other venues. While
there was an agreement, the venue is not exclusive since there was no
stipulation to that effect.
SC: The case may be filed and tried in Philippine courts. The settled rule
on stipulations regarding venue is that while they are valid and
enforceable, venue stipulations in a contract do not, as a rule, supersede
the general rule set forth in Rule 4 of the ROC in the absence of

qualifying or restrictive words. Any agreement of venue, without such
restrictive words should be considered merely as an agreement or
additional forum, not as a limiting venue to the specified place. They are
not exclusive but, rather permissive. If the intention of the parties were to
restrict venue, there must be accompanying language clearly and
categorically expressing their purpose and design that actions between
them be litigated only at the place named by them.
BIACO VS. PCRB: In a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction
over the res. Jurisdiction over the res is acquired either (1) by the
seizure of the property under legal process, whereby it is brought into
actual custody of the law; or (2) as a result of the institution of legal
proceedings, in which the power of the court is recognized and made
effective.
Nonetheless, summons must be served upon the defendant not for
the purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements.
FACTS: While employed in the Philippine Countryside Rural Bank
(PCRB) as branch manager, Ernesto obtained several loans from the
respondent bank as evidenced by promissory notes. As security for
the payment of the said loans, Ernesto executed a real estate
mortgage in favor of the bank covering the parcel of land.The real
estate mortgages bore the signatures of the spouses Biaco.
Despite the demand letter, Ernesto failed to make good of his
liabilities resulting to a complaint filed by the bank for foreclosure of
mortgage. Summons was served to the spouses Biaco through
Ernesto at his office but failed to file the answer causing them to be
declared in default. The spouses did not file an appeal. the
respondent bank filed an ex parte motion for execution to direct the
sheriff to sell the mortgaged lot at public auction. The amount of the
property sold at public auction being insufficient to cover the full
amount of the obligation, the respondent bank filed an "ex
parte motion for judgment" praying for the issuance of a writ of
execution against the other properties of the spouses Biaco for the
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full settlement of the remaining obligation. The sheriff executed two
(2) notices of levy against properties registered under the name of
petitioner Ma. Teresa Chaves Biaco. However, the notices of levy
were denied registration because Ma. Teresa had already sold the
two (2) properties to her daughters
P’s CONTENTION: There is extrinsic fraud because the bank failed
to verify the authenticity of her signature on the real estate mortgage
and did not inquire into the reason for the absence of her signature
on the promissory notes. She moreover asserted that the trial court
failed to acquire jurisdiction because summons were served on her
through her husband without any explanation as to why personal
service could not be made.
ISSUE: WON the trial court correctly decided that what is required in
this case is the acquisition of jurisdiction over the res
HELD: YES
RULE 5
UNIFORM PROCEDURE IN TRIAL COURTS
Section 1. Uniform procedure. – The procedure in the Municipal Trial
Courts shall be the same as in the Regional Trial Courts, except (a)
where a particular provision expressly or impliedly applies only to either
of said courts, or (b) in civil cases governed by the Rule on Summary
Procedure. (n)
Section 2. Meaning of terms. – The term “Municipal Trial Courts” as used
in these Rules shall include Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial
Courts. (1a)
E. Summary Procedure
Rule 5, Section 1. Uniform procedure. — The procedure in the
Municipal Trial Courts shall be the same as in the Regional Trial Courts,
except (a) where a particular provision expressly or impliedly applies only
to either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure.

Uniformity rule – the Rules of Court applies in all courts.
Correlate this with Rule 1, regarding the non-application of the Rules to
naturalization cases, land registration cases, cadastral cases, election
cases, insolvency proceedings.
Section 4. In what case not applicable. — These Rules shall not apply
to election cases, land registration, cadastral, naturalization and
insolvency proceedings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever practicable and
convenient.
In Ong Chia vs Republic, Ong Chia was the foreigner who applied to be
a naturalized Filipino citizen. It was granted by the trial court. The
government, through the OSG, appealed the case. In the appellate court,
the Republic offered certain pieces of documentary evidence which were
not offered in the trial court. Ong Chia questioned that, claiming the
evidence should not be admitted since they were never offered. SC: In
naturalization cases, applying Rule 1, the Rules of Court are not
applicable but only in suppletory character.
Under Rule 5 as well, you have to take note of Summary Procedure.
III. RULES 6 TO 9: PLEADINGS AND DEFAULTS
A – Plaintiff
B – Defendant
A files a complaint against B. B files an answer. A files a reply.
These are the major pleadings: complaint, answer and reply.
C – Co-defendant
B files a cross-claim against C. C can also file a cross-claim against B. B
or C may interplead D.
D – third-party defendant
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In relation to D, C would be a third-party plaintiff.
If D impleads Y, D would be a fourth-party plaintiff and Y would be a
fourth-party defendant.
C can also file a complaint (a third party complaint). D can file a fourth
party complaint.
D can answer the third-party complaint through an answer to a third party
complaint. When D answers, that is also an answer to the original
complaint because there could be no third-party complaint without the
original complaint.
The claim of B against A is a separate and distinct pleading called the
counterclaim. The counterclaim is not the answer; it is the complaint of
the defendant against the plaintiff. A‘s answer to the counterclaim is not
the reply. The reply is the response to the answer but the answer to the
counterclaim is an answer to the counterclaim of the defendant as
against the plaintiff.
E – intervenor
E is an outsider; an intervenor under Rule 19. He is never impleaded by
any of the parties. He impleads himself. Rule 19 provides that he must
have interest in the subject matter (if the case is for recovery of property,
he must have an interest in the property, ex: he may be the
owner/mortgagor/mortgagee/possessor of the property).
You must never confuse an intervention with an interpleader. The basic
distinction is that while an intervenor, E, has interest in the subject
matter, an interpleader has no interest in the subject matter.
A. Kinds of Pleadings
Rule 6, Section 1. Pleadings defined. — Pleadings are the written
statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.
Rule 6, Section 2. Pleadings allowed. — The claims of a party are
asserted in a complaint, counterclaim, cross-claim, third (fourth,
etc.)party complaint, or complaint-in-intervention.

Third-party defendant is someone different from the original parties, for
purposes of contribution, indemnification or subrogation. The answer
must already include allegations against the original complaint.
Complaint and Answer
Rule 6, Section 3. Complaint. — The complaint is the pleading alleging
the plaintiff's cause or causes of action. The names and residences of
the plaintiff and defendant must be stated in the complaint.
Rule 6, Section 4. Answer. — An answer is a pleading in which a
defending party sets forth his defenses.
The complaint constitutes the allegations or the claim of the plaintiff
against the defendant. The defendant‘s answer is the response to the
claim of the plaintiff. The answer constitutes defenses.
Defenses: Negative and Affirmative
Rule 6, Section 5. Defenses. — Defenses may either be negative or
affirmative.
(a) A negative defense is the specific denial of the material fact or
facts alleged in the pleading of the claimant essential to his cause or
causes of action.
(b) An affirmative defense is an allegation of a new matter which,
while hypothetically admitting the material allegations in the pleading of
the claimant, would nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession and
avoidance.
2 modes of negative defense:
(1) specific denial – give the reason for your denial
(2) lack of knowledge sufficient to form belief as to the truth of the claim
Affirmative defense – admission of the allegation but you put up a new
subject matter so as to avoid the claim. Ex: defendant borrowed
P100,000 from the plaintiff. If you invoke an affirmative defense, you‘ll
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say that you have paid the P100,000 that you borrowed from the plaintiff.
In effect, you are admitting that you borrowed money but you put up a
new matter, which is payment, to avoid the claim.
There are several kinds of affirmative defenses: fraud, statute of
limitations, release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance. This list is not exclusive.
In the rules of evidence, when you put up an affirmative defense,
whether in civil or criminal cases, you have what you call reverse trial.
Reverse trial is a process whereby the defendant puts up an affirmative
defense and therefore, there is an admission already on his part of the
allegations in the pleading. That is why you reverse the trial.
In criminal cases, there are no pleadings, except the information. The
information is read, under Rule 116, before the start of the trial (during
arraignment) and then the accused puts up an affirmative defense (ex.
self-defense in a murder case). It amounts to saying that he admits the
allegations. When this happens, there is reverse trial. There is no need to
prove that the accused killed the victim because he already admitted it.
There is no need to show evidence-in-chief. The trial starts with the
accused and he puts up the defense of self-defense. If it is necessary,
the prosecution puts up rebuttal evidence.
Negative pregnant – a term in contradiction. When you invoke negative
pregnant, in effect, you are admitting what you seek to deny. That‘s why
you can never use negative pregnant if the allegation is a simple
declarative sentence.
Example: Defendant borrowed money from the plaintiff in the amount of
P100,000. This is a simple declarative sentence so you cannot invoke
here negative pregnant.
But if you qualify that in such manner that it becomes a compound,
complex declaration, then negative pregnant might come out:
Defendant borrowed money from the plaintiff in the amount of P100,000
when the plaintiff was playing basketball.

I deny that I borrowed money from the plaintiff in the amount of P100,000
when the plaintiff was playing basketball. This is a negative pregnant
because it proves that he did borrow money, but not at the time the
plaintiff he was playing basketball.
Republic vs Sandiganbayan: This case involved a negative pregnant. It
was alleged that Imelda had 15 Swiss accounts. Imelda said no, she only
had 7 Swiss accounts. So she admitted she had Swiss account.
Republic, through the PCGG filed a petition for forfeiture before the
Sandiganbayan against Ferdinand Marcos, represented by his
Estate/Heirs and Imelda Marcos. Republic sought the declaration of the
aggregate amount of US$356 million deposited in escrow in the PNB, as
ill-gotten wealth. The funds were previously held in 5 account groups,
using various foreign foundations in certain Swiss banks. Petitioner filed
a complaint and respondent an answer.
Petitioner, in the main, asserts that nowhere in the respondents' motions
for reconsideration and supplemental motion for reconsideration were the
authenticity, accuracy and admissibility of the Swiss decisions ever
challenged.
SC: This particular denial had the earmark of what is called in the law on
pleadings as a negative pregnant, that is, a denial pregnant with the
admission of the substantial facts in the pleading responded to which are
not squarely denied. It was in effect an admission of the averments it was
directed at. Stated otherwise, a negative pregnant is a form of negative
expression which carries with it an affirmation or at least an implication of
some kind favorable to the adverse party. It is a denial pregnant with an
admission of the substantial facts alleged in the pleading. Where a fact is
alleged with qualifying or modifying language and the words of the
allegation as so qualified or modified are literally denied, has been held
that the qualifying circumstances alone are denied while the fact itself is
admitted.
The material allegations in paragraph 23 of the said petition were not
specifically denied by respondents in paragraph 22 of their answer. The
denial contained in paragraph 22 of the answer was focused on the
averment in paragraph 23 of the petition for forfeiture that "Respondents
clandestinely stashed the country's wealth in Switzerland and hid the
same under layers and layers of foundations and corporate entities."
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Paragraph 22 of the respondents' answer was thus a denial pregnant
with admissions of the following substantial facts:
Therefore, the allegations in the petition for forfeiture on the existence of
the Swiss bank deposits in the sum of about US$356 million, not having
been specifically denied by respondents in their answer, were deemed
admitted by them pursuant to Section 11, Rule 8 of the 1997 Revised
Rules on Civil Procedure
The matters referred to in paragraphs 23 to 26 of the respondents'
answer pertained to the creation of five groups of accounts as well as
their respective ending balances and attached documents alleged in
paragraphs 24 to 52 of the Republic's petition for forfeiture. Respondent
Imelda R. Marcos never specifically denied the existence of the Swiss
funds. Her claim that "the funds involved were lawfully acquired" was an
acknowledgment on her part of the existence of said deposits. This only
reinforced her earlier admission of the allegation in paragraph 23 of the
petition for forfeiture regarding the existence of the US$356 million Swiss
bank deposits.
Caneland Sugar Corp. vs Alon: Petitioner does not dispute its loan
obligation with respondent. Petitioner‘s bone of contention before the
RTC is that the promissory notes are silent as to whether they were
covered by the Mortgage Trust Indenture and Mortgage Participation on
its property. It does not categorically deny that these promissory notes
are covered by the security documents. These vague assertions are, in
fact, negative pregnants, i.e., denials pregnant with the admission of the
substantial facts in the pleading responded to which are not squarely
denied.
A negative pregnant is a "form of negative expression which carries with
it an affirmation or at least an implication of some kind favorable to the
adverse party. It is a denial pregnant with an admission of the substantial
facts alleged in the pleading. Where a fact is alleged with qualifying or
modifying language and the words of the allegation as so qualified or
modified are literally denied, has been held that the qualifying
circumstances alone are denied while the fact itself is admitted."
Petitioner‘s allegations do not make out any justifiable basis for the
granting of any injunctive relief. Even when the mortgagors were
disputing the amount being sought from them, upon the non-payment of

the loan, which was secured by the mortgage, the mortgaged property is
properly subject to a foreclosure sale. This is in consonance with the
doctrine that to authorize a temporary injunction, the plaintiff must show,
at least prima facie, a right to the final relief.
Counterclaims: Compulsory and Permissive
Rule 6, Section 6. Counterclaim. — A counterclaim is any claim which
a defending party may have against an opposing party.
Rule 6, Section 7. Compulsory counterclaim. — A compulsory
counterclaim is one which, being cognizable by the regular courts of
justice, arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party's claim and does not
require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof,
except that in an original action before the Regional Trial Court, the
counter-claim may be considered compulsory regardless of the amount.
Counterclaim – it is neither an answer nor a reply. It is the complaint of
the defendant against the plaintiff. It is a totally separate pleading.
2 kinds of counterclaim:
(1) compulsory – is that which arises from the same transaction or series
of transactions
(2) permissive – does not arise from the same transaction
Alday vs FGU Insurance: What are the indicia of a compulsory
counterclaim? Alday was an insurance agent. She was sued by FGU for
non-remittance of premiums. Alday set-up a counterclaim saying FGU
didn‘t pay her bonuses, commissions. And because of the complaint, she
suffered sleepless nights, wounded feelings, etc. FGU said since the
counterclaim is permissive and Alday did not pay the docket fees, the
trial court did not acquire jurisdiction over the counterclaim.
SC held that the counterclaim of Alday is of 2 kinds. Some counterclaims
are compulsory, and those do not require docket fees. Some are
permissive. Because they did not arise from the complaint, therefore, it is
a permissive counterclaim. Alday only had to pay for the permissive
counterclaim.
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This doctrine of Alday was overruled in January 2008 by Korea
Technologies Incorporated, where the SC said as of August 13, 2004,
all kinds of counterclaim must be paid irrespective of whether they are
compulsory or permissive. There was a howl of protest. By October of
the same year, SC reversed their own doctrine and went back to Alday
vs FGU through Mercado vs CA.
Alday vs FGU Insurance: FGU filed a complaint with the RTC alleging
that Alday owed it unliquidated cash advances, unremitted costs of
premiums and other charges she incurred in the course of her work as
an insurance agent. FGU also prayed for exemplary damages, attorney‘s
fees, and costs of suit.
Alday filed her answer and a counterclaim where she asserted her right
for the payment of direct commissions, profit commissions, contingent
bonuses and accumulated premium reserves. She also prayed for
attorney‘s fees, litigation expenses, moral damages and exemplary
damages for the allegedly unfounded action filed by GFU.
FGU filed a motion to strike out answer with compulsory counterclaim
and to declare defendant in default because her answer was allegedly
filed out of time. The RTC denied FGU‘s motion and its MR. FGU then
filed a motion to dismiss Alday‘s counterclaim. It contended that RTC
never acquired jurisdiction over the same because of the non-payment of
docket fees. Alday asked the RTC to declare her counterclaim as exempt
from payment of docket fees since it is compulsory and that respondent
be declared in default for having failed to answer the counterclaim. RTC
granted FGU‘s motion to dismiss the counterclaim and consequently,
denied Alday‘s motion. The RTC found that the counterclaim is
permissive in nature and held that Alday‘s failure to pay docket fees
prevented the court from acquiring jurisdiction over it. The RTC likewise
denied her MR. CA sustained the RTC‘s order and denied Alday‘s MR.
SC: A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is connected with the transaction
or occurrence constituting the subject matter of the opposing party‘s
claim and does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction.

Petitioner‘s counterclaim for commissions, bonuses, and accumulated
premium reserves is merely permissive. The evidence required to prove
petitioner‘s claims differs from that needed to establish respondent‘s
demands for the recovery of cash accountabilities from petitioner, such
as cash advances and costs of premiums. The recovery of respondent‘s
claims is not contingent or dependent upon establishing petitioner‘s
counterclaim, such that conducting separate trials will not result in the
substantial duplication of the time and effort of the court and the parties.
One would search the records in vain for a logical connection between
the parties‘ claims. This conclusion is further reinforced by petitioner‘s
own admissions since she declared in her answer that respondent‘s
cause of action, unlike her own, was not based upon the Special Agent‘s
Contract. However, petitioner‘s claims for damages, allegedly suffered as
a result of the filing by respondent of its complaint, are compulsory.
There is no need for petitioner to pay docket fees for her compulsory
counterclaim. On the other hand, in order for the RTC to acquire
jurisdiction over her permissive counterclaim, petitioner is bound to pay
the prescribed docket fees. The rule on the payment of filing fees has
been laid down by the Court in the case of Sun Insurance Office, Ltd. v.
Hon. Maximiano Asuncion:
1. It is not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee, that vests a trial
court with jurisdiction over the subject-matter or nature of the action.
Where the filing of the initiatory pleading is not accompanied by
payment of the docket fee, the court may allow payment of the fee
within a reasonable time but in no case beyond the applicable
prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third-party
claims and similar pleadings, which shall not be considered filed until
and unless the filing fee prescribed therefor is paid. The court may
allow payment of said fee within a reasonable time but also in no case
beyond its applicable prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the
filing of the appropriate pleading and payment of the prescribed filing
fee but, subsequently, the judgment awards a claim not specified in the
pleading, or if specified the same has been left for determination by the
court, the additional filing fee therefor shall constitute a lien on the
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judgment. It shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect the
additional fee.
Although the payment of the prescribed docket fees is a jurisdictional
requirement, its non-payment does not result in the automatic dismissal
of the case provided the docket fees are paid within the applicable
prescriptive or reglementary period.
Was FGU in default for failing to answer petitioner‘s counterclaim? No.
Insofar as the permissive counterclaim of petitioner is concerned, there
is obviously no need to file an answer until petitioner has paid the
prescribed docket fees for only then shall the court acquire jurisdiction
over such claim. Meanwhile, the compulsory counterclaim of petitioner
for damages based on the filing by respondent of an allegedly
unfounded and malicious suit need not be answered since it is
inseparable from the claims of respondent. If respondent were to
answer the compulsory counterclaim of petitioner, it would merely result
in the former pleading the same facts raised in its complaint.
Criteria or tests that may be used in determining whether a
counterclaim is compulsory or permissive, summarized as follows:
1. Are the issues of fact and law raised by the claim and counterclaim
largely the same?
2. Would res judicata bar a subsequent suit on defendant‘s claim absent
the compulsory counterclaim rule?
3. Will substantially the same evidence support or refute plaintiff‘s claim
as well as defendant‘s counterclaim? (Evidence test rule)
4. Is there any logical relation between the claim and the counterclaim?
(Logical relationship rule)
Korea Technologies Co., Ltd. (KOGIES) vs Lerma: The rules on the
payment of docket fees for counterclaims and cross claims were
amended effective August 16, 2004.

KOGIES strongly argues that when PGSMC filed the counterclaims, it
should have paid docket fees and filed a certificate of non-forum
shopping, and that its failure to do so was a fatal defect.
We disagree with KOGIES. The counterclaims of PGSMC were
incorporated in its Answer with Compulsory Counterclaim in accordance
with Section 8 of Rule 11, the rule that was effective at the time the
Answer with Counterclaim was filed. Sec. 8 on existing counterclaim or
cross-claim states, ―A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall be contained
therein.‖
At the time PGSMC filed its Answer incorporating its counterclaims
against KOGIES, it was not liable to pay filing fees for said counterclaims
being compulsory in nature. However, effective August
16, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC,
docket fees are now required to be paid in compulsory counterclaim or
cross-claims.
Mercado vs CA: Leonides Mercado had been distributing respondent
San Miguel Corporation‘s (SMC‘s) beer products since 1967. In 1991,
SMC extended to him a P7.5 million credit line allowing him to withdraw
goods on credit. To secure his purchases, Mercado assigned 3 China
Banking Corporation (CBC) certificates of deposit amounting to P5
million to SMC and executed a continuing hold-out agreement stating:
―Any demand made by [SMC] on [CBC], claiming default on my/our part
shall be conclusive on [CBC] and shall serve as absolute authority for
[CBC] to encash the [CBC certificates of deposit] xxx, whether or not I/we
have in fact defaulted on any of my/our obligations with [SMC], it being
understood that the issue of whether or not there was factual default
must be threshed out solely between me/us and [SMC].‖ He also
submitted 3 surety bonds from Eastern Assurance and Surety
Corporation (EASCO) for P2.6 million.
SMC notified CBC that Mercado failed to pay for the items he withdrew
on credit. Citing the continuing hold-out agreement, it asked CBC to
release the proceeds of the assigned certificates of deposit. CBC
approved SMB‘s request and informed Mercado. Mercado filed an action
to annul the continuing hold-out agreement and deed of assignment in
the RTC. He claimed that the continuing hold-out agreement allowed
forfeiture without the benefit of foreclosure. It was therefore void pursuant
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to Article 2088 of the Civil Code. Moreover, Mercado argued that he had
already settled his recent purchases on credit but SMC erroneously
applied the said payments to his old accounts not covered by the
continuing hold-out agreement (i.e., purchases made prior to the
extension of the credit line).
SMC filed its answer with counterclaim against Mercado. It contended
that Mercado delivered only 2 CBC certificates of deposit amounting to
P4.5 million and asserted that the execution of the continuing hold-out
agreement and deed of assignment was a recognized business practice.
Furthermore, because Mercado admitted his outstanding liabilities, SMC
sought payment of the lees products he withdrew (or purchased on
credit) worth P7,468,153.75. SMC filed a third-party complaint against
EASCO. It sought to collect the proceeds of the surety bonds submitted
by Mercado.
Mercado filed an urgent manifestation and motion seeking the dismissal
of the complaint. He claimed that he was no longer interested in
annulling the continuing hold-out agreement and deed of assignment.
RTC denied the motion. Instead, it set the case for pre-trial. Thereafter,
trial ensued. RTC dismissed the complaint and ordered Mercado and
EASCO (to the extent of P2.6 million or the value of its bonds) to jointly
and severally pay SMC P7,468,153.75.
Mercado and EASCO appealed to the CA, insisting that Mercado did not
default in the payment of his obligations to SMC. CA affirmed the RTC
decision in toto. Mercado and EASCO both moved for reconsideration
but their respective motions were denied. EASCO filed a petition for
review on certiorari in this Court but eventually agreed to settle its liability
with SMC. The petition was terminated. Meanwhile, Mercado passed
away and was substituted by his heirs, petitioners Racquel, Jimmy,
Henry, Louricar and Virgilio Mercado. Petitioners subsequently filed this
petition asserting that the CA erred in affirming the RTC decision in toto.
The said decision (insofar as it ordered Mercado to pay SMC
P7,468,153.75) was void. SMC‘s counterclaim was permissive in nature.
Inasmuch as SMC did not pay docket fees, the RTC never acquired
jurisdiction over the counterclaim.
SC: RTC acquired jurisdiction although SMC did not pay docket fees. A
counterclaim (or a claim which a defending party may have against any
party) may be compulsory or permissive. A counterclaim that (1) arises

out of (or is necessarily connected with) the transaction or occurrence
that is the subject matter of the opposing party‘s claim; (2) falls within the
jurisdiction of the court and (3) does not require for its adjudication the
presence of third parties over whom the court cannot acquire jurisdiction,
is compulsory. Otherwise, a counterclaim is merely permissive.
When Mercado sought to annul the continuing hold-out agreement and
deed of assignment, he in effect sought to be freed from them. While he
admitted having outstanding obligations, he nevertheless asserted that
those were not covered by the assailed accessory contracts. For its part,
aside from invoking the validity of the said agreements, SMC therefore
sought to collect the payment for the value of goods Mercado purchased
on credit. Thus, Mercado‘s complaint and SMC‘s counterclaim both
touched the issues of whether the continuing hold-out agreement and
deed of assignment were valid and whether Mercado had outstanding
liabilities to SMC. The same evidence would essentially support or refute
Mercado‘s claim and SMC‘s counterclaim.
Based on the foregoing, had these issues been tried separately, the
efforts of the RTC and the parties would have had to be duplicated.
SMC‘s counterclaim, being logically related to Mercado‘s claim, was
compulsory in nature. Consequently, the payment of docket fees was not
necessary for the RTC to acquire jurisdiction over the subject matter.
Rule 6, Section 8. Cross-claim. — A cross-claim is any claim by one
party against a co-party arising out of the transaction or occurrence that
is the subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant for all or part
of a claim asserted in the action against the cross-claimant.
Cross-claim – between the defendants. This is the complaint of the
codefendant against his co-defendant for purposes of contribution,
subrogation or indemnification.
B borrowed money from A in the amount of P500,000. A knows the
P500,000 will be used by B and C. B did not pay. A can file a case
impleading alternative defendants. B, in the same case, can file a
crossclaim against his co-defendant asking for contribution.
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Rule 6, Section 9. Counter-counterclaims and counter-crossclaims.
— A counter-claim may be asserted against an original counterclaimant.
A cross-claim may also be filed against an original cross-claimant.
Reply
Rule 6, Section 10. Reply. — A reply is a pleading, the office or function
of which is to deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or make issue
as to such new matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new
matters so alleged, such claims shall be set forth in an amended or
supplemental complaint.
Reply – response to an answer.
General rule: The reply is not necessary because if you do not put up a
reply, it means you controvert the allegations in the answer.
Exceptions: (1) when the answer sets up a new matter, there is a
necessity of a reply. (2) When the defendant avails of an actionable
document, you have to file a reply. Otherwise, the authenticity and due
execution of the document are deemed admitted.
Rule 8, Section 7. Action or defense based on document. —
Whenever an action or defense is based upon a written instrument or
document, the substance of such instrument or document shall be set
forth in the pleading, and the original or a copy thereof shall be attached
to the pleading as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in the pleading.
Rule 8, Section 8. How to contest such documents. — When an
action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath specifically
denies them, 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.
B. Parts of a Pleading
Rule 7, Section 1. Caption. — The caption sets forth the name of the
court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all be
named in the original complaint or petition; but in subsequent pleadings,
it shall be sufficient if the name of the first party on each side be stated
with an appropriate indication when there are other parties.
Their respective participation in the case shall be indicated.
Rule 7, Section 2. The body. — The body of the pleading sets fourth its
designation, the allegations of the party's claims or defenses, the relief
prayed for, and the date of the pleading.
(a) Paragraphs. — The allegations in the body of a pleading shall be
divided into paragraphs so numbered to be readily identified, each of
which shall contain a statement of a single set of circumstances so
far as that can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings.
(b) Headings. — When two or more causes of action are joined the
statement of the first shall be prefaced by the words "first cause of
action,'' of the second by "second cause of action", and so on for the
others.
When one or more paragraphs in the answer are addressed to one of
several causes of action in the complaint, they shall be prefaced by the
words "answer to the first cause of action" or "answer to the second
cause of action" and so on; and when one or more paragraphs of the
answer are addressed to several causes of action, they shall be prefaced
by words to that effect.
(c) Relief. — The pleading shall specify the relief sought, but it may add
a general prayer for such further or other relief as may be deemed
just or equitable.
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(d) Date. — Every pleading shall be dated.
Rule 7, Section 3. Signature and address. — Every pleading must be
signed by the party or counsel representing him, stating in either case his
address which should not be a post office box.
The signature of counsel constitutes a certificate by him that he has read
the pleading; that to the best of his knowledge, information, and belief
there is good ground to support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However, the court may,
in its discretion, allow such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and not intended for delay.
Counsel who deliberately files an unsigned pleading, or signs a pleading
in violation of this Rule, or alleges scandalous or indecent matter therein,
or fails promptly report to the court a change of his address, shall be
subject to appropriate disciplinary action.
The address must not be a post-office box address. Otherwise, the
prescriptive period will not lie because it will depend upon when you get
your mails in your post-office box.
Based on certain circulars of the SC, in every pleading, what is
necessary is not only the signature and the address. There are 4 more
items necessary: (1) Roll Number, (2) IBP Number, (3) PTR Number, (4)
MCLE Exemption Number.
Verification and Certification
Rule 7, Section 4. Verification. — Except when otherwise specifically
required by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading
and that the allegations therein are true and correct of his knowledge and
belief.
A pleading required to be verified which contains a verification based on
"information and belief", or upon "knowledge, information and belief", or
lacks a proper verification, shall be treated as an unsigned pleading.

Rule 7, Section 5. Certification against forum shopping. — The
plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not
theretofore commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete statement of the
present status thereof; and (c) if he should thereafter learn that the same
or similar action or claim has been filed or is pending, he shall report that
fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall
constitute indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of the party
or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative
sanctions.
While verification is not mandatory, certification against forum shopping
is mandatory because there are only pleadings that require verification
but all pleadings require certification against forum shopping. While lack
of verification is easily remediable by amendment, certification against
forum shopping cannot be remedied so it leads to dismissal of the case.
Who may verify? It should only be the party. Counsel cannot verify.
Neither can the counsel sign the certification against forum shopping.
The exception is when the party is a juridical entity and the counsel is an
in-house counsel on the basis of the doctrine laid down in Iglesia ni
Cristo vs Ponferrada.
Suppose there are multiple parties, the rule provides all the parties must
verify. So if there are 5 plaintiffs, all the 5 plaintiffs must verify. If only one
verifies, that is erroneous but correctible. The exception is in cases of
co-ownership and they are the plaintiffs, but not when they are
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defendants. So that co-owners, in effect, are indispensable parties
defendants. In the case of plaintiffs, they are not indispensable since only
one is an indispensable party co-owner.
De Castro vs CA: The defendants are indispensable parties defendants.
SC held that the action was based on the principle of agency. The
principals were only 2 of the 5 sisters who appointed someone as their
agent in selling the properties. The indispensability of the co-owners here
is not needed because it is based on the principle of agency.
When an indispensible party is not impleaded, the judgment is null
and void not only as to those who were not impleaded but even as
to those who participated in the case.
Francisco Artigo sued Constante and Corazon De Castro to collect the
unpaid balance of his broker‘s commission from them. The De Castros
were co-owners of 4 lots located in QC. They authorized Artigo to act as
real estate broker in the sale of the properties. Artigo found Times Transit
Corp. as a prospective buyer which desired to buy 2 lots only. The same
was consummated and Artigo received commission from the De Castros.
Artigo felt that his commission should be 5% of the agreed price. He
sued to collect the balance after having received an advance.
The De Castros argue that the complaint should have been dismissed for
failure to implead all the co-owners of the 2 lots. They claim that Artigo
always knew that the 2 lots were co-owned by the De Castros and their
other siblings. They claim that failure to implead them as indispensable
parties is fatal to the complaint since Artigo would be paid with funds co-
owned by the siblings.
RTC ruled in favor of Artigo. CA affirmed, ruling that Artigo‘s complaint is
not dismissible for failure to implead as indispensable parties the other
co-owners of the 2 lot. It is not necessary to implead the other co-owners
since the action is exclusively based on a contract of agency between
Artigo and De Castro.
Issue: Whether the complaint should be dismissed for failure to implead
other co-owners as indispensable parties
SC: An indispensable party is one whose interest will be affected by the
court's action in the litigation, and without whom no final determination of
the case can be had. The joinder of indispensable parties is mandatory

and courts cannot proceed without their presence. Whenever it appears
to the court in the course of a proceeding that an indispensable party has
not been joined, it is the duty of the court to stop the trial and order the
inclusion of such party.
However, the rule on mandatory joinder of indispensable parties is not
applicable to the instant case.
Constante signed the note as owner and as representative of the other
co-owners. Under this note, a contract of agency was clearly constituted
between Constante and Artigo. Whether Constante appointed Artigo as
agent, in Constante's individual or representative capacity, or both, the
De Castros cannot seek the dismissal of the case for failure to implead
the other co-owners as indispensable parties. The De Castros admit that
the other co-owners are solidarily liable under the contract of agency,
citing Article 1915 of the Civil Code.
The solidary liability of the 4 co-owners, however, militates against the
De Castros' theory that the other co-owners should be impleaded as
indispensable parties. When the law expressly provides for solidarity of
the obligation, as in the liability of co-principals in a contract of agency,
each obligor may be compelled to pay the entire obligation. The agent
may recover the whole compensation from any one of the co-principals,
as in this case. Article 1216 of the Civil Code provides that a creditor may
sue any of the solidary debtors.
Mandawer Galleon Trade vs Isidro: Respondents filed a case for illegal
dismissal and non-payment of overtime pay, holiday pay, 13th month
pay, and service incentive leave pay against petitioner with the
NLRC. They asserted that they were dismissed from employment without
just cause and without due process. Petitioners averred that the
respondents were not their employees but were independent contractors.
LA found respondents illegally dismissed from employment.
Petitioners filed an appeal before the NLRC but failed to attach a
certification of non-forum shopping to their notice of appeal, as required
by Section 4, Rule VI of the NLRC Rules of Procedure. NLRC dismissed
the appeal for being fatally defective and affirmed LA‘s decision with
finality. Petitioners filed an MR but it was denied by the NLRC. An entry
for judgment was issued by the NLRC stating that the resolution had
become final and executory.
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Petitioners filed a petition for certiorari under Rule 65 before the CA. CA
dismissed the petition for certiorari and affirmed NLRC. Their MR was
also denied by the CA. Petitioners aver that the CA should have granted
the petition and decided the case on the merits, considering that they
had belatedly complied with the requirement of a certification for
nonforum shopping.
Issue: Whether the CA was correct in summarily dismissing the petition
for being filed without a certification for non-forum shopping
SC: No. Non-compliance with the required certification is fatal. To curb
the malpractice of forum shopping, Section 5, Rule 7 of the 1997 Rules
of Civil Procedure, ordains that a violation thereof would constitute
contempt of court and be cause for the summary dismissal of the
petition, without prejudice to the taking of appropriate action against the
counsel of the party concerned.
The filing of a certificate for non-forum shopping is mandatory in initiatory
pleadings. The subsequent compliance with the requirement does not
excuse a party‘s failure to comply therewith in the first instance. In those
cases where the Court excused non-compliance with the requirement to
submit a certificate of non-forum shopping, it found special
circumstances or compelling reasons which made the strict application of
[Section 5, Rule 7, ROC] clearly unjustified or inequitable. In this case,
however, the petitioners offered no valid justification for their failure to
comply with the circular.
Non-compliance with the requirement on, or submission of defective,
verification is not necessarily fatally defective.
In Altres v. Empleo:
1) A distinction must be made between:
a. non-compliance with the requirement on or submission of
defective verification, and
b. non-compliance with the requirement on or submission of
defective certification against forum shopping.
2) As to verification, non-compliance therewith or a defect therein
does not necessarily render the pleading fatally defective. The court may
order its submission or correction or act on the pleading if the attending

circumstances are such that strict compliance with the Rule may be
dispensed with in order that the ends of justice may be served thereby.
3) Verification is deemed substantially complied with when one who
has ample knowledge to swear to the truth of the allegations in the
complaint or petition signs the verification, and when matters alleged in
the petition have been made in good faith or are true and correct.
4) As to certification against forum shopping, non-compliance
therewith or a defect therein, unlike in verification, is generally not
curable by its subsequent submission or correction thereof, unless there
is a need to relax the Rule on the ground of "substantial compliance" or
presence of
"special circumstances or compelling reasons."
C. Allegations in Pleadings
Rule 8, Section 1. In general. — Every pleading shall contain in a
methodical and logical form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his claim or defense,
as the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof
and their applicability to him shall be clearly and concisely stated.
Rule 8, Section 2. Alternative causes of action or defenses. — A
party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or defense or
in separate causes of action or defenses. When two or more statements
are made in the alternative and one of them if made independently would
be sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements.
Rule 8, Section 3. Conditions precedent. — In any pleading a general
averment of the performance or occurrence of all conditions precedent
shall be sufficient.
Rule 8, Section 4. Capacity. — Facts showing the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of person that is made a party, must be averred. A party
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desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity, shall
do so by specific denial, which shall include such supporting particulars
as are peculiarly within the pleader's knowledge.
Rule 8, Section 5. Fraud, mistake, condition of the mind. — In all
averments of fraud or mistake the circumstances constituting fraud or
mistake must be stated with particularity. Malice, intent, knowledge, or
other condition of the mind of a person may be averred generally.
Rule 8, Section 6. Judgment. — In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or of a board
or officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it.
Actionable Documents
Rule 8, Section 7. Action or defense based on document. —
Whenever an action or defense is based upon a written instrument or
document, the substance of such instrument or document shall be set
forth in the pleading, and the original or a copy thereof shall be attached
to the pleading as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in the pleading.
Actionable documents – are those which is the basis of one‘s claim or
defense.
How do you allege an actionable document? Section 7 provides the
answer. To allege an actionable document, you either (1) copy the
document verbatim in your pleading; or (2) copy the basis of your claim
and attach a copy of the document.
Use the first mode if your document is short like a promissory note. Use
the second mode if your document is quite lengthy like a contract of
mortgage consisting of 20 pages.
Rule 8, Section 8. How to contest such documents. — When an
action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath specifically
denies them, 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.
You contest the actionable document by specifically denying it under
oath. The pleading must contain a jurat (subscribed and sworn to before
me). Otherwise, the authenticity and due execution of the document are
deemed admitted. Only authenticity and due execution, not the contents
of the document.
Benguet Exploration, Inc. vs CA: Authenticity and due execution
constitutes only 4 things: (1) that the document was signed; (2) that the
document complied with all the formalities under the laws; (3) that when
the document was signed, it was in the original form without any
alteration; and (4) that the document was delivered.
Petitioner contends that the genuineness and due execution of the
documents presented, i.e., Bill of Lading, Certificate of Loading,
Certificate of Weight, Mate‘s Receipt, were properly established by the
testimony of its witness, Ernesto Cayabyab, and that as a result, there is
a prima facie presumption that their contents are true.
This contention has no merit. The admission of the due execution and
genuineness of a document simply means that ―the party whose
signature it bears admits that he signed it or that it was signed by another
for him with his authority; 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;
that the document was delivered; and that any formal requisites required
by law, such as a seal, an acknowledgment, or revenue stamp, which it
lacks, are waived by him.‖ Genuineness and due execution of the
instrument means nothing more than that the instrument is not spurious,
counterfeit, or of different import on its face from the one executed.
It is equally true, however, that ¾ execution can only refer to the actual
making and delivery, but it cannot involve other matters without enlarging
its meaning beyond reason. The only object of the rule was to enable a
plaintiff to make out a prima facie, not a conclusive case, and it cannot
preclude a defendant from introducing any defense on the merits which
does not contradict the execution of the instrument introduced in
evidence.
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Respondents presented evidence which casts doubt on the veracity of
these documents. Switzerland Insurance presented Export Declaration
No. 1131/85 which petitioner‘s own witness, Rogelio Lumibao, prepared,
in which it was stated that the copper concentrates to be transported to
Japan had a gross weight of only 2,050 wet metric tons or 1,845 dry
metric tons, 10 percent more or less. On the other hand, Certified
Adjusters, Inc., to which Switzerland Insurance had referred petitioner‘s
claim, prepared a report which showed that a total of 2,451.630 wet
metric tons of copper concentrates were delivered at Poro Point. As the
report stated: It is to be pointed out that there were no actual weighing
made at Benguet Exploration‘s site. The procedure done was that after
weighing the trucks before and after unloading at
Poro Point, the weight of the load was determined and entered on
―Philex‖ Trip Ticket which was later on copied and entered by the truck
driver on Benguet Exploration, Inc.‘s Transfer Slip.
Considering the discrepancies in the various documents showing the
actual amount of copper concentrates transported to Poro Point and
loaded in the vessel, there is no evidence of the exact amount of copper
concentrates shipped. Thus, whatever presumption of regularity in the
transactions might have risen from the genuineness and due execution
of the Bill of Lading, Certificate of Weight, Certificate of Loading, and
Mate‘s Receipt was successfully rebutted by the evidence presented by
Switzerland Insurance which showed disparities in the actual weight of
the cargo transported to Poro Point and loaded on the vessel. This fact is
compounded by the admissions made by Lumibao and Cayabyab that
they had no personal knowledge of the actual amount of copper
concentrates loaded on the vessel.
In the face of these admissions, appellant‘s claim of loss or shortage is
placed in serious doubt, there being no other way of verifying the
accuracy of the figures indicated in appellant‘s documentary evidence
that could confirm the alleged loss of 355.736 MT. Notwithstanding the
figure stated in Bill of Lading No. PP/0-1 that 2,243.496 WMT of copper
concentrates was loaded by appellant at the port of origin, it should be
stressed that this is merely prima facie evidence of the receipt by the
carrier of said cargo as described in the bill of lading. Thus, it has been
held that recitals in the bill of lading as to the goods shipped raise only a
rebuttable presumption that such goods were delivered for shipment and
as between the consignor and a receiving carrier, the fact must outweigh
the recital. Resultingly, the admissions elicited from appellant‘s

witnesses that they could not confirm the accuracy of the figures
indicated in their documentary evidence with regard to the actual weight
of the cargo loaded at the port of origin and that unloaded at the port of
destination, in effect rebuts the presumption in favor of the figure
indicated in the bill of lading.
Rule 8, Section 9. Official document or act. — In pleading an official
document or official act, it is sufficient to aver that the document was
issued or the act done in compliance with law.
Specific denial
Rule 8, Section 10. Specific denial. — A defendant must specify each
material allegation of fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance of the matters upon
which he relies to support his denial. Where a defendant desires to deny
only a part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a
material averment made to the complaint, he shall so state, and this shall
have the effect of a denial.
Rule 8, Section 11. Allegations not specifically denied deemed
admitted. — Material averment in the complaint, other than those as to
the amount of unliquidated damages, shall be deemed admitted when
not specifically denied. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied under oath.
Rule 8, Section 12. Striking out of pleading or matter contained
therein. — Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by these Rules, upon
motion made by a party within twenty (20) days after the service of the
pleading upon him, or upon the court's own initiative at any time, the
court may order any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be stricken out
therefrom.
D. Rule 9
Effect of Failure to Plead
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Residual prerogatives, as laid down in Katon vs Palanca, is the
authority of the appellate court to dismiss a case motu proprio pursuant
to the grounds under Section 1 of Rule 9. They are: res judicata, litis
pendentia, prescription, lack of jurisdiction and statute of limitation.
Rule 9, Section 1. Defenses and objections not pleaded. — Defenses
and objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
Tie this up with Section 3, Rule 17: Dismissal due to fault of plaintiff.
— If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his
action for an unreasonable length of time, or to comply with these Rules
or any order of the court, the complaint may be dismissed upon motion of
the defendant or upon the court's own motion, without prejudice to the
right of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.
Thus, the 8 grounds by which the court can dismiss a case motu proprio
are:
(1) res judicata (Section 1, Rule 9)
(2) litis pendentia (Section 1, Rule 9)
(3) lack of jurisdiction (Section 1, Rule 9)
(4) statute of limitation (Section 1, Rule 9)
(5) failure of any party to appear for the presentation of evidence in
chief (Section 3, Rule 17)
(6) plaintiff‘s failure to prosecute his action for an unreasonable length
of time (Section 3, Rule 17)
(7) plaintiff‘s failure to comply with these Rules or any order of the court

(Section 3, Rule 17)
(8) the rule in summary procedure
Waiver of Defenses and Objections; Default
Rule 9, Section 2. Compulsory counterclaim, or cross-claim, not set
up barred. — A compulsory counterclaim, or a cross-claim, not set up
shall be barred.
Rule 9, Section 3. Default; declaration of. — If the defending party fails
to answer within the time allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending party, and proof of such
failure, declare the defending party 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. Such reception of evidence may be
delegated to the clerk of court.
(a) Effect of order of default. — A party in default shall be entitled to
notice of subsequent proceedings but not to take part in the trial.
(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.
(c) Effect of partial default. — When a pleading asserting a claim
states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try the
case against all upon the answers thus filed and render judgment upon
the evidence presented.
(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.
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(e) Where no defaults allowed. — If the defending party in an action
for annulment or declaration of nullity of marriage or for legal separation
fails to answer, the court shall order the prosecuting attorney to
investigate whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see to it that
the evidence submitted is not fabricated.
Under the 1997 Rules of Court, when may a party be declared in default?
There is only one ground for declaring a party in default: failure to file
responsive pleading within the required period. Now, there is no more
declaration of a party as in default that used to be in the 1960 Rules of
Court that has been deleted by the 1997 Rules of Court.
A files a case against B for unlawful detainer and forcible entry and
summons was served upon B on January 5. On February 5, B has not
yet filed an answer. Can B be declared in default for failure to file his
answer? No, the case is covered by the Rules of Summary Procedure
and an order of default or a motion to declare defendant in default is a
prohibited pleading.
If there is only one ground, the 2 other grounds in the 1960 Rules of
Court to declare a party as in default have been eliminated: (1) when a
party fails to appear at the pre-trial; or (2) the party fails to file a pre-trial
brief.
Now, if the plaintiff does not appear at the pre-trial, it will be nonsuited
and result to a dismissal. Defendant can present evidence ex parte on
his counterclaim. If the defendant fails to appear at the pre-trial or submit
a pre-trial brief, the plaintiff can present evidence ex parte. There is no
need to declare them as in default.
To declare a party in default because of failure to file responsive pleading
within the required period, the other party must file a motion. There is no
declaration in default motu proprio. It must always be through a
litigious/litigated motion.
There are 2 kinds of motions: (1) litigated motion and (2) non-litigated (or
oral) motion. Since a motion to declare a party in default is a litigated
motion, it must comply with section 4 (must be in writing, and comply with
3-day notice rule), section 5 (10-day setting rule), and section 6 (copy of
pleading must be served upon the adverse party) of Rule 15.

Rule 15, Section 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.
Rule 15, Section 5. Notice of hearing. — The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and date of
the hearing which must not be later than ten (10) days after the filing of
the motion.
Rule 15, Section 6. Proof of service necessary. — No written motion
set for hearing shall be acted upon by the court without proof of service
thereof.
3-day notice rule – a copy of the pleading must be received 3 days
before the scheduled hearing (not must be sent). If the motion day is a
Friday, it must be received not later than Tuesday. Under computation of
time in Rule 22, you must always exclude the first day and include the
last day.
Rule 22, Section 1. How to compute time. — In computing any period
of time prescribed or allowed by these Rules, or by order of the court, or
by any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus computed,
falls on a Saturday a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.
10-day setting rule – you have to set the hearing within a period of 10
days from the filing of a motion. If there is a conflict between the 2, what
should prevail over which? The 3-day notice rule must prevail, because
the 10-day setting rule is addressed to the court while the 3-day notice
rule is addressed to the adverse party. The adverse party must not be
prejudiced.
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When the party is supposed to file a responsive pleading within 15 days
from receipt of the summons (ex. defendant receives the summons with
the copy of the complaint) and he fails to file his answer to the complaint
within 15 days from receipt thereof, the plaintiff can go to the court and
file a motion to declare the defendant in default. It is a litigated motion
and it must comply with sections 4, 5 and 6 of Rule 15.
The plaintiff may also be declared in default in a case where the
defendant files a permissive counterclaim (thus, the plaintiff must file an
answer). What is the effect if a party is declared in default? He loses his
personality before the court. When he loses his personality before the
court, he can no longer participate in the proceedings.
How can he regain his personality before the court? There is only one
way according to the SC which was discussed in Banco de Oro vs
Tansipek: Even if you lose your personality before the court because
you have been declared in default, you are still entitled to notices. You
are only deprived of participation in the trial but you are still entitled to
processes. In this case, the defaulted party filed a motion for
reconsideration. SC held that a motion for reconsideration is not a valid
remedy. There is one remedy: a motion to set aside the order of default.
This motion is also a litigated motion and must conform to Sections 4, 5,
6 of Rule 15. When the motion to set aside the order of default is granted
by the court, then you regain your personality before the court.
If you do not regain your personality in court, what follows an order of
default? A judgment by default. While there is only one remedy against
an order of default (which is a motion to set aside the order of default),
there are several remedies against a judgment by default. Because it is a
judgment, all the remedies against a judgment may be availed of such as
motion for reconsideration, motion for new trial and appeal.
General rule: An order of default must always precede a judgment by
default.
Exception: Where a judgment by default may be granted by the court
without being preceded by an order of default: refusal to comply with the
modes of discovery (Rule 29, Section 3(c)).
Rule 29, Section 3. Other consequences. — If any party or an officer
or managing agent of a party refuses to obey an order made under

section 1 of this Rule requiring him to answer designated questions, or
an order under Rule 27 to produce any document or other thing for
inspection, copying, or photographing or to permit it to be done, or to
permit entry upon land or other property or an order made under Rule 28
requiring him to submit to a physical or mental examination, the court
may make such orders in regard to the refusal as are just, and among
others the following: xxx
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party; xxx
Banco de Oro vs Tansipek: JOCI, a domestic corporation engaged in
construction, filed a complaint against PCIB (Bank). JOCI contracted with
Duty Free Phils. to construct a store in Mandaue. Construction went on,
and JOCI authorized Tansipek to collect payments for it. Initial payments
were deposited to JOCI‘s account. However, a check was not deposited
to its account. Tansipek deposited the check to his personal account in
PCIB. PCIB allowed it despite the check being crossed for the payee‘s
account only, and that respondent lacked authority to endorse it. PCIB
refused to pay. JOCI demanded payment of the check. PCIB filed a
motion to dismiss but RTC denied it. PCIB filed its answer and a
thirdparty complaint against Tansipek. PCIB alleged in the third-party
complaint that Tansipek presented to it a copy of the board resolution
allowing him to deposit the check in his personal account.
Tansipek was given extension of time to file his answer, but he failed so
he was declared in default. He filed a Motion to Reconsider the Default
Order, but it was denied. He filed a petition for certiorari with the CA
assailing the default order as well as the denial of the motion for
reconsideration. CA dismissed his petition for failure to attach the orders
and denied his motion for being filed out of time. The RTC later
promulgated a ruling on the civil case ordering Tansipek and PCIB to pay
JOCI. Tansipek appealed it to the CA. CA ruled that RTC erred in
allowing the motion to declare Tansipek in default, and remanded the
case to the RTC.
SC: A motion to reconsider the default order is not the proper remedy.
He should have filed a motion to lift the default order.
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Rule 9, Section 3(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.
A Motion to Lift Order of Default is different from an ordinary motion in
that the Motion should be verified; and must show fraud, accident,
mistake or excusable neglect, and meritorious defenses. The allegations
of (1) fraud, accident, mistake or excusable neglect, and (2) of
meritorious defenses must concur.
Commission on Appointments (COA) vs Paler: Celso Paler was a
Supervising Legislative Staff Officer II (SG-24) with the Technical
Support Service of the COA. He submitted a request for VL for 74
working days - from August 1 to November 14, 2003. The Director III of
Technical Support Service submitted to the Commission Secretary his
comments/recommendation on Paler‘s application which principally
states that said application for Leave may be acted upon depending on
the completion of his work load and submission of the medical certificate.
Since he already had an approved leave from June 9 to July 30, 2003,
Paler left for the US on June 8, 2003, without verifying whether his
application for leave (for August 1 – November 14, 2003) was approved
or denied.
In a letter dated September 16, 2003, the Commission Chairman
informed Paler that he was being dropped from the roll of employees
effective said date, due to his continuous 30-day absence without leave
and in accordance with Section 63, Civil Service Commission (CSC)
Memorandum Circular No. 14, s. 1999. Paler's son received the letter on
September 23, 2003.
Paler moved for reconsideration but this was denied on February 20,
2004, on the ground that it was filed beyond the 15-day reglementary
period. The denial was received by Paler's son on March 18, 2004.
On appeal, the CSC reversed and set aside the Commission Chairman's
decision. The Commission filed a motion for reconsideration but this was

denied by the CSC. This constrained petitioner to file with the CA a
petition for review under Rule 43 of the Rules of Court. Since Paler had
in the meantime already reached the compulsory age of retirement on
July 28, 2005 and was no longer entitled to reinstatement, the CA
affirmed with modification CSC resolutions. Petitioner filed a motion for
reconsideration but this was denied by the CA.
Issue: Whether or not the CSC was correct to entertain Paler‘s appeal
despite it being filed beyond the 15-day reglementary period.
SC: Yes. Section 72 of CSC Memorandum Circular No. 19, s. 1999,
provides for the period of appeal for non- disciplinary actions, to wit:
Section 72. When and Where to File. - A decision or ruling of a
department or agency may be appealed within fifteen (15) days from
receipt thereof by the party adversely affected to the Civil Service
Regional Office and finally, to the Commission Proper within the same
period. xxx
Paler's son received the letter from the Commission Chairman denying
Paler‘s MR on March 18, 2004. Thus, Paler‘s had until April 2, 2004
within which to file his appeal with the CSC. It was filed, however, only on
April 5, 2004. Nevertheless, the CSC entertained the appeal in the
interest of substantial justice.
We agree with the CSC. We uphold its decision to relax the procedural
rules because Paler's appeal was meritorious. When substantial justice
dictates it, procedural rules may be relaxed in order to arrive at a just
disposition of a case. The purpose behind limiting the period of appeal is
to avoid unreasonable delay in the administration of justice and to put an
end to controversies. A one-day delay, as in this case, does not justify
denial of the appeal where there is absolutely no indication of intent to
delay justice on the part of Paler and the pleading is meritorious on its
face. It bears stressing that the case before the CSC involves the
security of tenure of a public officer sacrosanctly protected by the
Constitution. Public interest requires a resolution of the merits of the
appeal instead of dismissing the same based on a strained and
inordinate application of Section 49 (a) of the CSC Revised Rules of
Procedure.
Oaminal vs Castillo: Henry Oaminal filed a complaint for collection
against Respondents Pablito and Guia Castillo with the RTC. The
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summons together with the complaint was served upon Ester Fraginal,
secretary of Mrs. Castillo. Respondents filed their ‗Urgent Motion to
Declare Service of Summons Improper and Legally Defective‘ alleging
that the Sheriff's Return has failed to comply with Section (1), Rule 14 of
the Rules of Court or substituted service of summons.
Petitioner filed an Omnibus Motion to Declare Respondents in Default
and to Render Judgment because no answer was filed by the latter.
Respondents filed the following: a. Omnibus Motion Ad Cautelam to
Admit Motion to Dismiss and Answer with Compulsory Counter-claim; b.
Urgent Motion to Dismiss; and c. Answer with Compulsory CounterClaim.
The judge denied the Motion to Dismiss, admitted their Answer, and set
the pre-trial. Respondents filed an ‗Urgent Motion to Inhibit Ad
Cautelam‘ against Judge [Zapatos]. Judge [Zapatos] denied the motion.
[Respondents] filed an Urgent Omnibus Motion for Reconsideration.
Judge [Zapatos] ruled that [respondents‘] ‗Omnibus Motion Ad
Cautelam to Admit Motion to Dismiss and Answer with Counterclaim‘
was filed outside the period to file answer, hence he (1) denied the
Motion to Admit Motion to Dismiss and Answer; (2) declared
[respondents] in default; and (3) ordered Oaminal to present evidence
ex-parte, [failing] which, the case will be dismissed.
Judge [Zapatos] ruled in favor of the petitioner. Respondents filed with
the CA a Petition for certiorari. CA ruled that RTC did not validly acquire
jurisdiction over respondents, because the summons had been
improperly served on them. It based its finding on the Sheriff‘s Return,
which did not contain any averment that effort had been exerted to
personally serve the summons on them before substituted service was
resorted to.
Issue: Whether the trial court acquired jurisdiction over respondents,
although summons was served upon the secretary.
SC: Yes. The receipt of the summons by the legal secretary of the
respondents is deemed proper, because they admit the actual receipt
thereof, but merely question the manner of service. Moreover, when
they asked for affirmative reliefs in several motions and thereby
submitted themselves to the jurisdiction of the trial court, whatever
defects the service of summons may have had were cured.

In civil cases, the trial court acquires jurisdiction over the person of the
defendant either by the service of summons or by the latter‘s voluntary
appearance and submission to the authority of the former. Where the
action is in personam and the defendant is in the Philippines, the
service of summons may be made through personal or substituted
service in the manner provided for by Sections 6 and 7 of Rule 14 of the
Revised Rules of Court.
Personal service of summons is preferred over substituted service.
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.
For substituted service of summons to be valid, it is necessary to
establish the following circumstances: (a) personal service of summons
within a reasonable time was impossible; (b) efforts were exerted to
locate the party; and (c) the summons was served upon a person of
sufficient age and discretion residing at the party‘s residence or upon a
competent person in charge of the party‘s office or regular place of
business. It is likewise required that the pertinent facts proving these
circumstances are stated in the proof of service or officer‘s return.
The Sheriff‘s Return failed to state that efforts had been made to
personally serve the summons on respondents. Neither did the Return
indicate that it was impossible to do so within a reasonable time.
Nonetheless, nothing in the records shows that respondents denied
actual receipt of the summons through their secretary. Their ―Urgent
Motion to Declare Service of Summons Improper and Legally Defective‖
did not deny receipt thereof; it merely assailed the manner of its service.
In fact, they admitted in their Motion that the ―summons, together with
the complaint, was served by the Sheriff on Ester Fraginal, secretary of
the defendants at No. 7, 21st Avenue, Cubao, Quezon City on 30 May
2000.‖
There is likewise no showing that respondents had heretofore pursued
the issue of lack of jurisdiction; neither did they reserve their right to
invoke it in their subsequent pleadings. If at all, what they avoided
forfeiting and waiving -- both in their Omnibus Motion ad Cautelam to
Admit Motion to Dismiss and Answer with Compulsory Counter-Claim
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and in their Motion to Dismiss -- was their right to invoke the grounds of
improper venue and litis pendentia.
Verily, respondents did not raise in their MTD the issue of jurisdiction
over their persons; they raised only improper venue and litis pendentia.
Hence, whatever defect there was in the manner of service should be
deemed waived.
Assuming arguendo that the service of summons was defective, such
flaw was cured and respondents are deemed to have submitted
themselves to the jurisdiction of the trial court when they filed an
Omnibus Motion to Admit the Motion to Dismiss and Answer with
Counterclaim, an Answer with Counterclaim, a Motion to Inhibit, and a
Motion for Reconsideration and Plea to Reset Pre-trial. The filing of
Motions seeking affirmative relief -- to admit answer, for additional time to
file answer, for reconsideration of a default judgment, and to lift order of
default with motion for reconsideration -- are considered voluntary
submission to the jurisdiction of the court. Having invoked the trial court‘s
jurisdiction to secure affirmative relief, respondents cannot -- after failing
to obtain the relief prayed for -- repudiate the very same authority they
have invoked.
Asia Const. & Dev. Corp. (ACDC) vs CA: ACDC leased Caterpillar
generator sets and Amida mobile floodlighting systems from Monark
Equipment Corporation (MEC) during the period of March 13 to July 15,
1998 but failed, despite demands, to pay the rentals in the amount of P4,
313,935.00. From July 14 to August 25, 1998, various equipment from
MEC were, likewise, leased by ACDC for the latter‘s power plant in
Mauban, Quezon, and that there was still a balance of P456,666.67.
ACDC also purchased and took custody of various equipment parts from
MEC for P237,336.20 which, despite demands, ACDC failed to pay. With
all these allegations, MEC filed a complaint for sum of money with
damages (RTC QC) against ACDC.
ACDC filed a motion to file and admit answer with third party complaint
against Becthel Overseas Corporation. It admitted its indebtedness to
MEC but imposes the special and affirmative defense that Becthel failed
and refused to pay its overdue obligation in connection with the leased
equipment used by ACDC to comply with its contracted services.
Apparently, Becthel used all the equipment covered by lease for a
construction project and ACDC was not yet paid for its services. ACDC

also reiterated this in the 3rd party complaint praying for dismissal of
MEC‘s claim and order for Becthel to pay its obligation.
MEC opposed this motion on the ground that ACDC already admitted its
obligation to MEC which is independent from the transaction with
Becthel. The third party complaint will only cause undue delays. MEC
filed a motion for summary judgment on the ground that there was no
genuine issue on ACDC‘s obligation and that the 3rd party complaint
must be litigated separately. In MEC‘s reply to the special affirmative
defense, it argued that this was a negative pregnant.
TC: motion for leave to file 3rd party complaint is denied; motion for
summary judgment granted – trial court considered this as motion for
judgment on the pleadings. DECISION IN FAVOR OF MEC. CA:
AFFIRMED
ACDC argues that although it admitted the obligation to MEC, the 3rd
party complaint tendered an issue of whether the MEC‘s claim is
connected with the third-party claim. This is a genuine issue that must be
litigated.
Issue: Whether or not the third party complaint was proper.
SC: No. The purpose of Section 11, Rule 6 of the Rules of Court is to
permit a defendant to assert an independent claim against a third-party
which he, otherwise, would assert in another action, thus preventing
multiplicity of suits. All the rights of the parties concerned would then be
adjudicated in one proceeding. This is a rule of procedure and does not
create a substantial right.
Neither does it abridge, enlarge, or nullify the substantial rights of any
litigant. This right to file a third-party complaint against a third-party rests
in the discretion of the trial court. The third-party complaint is actually
independent of, separate and distinct from the plaintiff‘s complaint, such
that were it not for the rule, it would have to be filed separately from the
original complaint.
A prerequisite to the exercise of such right is that some substantive basis
for a third-party claim be found to exist, whether the basis be one of
indemnity, subrogation, contribution or other substantive right. The
bringing of a third-party defendant is proper if he would be liable to the
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plaintiff or to the defendant or both for all or part of the plaintiff‘s claim
against the original defendant, although the third-party defendant‘s
liability arises out of another transaction. The defendant may implead
another as third-party defendant (a) on an allegation of liability of the
latter to the defendant for contribution, indemnity, subrogation or any
other relief; (b) on the ground of direct liability of the third-party defendant
to the plaintiff; or (c) the liability of the third-party defendant to both the
plaintiff and the defendant. There must be a causal connection between
the claim of the plaintiff in his complaint and a claim for contribution,
indemnity or other relief of the defendant against the thirdparty
defendant.
Common liability is the very essence for contribution. Contribution is a
payment made by each, or by any of several having a common liability of
his share in the damage suffered or in the money necessarily paid by
one of the parties in behalf of the other or others. The rule on common
liability is fundamental in the action for contribution. The test to determine
whether the claim for indemnity in a third-party complaint is, whether it
arises out of the same transaction on which the plaintiff‘s claim is based,
or the third-party plaintiff‘s claim, although arising out of another or
different contract or transaction, is connected with the plaintiff‘s claim.
The claims of the respondent, as plaintiff in the RTC, against the
petitioner as defendant therein, arose out of the contracts of lease and
sale; such transactions are different and separate from those between
Becthel and the petitioner as third-party plaintiff for the construction of
the latter‘s project in Mauban, Quezon, where the equipment leased from
the respondent was used by the petitioner. The controversy between the
respondent and the petitioner, on one hand, and that between the
petitioner and Becthel, on the other, are thus entirely distinct from each
other. There is no showing in the proposed third-party complaint that the
respondent knew or approved the use of the leased equipment by the
petitioner for the said project in Quezon. Becthel cannot invoke any
defense the petitioner had or may have against the claims of the
respondent in its complaint, because the petitioner admitted its liabilities
to the respondent for the amount of P5,075,335.86. The barefaced fact
that the petitioner used the equipment it leased from the respondent in
connection with its project with Becthel does not provide a substantive
basis for the filing of a third-party complaint against the latter. There is no
causal connection between the claim of the respondent for the rental and
the balance of the purchase price of the equipment and parts sold and

leased to the petitioner, and the failure of Becthel to pay the balance of
its account to the petitioner after the completion of the project in Quezon.
IV. RULES 10 TO 14: AMENDMENTS TO SUMMONS
A. Amendments and Supplemental Pleadings
Section 1. Amendments in general. — Pleadings may be amended by
adding or striking out an allegation or the name of any party, or by
correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of
the controversy may speedily be determined, without regard to
technicalities, and in the most expeditious and inexpensive manner.
Kinds of Amendments
There are 2 sets of classifications of amendments both in civil and
criminal cases.
 Substantial vs Formal
o Substantial amendment – when such amendment would be
prejudicial to a party
o Formal amendment – is not prejudicial to a party because it is only
amended as to the form
Section 4. Formal amendments. — A defect in the designation of the
parties and other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused thereby to the
adverse party.
 As a matter of right vs by leave of court (applies in both civil and
criminal but the time frame differs)
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o In civil cases, amendment is a matter of right before the responsive
pleading is served
Section 2. Amendments as a matter of right. — A party may amend
his pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (10)
days after it is served.
o In criminal cases, amendment is a matter of right before
arraignment
o Thereafter, it is already by leave of court. If you seek amendment,
you have to precede it with a motion for leave to admit amended
pleading.
o Whether it is a matter of right or by leave of court, it can be both
formal or substantive.
Section 3. Amendments by leave of court. — Except as provided in
the next preceding section, substantial amendments may be made only
upon leave of court. But such leave may be refused if it appears to the
court that the motion was made with intent to delay. Orders of the court
upon the matters provided in this section shall be made upon motion filed
in court, and after notice to the adverse party, and an opportunity to be
heard.
A files a case against B. Summons was served upon B. Two days after
receiving the summons, B files his answer. Can A still amend the
complaint as a matter of right? Yes. The Rules says before the
responsive pleading is ―served,‖ not ―filed.‖
Remington Industrial Sales Corp vs CA: Petitioner filed a complaint for
sum of money and damages arising from breach of contract. Among the
defendants is respondent British Steel. Respondent moved for the
dismissal of the complaint on the ground that it failed to state a cause of
action against it. RTC denied the motion to dismiss, as well as the MR.
Respondent filed a petition for certiorari and prohibition before CA,
claiming that the complaint did not contain a single averment that
respondent committed any act or is guilty of any omission in violation of
petitioner‘s legal rights. Apart from the allegation in the complaint‘s

―Jurisdictional Facts‖ that:
1.05. Defendants British Steel (Asia) Ltd. and Ferro Trading Gmbh,
while understood by the plaintiff as mere suppliers of goods for
defendant ISL, are impleaded as party defendants pursuant to Section
13, Rule 3 of the Revised Rules of Court
no other reference was made to respondent that would constitute a valid
cause of action against it. Since petitioner failed to plead any cause of
action against respondent as alternative defendant under Section 13,
Rule 3, RTC should have ordered the dismissal of the complaint insofar
as respondent was concerned.
Petitioner sought to amend its complaint by incorporating therein
additional factual allegations constitutive of its cause of action against
respondent. Pursuant to Section 2, Rule 10, petitioner maintained that it
can amend the complaint as a matter of right because respondent has
not yet filed a responsive pleading thereto. Petitioner filed a
Manifestation and Motion with the CA stating that it had filed a Motion to
Admit Amended Complaint together with said Amended Complaint
before the RTC. Hence, petitioner prayed that the proceedings in the
special civil action be suspended.
RTC granted petitioner‘s Motion to Admit Amended Complaint. CA
granted the writ of certiorari and ordered the respondent judge to dismiss
without prejudice the Complaint against respondent.
Can a complaint still be amended as a matter of right before an answer
has been filed, even if there was a pending proceeding for its dismissal
before the higher court?
SC: Yes. Section 2, Rule 10 explicitly states that a pleading may be
amended as a matter of right before a responsive pleading is served.
This only means that prior to the filing of an answer, the plaintiff has the
absolute right to amend the complaint whether a new cause of action or
change in theory is introduced. The reason for this rule is implied in the
subsequent Section 3 of Rule 10. Under this provision, substantial
amendment of the complaint is not allowed without leave of court after an
answer has been served, because any material change in the allegations
contained in the complaint could prejudice the rights of the defendant
who has already set up his defense in the answer.
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Conversely, it cannot be said that the defendant‘s rights have been
violated by changes made in the complaint if he has yet to file an answer
thereto. In such an event, the defendant has not presented any defense
that can be altered or affected by the amendment of the complaint in
accordance with Section 2 of Rule 10. The defendant still retains the
unqualified opportunity to address the allegations against him by properly
setting up his defense in the answer. Considerable leeway is thus given
to the plaintiff to amend his complaint once, as a matter of right, prior to
the filing of an answer by the defendant.
The right granted to the plaintiff under procedural law to amend the
complaint before an answer has been served is not precluded by the
filing of a motion to dismiss or any other proceeding contesting its
sufficiency. Were we to conclude otherwise, the right to amend a
pleading under Section 2, Rule 10 will be rendered nugatory and
ineffectual, since all that a defendant has to do to foreclose this remedial
right is to challenge the adequacy of the complaint before he files an
answer.
Moreover, amendment of pleadings is favored and should be liberally
allowed in the furtherance of justice in order to determine every case as
far as possible on its merits without regard to technicalities. This
principle is generally recognized to speed up trial and save party litigants
from incurring unnecessary expense, so that a full hearing on the merits
of every case may be had and multiplicity of suits avoided.
The remedy espoused by the CA in its assailed judgment will precisely
result in multiple suits, involving the same set of facts and to which the
defendants would likely raise the same or, at least, related defenses.
Plainly stated, we find no practical advantage in ordering the dismissal of
the complaint against respondent and for petitioner to re-file the same,
when the latter can still clearly amend the complaint as a matter of right.
The amendment of the complaint would not prejudice respondents or
delay the action, as this would, in fact, simplify the case and expedite its
disposition.
Furthermore, we do not agree with respondent‘s claim that it will be
prejudiced by the admission of the Amended Complaint because it had
spent time, money and effort to file its petition before the appellate court.
We cannot see how the result could be any different for respondent, if

petitioner merely re-filed the complaint instead of being allowed to amend
it. As adverted to earlier, amendment would even work to respondent‘s
advantage since it will undoubtedly speed up the proceedings before the
trial court. Consequently, the amendment should be allowed in the case
at bar as a matter of right in accordance with the rules.
Section 5. Amendment to conform to or authorize presentation of
evidence. — When issues not raised by the pleadings are tried with the
express or implied consent of the parties they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to amend does not
effect the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do
so with liberality if the presentation of the merits of the action and the
ends of substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.
Amendments vs Supplemental Pleadings
Section 6. Supplemental pleadings. — Upon motion of a party the
court may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead
thereto within ten (10) days from notice of the order admitting the
supplemental pleading.
Regarding supplemental pleadings, these are availed of after the fact.
‗after the fact‘ – if something new transpired after the pleadings have
been already in the hands of the court, then you don‘t file an amended
pleading but rather a supplemental pleading.
Under the Rules of Evidence, Rule 129 (What Need Not Be Proved),
judicial notice and judicial admissions need not be proved. As to the
latter, they are admissions in the pleadings.
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Rule 129, Section 4. Judicial admissions. — An admission, verbal or
written, made by the party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such
admission was made.
When you amend the pleading, what happens to the admissions there in
the original pleading? They become extra judicial admissions. Therefore,
evidence must be offered. Only admissions in the pleadings, not extra
judicial admissions.
Section 7. Filing of amended pleadings. — When any pleading is
amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be
filed.
Section 8. Effect of amended pleadings. — An amended pleading
supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the pleader,
and claims or defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
Rule on Amendments in Criminal Procedure is more taxing. There is only
one pleading in criminal actions, the information; in civil actions, there are
a lot of pleadings that can be amended. In civil actions, we have
amendatory pleadings and suppletory pleadings. In criminal procedure,
there are no suppletory pleadings; instead, they have amendments and
substitutions.
B. Time/Period for Filing Responsive Pleadings
Answer
Section 1. Answer to the complaint. — The defendant shall file his
answer to the complaint within fifteen (15) days after service of
summons, unless a different period is fixed by the court.
Section 2. Answer of a defendant foreign private juridical entity. —
Where the defendant is a foreign private juridical entity and service of
summons is made on the government official designated by law to
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receive the same, the answer shall be filed within thirty (30) days after presented as a counterclaim or a cross-claim by supplemental pleading
receipt of summons by such entity. before judgment.

Section 3. Answer to amended complaint. — When the plaintiff files
an amended complaint as a matter of right, the defendant shall answer
the same within fifteen (15) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the
amended complaint within ten (10) days from notice of the order
admitting the same. An answer earlier filed may serve as the answer to
the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim,
amended cross-claim, amended third (fourth, etc.)—party complaint, and
amended complaint-in-intervention.
Section 10. Omitted counterclaim or cross-claim. — When a pleader
fails to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may, by
leave of court, set up the counterclaim or cross-claim by amendment
before judgment.
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.

Section 4. Answer to counterclaim or cross-claim. — A counterclaim 4 periods under Rule 11: 10, 15, 30 and 60 days.
or cross-claim must be answered within ten (10) days from service.
10 (incomplete) 15 (incomplete) 30 60
Section 5. Answer to third (fourth, etc.)-party complaint. — The time Bill of particulars Filing an answer When Extraterritorial
to answer a third (fourth, etc.)—party complaint shall be governed by the Filing an answer Filing an answer defendant is a service of
same rule as the answer to the complaint. to amended to amended foreign summons under
complaint when complaint when juridical entity Section 15,
Section 7. Answer to supplemental complain. — A supplemental amendment is amendment is a and summons Rule 14.
complaint may be answered within ten (10) days from notice of the order NOT a matter of matter of right is served
admitting the same, unless a different period is fixed by the court. The right upon the
answer to the complaint shall serve as the answer to the supplemental Filing an answer Filing an answer government
complaint if no new or supplemental answer is filed. under Rules of to a official
Summary third-, designated by
Reply Procedure fourth- party law (Section
Filing an answer complaint 12, Rule 14)
Section 6. Reply. — A reply may be filed within ten (10) days from to a
service of the pleading responded to. supplemental
complaint
Section 8. Existing counterclaim or cross-claim. — A compulsory Counterclaim or
counterclaim or a cross-claim that a defending party has at the time he cross-claim
files his answer shall be contained therein. Reply

Section 9. Counterclaim or cross-claim arising after answer. — A C. Bill of Particulars

counterclaim or a cross-claim which either matured or was acquired by a
party after serving his pleading may, with the permission of the court, be
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Section 1. When applied for; purpose. — Before responding to a
pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averted with sufficient definiteness
or particularity to enable him properly to prepare his responsive pleading.
If the pleading is a reply, the motion must be filed within ten (10) days
from service thereof. Such motion shall point out the defects complained
of, the paragraphs wherein they are contained, and the details desired.
Section 2. Action by the court. — Upon the filing of the motion, the
clerk of court must immediately bring it to the attention of the court which
may either deny or grant it outright, or allow the parties the opportunity to
be heard.
Section 3. Compliance with order. — If the motion is granted, either in
whole or in part, the compliance therewith must be effected within ten
(10) days from notice of the order, unless a different period is fixed by the
court. The bill of particulars or a more definite statement ordered by the
court may be filed either in a separate or in an amended pleading,
serving a copy thereof on the adverse party.
Section 4. Effect of non-compliance. — If the order is not obeyed, or in
case of insufficient compliance therewith, the court may order the striking
out of the pleading or the portions thereof to which the order was directed
or make such other order as it deems just.
Section 5. 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 may file his responsive pleading
within the period to which he was entitled at the time of filing his motion,
which shall not be less than five (5) days in any event.
Section 6. Bill a part of pleading. — A bill of particulars becomes part
of the pleading for which it is intended.
Bill of particular – particularization of the allegation for the purpose that
the adverse party may be able to respond thoroughly or correctly to the
allegations in the pleading.
Example: The complaint states that the defendant borrowed P100,000
from the plaintiff on 3 occasions.
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When was this?! Instead of filing an answer, file a motion for bill of
particulars. Particularize on what occasions defendant borrowed money.
If the motion is granted, within 10 days from receipt of the order granting
motion for the bill of particular, the plaintiff will now particularize. The
plaintiff will say, what I meant by 3 occasions are: on Valentine‘s Day, on
your birthday, and on Christmas day.
So the defendant can answer: on Valentine‘s Day, I was not here. I was
in Boracay. On my birthday, I wasn‘t here too.
If it is granted, the plaintiff has 10 days within which to file the bill of
particular.
If it is denied, the defendant only has the balance of the period, but the
period shall not be less than 5 days. Hence, the doctrine laid down in
Domingo Neypes vs CA or the fresh day period rule does not apply in
Rule 12. The same doctrine does not apply as well in Rule 16 or Motion
to Dismiss and Rule 64 or Review of the judgment of COA or COMELEC.
These are the only instances when the fresh day period rule does not
apply.
The defendant received a copy of the summons on March 1. He has until
March 16 within which to file the answer. Instead of filing the answer, on
March 2, he filed a bill of particulars. It was denied. When should the
defendant file his answer? Within 14 days from his receipt of the notice of
the denial of the order. If you receive it on April, then start counting 14
days in April.
Suppose instead of filing it on March 2, you file it on March 15 (1 day
before the expiration of the period to file the answer) and it was denied.
He has 5 days. If he receives it on April 5, he still has 5 days within which
to file or up to April 10.
D. Filing and Service of Pleadings, Judgments and other papers
Section 1. Coverage. — This Rule shall govern the filing of all pleadings
and other papers, as well as the service thereof, except those for which a
different mode of service is prescribed.
Distinction between Filing and Service

Section 2. Filing and service, defined. — Filing is the act of presenting
the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or
paper concerned. If any party has appeared by counsel, service upon
him shall be made upon his counsel or one of them, unless service
upon the party himself is ordered by the court. Where one counsel
appears for several parties, he shall only be entitled to one copy of any
paper served upon him by the opposite side.
Filing: Manner, completeness, proof
Section 3. Manner of filing. — The filing of pleadings, appearances,
motions, notices, orders, judgments and all other papers shall be made
by presenting the original copies thereof, plainly indicated as such,
personally to the clerk of court or by sending them by registered mail. In
the first case, the clerk of court shall endorse on the pleading the date
and hour of filing. In the second case, the date of the mailing of motions,
pleadings, or any other papers or payments or deposits, as shown by
the post office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case.
Service: Mode, completeness, proof
Section 4. Papers required to be filed and served. — Every
judgment, resolution, order, pleading subsequent to the complaint,
written motion, notice, appearance, demand, offer of judgment or similar
papers shall be filed with the court, and served upon the parties
affected.
Section 5. Modes of service. — Service of pleadings motions, notices,
orders, judgments and other papers shall be made either personally or
by mail.
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
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known, with a person of sufficient age and discretion then residing
therein.
Section 7. Service by mail. — Service by registered mail shall be made
by depositing the copy in the post office in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known, otherwise at
his residence, if known, with postage fully prepaid, and with instructions
to the postmaster to return the mail to the sender after ten (10) days if
undelivered. If no registry service is available in the locality of either the
senders or the addressee, service may be done by ordinary mail.
Section 8. Substituted service. — If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made under the
two preceding sections, the office and place of residence of the party or
his counsel being unknown, service may be made by delivering the copy
to the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery.
Section 9. Service of judgments, final orders, or resolutions. —
Judgments, final orders or resolutions shall be served either personally
or by registered mail. When a party summoned by publication has failed
to appear in the action, judgments, final orders or resolutions against him
shall be served upon him also by publication at the expense of the
prevailing party.
Section 10. Completeness of service. — Personal service is complete
upon actual delivery. Service by ordinary mail is complete upon the
expiration of ten (10) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual receipt by
the addressee, or after five (5) days from the date he received the first
notice of the postmaster, whichever date is earlier.
Priorities in Modes of Service
When you serve a copy of the pleading to the adverse party, it is
preferred that you do it personally. If you don‘t, you have to state your
explanation why you are not availing of personal service. What is the
explanation? Any explanation for that matter. Why is this so? This is new
in the 1997 Rules of Court. There are a lot of lawyers abusing such
provision. Instead of personally serving, they serve by mail to buy time.
 70
Illustration of this abuse: The counsel of the plaintiff has his law office at complete only upon registered mail, upon
Pacific Land Building on the 44th floor. The defendant‘s counsel is on the the expiration of 5 mail, it expiration of
4th floor of the same building. Yet they do it by mail. days from receipt of is the 10 days
first registry notice complete from mailing**
Section 11. Priorities in modes of service and filing. — Whenever only upon the
practicable, the service and filing of pleadings and other papers shall be expiration of
done personally. Except with respect to papers emanating from the court, 5 days from
a resort to other modes must be accompanied by a written explanation receipt of first
why the service or filing was not done personally. A violation of this Rule registry
may be cause to consider the paper as not filed. notice
Proof If it is personally If personal service, proof is by
Section 14. Notice of lis pendens. — In an action affecting the title or filed, the proof is the written admission of the party
the right of possession of real property, the plaintiff and the defendant, stamp*** served, or the official return of
when affirmative relief is claimed in his answer, may record in the office the server, or the affidavit of the
of the registry of deeds of the province in which the property is situated party serving
notice of the pendency of the action. Said notice shall contain the names If it is service by If service by If service
of the parties and the object of the action or defense, and a description of registered mail, registered by
the property in that province affected thereby. Only from the time of filing prove: (1) the time of mail, proof is ordinary
such notice for record shall a purchaser, or encumbrancer of the property mailing and (2) time by an mail,
affected thereby, be deemed to have constructive notice of the pendency of receipt**** affidavit proof is by an
of the action, and only of its pendency against the parties designated by of the affidavit of the
their real names.
person mailing
person of facts
The notice of lis pendens hereinabove mentioned may be cancelled only mailing of
upon order of the court, after proper showing that the notice is for the facts and the
purpose of molesting the adverse party, or that it is not necessary to
registry
protect the rights of the rights of the party who caused it to be recorded.
receipt
There are 2 general issues: filing and service. Under those 2 issues,
* When it comes to filing, only registered mail is accepted. When it
there are 3 sub-issues:
comes to service, it may be either registered or ordinary mail. What is the
rationale? First, the service may be through ordinary mail because it
Filing Service comes from the residence of the party. In some parts of the country there
Modes or Personal filing Personal service are no registry services. Second, with regard to the prescriptive period,
manner By registered mail Service by mail filing can only be done through registered mail because it is difficult to
(registered mail Registered Ordinary* count for the court if it is by ordinary mail. Although the rule regarding
only!) completeness already provides as to when it is complete.
Completenes If filed personally, it If personal, it is complete upon
s is complete upon receipt ** If you mail it on March 1, when is it complete? March 12 (expiration of
receipt by the Clerk 10 days).
of Court
If filed by mail, it is If by If by ordinary
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*** What if there is no stamp (as what happens in actual practice)? A
filed. The pleading A filed could no longer be located by the Clerk or
Court. How do you prove it? Through the stamp on your own copy.
**** You are given a registry receipt as proof of mailing, and then you
attach that to a return card as proof of receipt.
Section 12. Proof of filing. — The filing of a pleading or paper shall be
proved by its existence in the record of the case. If it is not in the record,
but is claimed to have been filed personally, the filing shall be proved by
the written or stamped acknowledgment of its filing by the clerk of court
on a copy of the same; if filed by registered mail, by the registry receipt
and by the affidavit of the person who did the mailing, containing a
full statement of the date and place of depositing the mail in the post
office in a sealed envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered.
The affidavit refers to the affidavit of the sender, not the one who mailed.
In proof of filing, it says registry receipt ―and‖ affidavit; in proof service,
it says ―or.‖ Make a distinction there.
Section 13. Proof of Service. — Proof of personal service shall consist
of a written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full statement of
the date, place and manner of service. If the service is by ordinary mail,
proof thereof shall consist of an affidavit of the person mailing of facts
showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and the registry
receipt issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof the
unclaimed letter together with the certified or sworn copy of the notice
given by the postmaster to the addressee.
An SC Circular says that when you file before the SC and the CA, you
have to attach a copy of the affidavit of service (not filing). The SC or the
CA will not accept any pleading that does not include an affidavit of
service.
E. Summons
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1. What is summons?
Alias summons is one which is the second or third or fourth summons
prepared.
2. Who issues, to whom addressed?
After the complaint was filed by the plaintiff, summons was served upon
the defendant. The defendant, in reading the summons, contested it and
threw it away saying it is not signed by the judge. Is that error on the part
of the court? No, the judge never signs nor issues the summons. It is the
clerk of court that signs, issues and serves the summons, not the judge.
Section 1. Clerk to issue summons. — Upon the filing of the complaint
and the payment of the requisite legal fees, the clerk of court shall
forthwith issue the corresponding summons to the defendants.
Section 2. Contents. — The summons shall be directed to the
defendant, signed by the clerk of court under seal and contain (a) the
name of the court and the names of the parties to the action; (b) a
direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers plaintiff will take
judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem if
any, shall be attached to the original and each copy of the summons.
3. Who serves?
Only three people are qualified to serve the summons: the sheriff, deputy
sheriff, or any other person authorized by the court.
Example of a person authorized by the Rules is Section 9. When the
defendant is a prisoner, to whom should it be served? It should be
served to the prisoner by the warden. The warden is authorized by the
Rule.
Can the plaintiff serve the summons to the defendant? Only if he has
been authorized by the court. He has to ask for leave to do that and only
for justifiable reasons.

Example: If after several tries, the sheriff cannot find the whereabouts of
the defendant. Only the plaintiff knows because the defendant keeps
transferring from one residence to another. The plaintiff should move to
leave for service of summons. In actual practice, you do not go to such
lengths; you simply accompany the sheriff.
Section 3. By whom served. — The summons may be served by the
sheriff, his deputy, or other proper court officer, or for justifiable reasons
by any suitable person authorized by the court issuing the summons.
Section 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.
Section 5. Issuance of alias summons. — If a summons is returned
without being served on any or all of the defendants, the server shall also
serve a copy of the return on the plaintiff's counsel, stating the reasons
for the failure of service, within five (5) days therefrom. In such a case, or
if the summons has been lost, the clerk, on demand of the plaintiff, may
issue an alias summons.
4. Kinds of summons
What are the modes of service of summons? (must be distinguished from
modes of service of pleadings)
a. service in person on the defendant (don‘t say personal service, to
distinguish it from service of pleadings)
There are 2 ways: delivering it to the defendant himself; and if he refuses
to accept it, by leaving it with him as laid down in Valmonte vs CA.
Section 6. Service in person on defendant. — Whenever practicable,
the summons shall be served by handling a copy thereof to the
defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.
Valmonte vs CA: Rosita Dimalanta filed a complaint for partition of real
property and accounting of rentals against her sister Lourdes Valmonte
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and her husband Alfredo Valmonte. Lourdes and Alfredo are residents of
Seattle, Washington, USA. Alfredo has a law office in Mabini, Ermita,
Manila and divides his time between the USA and the Philippines.
Rosita‘s complaint stated that summons may be served in the Ermita
address where Alfredo, as Lourdes‘ spouse, holds office and where he
can be found. This was based on a letter Lourdes sent to Rosita‘s lawyer
wherein she referred to her husband as the party to whom all
communications regarding the partition of the property intended for her
should be sent.
Service of summons was made upon Alfredo who was at his office in
Manila. He accepted the summons insofar as he was concerned. He
refused to accept the summons for his wife, Lourdes, on the ground that
he was not authorized to accept the process on her behalf. The process
server left without leaving a copy of the summons and complaint for
Lourdes.
Alfredo filed his Answer with Counterclaim. Lourdes did not file an
Answer. Rosita moved to declare Lourdes in default. Alfredo entered a
special appearance in behalf of his wife and opposed Rosita‘s motion.
The RTC denied the motion to declare Lourdes in default. The trial court
likewise denied Rosita‘s motion for reconsideration.
Rosita file a petition for certiorari, prohibition and mandamus with the CA.
The appellate court granted the petition and declared Lourdes in default.
SC: There was no valid service of summons upon the petitioner Lourdes
Valmonte. The rules on service of summons apply according to whether
an action is an action in personam, in rem or quasi in rem.
In an action in personam, personal service of summons or, if this is not
possible and he cannot be personally served, substituted service, as
provided in Rule 14, §§7-82 is essential for the acquisition by the court of
jurisdiction over the person of a defendant who does not voluntarily
submit himself to the authority of the court. If defendant cannot be served
with summons because he is temporarily abroad, but otherwise he is a
Philippine resident, service of summons may, by leave of court, be made
by publication. Otherwise stated, a resident defendant in an action in
personam, who cannot be personally served with summons, may be
summoned either by means of substituted service in accordance with

Rule 14, §8 or by publication as provided in §§ 17 and 18 of the same
Rule.
In all of these cases, it should be noted, defendant must be a resident of
the Philippines, otherwise an action in personam cannot be brought
because jurisdiction over his person is essential to make a binding
decision.
On the other hand, if the action is in rem or quasi in rem, jurisdiction over
the person of the defendant is not essential for giving the court
jurisdiction so long as the court acquires jurisdiction over the res. If the
defendant is a nonresident and he is not found in the country, summons
may be served exterritorially in accordance with Rule 14, §17.
In such cases, what gives the court jurisdiction in an action in rem or
quasi in rem is that it has jurisdiction over the res, i.e. the personal status
of the plaintiff who is domiciled in the Philippines or the property litigated
or attached.
Applying the foregoing rules to the case at bar, private respondent's
action, which is for partition and accounting under Rule 69, is in the
nature of an action quasi in rem. Such an action is essentially for the
purpose of affecting the defendant's interest in a specific property and
not to render a judgment against him.
Service of summons on her attorney cannot be justified under the third
mode provided for by Section 17, Rule 14.
As petitioner Lourdes A. Valmonte is a nonresident who is not found in
the Philippines, service of summons on her must be in accordance with
Rule 14, §17. Such service, to be effective outside the Philippines, must
be made either (1) by personal service; (2) by publication in a newspaper
of general circulation in such places and for such time as the court may
order, in which case a copy of the summons and order of the court
should be sent by registered mail to the last known address of the
defendant; or (3) in any other manner which the court may deem
sufficient.
This mode of service, like the first two, must be made outside the
Philippines, such as through the Philippine Embassy in the foreign
country where the defendant resides. Moreover, there are several
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73
reasons why the service of summons on Atty. Alfredo D. Valmonte
cannot be considered a valid service of summons on petitioner Lourdes
A. Valmonte:
1. Service of summons on petitioner Alfredo D. Valmonte was not
made upon the order of the court as required by Rule 14, §17 and
certainly was not a mode deemed sufficient by the court which in fact
refused to consider the service to be valid and on that basis declare
petitioner Lourdes A. Valmonte in default for her failure to file an answer.
2. Service in the attempted manner on petitioner was not made
upon prior leave of the trial court as required also in Rule 14, §17. As
provided in §19, such leave must be applied for by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf and
setting forth the grounds for the application.
3. Because there was no order granting such leave, petitioner
Lourdes A. Valmonte was not given ample time to file her Answer which,
according to the rules, shall be not less than sixty (60) days after notice.
It must be noted that the period to file an Answer in an action against a
resident defendant differs from the period given in an action filed against
a nonresident defendant who is not found in the Philippines. In the
former, the period is fifteen (15) days from service of summons, while in
the latter, it is at least sixty (60) days from notice.
b. substituted service
Substituted service of summons is upon the person residing in the
residence of the defendant who must be of age and discretion. If he
cannot be found there, at the office of the defendant, to a person in
charge therein of age and discretion.
Section 7. Substituted service. — If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided in the
preceding section, service may be effected (a) by leaving copies of the
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.

Manotoc vs CA: Agapita Trajano sought the enforcement of a foreign
judgment rendered by the US District Court of Hawaii against Ma. Imelda
Manotoc (Imee Marcos) for the wrongful death of Archimedes Trajano
committed by military intelligence in the Philippines allegedly working for
Manotoc. RTC issued summons for Manotoc addressed at Alexandra
Homes, Pasig. It was served on a Macky dela Cruz described as a
caretaker of her unit. Manotoc failed to file her answer and was declared
in default.
Manotoc filed a motion to dismiss on the ground of lack of jurisdiction
over her person, stating that she is not a resident of the said condo and
that she does not hold office there, and dela Cruz is not her
representative or employee. Thus no valid service was made. Further,
she states that she is a resident of Singapore.
RTC denied the motion and the subsequent MR. Manotoc filed a petition
for certiorari and prohibition with the CA, that was denied. MR was also
denied.
Issue: Whether there was valid substituted service.
SC: No. In actions strictly ‗in perosnam‘ jurisdiction over the person of
the defendant is mandatory and can be complied with valid service of
summons. If defendant cannot be served, for excusable reason, within a
reasonable time, substituted service can be resorted to. It is
extraordinary in character and a derogation of the usual method of
service thus rules for such must be faithfully complied with.
The requirements of valid substituted service if there is impossibility of
prompt personal service which is 15-30 days for the sheriff are: 1) By
leaving copies of summons at defendant‘s residence with a person of
suitable age and discretion residing therein or by leaving copies at the
defendant‘s office or regular place of business with some competent
person in charge.
2) The sheriff must narrate in specific details how service in person
became impossible.
3) The attempt must be extraordinary and at least 3 times. The
person of suitable age and discretion must be at least 18 years old, able
to read the summons written in English, and must be with confidential
relation to defendant. A competent person in charge can be the president
or manager.
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The substituted service was invalid because the sheriff did not comply
with the requirements. dela Cruz was not a representative of Manotoc.
Therefore, since there was no valid service of summons, there was no
jurisdiction acquired.
Jose vs Boyon: Petitioners Patrick and Rafaela Jose lodged a
complaint for specific performance against respondents Helen and
Romeo Boyon to compel them to facilitate the transfer of ownership of a
parcel of land subject of a controverted sale. Respondent judge issued
summons to the [respondents]. As per return of the summons,
substituted service was resorted to by the process server allegedly
because efforts to serve the summons personally to the [respondents]
failed. [Petitioners] filed before the trial court an Ex-parte Motion for
Leave of Court to Effect Summons by Publication. The Judge issued an
Order granting the Ex-parte Motion for Leave of Court to Effect
Summons by Publication. The judge, sans a written motion, issued an
Order declaring [respondents] in default for failure to file their respective
answers. As a consequence of the declaration of default, [petitioners]
were allowed to submit their evidence ex-parte.
Helen , who was then residing in the United States of America, was
surprised to learn from her sister Elizabeth , of the resolution issued by
the respondent court. [Respondents] filed an Ad Cautelam motion
questioning, among others, the validity of the service of summons
effected by the court a quo. The public respondent issued an Order
denying the said motion on the basis of the defaulted [respondents‘]
supposed loss of standing in court. The [respondents] once again raised
the issue of jurisdiction of the trial court via a motion for reconsideration,
which was also denied. The [petitioners] moved for the execution of the
controverted judgment which the respondent judge ultimately granted.
Respondents filed before the CA a Petition for certiorari under Rule 65,
questioning the jurisdiction of the RTC. CA held that RTC had no
authority to issue the questioned Resolution and Orders since it never
acquired jurisdiction over respondents because of the invalid service of
summons upon them. First, the sheriff failed to comply with the
requirements of substituted service of summons, because he did not
specify in the Return of Summons the prior efforts he had made to locate
them and the impossibility of promptly serving the summons upon them
by personal service. Second, the subsequent summons by publication

was equally infirm, because the Complaint was a suit for specific
performance and therefore an action in personam.
Issue: Whether the service of summons on respondents was valid
SC: No. [P]ersonal 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 likewise
required that the pertinent facts proving these circumstances be stated in
the proof of service or in the officer‘s return. The failure to comply
faithfully, strictly and fully with all the foregoing requirements of
substituted service renders the service of summons ineffective.
The Return of Summons shows that no effort was actually exerted
and no positive step taken by either the process server or
petitioners to locate and serve the summons personally on
respondents. At best, the Return merely states the alleged
whereabouts of respondents without indicating that such information was
verified from a person who had knowledge thereof. Without specifying
the details of the attendant circumstances or of the efforts exerted
to serve the summons, a general statement that such efforts were
made will not suffice for purposes of complying with the rules of
substituted service of summons.
Mason vs CA: Spouses Efren and Digna Mason owned 2 parcels of
land. Petitioners and private respondent Columbus Philippines Bus
Corporation entered into a lease contract, under which Columbus
undertook to construct a building worth P10,000,000 at the end of the 3 rd
year of the lease. Because Columbus failed to comply with this
stipulation, the petitioners, filed a complaint for rescission of contract with
damages against Columbus before the RTC.
Summons was served upon Columbus through a certain Ayreen Rejalde.
While the receiving copy of the summons described Rejalde as a
secretary of Columbus, the sheriff‘s return described Rejalde as a
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secretary to the corporate president, duly authorized to receive legal
processes.
Columbus failed to file its answer or other responsive pleading, hence
petitioners filed a motion to declare Columbus in default. The motion was
granted and petitioners were allowed to present evidence ex-parte. The
case was submitted for decision. RTC ruled in favor of the plaintiffs and
against Columbus. That decision became final on May 12, 1999. The
following day, Columbus filed a motion to lift order of default, which was
opposed by petitioners. RTC ordered the parties to submit their
respective memoranda. However, without waiting for the same, RTC on
May 26, 1999, denied the motion to lift order of default. Columbus filed a
motion for reconsideration, which was denied. Undaunted, Columbus
filed a manifestation and motion to lift the writ of execution. It suffered the
same fate as the motion for reconsideration for being dilatory. The
branch sheriff was directed to proceed with the enforcement of the
decision.
Columbus appealed to the Court of Appeals, which ruled in its favour.
Columbus was not properly served with summons, thus it cannot be
faulted if it failed to file an Answer. Section 11, Rule 14 of the 1997
requires that service of summons upon domestic private juridical entity
shall be made through its president, managing partner, general manager,
corporate secretary, treasurer or in-house counsel. Since service upon
Columbus was made through a certain Ayreen Rejalde, a mere filing
clerk in Columbus’ office, as evidenced by the latter‘s employment
record, such service cannot be considered valid. Petitioner filed a motion
for reconsideration, but to no avail. Hence, this petition for review.
Issue: Whether there was valid service of summons on private
respondent.
SC: No. Petitioners contend that while Section 11, Rule 14 clearly
specifies the persons authorized to receive summons on behalf of a
private juridical entity, said provision did not abandon or render
inapplicable the substantial compliance rule. The case law applicable,
contends Columbus, is Villarosa which squarely provides for the proper
interpretation of the new rule on the service of summons upon domestic
corporation, thus: 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. Service through
Ayreen Rejalde, a mere filing clerk of private respondent and not
one of those enumerated above, is invalid.
We find private respondent’s submission on this issue meritorious.
The question of whether the substantial compliance rule is still applicable
under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been
settled in Villarosa which applies squarely to the instant case. Notice to
enable the other party to be heard and to present evidence is not a mere
technicality or a trivial matter in any administrative or judicial
proceedings. The service of summons is a vital and indispensable
ingredient of due process. We will deprive Columbus of its right to
present its defense in this multi-million peso suit, if we disregard
compliance with the rules on service of summons.
E.B. Villarosa vs Benito: Petitioner and private respondent executed a
Deed of Sale with Development Agreement wherein the former agreed to
develop parcels of land belonging to the latter into a housing subdivision
for the construction of low cost housing units. Private respondent filed a
Complaint for Breach of Contract and Damages against petitioner before
the RTC allegedly for failure of the latter to comply with its contractual
obligation in that, other than a few unfinished low cost houses, there
were no substantial developments. Summons, with the complaint, were
served upon the petitioner, through its Branch
Manager Engr. Wendell Sabulbero at the stated address at Kolambog,
Lapasan, Cagayan de Oro (CdO) City but the Sheriff‘s Return of Service
stated that the summons was duly served upon petitioner thru
SALBULBERO at their new office Villa Gonzalo, Nazareth, CdO City.
Petitioner filed a Special Appearance with Motion to Dismiss alleging that
the summons was served upon Sabulbero, who is not one of those
persons upon whom service of summons may be made. Private
respondent filed a Motion to Declare Defendant in Default alleging that
petitioner has failed to file an Answer. Private respondent filed an
Opposition to the Motion to Dismiss. RTC denied the Motion to Dismiss
as well as the Motion to Declare in Default, stating that since the
summons and copy of the complaint were in fact received by the
corporation through its branch manager, there was substantial
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compliance with the rule on service of summons and consequently, it
validly acquired jurisdiction over the person of the petitioner.
Petitioner contends that the enumeration of persons to whom summons
may be served is ―restricted, limited and exclusive‖ following the rule on
statutory construction expressio unios est exclusio alterius.
Issue: Whether or not 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 was proper.
SC: No. Under the new Rules, service of summons upon an agent of the
corporation is no longer authorized. The cases cited by private
respondent are therefore not in point. 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. 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.
The particular revision was explained by retired SC Justice Florenz
Regalado, thus: ―x x x the then Sec. 13 of this Rule allowed service
upon a defendant corporation to ‗be made on the president, manager,
secretary, cashier, agent or any of its directors.‘ The terms were
obviously ambiguous and susceptible of broad and sometimes illogical
interpretations, especially the word ‗agent‘ of the corporation. The Filoil
case, involving the litigation lawyer of the corporation who precisely
appeared to challenge the validity of service of summons but whose very
appearance for that purpose was seized upon to validate the defective
service, is an illustration of the need for this revised section with limited
scope and specific terminology. Thus the absurd result in the Filoil case
necessitated the amendment permitting service only on the in-house
counsel of the corporation who is in effect an employee of the
corporation, as distinguished from an independent practitioner.‖
The purpose is to render it reasonably certain that the corporation will
receive prompt and proper notice in an action against it or to insure that
the summons be served on a representative so integrated with the
corporation that such person will know what to do with the legal papers

served on him. In other words, ‗to bring home to the corporation notice
of the filing of the action.‘ x x x.
The liberal construction rule cannot be invoked and utilized as a
substitute for the plain legal requirements as to the manner in which
summons should be served on a domestic corporation. x x x.‖
Even under the old rule, service upon a general manager of a firm’s
branch office has been held as improper as summons should have
been served at the firm’s principal office.
The fact that defendant filed a belated motion to dismiss did not operate
to confer jurisdiction upon its person. There is no question that the
defendant‘s voluntary appearance in the action is equivalent to service of
summons. Before, the rule was that a party may challenge the
jurisdiction of the court over his person by making a special appearance
through a motion to dismiss and if in the same motion, the movant raised
other grounds or invoked affirmative relief which necessarily involves the
exercise of the jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. This doctrine has been
abandoned in the case of La Naval Drug Corporation vs. Court of
Appeals, et al., which became the basis of the adoption of a new
provision in the former Section 23, which is now Section 20 of Rule 14 of
the 1997 Rules. The emplacement of this rule clearly underscores the
purpose to enforce strict enforcement of the rules on summons.
Accordingly, the filing of a motion to dismiss, whether or not
belatedly filed by the defendant, his authorized agent or attorney,
precisely objecting to the jurisdiction of the court over the person
of the defendant can by no means be deemed a submission to the
jurisdiction of the court.
c. extraterritorial
Section 15. Extraterritorial service. — When the defendant does not
reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the
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Philippines by personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall not
be less than sixty (60) days after notice, within which the defendant must
answer. (17a)
Section 16. Residents temporarily out of the Philippines. — When
any action is commenced against a defendant who ordinarily resides
within the Philippines, but who is temporarily out of it, service may, by
leave of court, be also effected out of the Philippines, as under the
preceding section.
i. personal
ii. by publication
iii. any mode
5. On whom served
There are specific kinds of defendants.
a. on corporations: public or private, domestic or foreign
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.
Section 12. Service upon foreign private juridical entities. — When
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.
Section 13. Service upon public corporations. — When the defendant
is the Republic of the Philippines, service may be effected on the
Solicitor General; in case of a province, city or municipality, or like public

corporations, service may be effected on its executive head, or on such
other officer or officers as the law or the court may direct.
b. on natural persons: prisoners; minors/incompetents; unknown;
entities without juridical personality
Section 8. Service upon entity without juridical personality. — When
persons associated in an entity without juridical personality are sued
under the name by which they are generally or commonly known, service
may be effected upon all the defendants by serving upon any one of
them, or upon the person in charge of the office or place of business
maintained in such name. But such service shall not bind individually any
person whose connection with the entity has, upon due notice, been
severed before the action was brought.
Section 9. Service upon prisoners. — When the defendant is a
prisoner confined in a jail or institution, service shall be effected upon him
by the officer having the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose.
Section 10. Service upon minors and incompetents. — When the
defendant is a minor, insane or otherwise an incompetent, service shall
be made upon him personally and on his legal guardian if he has one, or
if none his guardian ad litem whose appointment shall be applied for by
the plaintiff. In the case of a minor, service may also be made on his
father or mother.
If the defendant is a minor, it is definitely by representative party. To
whom do you serve the summons? Serve the summons upon the minor
OR (not AND) the parent. But if it is an incompetent, you serve it on the
incompetent AND the parent or guardian or guardian ad litem. If it is a
minor, service of summons upon the parent is sufficient. But if it an
incompetent, it must be served on both the incompetent and the
parent/guardian/guardian ad litem.
Don‘t apply the word incompetent here to those who are incompetent
under settlement of estate (ex. drunkards). That‘s a different matter.
Section 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
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and cannot be ascertained by diligent inquiry, service may, by leave of
court, be effected upon him by publication in a newspaper of general
circulation and in such places and for such time as the court may order.
6. Proofs of service
Section 17. Leave of court. — Any application to the court under this
Rule for leave to effect service in any manner for which leave of court is
necessary shall be made by motion in writing, supported by affidavit of
the plaintiff or some person on his behalf, setting forth the grounds for
the application.
Section 18. Proof of service. — The proof of service of a summons
shall be made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have been
served with the process and the name of the person who received the
same; and shall be sworn to when made by a person other than a sheriff
or his deputy.
Section 19. Proof of service by publication. — If the service has been
made by publication, service may be proved by the affidavit of the printer,
his foreman or principal clerk, or of the editor, business or advertising
manager, to which affidavit a copy of the publication shall be attached
and by an affidavit showing the deposit of a copy of the summons and
order for publication in the post office, postage prepaid, directed to the
defendant by registered mail to his last known address.
F. Voluntary Appearance
Section 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.
Biglang-awa vs Phil. Trust Co:
Asean Pacific Planners vs City of Urdaneta:
De Dios vs CA:
Millenium Ind. & Com. Corp. vs Tan:
Ramos vs Ramos:
Teh vs CA:
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Santos vs PNOC Exp.: (j) That a condition precedent for filing the claim has not been
Dole Phil vs Quilala: complied with. (1a)
Pascual vs Pascual:
Principles involved in motions:
1. 3-day notice rule
Rule 16 2. 10-day setting rule

JUNE 17, 2014 Kinds of motions:

1. Litigated
Rule 16 2. Non-litigated or oral
Motion to dismiss a. In the course of the trial, for example, a counsel would
raise his hand, and say ―Objection, your honor‖, that is
Section 1. Grounds. — Within the time for but before filing the answer to an oral motion.
the complaint or pleading asserting a claim, a motion to dismiss may be b. There are also certain motions that do not require
made on any of the following grounds: hearings. When you file a motion before the CA or the
SC, never set that for hearing, because hearing before
(a) That the court has no jurisdiction over the person of the the SC is not a matter of right, but a matter of discretion.
defending party; i. The same with the CA, they do not want parties
to set hearings. Especially now that the CA, under
the new rules, can conduct trials, and accept
(b) That the court has no jurisdiction over the subject matter of
evidence. ii. Even if the CA and SC has original
the claim; jurisdiction, you do not set motion submitted before
them for hearing, because it is a matter of
(c) That venue is improperly laid; discretion on the part of the CA and SC.

(d) That the plaintiff has no legal capacity to sue; Omnibus motion rule (Sec. 8)
Insert here
(e) That there is another action pending between the same
parties for the same cause; De Guzman v Ochoa
Omnibus motion in relation to motion dismiss
(f) That the cause of action is barred by a prior judgment or by
the statute of limitations; Facts of the case

(g) That the pleading asserting the claim states no cause of What was the principal action? Annulment of contract of
action; mortgage/foreclosure

(h) That the claim or demand set forth in the plaintiff's pleading
has been paid, waived, abandoned, or otherwise
extinguished; (i) That the claim on which the action is
founded is enforceable under the provisions of the statute of
frauds; and
What happened? Why was there an action for foreclosure/annulment of
mortgage? Failure to pay the loan. There are no other grounds for
foreclosure. In fact, the judgment for foreclosure does not say judgment
to sell. If the court renders a judgment to sell in a foreclosure proceeding,
it is an abuse of discretion and a ground for certiorari because a

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judgment under Rule 68 must be a judgment to pay and never a
judgment to sell. The layman‘s knowledge of foreclosure, when it is said
that one‘s property is foreclosed, the property must be sold right away.
When a property is foreclosed, it means that the judgment is to pay for
the mortgage debt.
Instead of going to trial, they filed a motion to dismiss on the ground that
the complaint did not state a cause of action. RTC denied the motion.
Recite grounds for a motion to dismiss. See Rule.
They then filed a second motion to dismiss on the ground that the
certification against forum shopping attached to the complaint was not
executed by the principal parties (plaintiffs) in violation of Sec. 5, Rule 7,
1997 Rules of Civil Procedure, rendering the complaint fatally defective
and thus dismissible.
They went up to the CA on certiorari. Why certiorari?
What did we study regarding the jurisdiction of the SC particularly Sec.
5, Article VIII of the Constitution? Regarding appellate jurisdiction?
Review, revise, modify or affirm by appeal or certiorari
When is it appeal? When it is a pure question of law, in other words, an
error of judgment
When is it certiorari? When there is error of jurisdiction
In this case, they went up on certiorari because it is an error of
jurisdiction. Because accordingly the ground relied upon in this case is a
matter of jurisdiction, it is not just a matter of any lack of cause of action
or other grounds, but an error of jurisdiction. A motion to dismiss may
either be granted or denied. If it is denied, the order denying it is? What
kind of order? Interlocutory order. What is an interlocutory order? There
is no finality yet as the court has still something to do. When the court
has nothing more to do, it is a final order, and thus, the remedy is
appeal. But if it is interlocutory, thus the court has still something more to
do, then, the remedy is certiorari.
The second motion to dismiss was also denied because of the omnibus
motion rule. Is the omnibus motion rule an absolute rule? No.
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What are the exceptions? Only matters of jurisdiction; Rule 9, Sec. 1
What is the doctrine derived from this case? The Court disposed the
issue on interlocutory orders, which do not terminate a case. The general
rule is that a denial of a motion to dismiss cannot be questioned in a
special civil action.
So, what is the remedy of the party whose motion to dismiss is denied?
Take note, certiorari is not a remedy, as a general rule, because under
Rule 65, Sec. 1, certiorari is anchored only on three grounds – lack of
jurisdiction, excess of jurisdiction, grave abuse of discretion amounting to
lack of jurisdiction – that is why certiorari is not a remedy against an
order denying a motion to dismiss, what then is the remedy? File an
answer, go to trial, and if you lose, you have all the remedies against a
judgment – appeal. And in your appeal, you now assign as error, the
error of the court in denying your motion to dismiss. That is why pursuant
to the SC AM 07-7-12, amendments on Rule 41, 45, 58 and 65,
specifically regarding 65, it provides that when you avail of certiorari
when you should not have availed of it, and it was found out by the court
that you are simply delaying the resolution of the case, the penalty is not
only on the party, but to the lawyer as well. Triple? (check the AM,
insert here)
When is there grave abuse of discretion? When there are capricious and
whimsical, arbitrary and despotic actuations of the court (remember
these, they go in twos)
When you cannot establish whimsical, capricious, arbitrary, and
despotic, certiorari is out of the question. But here, denial of a motion to
dismiss therefore, even if it is interlocutory, certiorari is not the remedy,
but you go to trial and whatever judgment, if unfavorable, you appeal. Or
other remedies under Rule 37, new trial or reconsideration, or appeal.
Remember, there are only three remedies against a final order. But
when judgment has already been entered, forget about those remedies.
You are only left with two remedies, which are petition for relief from
judgment and annulment of judgment.
Remedies:
1. Rule 16 (MTD);
2. Demurrer;
3. Rule 37 (new trial/recon)
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4. Rule 40-45 (appeals) 2. That the court has no jurisdiction over the subject matter of the
5. After judgment has been entered, Rule 38 and 47 (petition for case
relief from judgment and annulment of judgment) a. What is the principle?
i. Jurisdiction is conferred by law except the
Where do you find the equivalent of motion to dismiss in criminal jurisdiction of the Supreme Court, which is
procedure? Motion to quash under Sec. 3, Rule 117. Read this together conferred by the Constitution.
with Sec. 1, Rule 16. Every ground for a motion to dismiss has its 3. That venue is improperly laid
equivalent in a motion to quash. But take note that these are two a. Under Rule 4
different things. What are the distinction between a motion to dismiss 4. That the plaintiff has no legal capacity to sue
and a motion to quash? a. Under Rule 3 on parties
1. MTD applies in civil cases; MTQ applies in criminal cases 5. Litis pendentia
2. MTD has 10 grounds; MTQ has 9 grounds, why is it so? What is a. One suit for a single cause of action and joinder of
lacking in motion to quash? Venue. Because in criminal cases, causes of action
venue is jurisdictional, so it is not a ground anymore for MTQ. 6. That cause of action had been barred by prior judgment or the
a. But every ground in MTD has an equivalent in MTQ. statute of limitations
Examples: a. Sec. 47, Rule 39
i. Under res judicata or that the cause of action 7. Unenforceability of claim pursuant to the statute of frauds
has been barred by prior judgment or by the a. Civil in nature
statute of limitation = That the accused has 8. That the claim has been paid, waived, abandoned, or otherwise
been previously convicted or acquitted or the
extinguished
case against him has been dismissed without
a. Obligations and contracts
his consent;
b. When is an obligation extinguished?
ii. Failure to state cause of action = That the facts
i. Payment, loss of the thing due, merger,
charged do not constitute an offense
subrogation, novation, etc.
iii. That plaintiff has no legal capacity to sue = That
the officer who filed the information has no c. See affirmative defenses.
authority to do so 9. Condition precedent
iv. Litis pendentia = duplicity of offense filed in one a. Katarungang Pambaranggay Law
information i. General Rule: All cases must pass through the
v. Condition precedent = Did not comply barangay conciliation proceedings; otherwise it
substantially with the prescribed form is a ground for dismissal on the ground of
3. In a MTD, you seek to dismiss the complaint; In a MTQ, you prematurity.
seek to quash the information. 1. It is no longer jurisdictional. It is just a
matter of prematurity. The Court will merely
archive the case until condition precedent has
MTD grounds, discussion; cont.
been complied with. ii. Exceptions:
1. That the court has no jurisdiction over the person of the 1. An action wherein one of the parties is a
defendant government instrumentality
a. How does the court acquire jurisdiction over the person 2. When a public officer is involved and the
of the defendant? action involved his office
i. Valid service of summons; ii. 3. Where one of the parties is a
Voluntary appearance corporation

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4. If the parties reside in different cities or
municipalities except when they
voluntarily submit themselves in the
proper forum and the barangay in which
they reside is adjacent to each other. So
even if the parties reside in different
cities or municipalities but they reside in
a barangay who is adjacent to each
other there is still a need for barangay
conciliation.
5. When parties avail any one of the
provisional remedies
a. What are these provisional
remedies? AIRRS
i. Preliminary
Attachment
ii. Preliminary
Injunction
iii. Receivership iv.
Replevin
v. Support pendente lite
6. When party is arrested pursuant to Sec.
5, Rule 113 or warrantless arrest
b. When the case is between or among members
of the
immediate family
i. Immediate family = up to 2nd degree of
consanguinity
1. Vertical line = no limitation
2. Horizontal line = up to brothers and
sisters
ii. However under Rule 3, we spoke of parties -
spouses
1. In-laws are included, because they have
to be impleaded as spouse/s.
c. Exhaustion of administrative remedies
i. Exercise of primary jurisdiction
If a MTD is granted, what happens? The case is dismissed. What is the
remedy? Appeal, because an order denying a motion to dismiss is a final
order – court has nothing left to do. If denied, what is your remedy? File
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an answer. When? Within the remaining balance of days for the period of
filing an answer from receipt of notice of denial, which must not be less
than 5 days. When do we not apply the Neypes? Doctrine (fresh period
rule)? Rules 12, 16 and 64. Example: If summons was duly served on 1st
of the month, the defendant has until the 16 th of the month to file an
answer; however, he filed a MTD on the 5th day. How many days were
consumed? 4 days. What is the balance of the period? 11 days. MTD
was denied, when should the defendant file an answer? Within 11 days
from receipt of the notice of the denial of the motion to dismiss (only the
balance of the period but not less than 5 days).
Rule 17
Dismissal of actions
Sec.1 notice of dismissal by plaintiff
Section 1. Dismissal upon notice by plaintiff. — A complaint may be
dismissed by the plaintiff by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal is without prejudice,
except that a notice operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a competent court an action
based on or including the same claim. (1a)
Who files the notice? Plaintiff. What are the grounds? No grounds.
Nobody will be prejudiced except the plaintiff. There is, however, a
sanction to the plaintiff, which is the two-dismissal rule. What is the
twodismissal rule? A situation where the plaintiff has twice dismissed a
complaint without order of the court, and in such event, the dismissal will
be a judgment on the merits.
Example: A v B. A, plaintiff, files notice of dismissal on the ground
improper venue. The court dismissed the case. He again filed another
claim against B. But then he found out that B is a (close friend of his
friend), so he drops the case again. Will the two-dismissal rule apply?
Yes. However, if one of the grounds is a jurisdictional matter, the
twodismissal rule will not apply. For instance, (Patmig‘s example), one of
the grounds for filing a notice of dismissal is on the ground of lack of
jurisdiction over the subject matter.
What is the requirement for the notice of dismissal to become effective?
There must be order of confirmation from the court. It is the order issued

by the court pursuant to Sec. 1, Rule 17 for the purpose of effecting the
notice of dismissal. Without such order, the notice does not become
effective. Do not confuse this with another order of confirmation (of sale)
under Rule 68 for the purpose of cutting the equity of redemption.
Sec. 2 motion by plaintiff
Section 2. Dismissal upon motion of plaintiff. — Except as provided in
the preceding section, a complaint shall not be dismissed at the plaintiff's
instance save upon approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiffs
motion for dismissal, the dismissal shall be limited to the complaint. The
dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen (15)
days from notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise specified in
the order, a dismissal under this paragraph shall be without prejudice. A
class suit shall not be dismissed or compromised without the approval of
the court. (2a)
A motion, not a notice, filed by the plaintiff on any ground. There is again
a sanction if he filed the motion when answer has already been filed and
served upon him, which includes a counterclaim. What is the effect? The
counterclaim will not be dismissed. The dismissal is limited to the original
complaint. Why? Because there is already prejudice on the part of the
defendant, i.e. acquired services of counsel, paid acceptance fee, etc.
What happens now to the counterclaim? Defendant has two options: (1)
Defendant may file a separate action; and (2) Make a manifestation in
the trial court to continue the case as to the counterclaim. Is there any
qualification as to what kind of counterclaim? No. Does that not go
against the basic doctrine that a compulsory counterclaim can only
coexist with a complaint; remove the complaint; the compulsory
counterclaim dies with it? What should be the proper interpretation of
this rule? Irrespective of the kind of counterclaim, the counterclaim will
not be dismissed. Within 15 days, if you don‘t want a separate action,
you manifest before the trial court.
Sec. 3 defendant files motion/court motu propio dismisses the case
Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause,
the plaintiff fails to appear on the date of the presentation of his evidence
in chief on the complaint, or to prosecute his action for an unreasonable
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length of time, or to comply with these Rules or any order of the court,
the complaint may be dismissed upon motion of the defendant or upon
the court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court. (3a)
(8 grounds for a dismissal of a case motu propio)
1. Summary procedure;
2. Lack of jurisdiction (Sec.1, Rule 9)
3. Litis pendentia (Sec.1, Rule 9)
4. Res judicata (Sec.1, Rule 9)
5. Prescription (Sec.1, Rule 9)
Under this rule, there are three grounds:
1. Failure of the plaintiff to appear upon the presentation of his
evidence in chief;
2. Failure of the plaintiff to prosecute his action for an unreasonable
length of time;
3. Failure to comply with any order of the court.
Rule 18
Pre-trial
Rule 18 must be read together with Rule 118 of criminal procedure.
What is a pre-trial? Trial before trial, LOL. Requirements? After the last
pleading has been served and filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for pre-trial. What is that last
pleading? Reply.
When pre-trial is set, what happens? Presentation of documents and
names of witnesses; marking and identification of evidence
What don’t you find under Rule 18 that you find in Rule 118?
Pleabargaining. There is no plea-bargaining in civil cases, in criminal
cases, plea-bargaining is mandatory or the court should at least ask
whether they will plea bargain. An application for being a state witness,
is that part of plea-bargaining? No. Because it is upon the discretion of
the prosecution to recommend, although the final say is with the court.

That is not part of plea-bargaining because plea-bargaining is asking the
other party to accept your plea to a lower charge, e.g., murder to
homicide, and that is done during pre-trial.
Take note that when you plea bargain for the reduction or removal of one
of the accused from the charge sheet, it must always be by leave of
court.
Under Rule 18, under mandatory requirement there is appearance of the
parties and counsels. What are the sanctions if any of the party does not
appear? It depends. If it is the plaintiff, the action will be dismissed
without prejudice, unless otherwise ordered by the court or in other
words, non-suited. If it is the defendant, it shall be cause to allow plaintiff
to present his evidence ex parte. Note that there is no more declaration
here, ―as in default‖. But if the counsel is not present, but the party,
plaintiff or defendant, then the rule will not apply because it is the
counsel who is not present. Unfortunately there is no sanction for
lawyers under this rule. In criminal procedure, however, sanction is up to
P20, 000 for private lawyers, and up to P5, 000 for government lawyers.
Present rule:
Rule on national mediation and conciliation proceedings before the
Philippine Mediation and Conciliation Office (amended Rule 18 and Rule
118); the term preliminary conference is not limited now to summary
procedure only. Even in the pre-trial, as amended, there is preliminary
conference. That preliminary conference is done before the branch clerk
of court. Identification of evidence, marking of evidence, stipulations and
admissions – they are all done before the branch clerk of court. So when
the plaintiff sets pre-trial on a particular day, you go to court and 100%
pre-trial will not push through because you will be referred to Philippine
Mediation and Conciliation Office, which is mandatory and cannot be
waived. Within 30 days, you must find ways and means to settle. And
this 30-day period is extendible to another 30 days, maximum of 60 days
for mediation and conciliation. What happens if there is settlement
there? Mediator will simply draft compromise agreement, and when
parties are amenable, they will sign it, and they give it to the court which
will render judgment on compromise that is immediately executory. If
there is no settlement before the mediation officer, then it is brought back
to the court for preliminary conference before the branch clerk of court.
And after the branch clerk of court has undertaken the preliminary
conference, you go now to pre-trial proper before the judge. The judge
will now have to issue a pre-trial order. The pre-trial order is mandatory.
Without a pre-trial and pre-trial order is a ground for disciplinary action
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against the judge, and pre-trial must be conducted. In criminal procedure
under Rule 121, lack of pre-trial is a ground for new trial.
Summary:
1. Mediation and conciliation with the PMCO;
a. 30 days, extendible for another 30 days
2. If settled
a. Mediation officer drafts compromise agreement;
b. Parties sign;
c. Submit to court;
d. Court issues judgment on compromise (immediately
executory).
3. If not settled
a. Case brought back to court for preliminary conference
before branch clerk;
b. After PC before branch clerk, pre-trial proper before the
judge;
c. Judge issues pre-trial order.
Rule 19
Intervention
Anonuevo v Intestate Estate of Jalandoni
Who is Anonuevo here? What kind of a party was he? He was the
intervenor. Under Rule 19 on intervention, what are the requirements?
Must have legal interest in the matter in litigation, or interest in the
success of the plaintiff, or interest in the success of the defendant. The
kind of pleading you are bound to file depends on whose interest you are
with – if you are with the plaintiff, you file a complaint in intervention; if
you are with the defendant, you file an answer in intervention; if neither,
you file a complaint in intervention.
Going back to the facts, Anonuevo and siblings filed an intervention in
the intestate proceedings. What was their claim? They claim that they
have a share in the intestate estate because their grandmother was
married to the deceased. What was their evidence? Birth certificate. The
administrator of the estate contends that such was not sufficient because
the evidence necessary is a marriage contract, and they were able to
establish that their grandmother was married to somebody else. The
issue is do the intervenors have interest in this case? The trial court said
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yes. But on appeal with the CA, it reversed the RTC. The SC ruled that The SC said yes. At any time at the course of the trial, the judge can
they do not have interest, as they were not able to establish that they stop the trial because the judge may say that there is more than enough
were grandchildren to Jalandoni, the deceased. evidence. But the more important issue is whether depositions are
allowed in criminal cases. The SC ruled NO. It is not allowed. But some
What was the doctrine in Yao v Perello? When can one intervene in a justices dissented, particularly PUNO and DAVIDE, saying that while
case, at what point in time – you can only intervene before the rendition depositions under Rule 23 are not allowed in criminal cases, they have
of judgment. After rendition of judgment, there is no more right to their equivalent in criminal cases, which can be found in Sec 12, 13, and
intervene. Exception: Pinlac v CA: intervenor was the government, in the 15 of Rule 119. This was illustrated in Vda. De Manguera v Risos. This
interest of substantial justice (intervention was already when case was case was about a private complainant, who was from the Visayas, but
on motion for reconsideration with the Supreme Court) she was confined at Makati Med, and she could not testify, so she asked
for deposition taking. Was the deposition taking allowed? Yes. But upon
Rule 20, 21, 22 = READ! presentation of evidence, it was objected to on the ground that it is not
Take note of how to quash a subpoena and viatory (not sure about this) allowed in criminal cases. The SC ruled no deposition in criminal cases
right under Sec. 10, Rule 21. under Rule 23, but what should have been applied are Sec. 12, 13 and
15 of Rule 119 or advanced testimony.
Modes of discovery
How many modes of discovery are there? I. Sec. 1 provides that depositions may be taken with or without leave of
Depositions pending action; court. When is it without leave of court? After answer has been served.
When does it require leave of court? Before answer has been served or
II. Depositions before action;
after jurisdiction has been obtained over any defendant or over property
III. Depositions pending appeal
which is subject of the action. Why is it that once answer has been
IV. Depositions before appeal; served, it must be made without leave of court, and before answer has
V. Interrogatories to parties; been served, it must be made with leave of court? Issues are joined.
VI. Request for admission by adverse party; When issues are joined, why would you ask for leave of court when the
VII. Production of instruments; questionnaire will be limited already to the issues involved? But if with
VIII. Production of documents leave of court, you may ask impertinent questions.
IX. Inspection of instrument;
X. Inspection of documents; What kind of evidence are depositions? Testimonial evidence. We know
XI. Production and inspection of documents and things; from evidence that testimonies must be taken in open court, as a rule.
XII. Physical examination; Deposition is the exception as it is taken outside the court. When a
XIII. Mental examination; deposition is taken, whose evidence is that? It will be the evidence of the
XIV. Physical and mental examination party who chooses to offer it. Who offers the deposition? Any party. Take
The least understood of these modes of discovery is Rule 23. note of Sec. 7 and 8. The fact that you cause the taking of the deposition
does not mean that the deposition is your evidence. It is only when
Rule 23 somebody offers it. And any party can offer it. Who can cause the taking
Depositions pending action of deposition? Any party. Whose deposition should be taken? Any party
or non-party, the deponent may be a party or non-party. The deposition
is anybody‘s evidence until a party offers it. We all know that evidence is
People v Webb
not admissible until it is offered.
Judge Tolentino stopped the taking of depositions because there were
more than 150 documents already for resolution or as basis for
How does one take depositions? Let’s say C wants to take the
judgment. Instead the accused wanted to take the deposition of 5 more
deposition of X. Will it be with leave of court or without? When answer
persons in the US. Can the Judge do that under the rules of evidence?
has been served, no need for leave of court; after answer have been
Remedial Law Review I – Civil Procedure

served, with leave of court. What is the effect upon filing and service of
answer? Issues are joined. When issues are joined, why would you ask
for leave of court when the questionnaire will be limited already to the
issues involved? But if with leave of court, you may ask impertinent
questions.
Before whom should the deposition be taken? Before a deposition
officer. But distinguish whether deposition will be taken within or outside
the country. If it is outside the country, deposition will be taken at the PH
embassy in that country before the consul or vice consul or any other
person authorized by the court through commission or letters rogatory for
appointment of a judicial officer to take the deposition of somebody
abroad. If within the country, anybody authorized to administer oath,
including a notary public.
Modes of taking a deposition:
1. Oral examination
a. Process:
i. Give notice to all parties, to deposition officer,
and to prospective deponent
ii. Notice to consist of time, place, and name of
deposition officer
iii. Once notified, they may or may not attend.
Parties may waive right to attend.
iv. What happens? Like a trial = direct, cross,
redirect, re-cross
1. All will be taken by stenographic notes
v. The transcript sealed in an envelope and
transferred to the court.
1. Whose evidence is that? No body‘s
evidence; merely forms part of the
record of the case; anybody can use it.
2. Written interrogatories
a. Process:
i. Questions are prepared beforehand = direct
examination questions
ii. The one who prepared to send to all parties
iii. Parties who receive it to prepare cross
examination questions and send it to the one
who prepared the direct
iv. Then if there is re-direct, send again
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86
v. Then re-cross, if the party wishes to.
b. Why is this allowed nonetheless though tedious?
i. Because what is encouraged is a combination
of both methods.
Sec. 4, uses of deposition
1. Any deposition may be used to impeach the testimony of the
deponent;
a. Is it not that a deposition is testimonial evidence, why is it
that you may use it to impeach that testimony of the
deponent?
i. If the deponent happens to be a witness also in
open court, and his testimony in his deposition
is contrary to what his testimony in open court.
2. It may be used for any purpose
3. Instances where you may avail of deposition under the following
circumstances of par. C of Sec. 4, Rule 23.
Deposition v judicial affidavit GR:
Affidavits are hearsay.
EX: affidavits taken in lieu of direct testimony, subject to
crossexamination, i.e., judicial affidavit
Mere submission of JA is not testimony yet. It must be authenticated.
Rule 24
Depositions before action or pending appeal
Why is this allowed, deposition pending appeal? This is because, at that
time, appellate courts are not allowed to accept new evidence. Right
now, with more reason that this is of great use because appellate courts
are allowed to take new evidence. Another reason is in case of remand
to the trial court. Whether you take the deposition before the lower court
or appellate court, the deposition may come in handy in case of remand.
What is perpetuation of testimony or deposition before action? This is
allowed because by the time you file a case, the person might already be
dead. This is in case a person dies before a probable case arises
against him.

The taking of a deposition, is it real or personal? Personal. What then is
the venue? (trick question ni Sir kay Mica) The rule on venue will not
apply, because the rule itself provides for the venue of the taking of the
deposition before action or pending appeal = residence of the
respondent
Rule 25
Interrogatories to parties
Is this pending action, before action or pending appeal? This is pending
action. You cannot avail of this against non-parties, solely against
parties.
Where is the sanction under this rule? Sec. 6. Failure to serve written
interrogatories. Who is being sanctioned? The one who failed to prepare
the questions/supposed to prepare the questions. As a result/sanction,
the other party may not be compelled to testify on the matter of the
interrogatories. How would the court know or determine whether a party
should be sanctioned for failure to serve written interrogatories? During
trial, when a witness/other party is asked a question that should have
been asked in written interrogatories.
Rule 26
Request for admission by adverse party
Who should request for admission? Any party may request for
admission. Aren’t there stipulations and admissions during pre-trial, why
would one request for admission? This applies when the party did not
wait for the pre-trial. Does this request for admission contradict Sec. 8,
Rule 8 as regards actionable documents which provides that when you
do not specifically deny the claim of one party as against an action
document, you are deemed to have admitted the authenticity and due
execution of the document, why would one use this? No, there is no
contradiction. Because the documents sought to be admitted under Rule
26 are not actionable documents. They are only relevant and material
documents, but they are not actionable. What are examples of these
non-actionable documents, which must be sought for admission?
Voluminous receipts, when such would take time to have each admitted
one by one.
Rule 27
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Production or inspection of documents or things
Will exhumation of a cadaver fall under this rule? Yes, because cadavers
are considered things. This is very common in criminal cases – ocular
inspection.
Rule 28
Physical and mental examination of persons
Available in actions where it is relevant
Example of relevant cases where this may be applied:
1. Annulment of contract by reason of imbecility of a contracting
party;
2. Common in paternity cases;
Sec. 4 = waiver of privilege
Section 4. Waiver of privilege. — By requesting and obtaining a report of
the examination so ordered or by taking the deposition of the examiner,
the party examined waives any privilege he may have in that action or
any other involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter
examine him in respect of the same mental or physical examination. (4)
Under privileged communication (Sec. 24, Rule 130) = doctor and
patient; A v. B. A would like to have B examined by Dr. X; Between B
and Dr. X, there is privileged communication. Is that waived under this
rule? Yes. Because it is by order of the court. The results go to A as he
was the one who requested. B is not entitled to his own medical results.
Rule 29
Refusal to comply with the modes of discovery
Effects of refusal to comply with modes of discovery:
1. Compel to answer to the mode of discovery
2. Pay damages; 3. Cite for contempt of court;
4. Arrest.
Note that a judgment by default can never be issued without being
preceded by an order of default. Exception = Sec. 3, par. c, Rule 29,
when there is a refusal to comply the modes of discovery, the court may
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issue a judgment by default without being preceded by an order of Either join the causes of action or sever them.
default.
Example: Case no. 1 = A v B, RTC MLA, Br. 1
Rule 30/119 Case no. 2 = B v A, Br. 2
Trial Case no. 3 = A v B and C, RTC CAL, Br.1
Case no. 4 = B v A and C, RTC QC, Br. 1
Rule 119 (more important rule) Principal Can you consolidate them? Yes. However if there is a case pending
issues under Rule 119: before, say, the MTC of Marikina, you cannot consolidate it, as there is
1. Time frame = Trial must be completed within a period of 180 an issue of jurisdiction. But venue is not a bar to consolidation. What is a
days from the beginning or trial; bar is the issue of jurisdiction.
2. State witness rule;
3. Rule akin to depositions (Sec. 12, 13, 15); Rule 32
4. Demurrer; Trial by commissioner
5. Reopening (Sec. 24)
There are instances where trial by commissioners is mandatory:
Rule 30 1. Rule 67, expropriation
Principal issues under Rule 30: a. Determination of just compensation = done by a
(1) Order of trial = not to be confused with the order of presentation commissioner
of evidence; 2. Rule 69, Partition
(1) plaintiff‘s evidence; (2) defendant‘s; a. Determination of accounting = done by commissioner
(3) … so on.
(2) Absences Court is bound to appoint 3 members of the commission with integrity
(1) When party is absent for no valid and probity.
reason
(1) There is usually a penalty, but not strictly In all other instances, trial by commissioner is discretionary on the part of
imposed. the court. If there are several accounts, or judge is not familiar with
(2) They are however strict on postponement issues, which require technical expertise, one may move for trial by
(3) Valid ground for postponement = Unavailability commissioner. For instance, cases involving the Cybercrime law.
of evidence

Rule 31 RULE 33: DEMURRER TO EVIDENCE

Severance and consolidation
What is the literal meaning ―to demur‖? It means to assail, to
Severance and consolidation are not opposites. question, to impugn.

Consolidation = consolidate cases provided there is a common question
of fact or law; commonality of parties/parties-of-interest; issue of
jurisdiction = bars consolidation
Severance = look at joinder of causes of action;
In a demurrer to evidence, what are you impugning? You are
assailing the or plaintiff‘s (civil) or prosecution‘s (criminal) evidence on
the ground that upon the facts and the law, the former has shown no
right of relief. The defendant (civil) or accused (criminal) claims that the
evidence is insufficient. In other words, it does not reach the required

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quantum of evidence. In criminal cases, it is proof beyond reasonable
doubt; in civil cases, it is by preponderance.
What is overwhelming evidence? This is the highest quantum of
evidence. The lowest, on the other hand, is circumstantial evidence.
In civil cases, demurrer to evidence is found under Rule 33. In criminal
cases, it is found in Sec. 23, Rule 119. When you read the demurrer in
civil, don‘t forget to read the demurrer in criminal.
People v. Sumingwa: The order granting appellant‘s demurrer to
evidence was a resolution of the case on the merits, and it amounted to
an acquittal. Any further prosecution of the accused after an acquittal
would violate the proscription on double jeopardy.
Bernardo v. CA: Under the new rule on demurrer to evidence the
accused has the right to file a demurrer to evidence after the prosecution
has rested its case. If the accused obtained prior leave of court before
filing his demurrer, he can still present evidence if his demurrer is denied.
However, if he demurs without prior leave of court, or after his motion for
leave is denied, he waives his right to present evidence and submits the
case for decision on the basis of the evidence for the prosecution. This
power to grant leave to the accused to file a demurrer is addressed to the
sound discretion of the trial court. The purpose is to determine whether
the accused in filing his demurrer is merely stalling the proceedings.
Radiowealth v. Del Rosario: Applying Section 1 of the 1997 Rules of
Court, the CA should have rendered judgment on the basis of the
evidence submitted by the petitioner. Since it had sufficient evidence on
record to decide the collection suit, the appellate court shall resolve the
case and render judgment on the merits, inasmuch as a demurrer aims
to discourage prolonged litigations. A remand for further proceedings is
not necessary because the defendant, upon order of dismissal of the
demurrer to evidence, loses his right to present evidence.
Cabador v. People: The RTC treated petitioner‘s motion to dismiss as a
demurrer to evidence and since he filed his motion without leave of court,
said court declared him to have waived his right to present evidence in
his defense. In criminal cases, a motion to dismiss may be filed on the
ground of denial of the accused‘s right to speedy trial. This was the main
thrust of Cabador‘s motion to dismiss. The fact is that he did not even
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89
bother to do what is so fundamental in any demurrer. In Enojas, Jr. v.
COMELEC, the court held that to determine whether the pleading filed is
a demurrer to evidence or a motion to dismiss, the following must be
considered: (1) the allegations in it made in good faith; (2) the stage of
the proceeding at which it is filed; and (3) the primary objective of the
party filing it. Besides, a demurrer to evidence assumes that the
prosecution has already rested its case. Here, the prosecution filed its
formal offer of exhibits on the same day Cabador filed his motion to
dismiss. Since Cabador filed his motion to dismiss before he could object
to the prosecution‘s formal offer, before the trial court could act on the
offer, and before the prosecution could rest its case, it could not be said
that he had intended his motion to dismiss to serve as a demurrer to
evidence. In sum, tested against the criteria laid down in Enojas, the
Court finds that petitioner Cabador filed a motion to dismiss on the
ground of violation of his right to speedy trial, not a demurrer to evidence.
He cannot be declared to have waived his right to present evidence in his
defense.
Note: There is a difference between completion of the presentation of
evidence and resting your case. Completion does not amount to resting.
There is only rest if the other party has filed its comment/opposition and
the court has ruled on the admissibility/inadmissibility of evidence.
Demurrer cannot be filed without offer of evidence.
How do you distinguish offer from proffer of evidence? XXX
When is the prosecution/plaintiff considered to have rested its
case? You are only considered to have rested your case after the court
has admitted your evidence. If you‘re going to trial, the rules on evidence
says that the offer must be done orally unless the court allows you to
offer it formally or in writing. In Cabador, the offer was in writing which is
exceptional.
Summary of Demurrer to Evidence
Demurrer to evidence in civil cases is based on Rule 33. In criminal
cases, you find it in Sec. 23, Rule 119.
Similarities: A demurrer to evidence, whether it is civil or criminal:
XV. It is a kind of a motion to dismiss.
XVI. They are grounded on the same which is insufficiency of
evidence.
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XVII. As to the time frame, it can only be filed after the this is not applicable precisely because there is no appeal -- the
plaintiff/prosecution has rested its case. exception is Hun Hyung Park v. Choi.

Praenotanda: Even if it is a motion to dismiss which is a prohibited

Civil Cases Criminal Cases
pleading under the rules on summary procedure, the same is not true in
demurrer to evidence. Even if it is a kind of a motion to dismiss is NOT a
prohibited pleading in summary procedure. Hun Hyung Park v. Choi is leave of court is not required a demurrer is filed with or without
about violation of BP 22 which is governed by the rules on summary before filing a demurrer leave of court
procedure says that a demurrer to evidence is not a prohibited pleading.
The doctrine in that case is that, notwithstanding an acquittal, there was the order of dismissal is not
an appeal separating the civil from the criminal (a questionable doctrine if the demurrer is granted, the appealable because of the
according to professor). order of dismissal is appealable constitutional policy against
double jeopardy
Differences:
(3) Even if they are grounded on the same which is insufficiency of the accused may adduce his
evidence, the quantum of evidence differs. In civil cases, it is evidence only if the demurrer is
preponderance of evidence while in criminal, it is proof beyond if the demurrer is denied, the
filed with leave of court; he
reasonable doubt. Because of this, it is easier to avail of defendant may proceed to
cannot present his evidence if he
demurrer to evidence in criminal cases because the quantum of present his evidence
filed the demurrer without leave of
evidence is higher.
court
(4) In demurrer, the court may grant or deny it. RULE 34: JUDGMENT ON THE PLEADINGS
• Grant: If the court grants the demurrer in civil cases, that amounts
to dismissal of the case. In criminal cases, if the court grants a Note: Read this as against Rule 35 (Summary Judgments).
demurrer, that amounts to acquittal.
Section 1. Judgment on the pleadings. — Where an answer fails to
• Denial: In civil cases, if the demurrer is denied, the defendant tender an issue, or otherwise admits the material allegations of the
presents evidence. In criminal cases, if the demurrer is denied, you adverse party's pleading, the court may; on motion of that party, direct
have to make a distinction: whether the demurrer was filed with judgment on such pleading. However, in actions for declaration of nullity
leave of court or without leave of court. If with leave of court, the or annulment of marriage or for legal separation, the material facts
accused presents evidence. If without leave of court, the accused alleged in the complaint shall always be proved.
loses his right to present evidence.
Give at least three (3) distinctions between judgment on the
(5) Because it is dismissal in civil cases, that is a final order; pleadings and summary judgment.
therefore, it is appealable. Because it is acquittal in criminal
cases, therefore, it is not appealable -- otherwise, the accused Judgment on the Pleadings Summary Judgments
will be placed in double jeopardy.

(6) If it is appealed by the plaintiff who ordinarily will appeal it and

the appellate court reverses the order of dismissal, the
defendant loses his right to present evidence. In criminal cases,
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motion filed after the issues had been joined and on the basis of the
proper where, upon a motion filed pleadings and papers filed, the court finds that there is no genuine issue
proper where an answer fails to after the issues had been joined as to any material fact except as to the amount of damages. Even if there
tender an issue or otherwise and on the basis of the pleadings is an issue, summary judgment may still be availed of provided that issue
admits the material allegations of and papers filed, there is no is not a genuine issue. PBCom answers what a genuine issue is.
the adverse party‘s pleading genuine issue as to any material
fact Phil. Bank of Communications v. Go: Under the Rules, summary
judgment is appropriate when there are no genuine issues of fact which
3-day-notice before hearing 10-day-notice before hearing call for the presentation of evidence in a full-blown trial. Even if on their
face the pleadings appear to raise issues, when the affidavits,
depositions and admissions show that such issues are not genuine, then
basis of judgment: supporting
summary judgment as prescribed by the Rules must ensue as a matter
affidavits, depositions, or
of law. The determinative factor, therefore, in a motion for summary
admissions to recover upon a judgment, is the presence or absence of a genuine issue as to any
basis of judgment: pleadings
claim, counterclaim, or material fact. A "genuine issue" is an issue of fact which requires the
crossclaim, or to obtain presentation of evidence as distinguished from a sham, fictitious,
declaratory relief contrived or false claim. The party who moves for summary judgment
has the burden of demonstrating clearly the absence of any genuine
When is there judgment on the pleadings? Where an answer fails to issue of fact, or that the issue posed in the complaint is patently
tender an issue, or otherwise admits the material allegations of the unsubstantial so as not to constitute a genuine issue for trial. When the
adverse party‘s pleading. facts as pleaded by the parties are disputed or contested, proceedings
for summary judgment cannot take the place of trial.
Under Rule 6, when does an answer fail to tender an issue or
otherwise admits the material allegations [of the complaint]? An
answer fails to tender an issue when the material allegations of the other RULE 36: JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
party are admitted or not specifically denied by the pleader. Under the
rules, material allegations of the complaint not specifically denied are Among the three (judgment, final order, and entry), what is the most
deemed admitted. There are two (2) kinds of defenses under Rule 6: important? It is the entry of judgment. The judgment spoken of is a
negative defense and affirmative defense. A negative pregnant is judgment in all kinds of cases, whether it is civil or criminal. In criminal
admitting what you seek to deny. cases, you find that in Rule 120. You also find this in Rule 51.

The concept of a judgment on the pleadings will not apply when no
answer is filed. It will come into operation when an answer is served and
filed but the same fails to tender an issue or admits the material
allegations of the adverse party‘s pleading.
RULE 35: SUMMARY JUDGMENTS
When may one file a motion for summary judgment? A summary
judgment, also called accelerated judgment, is proper where, upon a
Remedial Law Review I – Civil Procedure
When you look at these rules, they have only one (1) specific
characteristic of a judgment which is that it must be personally written
and directly prepared by the judge.
For cultural information: In the CA, it needs to be unanimous. If it is
not, there will be no valid judgment so what the presiding justice will do
would be to create a special division which consists of five (5) justices
and a majority will render a valid judgment. The same goes for the
Sandiganbayan. In the SC, when there are five (5) justices, a majority
vote will suffice.

How do you distinguish several judgment from separate
judgments? A several judgment is one rendered by a court against
one or more defendants, but not against all, leaving the action to proceed
against the others. It is proper when the liability of each party is clearly
separable and distinct from that of his co-parties, such that the claims
against each of them could have been the subject of separate suits, and
judgment for or against one of them will not necessarily affect the other.
A separate judgment presupposes that there are several claims for
relief presented in a single action.
• Several Judgment: different causes of action
• Separate Judgment: different parties
Section 4. Several judgments. — In an action against several
defendants, the court may, when a several judgment is proper, render
judgment against one or more of them, leaving the action to proceed
against the others.
Section 5. Separate judgments. — When more than one claim for relief
is presented in an action, the court, at any stage, upon a determination of
the issues material to a particular claim and all counterclaims arising out
of the transaction or occurrence which is the subject matter of the claim,
may render a separate judgment disposing of such claim. The judgment
shall terminate the action with respect to the claim so disposed of and
the action shall proceed as to the remaining claims. In case a separate
judgment is rendered the court by order may stay its enforcement until
the rendition of a subsequent judgment or judgments and may prescribe
such conditions as may be necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered.
What is a judgment on compromise? This is a judgment rendered by
the court on the basis of a compromise agreement entered into between
the parties to the action. It has the effect of res judicata upon the parties.
But there will be no execution of the compromise agreement except in
compliance with a judicial compromise. The nature of this compromise is
that it is immediately executory.
What is a judgment nunc pro tunc? This literally means ―now for
then.‖ This is a judgment intended to enter into the record acts which had
already been done, but which do not yet appear in the record. Its
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purpose is not to supply an omitted action by the court but to enter into
the record an action previously done but which was not reflected in the
record by reason of inadvertence or mistake. This is not really a
judgment but rather, a correction of judgment because it is either there
was some formal, clerical, or typographical error or that it does not
present the facts as it should have been presented.
Conditional Judgment: A conditional judgment is one the effectivity of
which depends upon the occurrence or the non-occurrence of an event.
Such a judgment is generally void because of the absence of a
disposition.
Judgment sin perjuicio: A judgment sin perjuicio is traditionally
understood to be a brief judgment containing only the dispositive portion,
without prejudice to the making of a more extensive discussion of the
findings of fact and law to support it. This is not actually a final decision,
should be avoided and should not be looked with favor.
Judgment upon a confession (cognovit actionem): This is a judgment
rendered by the court when a party expressly agrees to the other party‘s
claim or acknowledges the validity of the claim against him.
What is the literal meaning of the entry of judgment? It means that
the judgment is recorded in the book of entries. But what is important
here it not the actual recording but the date of entry.
What is the date of entry? The date of finality of the judgment or final
order shall be deemed to be the date of its entry (Sec. 2, Rule 36). This
is fundamental. Not understanding this is fatal because entry is used in
many other provisions of the rules. Hence, while entry is the actual
recording of the judgment in the book of entries, what is important is the
date of entry of judgment. You find this also in Sec. 10, Rule 51 which
says that the date when the judgment or final resolution becomes
executory shall be deemed as the date of its entry.
Illustration:
• judgment was rendered July 1
• judgment became final and executory on July 16
• clerk of court recorded the judgment July 31
: date of entry is July 16
 93
Why is this so? Because the finality of judgment cannot be made to
depend on the will of the clerk of court who is in charge of recording said 5. the damages awarded are
judgment in the book of entries. Otherwise, if the clerk of court is a friend 1. FAME (fraud, accident, excessive
mistake, excusable
of a party litigant, he may be influenced to adjust the date favorable to his
negligence), which ordinary 6. the evidence is insufficient to
friend and thus affects the reckoning dates prescribed under the rules.
prudence could not have justify the decision or final
guarded against and by reason order
Examples: of which such aggrieved party
• Under Rule 39, when may you execute a judgment as a matter of has probably been impaired in
right? Sec. 1 says five (5) years from entry of judgment. 7. the decision or final order is
his rights -- constitutes 4
• Under Rule 38, when are you supposed to file a petition for relief under contrary to law
grounds
Sec. 3? Within six (6) months from the date of entry.
2. newly discovered evidence,
which he could not, with
reasonable diligence, have
RULE 37: NEW TRIAL OR RECONSIDERATION discovered and produced at the
trial, and which if presented
These are two (2) of the remedies against a final judgment. Motion for would probably alter the result
new trial and reconsideration are NOT MANDATORY. You can
immediately go to appeal.
Note: FAME must be qualified. If you only say FAME, your answer is
The 1997 Rules of Court specifically distinguishes the grounds from new incomplete. You must state the qualifications (...which ordinary
trial and reconsideration. prudence...). But never answer in abbreviation (F.A.M.E.). Spell it out!

If you file a motion for new trial on the ground that the evidence is
NEW TRIAL RECONSIDERATION insufficient, should it be dismissed? No. The court may consider it as
(5 grounds) (3 grounds) a motion for reconsideration.

If you file a motion for reconsideration on the ground of fraud,

should it be dismissed? No. The court may consider it as a motion for
new trial.

Reason: What counts is the allegation and not the title. Jurisprudence is
lenient on this matter. Before the 1997 Rules of Court, new trial and
reconsideration are anchored on the same grounds. But even now that
the grounds are distinct, an incorrect assignment does not result in the
dismissal of the case.

Mendezona v. Ozamis: Judge Durias‘ testimony cannot be considered

newly discovered evidence since the facts to be testified to were existing
before and during trial. The testimony had been in existence waiting only
to be elicited from him by questioning.
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Note: Equate newly discovered evidence with unavailability of evidence.
If the evidence is available, it is not newly discovered evidence. You did
not exert enough effort to present that.
Padilla-Rumbaua v. Rumbaua: Blunders and mistakes in the conduct of
the proceedings in the trial court as a result of the ignorance,
inexperience or incompetence of counsel do not qualify as a ground for
new trial. If such were to be admitted as valid reasons for re-opening
cases, there would never be an end to litigation so long as a new counsel
could be employed to allege and show that the prior counsel had not
been sufficiently diligent, experienced or learned. This will put a premium
on the willful and intentional commission of errors by counsel, with a view
to securing new trials in the event of conviction, or an adverse decision,
as in the instant case.
Note: As a matter of exception, if the errors of lawyers are so gross, then
the court can consider a misadministration of justice.
People v. Li Ka Kim: Appellant‘s passport could have easily been
presented and produced during the trial. Such presentation of appellant‘s
passport, would hardly be material to the outcome of the case. Appellant
was positively identified by the prosecution witnesses as being the
perpetrator of the crime. Most importantly, appellant even identified
himself as Li Ka Kim at the trial and not as Huang Xiao Wei, that bolsters
the conclusion that appellant deliberately concealed his true identity in
the nefarious enterprise.
What kind of fraud is referred to in a motion for new trial? It is
extrinsic fraud as distinguished from intrinsic fraud. Fraud is
deceitfulness. Extrinsic fraud is that which is outside the proceedings,
outside the course of the trial, of which you do not have control. Intrinsic
fraud is within the proceeding. Suppose the lawyer, in the course of the
hearing, presents fraudulent documents. That is intrinsic fraud. If you do
not contest it, you have waived your right to oppose it. Hence, it is
admitted.
• Extrinsic fraud refers to any fraudulent act of the prevailing party in
the litigation which is committed outside the trial of the case, where the
defeated party has been prevented from presenting fully his side of the
case, by fraud or deception practiced in him by his opponent.
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• Intrinsic fraud refers to acts of a party in a litigation during the trial,
such as the use of forged instruments or perjured testimony, which did
not affect the presentation of the case, but did prevent a fair and just
determination of the case.
Example: Pre-trial is set for July 5. The adverse counsel calls you up
and told you not to attend the pre-trial anymore because he already filed
a motion for resetting which you have not received yet because it was
sent via registered mail. Then the next order that you found is that the
case was dismissed because you were declared non-suited by
nonappearance during the trial (you are the plainitff).
Accident: The ground of accident has the same concept as fraud. Any
kind of an event which is beyond your control can be used as accident.
Mistake: This refers to mistake of fact. Exceptionally, it can be a mistake
of law depending on the party. If a party is unschooled in the rudiments
of law, he can be excused.
Excusable Negligence: If it requires extraordinary diligence, that would
be excusable. Conversely, if it requires ordinary diligence, then it is not
excusable. It is already gross negligence. A failure to take the proper
steps at the proper time, not in consequence of a party‘s own
carelessness, inattention, or willful disregard of the process of the
unavoidable hindrance or accident, or on reliance on the care and
vigilance of his counsel or on promises made by the adverse party.
Analogy: If you are a young lady and you get pregnant out of wedlock,
that is excusable negligence. But if you were impregnated the second
time around, that is already gross. :)
When do we use an affidavit of merits? An affidavit of merit is required
in a motion for new trial founded on fraud, accident, mistake, or
excusable negligence. Under the Rules, the moving party must show that
he has a meritorious defense. The facts constituting the movant‘s good
and substantial defense, which he may prove if the petition were granted,
must be shown in the affidavit which should accompany the motion for a
new trial.

If it is newly discovered evidence, there is no need for affidavit of merits
because the rule provides that said evidence must be attached which
can either be object, testimonial, or documentary. Under Rule 8, if the
allegation is a matter of fraud, you have to allege it with particularity.
You avail of affidavit of merits because the nature of the fraud as it was
committed will be explained therein.
Demonstrative Evidence: If it is object evidence, you can take a picture of
it. If it is a person, you take his picture which must be not older than six
(6) months under criminal procedures.
When is a party exempted from an affidavit of merits
notwithstanding that the ground for new trial is fraud, etc.? When in
the very motion for new trial, you already stated what constituted fraud.
Under Rule 6, you must only allege ultimate facts.
The motion for new trial may be either granted or denied. If it is
denied, what is your remedy? An order denying a motion for new trial
(or reconsideration) is not appealable, the remedy being an appeal from
the judgment or final order. (Sec. 9, Rule 37) When you appeal from the
judgment, you have to assign as an error the denial of your motion for
new trial.
Note: Effective 27 December 2007, an order denying a motion for new
trial is no longer assailable by certiorari because of the amendment to
Rule 41 by A.M. No. 07-7-12-SC.
Estinozo v. CA: Appeal and certiorari are mutually exclusive.
Can you file a second motion for reconsideration? No, because all
the grounds were available when you filed the motion: insufficiency of
evidence, excessive award of damages, and decision/final order is
contrary to law. Filing a second motion for reconsideration will violate the
rule on omnibus motion rule (Sec. 8, Rule 15). Under the ―single
motion‖ rule, a party shall not be allowed to file a second motion for
reconsideration of a judgment or a final order.
Can you file a second motion for new trial? Yes, but only when a
ground for new trial was not existing or available when the first motion
was made. Consequently, you can only file a second motion for new trial
on the ground of newly discovered evidence. While a second motion for
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reconsideration is not allowed, a second motion for new trial is
authorized by the Rules.
Section 5. Second motion for new trial. — A motion for new trial shall
include all grounds then available and those not so included shall be
deemed waived. A second motion for new trial, based on a ground not
existing nor available when the first motion was made, may be filed
within the time herein provided excluding the time during which the first
motion had been pending.
No party shall be allowed a second motion for reconsideration of a
judgment or final order.
If a motion for new trial is granted, what is the effect? When the
motion for new trial is granted, you only try matters which were
questioned so that all the pieces of evidence which have already been
admitted, they remain to be admitted. Note: Sec. 6, Rule 37 has been
amended.
Under Rule 10, when you amend the amended pleading, it supersedes
the original pleading. However, the admitted allegations in the original
pleading, while they are no longer part of the record, they become
extrajudicial admissions which require offer.
When you speak of trial de novo, you set aside everything as if nothing
happened.
Take note that in the amendatory circular of the Supreme Court (A.M.
07-7-12-SC), it deleted paragraph Sec. 2(a) of Rule 41.
RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS
The remedies against an executory judgment are as follows:
1. Rule 38
2. Rule 47
An executory judgment is necessarily final but a final judgment is not
necessarily executory. (big circle: executory judgment/small circle: final
judgment)

True/False: Rule 38 is a petition so it must be separate and distinct from
the original case.
A: False
Why? This is merely a continuation of the case.
Mesina v. Meer: A petition for relief from judgment is not an available
remedy in the Court of Appeals. Hence, the petition should be filed in the
same case and in the same court under the same number (?). A petition
for relief is an equitable remedy; it is not a matter of right. So, this
remedy is not available when you did not avail of a motion for new trial or
even appeal when you had the time.
This is why the word ―petition‖ is a misnomer. The better term is
―motion.‖
Why is it called ―petition‖ for relief? Because of the 1997 Rules of
Court. Under the old rules, this was just a motion for relief.
What are the two (2) kinds of relief?
1. Petition for relief from judgment, order, or other proceedings (Sec. 1)
2. Petition for relief from denial of appeal (Sec. 2)
Section 1. Petition for relief from judgment, order, or other
proceedings. — When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court through fraud,
accident, mistake, or excusable negligence, he may file a petition in such
court and in the same case praying that the judgment, order or
proceeding be set aside.
Section 2. Petition for relief from denial of appeal. — When a
judgment or final order is rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a petition in such court and
in the same case praying that the appeal be given due course.
You can still avail of a petition for relief if your appeal is denied. But you
are now limited only to four (4) grounds which are fraud, accident,
mistake, excusable negligence which ordinary prudence could not have
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guarded against and by reason of which such aggrieved party has
probably been impaired in his rights.
Note: Sections 1 and 2 have the same grounds and with the same
qualifications.
Illustration: The court denied your notice of appeal because it was filed
out of time. You then file a petition for relief from denial of appeal on the
ground of fraud XXX
As to the time frame, a petition for relief must be filed within (a) sixty (60)
days from knowledge of judgment, order, or other proceedings to be set
aside; and (b) six (6) months from entry of such judgment, order, or other
proceeding. These two periods must concur.
Section 3. Time for filing petition; contents and verification. — A
petition provided for in either of the preceding sections of this Rule must
be verified, filed within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside, and not more
than six (6) months after such judgment or final order was entered, or
such proceeding was taken, and must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence relied
upon, and the facts constituting the petitioner's good and substantial
cause of action or defense, as the case may be.
Note: As to date of entry, refer to Sec. 2, Rule 36.
When does a party come to know of the judgment? Ordinarily, it is
when he receives a copy of the judgment from the court. But the 60 days
under this rule does not pertain to such but rather to the time a party
came to know of the judgment from sources other than the receipt of the
copy of the judgment.
Otherwise stated, you come to know of the judgment upon receipt
thereof and when you receive a copy of the judgment, your remedy is not
petition for relief but rather, appeal, new trial, or reconsideration because
that is just a final judgment. This is executory judgment and the 60-day
period is counted from knowledge. It is only when you come to know of it
from other sources other than receipt of the notice of the judgment, that
is where the 60-day period will start to operate.

Example: The date of entry will be the first point of reference which let‘s
say is January 1. If you come to know of it on June 15, you only have up
to June 30. If you come to know of it after June 30, you can no longer file
a petition for relief from judgment because the two (2) periods must be
complied with.
RULE 39: EXECUTION OF JUDGMENTS
A judgment which has no entry yet cannot be executed.
General rule: Only the trial court can execute judgment.
Exception: In the case of discretionary, it can be issued by the appellate
court.
A. Kinds of Execution
Execution or satisfaction of judgment may either be by motion or action.
Does that apply to any kind of execution, whether discretionary or matter
of right? No. If execution is a matter of right, execution may be by motion
or by action. However, if execution is a matter of right, execution can only
be by motion. Execution by action is not applicable anymore as
execution by action presupposes that there is already a final judgment.
Who is a redemptioner? Rule 39, Section 27(b) – A creditor having a lien
by virtue of an attachment, judgment or mortgage on the property sold, or
on some part thereof, subsequent to the lien under which the property
was sold.
The judge has no other choice but to issue the writ of execution.
In spite the fact that the issuance of a writ of execution is ministerial…
the exercise of ministerial functions depends upon compliance with… It is
only through a motion that a writ of execution may be issued.
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a. Matter of right/ministerial (Section 1)
When it is already established that the judgment is executory, it must be
issued as a matter of right.
Section 1. Execution upon judgments or final orders. — Execution
shall issue as a matter of right, or motion, upon a judgment or order that
disposes of the action or proceeding upon the expiration of the period to
appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution
may forthwith be applied for in the court of origin, on motion of the
judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced and
of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest
of justice so requires, direct the court of origin to issue the writ of
execution.
b. Discretionary (Section 2) (or by leave of court or execution
pending appeal)
Which court has jurisdiction over discretionary execution? It depends.
Once appeal is perfected, does the court lose jurisdiction over the
subject matter? No. When does the court lose jurisdiction over the
subject matter? Upon expiration of the period to appeal, because there
can be multiple defendants and the perfection of the appeal is only as to
those who appealed. Those who did not appeal, perfection will not apply
to them. ―Upon perfection of the appeal as to the appellants.‖ But as to
those who did not appeal, appeal will not be perfected.
This is the basis for the discretionary execution. Discretionary execution
means there is in fact an appeal. If there is no more appeal, it is no
longer discretionary; it is a matter of right.
What kind of jurisdiction does the trial court use? Residual jurisdiction.

What are the requirements for discretionary execution? (1) motion; (2)
good reason; and (3) special order stating the good reason.
Page 661 of Riano:
(1) there must be a motion filed by the prevailing party with notice to the
adverse party;
(2) there must be a hearing of the motion for discretionary execution;
(3) the motion must be filed in the trial court while it has jurisdiction over
the case and is in possession of either the original record or on the
record on appeal;
(4) there must be good reasons to justify the discretionary execution;
and
(5) the good reasons must be stated in a special order.
When there is execution pending appeal and the court grants the motion
for execution pending appeal, the judgment is satisfied. What happens if
on appeal, the judgment was reversed?
Illustration: A judgment for P1,000,000 was given. The defendant (loser,
judgment obligor) appeals to the appellate court. The judgment obligee
files a motion for execution pending appeal. The court grants the motion
for execution pending appeal. The writ of execution is used, the sheriff
uses it and satisfies the P1,000,000 of A. What happens if the judgment
is reversed?
There are certain judgments which are immediately executory. Name
some: support, injunction, receivership, accounting. The enumeration in
the Rule is not exclusive. For example, a judgment of compromise is
immediately executory. What is the rationale for the immediate execution
of these? Delay will be prejudicial.
Under Rule 61, even a judgment for support never becomes final. At any
point in time you can go back to court and ask for amendment. How can
it be immediately executory? The judgment will be illusory. This is exactly
what good reason is.
What is good reason? Consists of circumstances that would justify the
execution of the judgment. Otherwise, the same judgment would become
illusory. See Stronghold Insurance.
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Stronghold Insurance vs Felix: This is a collection suit. Execution
pending appeal was not allowed because the one who is sick is not a
party to the case. Thus, the illness of the husband has nothing to do with
the case (it doesn‘t involve conjugal property). This is unlike the case of
Navarro vs Escobido-bidoooo. Second reason, the appeal was
meritorious. The subject matter subject to the execution was P57 million
and the claimed liability of Stronghold was only P12 million. That would
be injurious, not only prejudicial. Correlate with City of Iligan case as
to summary judgment.
Although Stronghold describes what good reason is, it does not
necessarily follow that that is always the case. Good reason must be
on a case-to-case basis.
City of Iligan vs Principal Management Group (PMGI): A MOA on a
‗turn-key‘ arrangement was drawn by Mayor Quijano with Land Bank
Realty Development Corporation (LBRDC) as General Contractor and
PMGI as Developer - Financing Manager. The project to be undertaken
was the construction of a Sports Complex which upon completion shall
be turned over to Iligan City for acceptance and the issuance of
Certificate of Acceptance and Authority to Pay to enable LBRDC-PMGI
to call on the SLC.
The work on the project stopped due to the refusal of some of the
occupants to vacate the premises claiming that they have not been paid
their disturbance compensation. By then, PMGI had already
accomplished 78.27% of the contracted project equivalent to
P10,957,800.00 of the total project cost of P14,000,000. PMGI requested
from petitioner for a deductive change order to enable it to collect the
above-stated amount based on the 78.27% accomplishment of the
project. Petitioner claimed that PMGI‘s accomplishment was only 52.89%
or equivalent only to P6,958,861.59 based on the Accomplishment
Report. Petitioner refused to pay since the mutually agreed price of
P14,000,000 shall only be paid after the completion of the project and
acceptance by it and since the project is not yet complete, no payment
can be paid. The problem on the payment of the affected occupant,
which was the cause of the work stoppage, was accordingly brought to
the attention of the Sangguniang Panlungsod which authorized the
payment of the affected occupants in the project site.

PMGI filed a complaint against petitioner for rescission of the MOA and
damages. After the filing of petitioner‘s Answer, a Motion for Partial
Summary Judgment was filed by PMGI which claimed that there was no
genuine issue as to the fact of the obligation of the petitioner since it
admitted the accomplishment of 52.89% or equivalent to P6,958,861.59
of PMGI and that the petitioner had not specifically denied under oath the
genuineness of the Letter of Credit and MOA. An Opposition to the
Motion for Partial Summary Judgment was filed by petitioner. The trial
court granted the Motion for Partial Summary Judgment and ruled in
favor of PMGI. Petitioner‘s MR was denied. Petitioner filed a Notice of
Appeal. PMGI filed a Motion for Execution Pending Appeal which alleged
that when the appeal is clearly dilatory, order for execution upon good
reasons may be issued with the discretion of the court. The same was
granted over the opposition of the petitioner. CA affirmed.
SC: The Order granting execution pending appeal was proper.
Executions pending appeal are governed by Section 2 of Rule 39 of the
Rules of Court. There are 3 requisites for the execution of a judgment
pending appeal:
a) a motion must be filed by the prevailing party with notice to the
adverse party;
b) there must be good reasons for execution pending appeal; and
c) the good reasons must be stated in a special order.
Execution pending appeal is, of course, the exception to the general rule.
Normally, execution cannot be obtained until and unless (a) the
judgment has become final and executory;
(b) the right of appeal has been renounced or waived;
(c) the period for appeal has lapsed without an appeal having been filed;
or
(d) having been filed, the appeal has been resolved and the records of
the case have been returned to the court of origin -- in which case,
execution shall issue as a matter of right.
On the other hand, when the period of appeal has not yet expired, the
execution of a judgment should not be allowed except if, in the court‘s
discretion, there are good reasons therefor. These reasons must be
stated in a special order, because unless these are divulged, it will be
difficult to determine on appeal whether judicial discretion has been
properly exercised by the lower court. Good reasons consist of
compelling circumstances that justify the immediate execution of a
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judgment, lest it become illusory; or the prevailing party be unable to
enjoy it after the lapse of time, considering the tactics of the adverse
party who may have no recourse but to delay.
The good reason relied upon by both the trial and the CA was that the
partial adjudication of the case was based on petitioner‘s own admission;
hence, any appeal based on that point would be unmeritorious and
merely dilatory. Indeed, both courts ruled that an appeal by petitioner
would only serve as ―a good and sufficient reason upon which to issue
execution.‖
The ascertainment of good reasons for execution pending appeal lies
within the sound discretion of the trial court, and the appellate court will
not normally disturb such finding. Intervention by the latter may be
proper, if it is shown that there has been an abuse of discretion. Like the
CA, we find no abuse of discretion in the trial court‘s grant of execution
pending appeal. Indeed, a good and sufficient reason upon which to
authorize immediate execution is when an appeal is clearly dilatory.
Santos vs COMELEC: The execution pending appeal was granted in
this case. What was the good reason here? This is a political issue. If
there is no city official, the constituents in the community will not be
properly represented.
The petitioner and respondent were mayoral candidates in Balingoan,
Misamis Oriental for the May 14, 2001 elections. Respondent was
declared mayor by the board of canvassers. Petitioner filed an election
protest, and the results were recounted. Petitioner was declared the
mayor by virtue of judgment.
Petitioner filed a Motion for Execution pending appeal. Before the RTC
could act on the motion, respondent filed a petition for certiorari with the
COMELEC, as well as appealed the RTC‘s decision to the COMELEC.
COMELEC issued a Writ of Preliminary Injunction enjoining the RTC
from acting upon the Motion for execution by the petitioner, pending the
case. The COMELEC found the RTC did not err and upheld its ruling.
Thus it lifted the writ of preliminary injunction, dismissed the petition by
the respondent, and directed the RTC to dispatch its judgment.

RTC granted the Motion for Execution pending appeal, and subsequently
issued a Writ of Execution upon petitioner‘s posting of a bond.
Petitioner took his oath of office. Respondent filed MR and supplemental
petition praying the RTC order be nullified, and the grant of the writ of
execution be set aside.
The COMELEC granted the respondent‘s petition and again enjoined
petitioner from exercising duties as mayor. COMELEC issued a
resolution enjoining petitioner from assuming official functions of mayor
until final resolution of the election case pending appeal.
SC: The RTC should have granted the Writ of Execution upon the
Motion for Execution pending appeal. It is within the RTC‘s discretion to
grant the motion for execution pending appeal. Shortness of period of
term of office, coupled with public interest and length of time the election
contest has been pending are the valid reasons for execution of
judgment pending appeal. Here, the case has been pending for almost 1
year, and the term of office was only for 3 years. To prolong the case
would be to deprive the electorate of services of their mayor.
The petition for certiorari assailed RTC‘s orders for the execution of its
decision pending appeal. The grant of execution pending appeal was
well within the discretionary powers of the RTC. In order to obtain the
annulment of said orders in a petition for certiorari, it must first be proved
that the trial court gravely abused its discretion. He should show not
merely a reversible error committed by the RTC, but a grave abuse of
discretion amounting to lack or excess of jurisdiction. We find that no
grave abuse of discretion was committed by the RTC. In its order
granting execution pending appeal, it held:
It is of judicial notice that for the public official elected last May 14, 2001
elections only a short period is left. Relative to this Court‘s jurisdiction
over the instant case, the settled rule that the mere filing of the notice of
appeal does not divest the trial court of its jurisdiction over the case and
to resolve pending incidents,i.e., motion for execution pending appeal
(Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.
However, the COMELEC set aside the order, saying that shortness of
term alone is not a good reason for execution of a judgment pending
appeal. We disagree.
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While it was indeed held that shortness of the remaining term of office
and posting a bond are not good reasons, we clearly stated in Fermo v.
COMELEC that: A valid exercise of the discretion to allow execution
pending appeal requires that it should be based ―upon good reasons to
be stated in a special order.‖ The following constitute ―good reasons‖
and a combination of two or more of them will suffice to grant execution
pending appeal: (1.) public interest involved or will of the electorate; (2.)
the shortness of the remaining portion of the term of the contested office;
and (3.) the length of time that the election contest has been pending.
The decision of the RTC was rendered on April 2, 2002, or after almost 1
year of trial and revision of the questioned ballots. It found petitioner as
the candidate with the plurality of votes. Respondent appealed the said
decision to the COMELEC. In the meantime, the three-year term of the
Office of the Mayor continued to run. The will of the electorate, as
determined by the RTC in the election protest, had to be respected and
given meaning. The Municipality needed the services of a mayor even
while the election protest was pending, and it had to be the candidate
judicially determined to have been chosen by the people.
Bañes vs Bañes: The wife‘s motion for execution pending appeal was
not proper. This is a case of legal separation between husband and wife.
Judgment was rendered in favor of the wife finding the husband guilty. All
the properties belonging to the conjugal property were awarded to the
wife including the 2 cars and the conjugal home. The wife asked for
execution pending appeal. There was no good reason. The husband will
be turned into a pauper. Also, the husband filed an appeal. Although he
might not get a total reversal, perhaps the distribution might be unfair.
RTC decided in a Civil Case, decreeing among others the legal
separation between petitioner Aida Bañez and respondent Gabriel Bañez
on the ground of the latter‘s sexual infidelity; xxx the surrender by
respondent of the use and possession of a motor vehicle and the smaller
residential house to petitioner and the common children within 15 days
from receipt of the decision.
Petitioner filed an urgent ex-parte motion to modify said decision, while
respondent filed a Notice of Appeal.
RTC granted petitioner‘s urgent ex-parte motion to modify the decision.

In another motion to modify the decision, petitioner sought moral and
exemplary damages, as well as litigation expenses. She filed a motion
for execution pending appeal. Respondent filed a consolidated written
opposition to the 2 motions, and also prayed for the reconsideration of
the previous order.
RTC denied Aida‘s motion for moral and exemplary damages and
litigation expenses but gave due course to the execution pending appeal.
A writ of execution was issued to enforce the decision for (1) respondent
to vacate the premises of the small residential house and for (2)
respondent to surrender the use and possession of said motor vehicle to
petitioner.
The petitioner was ordered to post a bond of P1,500,000 to answer for all
the damages that respondent may suffer arising from the issuance of
said writ of execution pending appeal and to further answer for all the
advances that petitioner may have received from the Special
Administrator in this case pending final termination of this present case.
In a petition for certiorari, respondent elevated the case to the CA. CA
set aside the RTC decision. The writ of execution and the Order granting
the motion filed by the sheriff to make symbolic delivery of the house and
motor vehicle to the administrator of the are SET ASIDE. CA denied
Aida‘s motion for reconsideration. Hence, the petition in G.R. No.
132592, filed by herein petitioner.
Petitioner manifested that she no longer questions the CA‘s decision on
the vehicle because respondent repossessed it. As to the residential
house, she claimed that being conjugal in nature, justice requires that
she and her children be allowed to occupy and enjoy the house
considering that during the entire proceedings before RTC, she did not
have the chance to occupy it. Further, she posted a bond. For these
reasons, she asked for execution pending appeal.
Respondent denied petitioner‘s allegation that she did not have the
chance to occupy the residential house. He averred that she could have,
had she chosen to. According to him, as the inventory of the couple‘s
properties showed, petitioner owned 2 houses and lots and 2 motor
vehicles in the U.S., where she is a permanent resident. Respondent
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contended that there was no compelling reason for petitioner to have the
judgment executed pending appeal.
SC: The execution of judgment pending appeal was not justified. As held
in Echaus vs. Court of Appeals, execution pending appeal is allowed
when superior circumstances demanding urgency outweigh the damages
that may result from the issuance of the writ. Otherwise, instead of being
an instrument of solicitude and justice, the writ may well become a tool of
oppression and inequity.
There is no superior or urgent circumstance that outweighs the damage
which respondent would suffer if he were ordered to vacate the house.
Petitioner did not refute respondent‘s allegations that she did not intend
to use said house, and that she has 2 other houses in the U.S. where
she is a permanent resident, while he had none at all. Merely putting up
a bond is not sufficient reason to justify her plea for execution pending
appeal. To do so would make execution routinary, the rule rather than
the exception.
Section 2. Discretionary execution. —
(a) Execution of a judgment or final order pending appeal. —
On motion of the prevailing party with notice to the adverse party filed in
the trial court while it has jurisdiction over the case and is in possession
of either the original record or the record on appeal, as the case may be,
at the time of the filing of such motion, said court may, in its discretion,
order execution of a judgment or final order even before the expiration of
the period to appeal.
After the trial court has lost jurisdiction the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated
in a special order after due hearing.
(b) Execution of several, separate or partial judgments. — A
several, separate or partial judgment may be executed under the same
terms and conditions as execution of a judgment or final order pending
appeal.
i. stay of discretionary execution (Section 3)

Section 3. Stay of discretionary execution. — Discretionary execution
issued under the preceding section may be stayed upon approval by the
proper court of a sufficient supersedeas bond filed by the party against
whom it is directed, conditioned upon the performance of the judgment or
order allowed to be executed in case it shall be finally sustained in whole
or in part. The bond thus given may be proceeded against on motion with
notice to the surety.
ii. judgments not stayed by appeal (Section 4)
The judgments are immediately executory in receivership, accounting,
compromise, injunction.
Section 4. Judgments not stayed by appeal. — Judgments in actions
for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall not, be
stayed by an appeal taken therefrom, unless otherwise ordered by the
trial court. On appeal therefrom, the appellate court in its discretion may
make an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise
as may be considered proper for the security or protection of the rights of
the adverse party.
B. Modes of Execution
Section 6. Execution by motion or by independent action. — A final
and executory judgment or order may be executed on motion within five
(5) years from the date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be enforced by
motion within five (5) years from the date of its entry and thereafter by
action before it is barred by the statute of limitations.
When do you execute a judgment by motion? Within 5 years from the
date of entry of the final judgment. That‘s how important entry is. What is
the date of entry of judgment? Date of finality of judgment. Contrary to
the literal meaning of entry of judgment, which is the recording of the
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dispositive portion of the judgment in the book of entries, but the date of
entry is not the date of recording but rather..?! Why? Otherwise, the
prescriptive period will depend on the Clerk of Court. To avoid that
possible abuse!
Within 5 years, it is a matter of right. Thereafter, it is by independent
action called revival of judgment. Aside from section 6, there is another
revival of judgment in the Rules of Court: section 34. Distinguish them!
Section 34. Recovery of price if sale not effective; revival of judgment. —
If the purchaser of real property sold on execution, or his successor in
interest, fails to recover the possession thereof, or is evicted therefrom,
in consequence of irregularities in the proceedings concerning the sale,
or because the judgment has been reversed or set aside, or because the
property sold was exempt from execution, or because a third person has
vindicated his claim to the property, he may on motion in the same action
or in a separate action recover from the judgment obligee the price paid,
with interest, or so much thereof as has not been delivered to the
judgment obligor, or he may, on motion, have the original judgment
revived in his name for the whole price with interest, or so much thereof
as has been delivered to the judgment obligor. The judgment so revived
shall have the same force and effect as an original judgment would have
as of the date of the revival and no more.
Who revives under Section 34? The purchaser.
If you buy a property in an auction and you paid but you were not able to
get the property for one reason or another, let‘s say there was a third
party claim and the third party claimant won, you are prejudiced. What
should you do? Go after the judgment obligee because he got the money
that was supposed to go to you. That is the revival of judgment under
Section 34.
During the period of redemption, who has the property subject of
redemption? The obligor. Suppose this properties are being utilized and
they have civil fruits like rentals, to whom should the rentals go? To the
obligor because the purchaser is not yet the owner. Once the title is
consolidated, his rights over the property retroacts to the time of the levy.
What is the rationale behind that retroactivity?

The levy is on January. It was only after the end of January of the
following year that the title was consolidated. The rights of the purchaser
rights to January of the previous year. Why? Because if there are
claimants or claims against that property, within that one year period, the
purchaser has priority rights. First in time, first in right.
Judgment for P1,000,000. January 5, 1990 is the date of entry of
judgment. Until when can you execute the judgment by motion? January
4, 1995. From January 5, 1995 until January 4, 2000, you can only
execute the judgment by independent action called revival of judgment.
Beyond January 4, 2000, how do you execute the original judgment for
P1,000,000? You can no longer execute that judgment because of
prescription of judgment.
Suppose on March 10, 1996, you revived the judgment, you have now a
revived judgment. This judgment is totally separate and distinct from the
original judgment, because it can happen that you have partially
executed the original judgment of P1,000,000. There is no such thing as
alias writ of execution. This judgment must again be entered. It will not
be on March. Say it was entered on April 15, 1996 (date of entry of
revived judgment), within that period, count 5 years or up to April 14,
2001 to execute that judgment by action again. And on and on without
limit until you fully satisfy the judgment.
1. By motion (Section 6)
2. By independent action (Section 6)
C. Manner of Execution
1. when party is dead (Section 7)
Section 7. Execution in case of death of party. — In case of the death
of a party, execution may issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee, upon the
application of his executor or administrator, or successor in interest; on
(b) In case of the death of the judgment obligor, against his executor
or administrator or successor in interest, if the judgment be for
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the recovery of real or personal property, or the enforcement of a
lien thereon;
(c) In case of the death of the judgment obligor, after execution is
actually levied upon any of his property, the same may be sold
for the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or
administrator for any surplus in his hands.
2. when judgment is for money (Section 9)
Section 9. Execution of judgments for money, how enforced. —
(a) Immediate payment on demand. — The officer shall enforce an
execution of a judgment for money by demanding from the judgment
obligor the immediate payment of the full amount stated in the writ of
execution and all lawful fees. The judgment obligor shall pay in cash,
certified bank check payable to the judgment obligee, or any other form
of payment acceptable to the latter, the amount of the judgment debt
under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall be
handed under proper receipt to the executing sheriff who shall turn over
the said amount within the same day to the clerk of court of the court that
issued the writ.
If the judgment obligee or his authorized representative is not present to
receive payment, the judgment obligor shall deliver the aforesaid
payment to the executing sheriff. The latter shall turn over all the
amounts coming into his possession within the same day to the clerk of
court of the court that issued the writ, or if the same is not practicable,
deposit said amounts to a fiduciary account in the nearest government
depository bank of the Regional Trial Court of the locality.
The clerk of said court shall thereafter arrange for the remittance of the
deposit to the account of the court that issued the writ whose clerk of
court shall then deliver said payment to the judgment obligee in
satisfaction of the judgment. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall be retained by the clerk of
court for disposition as provided by law. In no case shall the executing
sheriff demand that any payment by check be made payable to him.

(b) Satisfaction by levy. — If the judgment obligor cannot pay all or
part of the obligation in cash, certified bank check or other mode of
payment acceptable to the judgment obligee, the officer shall levy upon
the properties of the judgment obligor of every kind and nature
whatsoever which may be disposed, of for value and not otherwise
exempt from execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to satisfy
the judgment. If the judgment obligor does not exercise the option, the
officer shall first levy on the personal properties, if any, and then on the
real properties if the personal properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is sufficient to
satisfy the judgment and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy the judgment and
lawful fees.
Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may be levied
upon in like manner and with like effect as under a writ of attachment.
(c) Garnishment of debts and credits. — The officer may levy on
debts due the judgment obligor and other credits, including bank
deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control of
third parties. Levy shall be made by serving notice upon the person
owing such debts or having in his possession or control such credits to
which the judgment obligor is entitled. The garnishment shall cover only
such amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5) days
from service of the notice of garnishment stating whether or not the
judgment obligor has sufficient funds or credits to satisfy the amount of
the judgment. If not, the report shall state how much funds or credits the
garnishee holds for the judgment obligor. The garnished amount in cash,
or certified bank check issued in the name of the judgment obligee, shall
be delivered directly to the judgment obligee within ten (10) working days
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from service of notice on said garnishee requiring such delivery, except
the lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or credits
sufficient to satisfy the judgment, the judgment obligor, if available, shall
have the right to indicate the garnishee or garnishees who shall be
required to deliver the amount due, otherwise, the choice shall be made
by the judgment obligee.
The executing sheriff shall observe the same procedure under paragraph
(a) with respect to delivery of payment to the judgment obligee.
The first way to satisfy a judgment for money is by payment.
The sheriff has the writ of execution and goes to the judgment obligor.
Here is a writ of execution for P1 million. Obligor gets P1,000,000 from
his room and pays the sheriff. Is that valid? No.
In a judgment for money, payment is first. It must be given to the
judgment obligee. PAL vs PALEA: payment was made to the sheriff and
this was not considered satisfaction of judgment. It must be paid to the
judgment oblige.
With more reason if it is in check. If it is paid to the order of cash, you will
not see the sheriff anymore.
What about if the judgment obligor executes a promissory note? No, the
Rule does not allow promissory note but it (or any other form of payment)
may be allowed if the judgment obligee accepts.
Levy on execution. Distinguish this from levy on attachment (Rule 57)
and levy on foreclosure (Rule 68). Who supervises the levy? The
judgment obligor. Only in the absence of the judgment obligor will the
sheriff take over. In actual practice, the obligor is an absentee obligor.
Even real properties may be subject to levy. How? Go to the Register of
Deeds and have the title annotated (lien). If the judgment to be executed
is a Manila Court judgment and you levy on properties in Baguio, do you
go to Baguio? Yes, you can levy on any property in the Philippines.

They are now in custodia legis (in the custody of the law). It is kept for
future auction.
Garnishment of debts and credits. Garnishment is the fastest way.
The garnishee bank will immediately inform the court the amount of
deposits. The garnishee will deliver to the court and the court will give
that to the judgment obligor.
3. when judgment is for specific act (Section 10)
Section 10. Execution of judgments for specific act. —
(a) Conveyance, delivery of deeds, or other specific acts; vesting
title. — If a judgment directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other documents, or to perform,
any other specific act in connection therewith, and the party fails to
comply within the time specified, the court may direct the act to be done
at the cost of the disobedient party by some other person appointed by
the court and the act when so done shall have like effect as if done by
the party. If real or personal property is situated within the Philippines,
the court in lieu of directing a conveyance thereof may by an order divest
the title of any party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.
(b) Sale of real or personal property. — If the judgment be for the
sale of real or personal property, to sell such property, describing it, and
apply the proceeds in conformity with the judgment.
(c) Delivery or restitution of real property. — The officer shall
demand of the person against whom the judgment for the delivery or
restitution of real property is rendered and all persons claiming rights
under him to peaceably vacate the property within three (3) working
days, and restore possession thereof to the judgment obligee, otherwise,
the officer shall oust all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and employing such means as
may be reasonably necessary to retake possession, and place the
judgment obligee in possession of such property. Any costs, damages,
rents or profits awarded by the judgment shall be satisfied in the same
manner as a judgment for money.
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(d) Removal of improvements on property subject of execution. —
When the property subject of the execution contains improvements
constructed or planted by the judgment obligor or his agent, the officer
shall not destroy, demolish or remove said improvements except upon
special order of the court, issued upon motion of the judgment obligee
after the hearing and after the former has failed to remove the same
within a reasonable time fixed by the court.
(e) Delivery of personal property. — In judgment for the delivery of
personal property, the officer shall take possession of the same and
forthwith deliver it to the party entitled thereto and satisfy any judgment
for money as therein provided.
4. when it is a special judgment (Section 11)
There are several kinds of execution: judgment for money, judgment for
delivery and special judgment. What is a special judgment? One which
only the judgment obligor can accomplish. For other judgments, if the
obligor cannot comply, the court can assign someone else to comply at
the expense of the judgment obligor. Delivery of property is not a special
judgment. If the obligor does not want to deliver the property, he can ask
someone to deliver it at his expense. Example: A famous painter tasked
to paint. The court can punish him and send him to jail. Is that a harsh
and unconstitutional penalty? No, he had the keys to the jail in his
pockets. Comply, get out of jail; don‘t comply, remain in jail.
Section 11. Execution of special judgments. — When a judgment
requires the performance of any act other than those mentioned in the
two preceding sections, a certified copy of the judgment shall be
attached to the writ of execution and shall be served by the officer upon
the party against whom the same is rendered, or upon any other person
required thereby, or by law, to obey the same, and such party or person
may be punished for contempt if he disobeys such judgment.
D. Properties exempt from execution (Section 13)
13 items under section 13 
Spouses A and B borrow money in millions from a bank. This is secured
by the home of the spouses. They are not able to pay. Is the family home
exempt from execution? No. Since the security is the conjugal home,

then it is no longer exempt from execution pursuant to the last paragraph
of Section 13.
Salaries and wages: wages are absolutely exempt from execution.
Salaries are not necessarily exempt (if salary is too big, it is not exempt).
You don‘t deprive an individual of living or survival.
Section 13. Property exempt from execution. — Except as otherwise
expressly provided by law, the following property, and no other, shall be
exempt from execution:
(a)The judgment obligor's family home as provided by law, or the
homestead in which he resides, and land necessarily used in
connection therewith;
(b)Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
(c)Three horses, or three cows, or three carabaos, or other beasts of
burden, such as the judgment obligor may select necessarily used by
him in his ordinary occupation;
(d)His necessary clothing and articles for ordinary personal use,
excluding jewelry;
(e)Household furniture and utensils necessary for housekeeping, and
used for that purpose by the judgment obligor and his family, such as
the judgment obligor may select, of a value not exceeding one
hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g)The professional libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding three hundred
thousand pesos in value;
(h)One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use
of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor
for his personal services within the four months preceding the levy as
are necessary for the support of his family;
(j) Lettered gravestones;
(k)Monies, benefits, privileges, or annuities accruing or in any manner
growing out of any life insurance;
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(l) The right to receive legal support, or money or property obtained as
such support, or any pension or gratuity from the Government; (m)
Properties specially exempted by law.
But no article or species of property mentioned in this section shall
be exempt from execution issued upon a judgment recovered for its
price or upon a judgment of foreclosure of a mortgage thereon.
D’Armoured Security and Investigation Agency vs Orpia: The sheriff
tried to levy on guns and ammunitions of the security agency. The
security agency objected because these tools and implements that the
security guards use are exempt from execution because these are used
in their livelihood. SC: Tools and implements referred to are the tools and
implements of a working man, not of corporate entities. You don‘t deprive
a working man of his living. Corporations don‘t have tools and
implements.
Respondents, who were employed as security guards by petitioner, and
assigned to Fortune Tobacco, Inc., filed with the Labor Arbiter a
complaint for illegal dismissal and various monetary claims against
petitioner and Fortune Tobacco. LA rendered a Decision stating that all
the respondents except Antonio Cabangon Chua are entitled to
P1,077,124.29 for underpayment, overtime pay, legal holiday pay,
service incentive leave pay, 13th month pay, illegal deduction and refund
of firearms bond.
From the said Decision, Fortune Tobacco interposed an appeal to the
NLRC. Petitioner did not appeal. NLRC dismissed the complaint against
Fortune Tobacco. This Decision became final and executory. Thus, the
award specified in the Decision of the Arbiter became the sole liability of
petitioner.
Upon respondents‘ motion, the Arbiter issued a writ of execution. The
sheriff served a writ of garnishment upon the Chief Accountant of
Foremost Farms, Inc., a corporation with whom petitioner has an existing
services agreement. Thus, petitioner‘s receivables with Foremost were
garnished.
Petitioner filed with the NLRC a ―Motion to Quash/Recall Writ of
Execution and Garnishment‖ which was opposed by respondents. The
Arbiter issued an Order denying the motion and directing the sheriff to

release the garnished sum of money to respondents pro rata. Petitioner‘s
MR was denied, hence, it interposed an appeal to the NLRC. The NLRC
dismissed the appeal for petitioner‘s failure to post a bond within the
reglementary period. Its MR was denied. Petitioner filed with the CA a
petition for certiorari and prohibition with prayer for issuance of a writ of
preliminary injunction. CA dismissed the petition. Hence, this petition for
review on certiorari.
SC: The garnished amount is not exempt from execution.
Held:
No. The Rule clearly enumerates what properties are exempt from
execution. It is apparent that the exemption pertains only to natural
persons and not to juridical entities. CA correctly ruled that petitioner,
being a corporate entity, does not fall within the exemption, thus:
Section 13 of Rule 39 of the Rules of Court is plain and clear on what
properties are exempt from execution. Section 13 (i) of the Rules
pertinently reads:
‗SECTION 13. Property exempt from execution. – Except as otherwise
expressly provided by law, the following property, and no other, shall be
exempt from execution:
xxx xxx xxx
(i) So much of the salaries, wages or earnings of the judgment obligor
for his personal services within the four months preceding the levy as are
necessary for the support of his family.‘
The exemption under this procedural rule should be read in conjunction
with the Civil Code, the substantive law which proscribes the execution of
employee‘s wages, thus: ‗ART. 1708. The laborer‘s wage shall not be
subject to execution or attachment, except for debts incurred for food,
shelter, clothing and medical attendance.‘
Obviously, the exemption under Rule 39 of the Rules of Court and Article
1708 of the New Civil Code is meant to favor only laboring men or
women whose works are manual. Persons belonging to this class
usually look to the reward of a day‘s labor for immediate or present
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support, and such persons are more in need of the exemption than any
other [Gaa vs. Court of Appeals].
In this context, exemptions under this rule are confined only to natural
persons and not to juridical entities such as petitioner. Thus, the rule
speaks of salaries, wages and earning from the ‗personal services‘
rendered by the judgment obligor. The rule further requires that such
earnings be intended for the support of the judgment debtor‘s family.
Necessarily, petitioner which is a corporate entity, does not fall under the
exemption. If at all, the exemption refers to petitioner‘s individual
employees and not to petitioner as a corporation.
x x x. Parenthetically, in a parallel case where a security agency claimed
that the guns it gives to its guards are tools and implements exempt from
execution, the SC ruled that the exemption pertains only to natural and
not to juridical persons, thus:
‗However, it would appear that the exemption contemplated by the
provision involved is personal, available only to a natural person, such as
a dentist‘s dental chair and electric fan (Belen v. de Leon). As pointed
out by the Solicitor General, if properties used in business are exempt
from execution, there can hardly be an instance when a judgment claim
can be enforced against the business entity‘ [Pentagon Security and
Investigation Agency vs. Jimenez].
It stands to reason that only natural persons whose salaries, wages and
earnings are indispensable for his own and that of his family‘s support
are exempted under Section 13 (i) of Rule 39 of the Rules of Court.
E. Third Party Claim (Section 16)
Rule 39, Section 16. Proceedings where property claimed by third
person. — If the property levied on is claimed by any person other than
the judgment obligor or his agent, and such person makes an affidavit of
his title thereto or right to the possession thereof, stating the grounds of
such right or title, and serves the same upon the officer making the levy
and copy thereof, stating the grounds of such right or tittle, and a serves
the same upon the officer making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a bond

approved by the court to indemnity the third-party claimant in a sum not
less than the value of the property levied on. In case of disagreement as
to such value, the same shall be determined by the court issuing the writ
of execution. No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of
the bond.
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third person from
vindicating his claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or a separate
action against a third-party claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff or levying officer is sued for
damages as a result of the levy, he shall be represented by the Solicitor
General and if held liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of such funds as may
be appropriated for the purpose.
Rule 57, Section 14. Proceedings where property claimed by third
person. — If the property attached is claimed by any person other than
the party against whom attachment had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds of such right or title, and serves
such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party, the
sheriff shall not be bound to keep the property under attachment, unless
the attaching party or his agent, on demand of the sheriff, shall file a
bond approved by the court to indemnify the third-party claimant in a sum
not less than the value of the property levied upon. In case of
disagreement as to such value, the same shall be decided by the court
issuing the writ of attachment. No claim for damages for the taking or
keeping of the property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
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The sheriff shall not be liable for damages for the taking or keeping of
such property to any such third-party claimant, if such bond shall be filed.
Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property, or prevent the attaching party
from claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued for damages as a
result of the attachment, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose.
Rule 60, Section 7. Proceedings where property claimed by third
person. — If the property taken is claimed by any person other than the
party against whom the writ of replevin had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has possession of the property
and a copy thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the applicant unless the
applicant or his agent, on demand of said sheriff, shall file a bond
approved by the court to indemnify the third-party claimant in a sum not
less than the value of the property under replevin as provided in section
2 hereof. In case of disagreement as to such value, the court shall
determine the same. No claim for damages for the taking or keeping, of
the property may be enforced against the bond unless the action therefor
is filed within one hundred twenty (120) days from the date of the filing of
the bond.
The sheriff shall not be liable for damages, for the taking or keeping of
such property, to any such third-party claimant if such bond shall be filed.
Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property, or prevent the applicant from
claiming damages against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond

shall not be required, and in case the sheriff is sued for damages as a
result of the replevin, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose.
Section 16 of Rule 39 (execution), Section 14 of Rule 57 (attachment)
and Section 7 of Rule 60 (replevin) – same formulation
How do you distinguish a third party claim from a third party complaint
(under Rule 6; kinds of pleadings)?
Illustrate a third party claim: The property of a judgment obligor has
already been levied and has been taken in actual custody by the sheriff.
X who is a 3rd party files an affidavit of 3rd party claim gives it to the
sheriff. Sheriff gives it to the judgment obligee who will subsequently file
a bond.
A vs B. Judgment was rendered in favor of A. A could not pay, so sheriff
levied on the property of B. The properties of B were taken in legal
custody by the sheriff. X, not a party to the case, executes an affidavit,
which is his third party claim. X will give the affidavit to the sheriff. The
sheriff will give the affidavit of third party claim to A. It is not the third
party claimant that posts the bond. Upon receipt of the third party claim,
the judgment obligee, he will post the bond. This holds true in Rule 57
(attaching creditor) as well as in Rule 60 (applicant).
The judgment obligee posts a bond equivalent to the value of the
property. What is that bond for?
What happens if the judgment obligee does not post a bond? The sheriff
will deliver the property to the third party claimant.
It has the same provision in attachment and replevin. More so in replevin
where the sale of personal property is quickly processed.
If the judgment obligee posts a bond equivalent to the value of the
property, subject of the third party claim, the sheriff keeps the property
for auction sale.
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What is the remedy of the judgment obligee against a frivolous third party
claim? File a claim for damages in the same action or in a separate
action.
When should the sheriff auction the property? Between the hours of 9 in
the morning up to 2 in the afternoon. Where should it be? Where the
properties are located. As to personal properties, the properties where
they may be found.
During auction, who may purchase the property? Anybody; that‘s open to
the public. May the judgment obligee be the purchaser? Yes, that is
usually the case. How much does he have to pay? If he bids less than
the judgment debt, he does not have to pay. If he bids more than the
judgment debt, he has to pay.
Exception: the purchaser will have to pay even if he bids within the
judgment debt when there is a third party claim. Why? A case may crop
up between the third party claimant (saying the property to be auctioned
is his) and judgment obligee. If that happens and the third party claimant
wins, the judgment obligor will have to pay twice. That‘s not fair!
F. Execution Sale (Sections 17-26)
When the auction begins, there must first be a notice under Section 15.
The 2 other requirements are posting and publication.
Section 15. Notice of sale of property on execution. — Before the sale of
property on execution, notice thereof must be given as follows:
(a) In case of perishable property, by posting written notice of the
time and place of the sale in three (3) public places, preferably in
conspicuous areas of the municipal or city hall, post office and public
market in the municipality or city where the sale is to take place, for such
time as may be reasonable, considering the character and condition of
the property;
(b) In case of other personal property, by posting a similar notice in
the three (3) public places above-mentioned for not less than five (5)
days;

(c) In case of real property, by posting for twenty (20) days in the
three (3) public places abovementioned a similar notice particularly
describing the property and stating where the property is to be sold, and
if the assessed value of the property exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the notice once a week for two (2)
consecutive weeks in one newspaper selected by raffle, whether in
English, Filipino, or any major regional language published, edited and
circulated or, in the absence thereof, having general circulation in the
province or city;
(d) In all cases, written notice of the sale shall be given to the
judgment obligor, at least three (3) days before the sale, except as
provided in paragraph (a) hereof where notice shall be given the same
manner as personal service of pleadings and other papers as provided
by section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale which
should not be earlier than nine o'clock in the morning and not later than
two o'clock in the afternoon. The place of the sale may be agreed upon
by the parties. In the absence of such agreement, the sale of the
property or personal property not capable of manual delivery shall be
held in the office of the clerk of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of or which was designated by
the appellate court. In the case of personal property capable of manual
delivery, the sale shall be held in the place where the property is located.
Notice is an absolute requirement.
Posting is discretionary as to the period.
Publication is necessary only in cases of real property where the fair
market value is at least P50,000. It must be published once a week for 2
consecutive weeks in a newspaper of general circulation.
What is a newspaper of general circulation? According to Pinlac vs CA,
(1) there must be fixed paying subscribers; (2) issuing at least 500
copies; and (3) must be published regularly.
Under Rule 103 and 108, as to change of name and correction of entries,
the requirement is newspaper of national circulation.
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Section 17. Penalty for selling without notice, or removing or defacing
notice. — An officer selling without the notice prescribed by section 15 of
this Rule shall be liable to pay punitive damages in the amount of five
thousand (P5,000.00) pesos to any person injured thereby, in addition to
his actual damages, both to be recovered by motion in the same action;
and a person willfully removing or defacing the notice posted, if done
before the sale, or before the satisfaction of the judgment if it be satisfied
before the sale, shall be liable to pay five thousand (P5,000.00) pesos to
any person injured by reason thereof, in addition to his actual damages,
to be recovered by motion in the same action.
Section 18. No sale if judgment and costs paid. — At any time before
the sale of property on execution, the judgment obligor may prevent the
sale by paying the amount required by the execution and the costs that
have been incurred therein.
Section 19. How property sold on execution; who may direct manner
and order of sale. — All sales of property under execution must be made
at public auction, to the highest bidder, to start at the exact time fixed in
the notice. After sufficient property has been sold to satisfy the execution,
no more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authorized
representative, unless otherwise directed by the judgment or order of the
court. When the sale is of real property, consisting of several known lots,
they must be sold separately; or, when a portion of such real
property is claimed by a third person, he may require it to be sold
separately. When the sale is of personal property capable of manual
delivery, it must be sold within view of those attending the same and in
such parcels as are likely to bring the highest price. The judgment obligor,
if present at the sale, may direct the order in which property, real or
personal shall be sold, when such property consists of several known lots
or parcels which can be sold to advantage separately. Neither the officer
conducting the execution sale, nor his deputies, can become a purchaser,
nor be interested directly or indirectly in any purchase at such sale.
Section 20. Refusal of purchaser to pay. — If a purchaser refuses to pay
the amount bid by him for property struck off to him at a sale under
execution, the officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned thereby; but the
court may order the refusing purchaser to pay into the court the amount of
such loss, with costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benefit of the person
entitled to the proceeds of the execution, unless the execution has been
fully satisfied, in which event such proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter reject any subsequent bid of
such purchaser who refuses to pay.
Section 21. Judgment obligee as purchaser. — When the purchaser is
the judgment obligee, and no third-party claim has been filed, he need not
pay the amount of the bid if it does not exceed the amount of his
judgment. If it does, he shall pay only the excess.
Section 22. Adjournment of sale. — By written consent of the judgment
obligor and obligee, or their duly authorized representatives, the officer
may adjourn the sale to any date and time agreed upon by them. Without
such agreement, he may adjourn the sale from day to day if it becomes
necessary to do so for lack of time to complete the sale on the day fixed
in the notice or the day to which it was adjourned.
Section 23. Conveyance to purchaser of personal property capable of
manual delivery. — When the purchaser of any personal property,
capable of manual delivery, pays the purchase price, the officer making
the sale must deliver the property to the purchaser and, if desired,
execute and deliver to him a certificate of sale. The sale conveys to the
purchaser all the rights which the judgment obligor had in such property
as of the date of the levy on execution or preliminary attachment.
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Section 24. Conveyance to purchaser of personal property not capable
of manual delivery. — When the purchaser of any personal property, not
capable of manual delivery, pays the purchase price, the officer making
the sale must execute and deliver to the purchaser a certificate of sale.
Such certificate conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date of the levy on
execution or preliminary attachment.
Section 25. Conveyance of real property; certificate thereof given to
purchaser and filed with registry of deeds. — Upon a sale of real
property, the officer must give to the purchaser a certificate of sale
containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year from the
date of the registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of the place
where the property is situated.
Section 26. Certificate of sale where property claimed by third person.
— When a property sold by virtue of a writ of execution has been
claimed by a third person, the certificate of sale to be issued by the
sheriff pursuant to sections 23, 24 and 25 of this Rule shall make
express mention of the existence of such third-party claim.
G. Redemption
Here, the properties are already sold to the public. When does the
purchaser of the property become the owner of such property
auctioned? As of the time of the levy. If it was levied in October and the
sale is on December, he became the owner of the property as of
October. Redemption only applies to real property, not to personal
property.
That does not hold true in case of real properties. If real properties are
the subject of an auction, the purchaser only becomes the owner of the

property after consolidation of title, which is a separate action under
Rule 63 (declaratory relief and other similar remedies). That is why
when it comes to real property, there is redemption.
A filed a case against B for a sum of money. Judgment was rendered in
favor of A. B could not pay the amount so A was able to levy on the 3
race horses of B. The same was duly registered. Until when may B
redeem the race horses? B cannot redeem. Redemption applies only in
real properties and horses are personal property.
When did A become the owner of the property? As of the time of the levy
(Sections 23, 24, 33). The rights of ownership retroact to the time of levy.
Can you redeem soil on flowerpots? No, those are still personal property.
The nature of redemption is that this property is immovable.
You cannot relocate them. Soil in a flowerpot can be relocated.
The period of redemption is 1 year from the registration of the certificate
of sale (example: March 2005-March 2006).
Within that period, who may redeem? Judgment obligor or creditor who
has a lien on the property.
What is the nature of the lien? Execution.
There are 2 kinds of persons who may redeem: (1) judgment obligor; (2)
redemptioner (examples: attaching creditor, mortgagee; must be after the
lien under which the property was sold).
Look at the time frame: the property was levied on January. It was sold in
March. From the levy up to the execution sale, there is a gap of 2 months.
What lien are we selling the property here? Under the levy of execution.
The levy took place on January. The sale took place on
March. Within January and March, who may be a possible lien holder?
B‘s creditors.
Illustration: 1 hectare of land is levied upon. It was sold. Who will
negotiate or deal with that land within a 2-month period? Under paragraph
b, attaching creditor, mortgagee, etc. Who owns this land? The judgment
obligor. When it is levied upon, is there anyone who would deal with said
land? (would anyone attach on the land?) Rule 57. The other creditors of
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B! If the obligation is P1,000,000, the value of the land is P10,000,000, a
lot of people would still deal with the property. These people are
redemptioners because they are selling the property pursuant to a lien on
levy on execution which happened in January.
If this is January 2014, attachment was 2000! Within that period from the
time it was attached until it was sold, 14 years went by. Section 1 of
Rule 57, when can you attach a property? At the commencement of the
action or at any time. When you attach the property and you try to
satisfy the judgment you don‘t go to Rule 39. It is not sale on execution
but sale on attachment. If you were able to attach the property worth
P10,000,000 and the debt was only P1,000,000, many other subsequent
lien holders will be dealing with the property. These are called
redemptioners. If your lien is PRIOR to the lien under which the property
was sold, you are not a redemptioner.
If the judgment obligor redeems it, can a redemptioner redeem it again?
Why does the rule provide that once the obligor redeems, no further
redemption is allowed? Because the property has returned to the
original owner.
If a redemptioner redeems, it can still be redeemed by a judgment
obligor or other redemptioner. When? Within 60 days from the previous
redemption.
You can only redeem from a redemptioner. If it is the judgment obligor
that first redeems the property, no further redemption is allowed. But if it
is a redemptioner who redeems the property, within a period of 60 days,
it can still be redeemed either by the judgment obligor or another
redemptioner. If it exceeds the 60 day period,
Mar 10, 1995  (1 year from registration of COS) Mar 9, 1996
Apr 5  Jun 4  Feb 14
Within the 1 year period (March 10, 1995- March 9, 1996), if it is
redeemed by the judgment obligor, that‘s the end of it and there can no
longer be any redemption.

On April 5, it is redeemed by a redemptioner. Until when? Until June 4.
This is a 60-day period. Can it still be redeemed? Only by the judgment
obligor beyond the June 4.
In any occasion, the judgment obligor always has a period of one year.
On February 14, a redemptioner redeems. Can it be redeemed again?
Until when may a redemptioner redeem? April 14, even though it is
beyond the one year period. When it comes to redemptions, the Rules
are relaxed. The more redemptions, the better. It is economically sound.
The more obligations are paid for with just one property, the better.
Everybody wins. How much is the additional amount? 2% if
redemptioner; 1% per month if judgment obligor. Even if the redemption
by a redemptioner is within a period of 1 month from the last
redemption, he pays 2% plus. But if it is the judgment obligor that
redeems, he pays only 1% for every month.
The one-year period can be extended but only as far as the redemption is
concerned. The last redemption will only be the maximum limit. But if the
last re-redemption is only up to March 9. If it was redeemed by a
redemptioner and it would go beyond the maximum of 1 year, it may still
be redeemed beyond that. But if the Rule provides that a redemptioner
can redeem it, with more reason that the obligor could redeem it because
it belongs to him.
1. the right of redemption vs equity of redemption
2. who may redeem (Section 27)
Section 27. Who may redeem real property so sold. — Real property
sold as provided in the last preceding section, or any part thereof sold
separately, may be redeemed in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor; or his successor in interest in the whole or
any part of the property;
(b) A creditor having a lien by virtue of an attachment, judgment or
mortgage on the property sold, or on some part thereof, subsequent to
the lien under which the property was sold. Such redeeming creditor is
termed a redemptioner.
3. effect of redemption (Section 29)
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Section 29. Effect of redemption by judgment obligor, and a certificate to
be delivered and recorded thereupon; to whom payments on redemption
made. — If the judgment obligor redeems he must make the same
payments as are required to effect a redemption by a redemptioner,
whereupon, no further redemption shall be allowed and he is restored to
his estate. The person to whom the redemption payment is made must
execute and deliver to him a certificate of redemption acknowledged
before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such certificate must
be filed and recorded in the registry of deeds of the place in which the
property is situated and the registrar of deeds must note the record
thereof on the margin of the record of the certificate of sale. The
payments mentioned in this and the last preceding sections may be made
to the purchaser or redemptioner, or for him to the officer who made the
sale.
H. Other remedies to fully satisfy judgment
(Referring to section 6 example) In this revived judgment, which you can
revive again and again so judgment will not expire for execution
purposes, suppose you were not able to satisfy it fully, what other legal
recourse do you have to fully satisfy it?
Judgment for money under section 9: payment, levy, garnishment. If you
have exhausted all of these but the judgment is still not satisfied, what
are your other remedies? Examination of the judgment obligor under
section 36, examination of obligor of judgment obligor under section 37,
appointment of a receiver under section 41 and sale of ascertainable
interest under section 42.
1. Examination of judgment obligor (Section 36)
Section 36. Examination of judgment obligor when judgment
unsatisfied. — When the return of a writ of execution issued against
property of a judgment obligor, or any one of several obligors in the
same judgment, shows that the judgment remains unsatisfied, in whole
or in part, the judgment obligee, at any time after such return is made,
shall be entitled to an order from the court which rendered the said
judgment, requiring such judgment obligor to appear and be examined
concerning his property and income before such court or before a

commissioner appointed by it at a specified time and place; and
proceedings may thereupon be had for the application of the property
and income of the judgment obligor towards the satisfaction of the
judgment. But no judgment obligor shall be so required to appear before
a court or commissioner outside the province or city in which such
obligor resides or is found.
2. Examination of obligor of judgment obligor (Section 37)
Section 37. Examination of obligor of judgment obligor. — When the
return of a writ of execution against the property of a judgment obligor
shows that the judgment remain unsatisfied, in whole or in part, and
upon proof to the satisfaction of the court which issued the writ, that a
person, corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an order,
require such person, corporation, or other juridical entity, or any officer,
or member thereof, to appear before the court or a commissioner
appointed by it, at a time and place within the province or city where
such debtor resides or is found, and be examined concerning the same.
The service of the order shall bind all credits due the judgment obligor
and all money and property of the judgment obligor in the possession or
in the control of such person corporation, or juridical entity from the time
of service; and the court may also require notice of such proceedings to
be given to any party to the action in such manner as it may deem
proper.
3. Appointment of a receiver (Section 41)
Section 41. Appointment of receiver. — The court may appoint a receiver
of the property of the judgment obligor; and it may also forbid a transfer or
other disposition of, or any interference with, the property of the judgment
obligor not exempt from execution.
4. Sale of ascertainable interest (Section 42)
Section 42. Sale of ascertainable interest of judgment obligor in real
estate. — If it appears that the judgment obligor has an interest in real
estate in the place in which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein can be ascertained
without controversy the receiver may be ordered to sell and convey such
real estate or the interest of the obligor therein; and such sale shall be
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conducted in all respects in the same manner as is provided for the sale
of real state upon execution, and the proceedings thereon shall be
approved by the court before the execution of the deed.
Suppose the obligor comes from a very rich family. Can the receiver sell
the interest of the obligor in the estate of his father?
I. Judgment: principal vs surety (Section 46)
Section 46. When principal bound by judgment against surety. — When
a judgment is rendered against a party who stands as surety for another,
the latter is also bound from the time that he has notice of the action or
proceeding, and an opportunity at the surety's request to join in the
defense.
When you execute a judgment against a surety, should you implead the
principal?
General rule: You cannot run after the surety without the principal.
Exception: In matters of implementing a judgment against a principal
and a surety, you don‘t have to bring in the principal. The surety is
already an indispensable party. But you may bring in the principal if you
want to because the principal is a necessary party.
J. Effect of judgment (Section 47)
Section 47. Effect of judgments or final orders. — The effect of a
judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in
respect to the probate of a will, or the administration of the estate of a
deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title to the thing, the
will or administration or the condition, status or relationship of the
person, however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the
testator or intestate;

(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have been
missed in relation thereto, conclusive between the parties and their
successors in interest, by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing and under the
same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have been
so adjudged, or which was actually and necessarily included therein or
necessary thereto.
Among the grounds in a motion to dismiss in Rule 16 is res judicata. The
explanation of res judicata is in Section 47.
(a) and (b) of Section 47 is res judicata proper or estoppel (barred by prior
judgment).
(c) is conclusiveness of judgment. As to the issue, it can no longer be
retried in the next case.
The issue of ownership has already been resolved in unlawful detainer.
Can that be again resolved in another case (reivindicatoria)? Yes. This is
the exception. Under Rule 70, the only issue in unlawful detainer is
possession. In an action for unlawful detainer, if the issue of ownership is
raised in the pleading, the court is not divested of its jurisdiction but must
resolve the issue of ownership only to resolve the issue of possession.
In all other instances, conclusiveness of judgment will apply. Like in
settlement of estate, if you are probating the will, probating of the will only
refers to the authenticity and due execution of the will, nothing else. If the
parties submit to the probate court the issue of ownership of properties
belonging to the estate, and the court resolves that, you cannot bring that
up anymore because conclusiveness of judgment will apply.
K. Effect of foreign judgment (Section 48)
Republic vs Orbesillo: A and B divorced in another country. In the
Philippines, A is still married to B but B, who is not in the Philippines, is
not married to A anymore. He filed declaratory relief under Rule 63,
wanting to know what his rights are in the Philippines. SC: Fine, you can
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remarry since it would be unreasonable if you remain married to someone
who is not married to you.
How do you enforce foreign judgment here? There must be a petition for
enforcement of a foreign judgment. You cannot implement a foreign
judgment here in the country. You file another case, the subject matter of
which is the judgment.
In Manotoc, that is an enforcement of a foreign judgment. Imee Manotoc
was adjudged abroad and she wanted to implement that here. Judgment
obligee said it cannot be implemented. Manotoc filed an enforcement of
that foreign judgment. The summons was served to Maki dela Cruz, who
was not related to Imee. The doctrine here is substituted service. You
cannot enforce that here.
The rule distinguishes: If it is judgment against a specific thing, it
is conclusive; if it is against a person, it is a presumptive evidence
of a right (example: divorce).
Section 48. Effect of foreign judgments or final orders. — The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the
judgment or final order, is conclusive upon the title to the thing, and
(b) In case of a judgment or final order against a person, the judgment
or final order is presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
Panotes vs CTDC: The property was sold to him as a buyer, not as a
developer. He was not a successor-in-interest because he was a buyer
in good faith. He did not even know there was an encumbrance in the
property. Writ of execution cannot be implemented against a
nonparty to an action. How about a successor-in-interest? Under the
doctrine of res judicata, identity of parties is not absolute. It is identity of
interest and not identity of persons.

The case stemmed from a complaint filed with the National Housing
Authority (NHA) by Rogelio Panotes, then president of the Provident
Village Homeowners Association, Inc., against Provident Securities
Corporation (PROSECOR), owner-developer of the Provident Village in
Marikina City. The complaint alleges that PROSECOR violated PD 957
(REGULATING THE SALE OF SUBDIVISION LOTS AND
CONDOMINIUMS, PROVIDING PENALTIES FOR VIOLATIONS
THEREOF), one of which was its failure to provide an open space in the
said subdivision. NHA directed PROSECOR to provide the Provident
Village an open space which is Block 40. Considering that PROSECOR
did not appeal from the NHA Resolution, it became final and executory.
When Panotes filed a motion for execution of the NHA Resolution, it was
found that the records of the case were ―mysteriously missing.‖ Hence,
his motion was ―provisionally dismissed‖ without prejudice.
Meanwhile, PROSECOR sold to City Townhouse Development
Corporation (CTDC), respondent, several lots in the subdivision. Among
the lots sold were those comprising Block 40. CTDC was unaware of the
NHA Resolution ordering PROSECOR to have Block 40 utilized as open
space of Provident Village.
The new president (Araceli Bumatay) of the Provident Homeowners
Association, Inc. filed with the HLURB a complaint for the revival of the
NHA Resolution. Impleaded thereon as defendant was CTDC, which was
alleged as successor-in-interest of PROSECOR. HLURB rendered its
Decision in favor of Bumatay, reviving NHA Resolution and declaring
Block 40 of the Provident Village as ―open space‖ for the said
subdivision. On appeal to the HLURB Board of Commissioners, the
Decision was affirmed with modification in the sense that CTDC has the
right to recover from PROSECOR ―what it has lost.‖ After its MR was
denied, CTDC interposed an appeal to the Office of the President which
affirmed in toto the judgment of the HLURB Board of Commissioners.
CTDC then filed with the CA a petition for review under Rule 43. CA
rendered its Decision reversing the Decision of the OP and dismissing the
complaint for revival of judgment.
SC: NHA Resolution may not be enforced against CTDC. An action for
revival of judgment is no more than a procedural means of securing the
execution of a previous judgment which has become dormant after the
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passage of 5 years without it being executed upon motion of the
prevailing party. It is not intended to re-open any issue affecting the
merits of the judgment debtor‘s case nor the propriety or correctness of
the first judgment.
The original judgment or the NHA Resolution sought to be revived was
between Rogelio Panotes and PROSECOR, not between petitioner
Araceli Bumatay and respondent CTDC. In maintaining that CTDC is
bound by the NHA Resolution, petitioner claims that CTDC is the
successor-in-interest of PROSECOR and, therefore, assumed the
obligations of the latter to provide an open space for Provident Village.
CTDC purchased from PROSECOR Block 40 in the said village, not as
an owner-developer like PROSECOR, but as an ordinary buyer of lots.
Even after the sale, CTDC did not become an owner-developer. The
Deed of Sale executed by CTDC, as buyer, and PROSECOR, as seller,
shows that the subject matter of the sale is the unsold lots comprising
Block 40 within the subdivision to CTDC. The contract does not include
the transfer of rights of PROSECOR as owner-developer of the said
subdivision. Clearly, there is no basis to conclude that CTDC is the
successor-in-interest of PROSECOR. When CTDC bought Block 40,
there was no annotation on PROSECOR‘s title showing that the property
is encumbered. In fact, the NHA Resolution was not annotated thereon.
CTDC is thus a buyer in good faith and for value, and as such, may not
be deprived of the ownership of Block 40.
The real party-in-interest in the revival of NHA Case is PROSECOR and
not CTDC. PROSECOR was the lone defendant or respondent in that
case against whom judgment was rendered. To insist that CTDC is a
successor-in-interest of PROSECOR may have some truth if we are
talking about the ownership of the lots sold by PROSECOR in favor of
CTDC as a result of a civil action between the two. But then, to hold
CTDC as the successor-in-interest of PROSECOR as the developer of
the subdivision, is far from realty. CTDC is simply on the same footing
as any lot buyer-member of PVHIA.
Furthermore, strangers to a case, like CTDC, are not bound by the
judgment rendered by a court. It will not divest the rights of a party who
has not and never been a party to a litigation. Execution of a judgment
can be issued only against a party to the action and not against one who
did not have his day in court.

Fajardo vs Quitalig: Sheriff Rodolfo Quitalig of the MTCC was charged
by Reverend Fernando Fajardo with conduct prejudicial to the best
interest of the service and/or dereliction of duty.
Petitioner filed a motion for execution of a judgment in an ejectment
case. The court issued a writ of execution. Sheriff served writ on
defendant, who asked for a period of 2 weeks to remove her personal
properties. After 2 weeks he went to Sheriff Quitalig so that the Writ of
Execution may be implemented but he was told that a restraining order
was issued, but when he asked for it, Quitalig told him that he left it in
the office. Fajardo discovered that no restraining order has really been
issued. He told Quitalig to implement the Writ of Execution. Sheriff,
accompanied by a policeman and the barangay captain went to the
place where the Writ of Execution is to be implemented but when they
reached the place, Quitalig did not do anything except to ask the
defendant to bring out her personal properties. His reason is that an
employee of the Probation Office, Leonardo Martinez, talked to him. The
restraining order was brought to the place, and Quitalig told him that the
writ of execution can no longer be implemented.
Quitalig denied the charge. He asked for the dismissal of the case,
because he had already implemented the Writ as evidenced by his
Report of Service. OCA found Quitalig to have been negligent in the
performance of his duty as a sheriff.
SC: Quitalig was negligent in the performance of his duty as sheriff.
Quitalig enforced the Writ of Execution dated March 7, 2000 only on
August 24, 2000, as shown by his August 25, 2000 Report of Service.
Within 30 days from receipt thereof and every 30 days thereafter until
the judgment is fully satisfied, a sheriff is required by the Rules of Court
to render a report on the action taken on a writ of execution. Evidently,
Quitalig was not only remiss in his implementation of the Writ, but
likewise derelict in his submission of the returns thereof.
Quitalig should have immediately implemented and made a return of the
Writ after duly serving it upon the defendant on March 9, 2000.
Nonetheless, because of the request of the defendant and her promise
that she would vacate the premises on March 23, 2000, he allowed her
to remain there. However, when he came back on March 24, 2000, he
was unable to enforce the Writ because of a TRO issued by the RTC.
He averred that he was finally able to execute the Writ on August 24,
2000 and to submit his Return thereof on the next day.
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By his own words, Quitalig admitted his dereliction of duty. First, as we
have said earlier, he should have immediately executed the Writ when
he served it upon the defendant on March 9, 2000. Second, he should
have immediately reported to the MTCC that he was unable to enforce
the Writ because another court had issued a TRO enjoining him from
doing so. Third, he should have informed the parties, particularly the
plaintiff or his counsel, about his inability to enforce the Writ. Fourth, he
should have immediately enforced it 20 days after its issuance. Fifth, he
should have made periodic Reports to the MTCC until the judgment was
fully satisfied and the parties furnished a copy thereof. Sixth, within 30
days from his receipt of the Writ, he should have promptly made his
Return, a copy of which he should have immediately furnished the
parties.
The actuations of Quitalig constitute disrespect, if not outright defiance,
of the MTCC‘s authority. In the absence of instructions to the contrary, a
sheriff has the duty to execute a Writ with reasonable celerity and
promptness in accordance with its mandate.
RCBC vs Magwin Marketing Corp
Villaruel vs Fernando: Panfilo Villaruel is the former Assistant
Secretary for Air Transportation Office (ATO) of DOTC. Fernando,
Abarca and Cleofas are the Chief, Chief Admin Assistant and Admin
Assistant of Civil Aviation Training Center (an adjunct agency of ATO
tasked to train air traffic controllers, airway communicators and related
civil aviation personnel).
Villaruel issued a memorandum detailing respondents to the Office of
DOTC Undersecretary Primitivo Cal. The latter wrote to DOTC
Secretary Garcia requesting to reconsider the detail order but to comply
with the order, they reported Cal‘s office.
Without acting on this request, Villaruel issued another memorandum
placing Abarca under preventive suspension for 90 days without pay
pending investigation for alleged grave misconduct. After 90 days,
respondents requested Sec. Garcia to lift these orders and they also
sought the intervention of the Ombudsman. Ombudsman inquired but
Garcia only replied that he already issued a memorandum recalling

respondents to their mother unit. In the end, the respondents were never
reinstated to their old positions.
Respondents filed a Petition for Mandamus and Damages with Prayer
for Preliminary Mandatory Injunction (RTC). Injunction was granted and
ordered Villaruel to recall respondents to their mother unit. Villaruel
never complied with this order so he was declared guilty of indirect
contempt.
Villaruel, through the OSG, filed a special civil action for certiorari (CA)
assailing the order of contempt.
Meanwhile trial in the RTC continued and Villaruel was declared in
default. Respondents‘ evidence were already presented ex parte.
Judgment was rendered in favor of the respondents.
Villaruel appealed this decision to CA. (So he has two cases before CA:
certiorari and appeal). Apparently, respondents filed MTD in the
certiorari case and it was granted because the issue there is already
moot and academic. OSG failed to file a memorandum. The appeal was
dismissed. Assistant Solicitor Luciano filed MR but it was denied and the
resolution was declared final and executory.
Respondents filed a Motion for Execution with the RTC and a copy was
served to OSG but the latter did not file any opposition. RTC issued a writ
of execution and the sheriff issued a notice of sheriff‘s sale (Villaruel‘s
real estate property).
Villaruel through a new counsel filed a Motion to Quash Writ of Execution
and Suspend Sheriff‘s sale alleging that the RTC‘s decision never
became final and executory because it deprived him of due process. OSG
failed to file his memorandum and failed to inform him of the orders of
dismissal and granting of execution. He further alleged that the resolution
of the Ombudsman (Abarca was found guilty, Fernando and Cleofas were
also dismissed) superseded the RTC decision. RTC quashed the writ
because the Sheriff failed to follow Section 9, Rule 39 and issued an Alias
Writ. The MR filed by Villaruel was denied. Villaruel went to CA again and
filed certiorari (based on the motion for execution).
CA dismissed this and the MR so now Villaruel filed this case.
Issue: WON the Ombudsman resolution finding Abarca guilty superseded
the trial court‘s decision and rendered it unjust and inequitable.
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SC: No. A judgment that has acquired finality becomes immutable and
unalterable and may no longer be modified in any respect except only to
correct clerical errors or mistakes. This rule admits of certain exceptions.
One of these exceptions is whenever circumstances transpire after the
finality of the decision rendering its execution unjust and inequitable. This,
however, is not the case here. The Ombudsman issued his Resolution
prior to the finality of the RTC‘s decision. The Ombudsman issued his
Resolution on 22 January 1997 while the RTC‘s decision became final
and executory on 14 June 1997. Therefore, the resolution of the
Ombudsman is not a supervening event to warrant the stay of the
execution of the decision of the trial court.
Furthermore, the resolution of the Ombudsman finding Abarca guilty of
violating Section 7(d) of RA 6713 did not and could not supersede the
decision of the RTC holding petitioner liable for damages. The action filed
by the petitioner before the Ombudsman is completely different from the
action instituted by respondents before the RTC. The 2 actions, which
are clearly separate and distinct from each other, presented 2 different
causes of action. Petitioner‘s cause of action arose from respondents‘
alleged violation of certain provisions of RA 6713 whereas respondents‘
cause of action resulted from petitioner‘s refusal to recall respondents to
their mother unit at CATC. In the administrative case before the
Ombudsman, the issue was whether respondents were guilty of violating
RA 6713. In contrast, the issue in the civil action before the RTC was
whether respondents were entitled to the issuance of the writ of
mandamus and damages.
The findings of the Ombudsman did not render the execution of the trial
court‘s decision unjust and inequitable. The resolution of the
Ombudsman finding Abarca guilty of violating Section 7(d) of RA 6713
did not state that petitioner had a valid reason to detail respondents to
the Office of Undersecretary Cal. In fact, the Ombudsman dismissed
the charges against Reynaldo Fernando and Mary Lou Cleofas. Thus,
the trial court correctly awarded damages to respondents. Contrary to
petitioner‘s contention, awarding damages to respondents does not
amount to rewarding respondents for their alleged wrongdoing. The
award merely compensates respondents for petitioner‘s own unlawful
acts. Clearly illegal were petitioner‘s acts of unjustifiably detailing
respondents to the office of DOTC Undersecretary Cal and refusing to

comply with the 9 November 1995 directive of Secretary Garcia to recall
immediately respondents to their mother unit.
Morta vs Bagagnan: Sps. Morta charged Judge Bagagnan of the MTC
with gross ignorance of the law, incompetence, bias and delay. They
also indicted Sheriff Matias of RTC with gross ignorance of the law,
negligence and connivance with the defendants in 2 civil cases in the
MTC.
Judge Magagnan, in his Answer/Comment, explained that he had
denied the spouses' motion for the issuance of a writ of possession
because by the time the 2 civil cases were finally decided by the SC,
they had already been ousted from the lots pursuant to a DARAB
decision (directing them to cease and desist from disturbing the peaceful
possession of Jaime Occidental), and a decision ordering the spouses
to vacate the lots (a writ of execution/demolition was issued). Regarding
the alleged delay in the resolution of the Motion for Contempt, Judge
Bagagnan contended that an ocular inspection and a hearing had been
conducted to determine if their motion had any basis. The hearing had
to be deferred pending receipt of the sheriff's report.
Sheriff Matias admitted that there was delay in the full implementation of
the Writ of Execution of the 2 civil cases, and explained that the delay
was due to his heavy workload and was unintentional.
Office of the Court Administrator (OCA): the explanation of the judge was
sufficient, the records showed that the spouses had been evicted from the
lots they were claiming when the 2 civil cases were finally decided by the
SC; the delay in the contempt proceedings was due primarily to the need
of the court to clarify some important matters, and not due to the
negligence or partiality of the judge. OCA recommended that the charges
against him be dismissed. OCA, however, found that Sheriff Matias failed
to implement the Writ of Execution promptly and efficiently, and
recommended that he be ordered to pay a fine.
SC: The writ of execution was not implemented promptly and efficiently.
Sheriff Matias is guilty of simple neglect of duty. The final stage in the
litigation process, the execution of judgment, must be carried out
promptly. Those tasked to implement court orders and processes should
exert every effort and indeed consider if their bounden duty to do so, in
order to ensure the speedy and efficient administration of justice. A
decision that is left unexecuted or delayed indefinitely because of the
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sheriff‘s inefficiency or negligence remains an empty victory on the part of
the prevailing party. For this reason, any inordinate delay in the execution
of judgment is truly deplorable and cannot be countenanced by the Court.
According to Section 14, Rule 39 of the ROC, a writ of execution shall be
returnable to the court issuing it immediately after the judgment has been
satisfied in part or in full. If the judgment cannot be satisfied in full within
30 days after his receipt of the writ, the officer shall report to the court and
state the reason. Such writ shall continue in effect during the period within
which the judgment may be enforced by motion. The officer shall make a
report to the court every 30 days on the proceedings taken thereon until
the judgment is satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the proceedings taken, and
shall be filed with the court and copies thereof promptly furnished the
parties. According to Administrative Circular No. 12, October 1, 1985, he
must submit to the judge concerned a report on actions taken on all writs
and processes assigned to them within 10 days from receipt.
A Writ of Execution was issued November 22, 1999. The Return of
Service of that Writ was filed on May 25, 2000, about 6 months after.
There is nothing in the records that shows he submitted a periodic report
on the actions he had taken every 30 days. The writ was partially
executed on December 15-28, 1999 and January 11, 2000, but it was
only on May 25 that this matter was reported to the trial court. The excuse
of heavy workload cannot absolve the Sheriff from administrative
sanctions. He should at all times show how a high degree of
professionalism in the performance of his duties. He failed to observe that
degree of dedication required of him as a sheriff.
Serrano vs CA: Sps Serrano were the owners of a parcel of land at QC.
The couple mortgaged the properties in favor of GSIS as security for a
loan of P50,000. However, the couple was able to pay only P18,000.
Sps Serrano, as vendors, and Sps Emilio and Evelyn Geli, as vendees,
executed a deed of absolute sale with partial assumption of mortgage
over the parcel of land. The Sps Geli paid P38,000 as partial payment,
with the balance of P32,000 to be paid by them to the GSIS for the
account of Sps Serrano. The Sps Geli thereafter took possession of the
property. Evelyn Geli died and was survived by husband Emilio Geli and
their children.

However, Emilio and his children failed to settle the f P32,000 to GSIS.
GSIS filed a complaint against Geli and his children with RTC for the
recission of the deed of absolute sale with partial assumption of
mortgage. RTC ordered the rescission of the deed.
Geli appealed to the CA. During pendency of the appeal, GSIS
foreclosed the real estate mortgage over the property for non-payment
of the P50,000 loan. GSIS was the highest bidder at the public auction.
A certificate of sale over the property was issued by the sheriff Geli paid
the redemption price to GSIS, wherein GSIS executed a certificate of
redemption and turned over to Geli the TCT in the names of Sps
Serrano. Geli did not inform the Sps Serrano and the CA that he had
paid the redemption price to GSIS. CA dismissed the appeal of Geli on
the ground that the appellants failed to pay the requisite docket fees. No
motion for reconsideration was filed. The dismissal of the appeal
became final and executory.
Sps Serrano filed with the RTC a motion for execution of the RTC‘s
earlier decision. The defendants Geli filed a motion to quash the claim
because he had already redeemed the property, arguing that this
constituted a supervening event that would make the execution of the
trial court‘s decision unjust and inequitable.
RTC denied the motion. It noted that the payment of Geli of the
redemption price took place before the CA dismissed the appeal, and
before the decision of the RTC became final, hence, it did not constitute a
supervening event warranting a quashal of the writ of the execution.
Emilio Geli died intestate and was survived by his children. The heirs filed
with the CA a petition for certiorari and/ or prohibition praying for the
nullification of the RTC orders. Under the terms of the deed of absolute
sale with assumption of mortgage which was still subsisting at that time,
they were ipso facto subrogated to the rights of the Spouses Serrano as
mortgagors of the property; hence, they became the owners of the
property and were entitled to the possession thereof. CA ruled that since
Geli paid the redemption price while his appeal was pending with the CA,
the redemption was a supervening event which rendered the enforcement
of the writ of execution issued by the RTC against them unjust and
inequitable.
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Petitioner argues: that the payment of the redemption price by Emilio Geli
during the pendency of the appeal in the CA was ineffective because,
subsequently, when the respondents‘ appeal was dismissed by the CA,
the summary decision of the RTC declaring the deed of absolute sale with
partial assumption of mortgage rescinded had become final and
executory. The deed of absolute sale with partial assumption of mortgage
executed by the petitioners and the Spouses Geli had ceased to exist
with its rescission as decreed by the RTC. According to the petitioners,
the payment of the redemption price was conditioned upon the perfection
and outcome of the appeal. Since the appeal of the respondents was
dismissed by their failure to pay the requisite docket fees, they must
suffer the consequences thereof.
Issue: WoN the redemption constituted a supervening event which
changed the relation of the parties, thus rendering execution inequitable
under the premises.
SC: No. Generally, the execution upon a final judgment is a matter of
right on the part of the prevailing party. It is the ministerial and mandatory
duty of the trial court to enforce its own judgment once it becomes final
and executory. It may happen, however, that new facts and
circumstances may develop or occur after a judgment had been rendered
and while an appeal therefrom is pending; or new matters had developed
after the appeal has been dismissed and the appealed judgment had
become final and executory, which the parties were not aware of and
could not have been aware of prior to or during the trial or during the
appeal, as they were not yet in existence at that time. In the first
situation, any attempt to frustrate or put off the enforcement of an
executory decision must fail. Once a judgment has become final and
executory, the only remedy left for material attention thereof is that
provided for in Rule 38 of the Rules of Court, as amended. There is no
other prerequisite mode of thwarting the execution of the judgment on
equitable grounds predicated on facts occurring before the finality of
judgment. In the second situation, the execution may be stayed,
notwithstanding the affirmance of the appealed judgment by this Court. It
is required, however, that the supervening facts and circumstances must
either have a direct effect upon the matter already litigated and settled or
create a substantial change in the rights or relations of the parties therein
which would render execution of a final judgment unjust, impossible or
inequitable or when it becomes imperative in the interest of justice. The
interested party may file a motion to quash a writ of execution issued by
the trial court, or ask the court to modify or alter the judgment to

harmonize the same with justice and further supervening facts. Evidence
may be adduced by the parties on such supervening facts or
circumstances.
The payment by Emilio Geli to the GSIS for the account of the
petitioners was made while the appeal of the private respondents from
the summary judgment of the RTC was pending. The summary
judgment of the RTC had not yet become final and executory. It
behooved the said respondents to prosecute their appeal and file their
brief, where they should have invoked the payment of the redemption
price as a ground for the reversal of the trial court‘s summary judgment
in their favor. The respondents failed to do so, and even concealed the
payment of the loan for the account of the petitioners. Worse, the
respondents did not pay the requisite docket fees for their appeal, which
resulted in its dismissal. The respondents even opted not to file any
motion for the reconsideration of the resolution of the CA dismissing
their appeal. In sum, the respondents allowed the decision of the trial
court to become final and executory. Consequently, the enforcement of
the summary judgment of the trial court can no longer be frustrated by
the respondents‘ payment, through Emilio Geli, to the GSIS in 1987.
Irrefragably, the Spouses Geli, as vendees-mortgagors under the deed
of absolute sale with partial assumption of mortgage, would have been
subrogated to the rights and obligations of the petitioners under the said
deed, including the right to redeem the property from the GSIS.
However, the CA dismissed their appeal for failure to pay the requisite
docket fees, and such dismissal became final and executory. Hence,
the summary judgment of the trial court declaring the deed of absolute
sale with partial assumption of mortgage rescinded had also become
final and executory.
Perez vs CA: The spouses Digos secured a loan of P5.8 million from
the International Exchange Bank to finance their project for the
construction of townhouses on their property. However, the project was
delayed because the homeowners in Pillarville Subdivision which
abutted the property refused to allow them to build an access road.
Thus, the equipment to be used for the project could not pass through.
The spouses Digos failed to pay the amortization on their loan. The
Bank caused the extrajudicial foreclosure of their real estate mortgage.
The property was sold at public auction with the bank as the highest
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bidder at P4.5 million, which appeared to be the account of the spouses
at that time. The certificate of sale was executed by the sheriff and was
registered with the Register of Deeds.
In the meantime, the spouses referred the matter to barangay
conciliation but the barangay captain failed to resolve the matter due to
the vehement objections of some of the subdivision homeowners.
The spouses wrote the bank and asked for 6 months within which to
redeem the property. The bank denied their request. They again wrote to
the bank and pleaded for an extension of 3 months to redeem the
property. The bank granted them 1 month. However, the bank
consolidated its title over the property and the Register of Deeds issued
a TCT in the bank‘s name.
First Complaint:
Instead of repurchasing the property, the spouses filed a complaint
against the bank for the nullification of the extrajudicial foreclosure of the
real estate mortgage and sale at public auction and/or redemption of the
property, with a prayer for a temporary restraining order and a writ of
preliminary injunction to enjoin the bank from consolidating the title over
the property.
Allegations:
- They were denied due process because the foreclosure of the real
estate mortgage was extrajudicial.
- The sale at public auction was without prior notice to them.
- The property was sold for only P4.5 million, the balance of their
account with the bank but about 400% lower than the prevailing
price of the property.
- The bank rejected their plea for a 5 month extension to redeem, and
their offer of P1 million in partial payment of their loan account to
reduce the same to P3.5 million but the bank granted them an
extension of only 1 month to redeem the property, designed to
divest them of the same and enrich some characters at their
expense.
The spouses caused the annotation of a notice of lis pendens at the
dorsal portion of the TCT. The trial court did not issue a TRO or writ of

preliminary injunction. The bank moved for dismissal and for the
cancellation of the notice of lis pendens.
The trial court granted the bank‘s motion to dismiss. The trial court held
that it had no authority to extend the period for redemption and since it
had already expired, the spouses had no more right to redeem the
property; as such, the defendant [bank] had the right to consolidate its
title to the property.
The spouses did not appeal. Instead, they filed a petition for certiorari
with the CA. CA dismissed the petition for being filed out time. They filed
an MR but they later withdrew via a motion. CA resolved to grant the
motion and the resolution dismissing the petition became final and
executory. Entry of judgment was made.
Meanwhile, the bank sold the property to the petitioners, Isidro Peres and
Narciso Ragua. The Register of Deeds issued a TCT in their names.
Second complaint:
The spouses filed a complaint with the RTC against the bank, Perez and
Ragua, for the cancellation and annulment of the extrajudicial
foreclosure of the real estate mortgage executed by them in favor of the
bank, the sale at public auction as well as the certificate of sale
executed by the sheriff, and the Torrens title issued to them.
Allegations:
- They reiterated the allegations in the first complaint.
- They admitted their failure to pay the amortization on their loans.
- That the extrajudicial foreclosure of the real estate mortgage and the
sale at public auction were illegal because the bank charged much
more than the amount due on their loan account.
- That although they pleaded for a restructuring of their loan account
and a moratorium on the payment of their account, they were
unaware of the erroneous computation of the balance of their loan
account.
- That the bank‘s consolidation of its title over the property was
premature because they were given one month to redeem their
property.
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The bank filed a motion to dismiss. The bank alleged, among others, that
the spouses were guilty of splitting a single cause of action because they
already assailed the extrajudicial foreclosure of the real estate mortgage
and the sale of the property at public auction on account of lack of due
process and arbitrary abuse in their first complaint and again sought to do
so in the second complaint this time grounded on the invalid foreclosure
of the real estate mortgage, and the sale at public auction of the property
for an amount in excess of the balance of the loan account. The bank
also alleged that the spouses are barred by res judicata form filing the
second complaint for the same causes of action even if additional
defendants were impleaded. Consequently, they were also guilty of forum
shopping. Perez and Ragua filed a motion to dismiss on similar grounds.
The RTC denied the motions, ruling that there was no identity of issue in
the 2 actions because the second complaint assailed the legality of the
extrajudicial foreclosure, on the sole ground that the bank had unlawfully
increased their obligation, contrary to the terms and conditions of the
loan contract. The court held that the causes of action in the 2
complaints were not identical: in the first case, it was for the
redemption of the mortgaged property, distinct and separate from
their cause of action in the second case which is rooted on the
erroneous computation of the balance of their loan account with the
bank.
The defendants filed an MR but it was denied. They filed a petition for
certiorari, prohibition and mandamus to the CA. The CA dismissed the
petition and affirmed the RTC orders.
SC: The second complaint is barred by res judicata. Section 49(b)
enunciates the first concept of res judicata, known as bar by prior
judgment or estoppel by judgment, which refers to a theory or matter
that has been definitely and finally settled on its merits by a court of
competent jurisdiction without fraud or collusion.
There are 4 essential requisites which must concur for the application of
this doctrine:
(a) finality of the former judgment;
(b) the court which rendered it had jurisdiction over the subject
matter and the parties;

(c) it must be a judgment on the merits; and
(d) there must be, between the first and second actions, identity of
parties, subject matter and causes of action.
Section 49(c) of Rule 39 enumerates the concept of conclusiveness
of judgment. This is the second branch, otherwise known as
collateral estoppel or estoppel by verdict. This applies where,
between the first case wherein judgment is rendered and the second
case wherein such judgment is involved, there is no identity of causes of
action. As explained by this Court:
It has been held that in order that a judgment in one action can be
conclusive as to a particular matter in another action between the
same parties or their privies, it is essential that the issues be
identical. If a particular point or question is in issue in the second
action, and the judgment will depend on the determination of that
particular point or question, a former judgment between the same
parties will be final and conclusive in the second if that same point or
question was in issue and adjudicated in the first suit; but the
adjudication of an issue in the first case is not conclusive of an entirely
different and distinct issue arising in the second. In order that this rule
may be applied, it must clearly and positively appear, either from
the record itself or by the aid of competent extrinsic evidence that
the precise point or question in issue in the second suit was
involved and decided in the first. And in determining whether a given
question was an issue in the prior action, it is proper to look behind
the judgment to ascertain whether the evidence necessary to
sustain a judgment in the second action would have authorized a
judgment for the same party in the first action.
If indeed the bank made an erroneous computation of the balance of their
account as claimed by the private respondents in their second complaint,
this should have been alleged in the first complaint as one of their causes
of action. They failed to do so. The private respondents unequivocably
admitted in their first complaint that the balance of their account with the
bank was P4,500,000.00 which was the precise amount for which the
bank sought the foreclosure of the real estate mortgage and the sale of
the property at public auction; they even sought judicial recourse to
enable them to redeem the property despite the lapse of the one-year
period therefor.
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Relying on these admissions on the part of the private respondents, and
the fact that the bank has already consolidated its title over the property,
the Court thus dismissed their first complaint. The Order of the Court
dismissing the first complaint is a judgment of the case on the merits.
The attempt of the respondents in their second complaint to avoid the
application of the principle of res judicata by claiming the nature of their
account on the ground therefor and their legal theory cannot prosper.
Case law has it that where a right, question or fact is distinctly put in issue
and directly determined by a court of competent jurisdiction in a first case,
between the same parties or their privies, the former adjudication of that
fact, right or question is binding on the parties or their privies in a second
suit irrespective of whether the causes of action are the same. The ruling
of the CA that the action of the private respondents and their legal theory
in their second complaint were different from their causes of action and
legal theory in the first complaint is not correct. A different cause of action
is one that proceeds not only on a sufficiently different legal theory, but
also on a different factual footing as not to require the trial of facts
material to the former suit; that is, an action that can be maintained even
if all disputed factual issues raised in the plaintiff‘s original complaint are
concluded in defendant‘s favor.
In this case, the private respondents‘ second complaint cannot be
maintained without trying the facts material to the first case, and the
second case cannot be maintained if all the disputed factual issues raised
in the first complaint are considered in favor of the bank.
The principle of res judicata applies when the opportunity to raise
an issue in the first complaint exists but the plaintiff failed to do so.
Indeed, if the pleading of a different legal theory would have convinced
the trial court to decide a particular issue in the first action which, with the
use of diligence the plaintiffs could have raised therein but failed to do so,
they are barred by res judicata. Nor do legal theories operate to constitute
a cause of action. New legal theories do not amount to a new cause of
action so as to defeat the application of the principle of res judicata.
Hao vs Andres: Kenneth Hao is one of the defendants in a civil case for
replevin pending before the RTC. Judge Renato Fuentes issued an
Order of Seizure against 22 motor vehicles allegedly owned by Hao. On

the strength of the said order, Abe Andres, Sheriff of RTC, was able to
seize 9 motor vehicles on different dates.
In his Affidavit-Complaint against Andres before the Office of the Court
Administrator (OCA), Hao alleged that Andres gave undue advantage to
Zenaida Silver in the implementation of the order and that Andres seized
the 9 motor vehicles in an oppressive manner. Hao also averred that
Andres was accompanied by unidentified armed personnel on board a
military vehicle which was excessive since there were no resistance
from them. Hao also discovered that the compound where the seized
motor vehicles were placed is actually owned by Silver.
In view of the approval of Hao‘s counter-replevin bond, Judge
Emmanuel Carpio ordered Andres to immediately cease and desist from
further implementing the order of seizure, and to return the seized motor
vehicles including its accessories to their lawful owners. However, 8 of
the 9 seized motor vehicles were reported missing. Andres narrated that
PO3 Rodrigo Despe, one of the policemen guarding the motor vehicles,
reported to him that "Nonoy" entered the compound and caused the
duplication of the vehicles' keys.
Subsequently, Hao reported that 3 of the carnapped vehicles were
recovered by the police. He then accused Andres of conspiring and
conniving with Atty. Oswaldo Macadangdang (Silver's counsel) and the
policemen in the carnapping of the motor vehicles. Hao also accused
Andres of concealing the depository receipts from them and pointed out
that the depository receipts show that Silver and Atty. Macadangdang
were the ones who chose the policemen who will guard the motor
vehicles.
After the OCA recommended that the matter be investigated, we
referred the case to Executive Judge Renato Fuentes for investigation,
report and recommendation. Judge Fuentes found Andres guilty of
serious negligence in the custody of the 9 motor vehicles. He
recommended that Andres be suspended from office.
Judge Fuentes found numerous irregularities in the implementation of the
writ of replevin/order of seizure, to wit: (1) at the time of the
implementation of the writ, Andres knew that the vehicles to be seized
were not in the names of any of the parties to the case; (2) one vehicle
was taken without the knowledge of its owner,Junard Escudero; (3)
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Andres allowed Atty. Macadangdang to get a keymaster to duplicate the
vehicles' keys in order to take 1 motor vehicle; and (4) Andres admitted
that prior to the implementation of the writ of seizure, he consulted Silver
and Atty. Macadangdang regarding the implementation of the writ and
was accompanied by the latter in the course of the implementation. Judge
Fuentes observed that the motor vehicles were speedily seized without
strictly observing fairness and regularity in its implementation.
Anent the safekeeping of the seized motor vehicles, Judge Fuentes
pointed out several instances where Andres lacked due diligence to wit:
(1) the seized motor vehicles were placed in a compound surrounded by
an insufficiently locked see-through fence; (2) 3 motor vehicles were left
outside the compound; (3) Andres turned over the key of the gate to the
policemen guarding the motor vehicles; (4) Andres does not even know
the full name of the owner of the compound, who was merely known to
him as "Gloria"; (5) except for PO3 Despe and SPO4 Nelson Salcedo, the
identities of the other policemen tapped to guard the compound were
unknown to Andres; (6) Andres also admitted that he only stayed at least
one hour each day from October 19-21, 2005 during his visits to the
compound; and (7) even after it was reported to him that a certain
"Nonoy" entered the compound and duplicated the keys of the motor
vehicles, he did not exert his best effort to look for that "Nonoy" and to
confiscate the duplicated keys.
Judge Fuentes also observed that Andres appeared to be more or less
accommodating to Silver and her counsel but hostile and uncooperative
to the complainant. He pointed out that Andres depended solely on Silver
in the selection of the policemen who would guard the seized motor
vehicles. He added that even the depository receipts were not turned over
to the defendants/third-party claimants in the replevin case but were in
fact concealed from them. Andres also gave inconsistent testimonies as
to whether he has in his possession the depository receipts.
OCA disagreed with the observations of Judge Fuentes. It recommended
that Andres be held liable only for simple neglect of duty.
SC: We adopt the recommendation of the investigating judge.
Being an officer of the court, Andres must be aware that there are
welldefined steps provided in the Rules of Court regarding the proper
implementation of a writ of replevin and/or an order of seizure. The

Rules is explicit on the duty of the sheriff in its implementation. To
recapitulate what should be common knowledge to sheriffs, the pertinent
provisions of Rule 60, of the Rules of Court are quoted hereunder:
SEC. 4. Duty of the sheriff. Upon receiving such order, the sheriff must
serve a copy thereof on the adverse party, together with a copy of the
application, affidavit and bond, and must forthwith take the property, if it
be in the possession of the adverse party, or his agent, and retain it in
his custody. If the property or any part thereof be concealed in a building
or enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken open
and take the property into his possession. After the sheriff has taken
possession of the property as herein provided, he must keep it in a
secure place and shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses for taking and
keeping the same.
SEC. 6. Disposition of property by sheriff. - If within five (5) days after
the taking of the property by the sheriff, the adverse party does not
object to the sufficiency of the bond, or of the surety or sureties thereon;
or if the adverse party so objects and the court affirms its approval of the
applicant's bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is objected to and found
insufficient and he does not forthwith file an approved bond, the property
shall be delivered to the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return it to the adverse party.
First, the rules provide that property seized under a writ of replevin is not
to be delivered immediately to the plaintiff.22 In accordance with the
said rules, Andres should have waited no less than five days in order to
give the complainant an opportunity to object to the sufficiency of the
bond or of the surety or sureties thereon, or require the return of the
seized motor vehicles by filing a counter-bond. This, he failed to do.
Records show that Andres took possession of two of the subject motor
vehicles on October 17, 2005, four on October 18, 2005, and another
three on October 19, 2005. Simultaneously, as evidenced by the
depository receipts, on October 18, 2005, Silver received from Andres six
of the seized motor vehicles, and three more motor vehicles on October
19, 2005. Consequently, there is no question that Silver was already in
possession of the nine seized vehicles immediately after seizure, or no
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more than three days after the taking of the vehicles. Thus, Andres
committed a clear violation of Section 6, Rule 60 of the Rules of Court
with regard to the proper disposal of the property.
It matters not that Silver was in possession of the seized vehicles merely
for safekeeping as stated in the depository receipts. The rule is clear that
the property seized should not be immediately delivered to the plaintiff,
and the sheriff must retain custody of the seized property for at least five
days.23 Hence, the act of Andres in delivering the seized vehicles
immediately after seizure to Silver for whatever purpose, without
observing the five-day requirement finds no legal justification.
In Pardo v. Velasco, this Court held that: 'Respondent as an officer of the
Court is charged with certain ministerial duties which must be performed
faithfully to the letter. Every provision in the Revised Rules of Court has a
specific reason or objective. In this case, the purpose of the five (5) days
is to give a chance to the defendant to object to the sufficiency of the
bond or the surety or sureties thereon or require the
return of the property by filing a counterbond.'
In Sebastian v. Valino, this Court reiterated that: Under the Revised Rules
of Court, the property seized under a writ of replevin is not to be delivered
immediately to the plaintiff. The sheriff must retain it in his custody for five
days and he shall return it to the defendant, if the latter,
as in the instant case, requires its return and files a counterbond.'
Likewise, Andres' claim that he had no knowledge that the compound is
owned by Silver fails to convince us. Regardless of who actually owns the
compound, the fact remains that Andres delivered the vehicles to Silver
prematurely. It violates the rule requiring him to safekeep the vehicles in
his custody. The alleged lack of facility to store the seized vehicles is
unacceptable considering that he should have deposited the same in a
bonded warehouse. If this was not feasible, he should have sought prior
authorization from the court issuing the writ before delivering the vehicles
to Silver.
Second, it must be stressed that from the moment an order of delivery in
replevin is executed by taking possession of the property specified
therein, such property is in custodia legis. As legal custodian, it is
Andres' duty to safekeep the seized motor vehicles. Hence, when he

passed his duty to safeguard the motor vehicles to Silver, he committed
a clear neglect of duty.
Third, we are appalled that even after PO3 Despe reported the
unauthorized duplication of the vehicles' keys, Andres failed to take
extra precautionary measures to ensure the safety of the vehicles. It is
obvious that the vehicles were put at risk by the unauthorized
duplication of the keys of the vehicles. Neither did he immediately report
the incident to the police or to the court. The loss of the motor vehicles
could have been prevented if Andres immediately asked the court for an
order to transfer the vehicles to another secured place as soon as he
discovered the unauthorized duplication. Under these circumstances,
even an ordinary prudent man would have exercised extra diligence. His
warning to the policemen to closely watch the vehicles was insufficient.
Andres cannot toss back to Silver or to the policemen the responsibility
for the loss of the motor vehicles since he remains chiefly responsible
for their safekeeping as legal custodian thereof. Indeed, Andres' failure
to take the necessary precaution and proper monitoring of the vehicles
to ensure its safety constitutes plain negligence.
Fourth, despite the cease and desist order, Andres failed to return the
motor vehicles to their lawful owners. Instead of returning the motor
vehicles immediately as directed, he opted to write Silver and demand
that she put up an indemnity bond to secure the third-party claims.
Consequently, due to his delay, the eventual loss of the motor vehicles
rendered the order to return the seized vehicles ineffectual to the
prejudice of the complaining owners.
It must be stressed that as court custodian, it was Andres' responsibility
to ensure that the motor vehicles were safely kept and that the same
were readily available upon order of the court or demand of the parties
concerned. Specifically, sheriffs, being ranking officers of the court and
agents of the law, must discharge their duties with great care and
diligence. In serving and implementing court writs, as well as processes
and orders of the court, they cannot afford to err without affecting
adversely the proper dispensation of justice. Sheriffs play an important
role in the administration of justice and as agents of the law, high
standards of performance are expected of them.29 Hence, his failure to
return the motor vehicles at the time when its return was still feasible
constitutes another instance of neglect of duty.
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Good faith on the part of Andres, or lack of it, in proceeding to properly
execute his mandate would be of no moment, for he is chargeable with
the knowledge that being an officer of the court tasked therefor, it
behooves him to make due compliance. He is expected to live up to the
exacting standards of his office and his conduct must at all times be
characterized by rectitude and forthrightness, and so above suspicion and
mistrust as well.35 Thus, an act of gross neglect resulting in loss of
properties in custodia legis ruins the confidence lodged by the parties to a
suit or the citizenry in our judicial process. Those responsible for such act
or omission cannot escape the disciplinary power of this Court.
Anent the allegation of grave abuse of authority (oppression), we likewise
agree with the observations of the investigating judge. Records show that
Andres started enforcing the writ of replevin/order of seizure on the same
day that the order of seizure was issued. He also admitted that he took
the vehicles of persons who are not parties to the replevin case. He
further admitted that he took one vehicle belonging to Junard Escudero
without the latter's knowledge and even caused the duplication of its keys
in order that it may be taken by Andres. Certainly, these are indications
that Andres enforced the order of seizure with undue haste and without
giving the complainant prior notice or reasonable time to deliver the motor
vehicles. Hence, Andres is guilty of grave abuse of authority (oppression).
When a writ is placed in the hands of a sheriff, it is his duty, in the
absence of any instructions to the contrary, to proceed with
reasonable celerity and promptness to execute it according to its
mandate. However, the prompt implementation of an order of
seizure is called for only in instances where there is no question
regarding the right of the plaintiff to the property. Where there is
such a question, the prudent recourse for Andres is to desist from
executing the order and convey the information to his judge and to
the plaintiff.
True, sheriffs must comply with their mandated ministerial duty to
implement writs promptly and expeditiously, but equally true is the
principle that sheriffs by the nature of their functions must at all
times conduct themselves with propriety and decorum and act
above suspicion. There must be no room for anyone to conjecture
that sheriffs and deputy sheriffs as officers of the court have
conspired with any of the parties to a case to obtain a favorable
judgment or immediate execution. The sheriff is at the front line as

representative of the judiciary and by his act he may build or
destroy the institution.
RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
There are two (2) kinds of appeal:
1. notice of appeal
2. record on appeal
Time Frames:
• Notice of Appeal: 15 days after notice to the appellant of the judgment
or final order appealed from
• Record on Appeal: 30 days after notice of the judgment or final order
Why is it that the rule allows a 30-day period for a record on
appeal? Because this refers to multiple appeals. Aside from that, the
rule requires that you have to attach pertinent documents or records of
the case relative to the issue on appeal.
In the Rules of Court, there are several multiple appeals. In Special Civil
Actions, you find that in Rule 67 (Expropriation) and Rule 69 (Partition).
But a classic example of multiple appeals is settlement of estate,
especially if there is a will where you will start with probate of a will.
Every part there is a final order. If you start with the will, once it is
probated, the order probating a will is a final order which is appealable.
The next step is appointment of executor/administrator. Again, that is a
final order which you can appeal. Next you submit an inventory and
accounting after 1 year which are again final orders. Then you move to
partition and distribution which is again a final order.
Suppose you appeal the appointment of an executor, the records remain
with the trial court. What you will (send?) to the appellate court are only
those matters concerning the issue of appointing an executor. You will
have to prepare documents, evidence, testimony, etc. so it will take
some time. That‘s why the rule even allows a joint record on appeal.
A record on appeal is already available in the lower court (MTC) because
of RA 7691. Estate proceedings may now be taken cognizance by a lower
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court depending on the gross value of the estate (300K or below/400K or
below, MTC; above that, RTC).
When you file a notice of appeal with the MTC, when is that appeal
perfected? In Rule 40, you make a cross reference to Sec. 9, Rule 41
which provides the perfection of appeal and the expiration of a period to
appeal.
Section 9. Perfection of appeal; effect thereof. — A party's appeal by
notice of appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record on
appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the records on appeal filed in
due time and the expiration of the appeal of the other parties.
In either case, prior to the transmittal of the original record or the record
on appeal, the court may issue orders for the protection and preservation
of the rights of the parties which do not involve any matter litigated by the
appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and allow
withdrawal of the appeal.
This section is important because it applies to all kinds of courts.
When you file a notice of appeal with the clerk of court, the appeal is
perfected upon filing of the notice of appeal as far as the appellant is
concerned. But the court does not lose jurisdiction over the case because
the loss of jurisdiction happens only upon expiration of the period to
appeal.
(go back to the example under Jurisdiction, p. 13)

After the filing of the notice of appeal, if it is the MTC, said court has 15
days within which to elevate the records to the RTC. Before the elevation
of the records, the court can still exercise residual jurisdiction.
Upon elevation of the records from the MTC to the RTC, the RTC, thru
its clerk of court, must issue a notice to the appellant who may either be
plaintiff-appellant of defendant-appellant. Upon that notification, the
appellant will submit a memorandum of appeal within a period of 15
days, copy furnished to the appellee who has the same period of time
within which to file/submit an appellee‘s memorandum. On the basis of
these memoranda, the court will render judgment, unless one of them
would file a Reply memorandum which is not required. If a
memorandum for the appellant is not filed, it will amount to a dismissal.
If there is no filing of a appellee‘s memorandum, a decision will be
rendered by the court. It cannot be dismissed because the appellant
filed a memorandum.
If the decision of the MTC is affirmed by the RTC, you go up to the CA by
petition for review under Rule 42.
New Provision: Sec. 8, Rule 40
Section 8. Appeal from orders dismissing case without trial; lack of
jurisdiction. — If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the Regional Trial Court
may affirm or reverse it, as the case may be. In case of affirmance and
the ground of dismissal is lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall try the case on
the merits as if the case was originally filed with it. In case of reversal,
the case shall be remanded for further proceedings.
Lack of jurisdiction is a ground for dismissal but the dismissal here may
either be with or without trial on the part of the court. If the case is
dismissed by the MTC for lack of jurisdiction, that dismissal is a final
order and so you appeal to the RTC. The RTC, upon taking cognizance
of the appeal, may either affirm or reverse the order of dismissal. If it
affirms the order of dismissal because the lower court has no
jurisdiction, you have to find out whether the RTC has jurisdiction over
the subject matter of the original case (not the appealed case) as it was
filed with the MTC. If it has jurisdiction, instead of throwing out the
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complaint, the RTC must take cognizance of it as if it was originally filed
therein.
If it is a reversal, the RTC has to remand it to the MTC or await for any
party to file a new action. It can also happen that it was affirmed but it
taken cognizance of by the RTC because it has no jurisdiction either.
Example 1: If you file a labor case with the MTC which was dismissed for
lack of jurisdiction and it was appealed to the RTC, the latter court has no
jurisdiction to try the case either. The RTC has to affirm the order of
dismissal but it has no jurisdiction.
Example 2: Suppose a case was filed with the MTC for the amount of
500K. The MTC has no jurisdiction hence it will dismiss the case. You
then appeal it to the RTC which now has jurisdiction over the amount. As
such, instead of throwing out the complaint, the RTC takes cognizance of
it as if it was originally filed with it.
These inferences seem to be incorrect because an appellate court can
only take cognizance of an appeal when the lower court exercised original
jurisdiction. Otherwise, what the cognizing court exercised would in effect
be original jurisdiction as well. Sec. 8, Rule 40, however, is the exception.
That‘s why this is not in the 1960 Rules of Court.
General Rule: Appellate jurisdiction can only be exercised if the lower
court has original jurisdiction.
Exception: Sec. 8, Rule 40
If it has been tried already and it was dismissed, still you appeal it but the
problem there is that the evidence is already admitted by the lower court.
They remain. They don‘t need to be retaken if there is already trial.
RULE 41: APPEAL FROM THE REGIONAL TRIAL COURTS
The RTC here exercises original jurisdiction.
Same rules as Rule 40 with respect to the following:
• two (2) kinds of appeal
• notice of appeal (single)

• record on appeal (multiple)
• perfection of appeal (Sec. 9, Rule 41)
• loss of jurisdiction
• expiration of the period to appeal
Rule 41 only differs from Rule 40 in terms of the time frame. The
elevation of the record from the RTC to the CA is thirty (30) days.
When you read Rule 41, you are left hanging because the process is not
yet done. The continuation of Rule 41 is Rule 44 (Ordinary Appealed
Cases).
RULE 42: PETITION FOR REVIEW FROM THE REGIONAL TRIAL
COURTS TO THE COURT OF APPEALS
This is a kind of appeal from the RTC to the Court of Appeals when the
former court exercises appellate jurisdiction.
The best example of this rule is an unlawful detainer case because such
case is originally cognizable by the MTC. Hence you appeal to the RTC
then you go up on a petition for review, in which case you avail of Rule
42.
**This is just a reading matter.**
RULE 43: APPEALS FROM QUASI-JUDICIAL AGENCIES TO THE
COURT OF APPEALS
The CTA is no longer covered by this rule pursuant to RA 9282 which
elevated said court to the level of the Court of Appeals.
From quasi-judicial bodies, you go up to the CA. This is not by notice of
appeal or by record on appeal but rather, by petition for review.
Pleading-wise, this is the same as Rule 42 as to content of the petition for
review.
Section 12. Effect of appeal. — The appeal shall not stay the award,
judgment, final order or resolution sought to be reviewed unless the
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Court of Appeals shall direct otherwise upon such terms as it may deem
just.
This means that the appeal does not stop the proceeding. In other
words, you can have the judgment executed. That is why what you have
to do is to pray for injunctive relief under Rule 58 (Preliminary
Injunction), absence of which, execution will follow.
As to Section 1 of this rule, there is no need to memorize because the
enumeration is not exclusive. Just remember the five (5) tribunals whose
decisions and final orders must go up only to the Supreme Court. All the
rest is with the CA.
RULE 44: ORDINARY APPEALED CASES
Note that upon elevation of the records from the RTC to the CA, the CA
will notify also the appellant that the records are already with them. Upon
this notice, the appellant is supposed to submit an appellant‘s brief. Rule
44 tells you as to what should constitute an appellant‘s brief which is
mandatory.
Section 7. Appellant's brief. — It shall be the duty of the appellant to file
with the court, within forty-five (45) days from receipt of the notice of the
clerk that all the evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten, mimeographed or
printed brief, with proof of service of two (2) copies thereof upon the
appellee.
Section 13. Contents of appellant's brief. — The appellant's brief shall
contain, in the order herein indicated, the following:
1. A subject index of the matter in the brief with a digest of the arguments
and page references, and a table of cases alphabetically arranged,
textbooks and statutes cited with references to the pages where they
are cited;
1. An assignment of errors intended to be urged, which errors shall be
separately, distinctly and concisely stated without repetition and
numbered consecutively;

1. Under the heading "Statement of the Case," a clear and concise
statement of the nature of the action, a summary of the proceedings,
the appealed rulings and orders of the court, the nature of the
judgment and any other matters necessary to an understanding of the
nature of the controversy with page references to the record;
2. Under the heading "Statement of Facts," a clear and concise
statement in a narrative form of the facts admitted by both parties and
of those in controversy, together with the substance of the proof
relating thereto in sufficient detail to make it clearly intelligible, with
page references to the record;
2. A clear and concise statement of the issues of fact or law to be
submitted, to the court for its judgment;
1) Under the heading "Argument," the appellant's arguments on each
assignment of error with page references to the record. The
authorities relied upon shall be cited by the page of the report at
which the case begins and the page of the report on which the
citation is found;
1) Under the heading "Relief," a specification of the order or judgment
which the appellant seeks; and
1. In cases not brought up by record on appeal, the appellant's brief
shall contain, as an appendix, a copy of the judgment or final order
appealed from.
On the basis of Sec. 13, this order must be strictly
followed: subject index statement of the case statement of
the facts issues argumentations
prayer
Non-compliance with this order is a ground for dismissal pursuant to
Sec.1(f), Rule 50.
Section 1. Grounds for dismissal of appeal. — An appeal may be
dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:
xxx xxx xxx
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3. Absence of specific assignment of errors in the appellant's brief, or of
page references to the record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
xxx xxx xxx
When the CA notifies you to file an appellant‘s brief, you have to go to
the CA and look over the records of the case. Don‘t rely on your own
records because the basis of your appellant‘s brief must be the official
records of the case which are now with the CA. You will note from Rule
41 that before the RTC clerk of court transmits the records to the CA,
they must be arranged chronologically and paged accordingly. That is
the provision of the rule. If you have the copy of the records of the case,
it bears no paging.
Example: You have a copy of the TSN which consists of 105 pages. If
you look over the records of the case as transmitted to the clerk of court
of the CA, you will see that your pages 1-50 are not necessarily
numbered the in same way as the official records. If you are preparing
your appellant‘s brief, you make notations/foot notes. If your foot notes
will follow the paging in your own copy, said notations will not match the
records of the case such that when the judge reads your brief and finds
that your references are not correct, he will simply dismiss your case.
Trivia: The ordinary market price now for an appellant’s brief is
P50,000.00.
Under Rule 44, upon receipt of your notice, you have forty-five (45) days
to prepare an appellant‘s brief (Sec. 7, Rule 44), copy furnished the
appellee who has the same period within which to file his appellee‘s brief.
The appellant, if he wants to, within twenty (20) days from receipt of the
appellee‘s brief, may submit a reply brief.
Section 8. Appellee's brief. — Within forty-five (45) days from receipt of
the appellant's brief, the appellee shall file with the court seven (7) copies
of his legibly typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellant.
Section 9. Appellant's reply brief. — Within twenty (20) days from
receipt of the appellee's brief, the appellant may file a reply brief
answering points in the appellee's brief not covered in his main brief.

Note: This is not given in the bar but may come in handy in practice.
RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT
This is an appeal from the following tribunals:
• Court of Appeals
• Sandiganbayan
• Court of Tax Appeals (en banc)
• Commission on Appointments
• Commission on Elections
• Regional Trial Courts
In the first five (5) tribunals, there is no other way but to elevate to the
Supreme Court. Therefore, what is crucial in Rule 45 is the appeal from
the RTC. As a general rule, no case must go directly to the Supreme
Court. It must always follow the principle of hierarchy of courts.
In Rule 45, it is provided that a decision or final order of the Regional
Trial Court bypasses the CA and goes up directly to the Supreme Court.
But the limitation is pure question of law so that if you avail of the wrong
appeal, there is no remand or transmittal under the present rule. It
should be outright dismissal.
If you go up to the Supreme Court and you raise questions of fact, it
would amount to a dismissal. This has the same effect even if you raise
questions of fact together with questions of law. The issue is what is a
question of law and what is a question of fact.
As a general rule, a question of fact requires the presentation of
evidence whereas a question of law is simply the determination of what
the law in a particular situation is applicable.
For purposes of the bar, there are three (3) exceptions and they are the
remedies against a decision of the following:
2. Writ of Amparo (2007)
3. Writ of Habeas Data (2008)
4. Writ of Kalikasan (2012)
These prerogative writs are also appealable to the Supreme Court under
Rule 45 but on both questions of fact and law.
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RULE 47: ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND
RESOLUTIONS
Section 1. Coverage. — This Rule shall govern the annulment by the
Court of Appeals of judgments or final orders and resolutions in civil
actions of Regional Trial Courts for which the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies are no
longer available through no fault of the petitioner.
Annulment of judgments is also an equitable remedy. In fact, this is
resorted to only when you were not able to avail all the other remedies
against a final judgment namely, new trial, reconsideration, appeal, and
even petition for relief. It appears from Mesina v. Meer, even before you
can avail of annulment of judgment, you first have to apply for petition for
relief from judgment.
Note: Do not confuse an equitable remedy from prerogative remedies
which talk of prerogative writs: Writ of Amparo, Writ of Habeas Data, and
Writ of Kalikasan.
Rule 47 is the last remedy against an executory judgment.
What are the grounds?
1. extrinsic fraud
2. lack of jurisdiction
Section 2. Grounds for annulment. — The annulment may be based
only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could
have been availed of, in a motion for new trial or petition for relief.
What is important is to consider the requirement that you can only avail of
this when you were not able to avail of the precedent remedies and you
are not at fault for not availing of them. Otherwise, you cannot avail of
annulment of judgments.
What are the limitations?

• extrinsic fraud: action must be filed within four (4) years from its
discovery
• lack of jurisdiction: before it is barred by laches or estoppel
Section 3. Period for filing action. — If based on extrinsic fraud, the
action must be filed within four (4) years from its discovery; and if based
on lack of jurisdiction, before it is barred by laches or estoppel.
132
and judgments of quasi-judicial bodies are not subject to annulment.
Therefore, you cannot file a petition or an action for annulment of
judgments of quasi-judicial bodies. There is no such remedy. Your only
remedy is limited to Rule 43 which is a petition for review before the
Court of Appeals.
**Rules 48-51 are just reading matters.**

Note that the effect of these two (2) remedies against an executory
judgment are different.

If you are granted petition for relief from judgment (Rule 38), what
happens? The judgment is set aside or vacated then you have trial de
novo. Take note that this trial is not the presentation of the case all over
again. Rather, it is only for those which are relevant to the issues that
have been set aside.

In the case of annulment of judgment, what is the effect if it is

granted? It renders the questioned judgment null and void.

Section 7. Effect of judgment. — A judgment of annulment shall set

aside the questioned judgment or final order or resolution and render the
same null and void, without prejudice to the original action being refiled
in the proper court. However, where the judgment or final order or
resolution is set aside on the ground of extrinsic fraud, the court may on
motion order the trial court to try the case as if a timely motion for new
trial had been granted therein.

Which court has jurisdiction over such action? An action to annul a

judgment or final order of a Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over the former. If it is an action
to annul the judgment of the RTC, it is filed with the CA. This exclusive
and original jurisdiction is also in RA 7691.

Annulment of judgments of RTCs are exclusively and originally

cognizable by the Court of Appeals. But you can also seek for the
annulment of decisions, final orders, and resolution of the lower courts
but the jurisdiction there is with the RTC.

How about if you seek to annul the judgment of quasi-judicial

bodies? Which court has jurisdiction? The decisions, resolutions,

Remedial Law Review I – Civil Procedure