Notes by Glorianne E.

CIV PRO - Dean Agranzamendez lectures

2. Court must have jurisdiction over the

subject matter of the action
3. Court must have jurisdiction over the
Res
Civil Procedure What is meant by doctrine of hierarchy of
courts; continuity of jurisdiction (also known as
I. MODULE 1- Jurisdiction adherence to jurisdiction); primary jurisdiction?
What are the distinctions between: (1) original Adherence to jurisdiction → When
jurisdiction and appellate jurisdiction; (2) jurisdiction is acquired by a court, then that
general jurisdiction and special or limited court shall continue to exercise jurisdiction
jurisdiction; (3) exclusive jurisdiction and over the case until its termination.
concurrent jurisdiction?
Primary jurisdiction → holds that if a case is
1 Original → that Appellate → that such that its determination requires the
bestowed upon a given to a court by expertise, specialized training and knowledge
court in the first means of an appeal of an administrative body, relief must first be
instance (e.g., RTC from the obtained in an administrative proceeding
over civil actions judgement of a before resort to the courts is had even if the
that are not lower court matter may well be within their proper
capable of jurisdiction.
pecuniary
estimations) KINDS OF CIVIL ACTIONS:

2 General → the Special → that AS TO THE BASIS OF THE ACTION

power of the court which limits the
to adjudicate all court’s jurisdiction 1. Real → action that affects title to or
cases except those only to some possession over a real
expressly withheld limited cases property/interest therein (issue
from its power concerns the ownership of a real
property)
3 Exclusive → Concurrent → Founded upon the privity of a real
power of a power conferred estate → issue for litigation is the
court/tribunal to upon different title to or possession over a real
adjudicate a case courts whether of property
to the exclusion of the same level or of
other different ranks 2. Personal → action in which the
courts/tribunals plaintiff seeks the recovery of a
personal property, recission of a
contract, recovery of damages
Other kinds:
• Delegated AS TO THE OBJECT OF THE ACTION
• Interlocutory
1. Action in personam → the
What determines jurisdiction of courts? complaint or the action is directed
against a particular individual;
The jurisdiction of the court is determined by establish a claim on the basis of his
the facts alleged in the complaint and the law personal liability
then enforced at the time of the
commencement of the action. 2. Action quasi in rem → action
• It is commenced by the filing of the brought against an individual with
original complaint in court. the purpose of subjecting the
interest of the defendant in a
Requisites of valid jurisdiction: particular property to the
1. Court must have jurisdiction over the obligation burdening the property;
persons of the parties (P and D)

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
conclusive only between the
parties
3. Action in rem → action against all
persons who might be minded to
make an objection of any sort
against the right sought to be
established in the action; directed
against the whole world
Over what civil actions does the municipal trial
court have jurisdiction?
1. Over all civil actions and probate
proceedings whether testate/intestate
where the value or amount of demand
does not exceed 300,000 pesos or
400,000 pesos in Metro Manila (refers
to a personal action) exclusive of DIAL-
C (except if the main cause of action is
damages);
➢ DIAL-C: Damages, Interest,
Attorneys Fees, Litigation
expenses, and Cost
2. All cases of forcible entry and unlawful
detainer; and
3. All civil actions which involve title to or
possession of real property or any
interest therein where the assessed
value of the property does not exceed
20,000 pesos or 50,000 pesos in Metro
Manila (refers to a real action);
Over what civil actions does the regional trial
court have jurisdiction?
1. Exclusive original jurisdiction over all
civil actions in which the subject of
litigation is incapable of pecuniary
estimation;
2. Over all civil actions which involve the
title to or possession of real property or
any interest therein where the assessed
value exceeds 20,00 pesos or 50,000
pesos in Metro Manila;
3. All actions in admiralty and maritime
jurisdiction where the demand or claim
exceeds 300,000 pesos or 400,000
pesos in Metro Manila;
4. Over all civil actions and probate
proceedings whether testate/intestate
where the value or amount of demand
exceeds 300,000 pesos or 400,000
pesos in Metro Manila (refers to a
personal action);
0 0
5. All actions involving the contracts of
marriage or marital relations (under the
Family courts);
6. All cases not within the exclusive
jurisdiction of any court or tribunal
exercising judicial or quasi-judicial
functions;
7. All other cases in which the demand
exclusive of interest, damages of
whatever kind, attorneys’ fees,
litigation expenses and cost where the
value exceeds 300,000 pesos or
400,000 pesos in Metro Manila
Personal action → The action will fall within the
jurisdiction of the MTC or the RTC depending
on the total amount of plaintiff’s claim or
demand exclusive of DIAL-C.
Real action → Look into the assessed value of
the real property subject matter of the litigation
How may the trial court acquire jurisdiction
over the parties; over the subject matter; and,
over the res or the property in litigation?
Nature of the action test
When confronted with the problem of what
court has jurisdiction
Determine whether the action is capable (MTC
or RTC as the case may be) or incapable (RTC)
of pecuniary estimation
Primary or ultimate objective test
Even if the action appears to be incapable of
PE, if the ultimate objective of the plaintiff is to
recover ownership of the real property, the
action is a real action → jurisdiction depends
on the assessed value
Some cases where incapable of pecuniary
estimation:
• To compel the other party of
specific performance
• Annulment of document
What cases are considered small claims cases?
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

II. MODULE 2 – Rule 1 (General • Filing of the complaint is deemed

Provisions)
In what courts are the Rules of Court
applicable?
The Rules of Court shall apply in all courts and
in all civil actions, criminal actions and special
proceedings unless otherwise provided by the
Supreme Court
Civil action/case → one by which a party sues
another for the enforcement or protection of a
right or the prevention or redress of wrong
In what cases are these rules not applicable?
• Election cases
• Land registration cases
• Cadastral
• Naturalization
• Insolvency
• Other cases such as Labor cases
except by analogy or in suppletory
character whenever practicable
and convenient
What are the kinds of civil actions?
a. Ordinary
b. Special
Both are government by the rules for ordinary
civil actions, subject to specific rules prescribed
for a special civil action.
completed only upon the payment of
docket fees regardless of the actual
date of filing
However, if an additional defendant is
impleaded in a later pleading, a civil action is
commenced as far as the additional defendant
is concerned on the date of the filing of the later
pleading regardless of whether the motion for
its submission is admitted or denied by the
court.
PURPOSE:
1. It is only when the civil action is deemed
commenced that the applicable
prescriptive period for cause of action is
interrupted. The commencement of the
civil action interrupts the prescriptive
period as to the parties to the action.
2. It is when the civil action is commenced
that it may be considered a pending civil
action for the purpose of asking for
dismissal of the other action on the ground
of litis pendentia.
How should the Rules of Court be construed?
The rules shall be construed liberally to
promote their objective of securing a just,
speedy, and inexpensive disposition of every
action and proceeding

What are the distinctions between civil actions

and special proceedings?

SPECIAL ORDINARY CIVIL

PROEEDING CASE
remedy by which a one by which a party
party seeks to sues another for the
establish a satus, a enforcement or
right or a particular protection of a right or
fact. the prevention or
redress of wrong
Kinds:
Adversarial May or may not be
adversarial
A declaration of a Object is the formal
status, a right, or a demand of a right by
particular fact one against the other

How is a civil action commenced?

A civil is commenced upon the filing of the
original complaint in court

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

III. MODULE 3 – Rule 2 (Cause of • it causes unnecessary expenses to the

Action) parties

What are the requisites of a cause of action? What determines the singleness of a cause of
action?
Cause of action→ the act or omission by which
a party violates a right of another If the action arises from quasi-delict, it is an
action ex delicto or one arising from the fault or
REQUISITES negligence of the defendant, then the
singleness of the cause of action lies in the
• a right in favor of the plaintiff by
singleness in the delict or wrong committed by
whatever means and under whatever
law it arises or is created; the defendant.
However, if the obligation arises from a
• an obligation on the part of the
contract in an action ex contractu, then the
defendant to respect or not to violate
obligation must be determined whether it is
such right; and
indivisible or divisible:
• an act or omission on the part of such
• If indivisible, there is only one cause of
defendant violative of the right of the
action regardless of the number of
plaintiff or constituting a breach of the
violations committed.
obligation of the defendant to the
• If divisible, there would be as many
plaintiff.
causes of action as there are
obligations violated.
What is the rule on splitting a single cause of
action?
May a party join in one pleading several
causes of action?
A cause of action may give rise to several
reliefs, but only one action can be filed. A
Yes, in joinder of causes of action; however,
single cause of action or entire claim or
this is only permissive
demand cannot be split up or divided into
Sec. 3. One suit for a single cause of action.
two or more different actions.
A party may not institute more than one suit
for a single cause of action.
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 When is there a misjoinder of causes of
action?
of one or a judgment upon the merits in any
one is available as a ground for the dismissal of
the others. An action governed by an ordinary civil action
Grounds: is joined by a special civil action or vice versa.
It arises when there is a violation of the rules in
which the joining of causes of action must be
1. lis pendens/litis pendentia → That
subject to the rules regarding venue and
there is another action pending
joinder of parties.
between another party and for the
Remedy: Drop the misjoined causes of action.
same cause; which will be dismissed:

Priority in time rule

2nd case that should be dismissed

More appropriate action test

If 2nd case is more appropriate, then the 1st
case should be dismissed

2. res judicata
Not allowed for the following reasons:
• it breeds multiplicity of actions
• clogs the dockets of courts

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
IV. MODULE 4 – Rule 3 (Parties to
a Civil Action)
Who are real parties in interest?
SEC. 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.
If a person is not a party to an action, the
decision of the court does not bind him.
What are the distinctions between an
indispensable party and a necessary party?
Necessary party → a party who is not
indispensable who opt to be joined as party if
complete relief is to be accorded as to those
already parties or for a complete determination
or a settlement of a claim subject of the action
• Effect of failure of joining
indispensable parties not a ground for
dismissing the action, but the court
may issue an order directing the
plaintiff to amend the complaint to
include/implead the party. If the party
refuses to comply, the court may now
dismiss the complaint on the ground of
failure of the plaintiff to obey the order
of court without any justifiable reason.
• For necessary parties, plaintiff must
state the name of the necessary party
and his reason of omission or non-
inclusion. If unjustified, the court shall
issue an order directing the plaintiff to
amend the complaint to include the
party. If plaintiff refuses, this failure will
amount to a waiver of his claim against
the omitted necessary party.
What are the requisites of joinder of parties?
Only permissive except if the party is
indispensable party (XPN to the XPN: class suit)
REQUISITES:
a. There must be several parties in whom
or against whom there exist a right to
relief arising from the same transaction
or event;
b. There must be question of law or
question of fact common to all of them;
0 0
Is misjoinder of parties a ground for dismissal
of the action?
A party is misjoined when that party is made a
party to the action although he should not be
impleaded because he has no material interest
in the subject of the litigation.
There is a non-joinder of parties if when a party
who is supposed to be joined in an action is not
impleaded.
GR: Misjoinder or non-joinder is not a ground
for dismissal of the action. Parties may be
dropped or added by the order of the court on
motion of any party or upon its own initiative at
any stage of the action and on such term as may
be just.
What are the requisites of a class suit?
a. The subject matter of the controversy is
one of common or general interest to
many persons;
b. The parties affected are so numerous
that it is impracticable to join as parties
c. The parties bringing or defending the
class suit are found by the court to be
sufficiently numerous and
representative as to fully protect the
interest of all
DEATH OF A PARTY
It shall be the duty of the cousel of the party to
inform the court within thirty days after such
death of the fact of the death of the party and
the name and address of the legal counsel of
the deceased party.
If the cousel fails to comply, then the counsel
may be subject to a disciplinary action, to wit:
Step 1: Notify the court of the Legal
representatives or heirs
Step 2: Court will issue an order for the
legal representatives or heirs to
appear in court for substitution in
place of the deceased party within 30
days.
NOTE: If no heir, the adverse party will procure
the appointment for an executor (without a will)
or administrator (with a will) for the estate of the
deceased.
If an action is brought against a debtor for
collection of his debt of P2 Million based on a
promissory note, and while the action is
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

pending in court, the defendant-debtor dies,

should the action be dismissed? Explain.

If the defendant dies before entry of

judgement, then the action will continue until
entry of judgement. Here, the action survives.
The action will be presented as a money claim.

➢ Entry of judgement – if the

judgement becomes final. Date of
the judgement is the date of entry of
the judgement.
Duty of the court to enter the date of
final judgement

Hence, since the defendant-debtor died

before entry of judgement, the action survives.

NOTE: If plaintiff dies, there will be substitution

of parties.

INDIGENT LITIGANT
• One who litigates a claim in court but
has no money or property sufficient
and available for food, shelter, and
basic necessities for himself and his
family.

When may a Solicitor General to appear in

the action?

In any action involving the validity of a treaty,

law, ordinance, Eos, PDs, rule or regulation, the
court may require the Solicitor General to
appear in the action. And he may be heard in
person or through a representative whom he
has deputized.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

V. MODULE 5 – Rule 4 (Venue)

What is venue?

The place where the action is to be

commenced and tried; the proper location of
the trial of a case.

What are the distinctions between venue and

jurisdiction?

1. Venue is the place where the action is

to be commenced and tried, while
jurisdiction is the authority of a court to
hear and decide the action.
2. Venue may be waved; on the other
hand, jurisdiction over the subject
matter cannot be waived;
3. Venue may be the subject of a written
agreement between the parties, while
jurisdiction may not;
4. A court cannot motu propio dismiss the
action on the ground of improper
venue; on the other hand, a court can
motu propio dismiss the action for lack
of jurisdiction over the subject matter
of the action; and
5. Venue establishes a relation between
the p and d, while jurisdiction
establishes a relation between the
court t and the subject matter.

What is the venue of real actions?

The action shall be commenced and tried in the

proper court which has jurisdiction over the
place where the property involved or a portion
thereof is situated.

What is the venue of personal actions?

Where the plaintiff or any of the principal
plaintiffs resides or the defendant or any of the
principal defendants resides or if the
defendant is a non-resident defendant, where
he may be found at the election of the plaintiff.

• “Reside” – The place of abode whether

temporary or permanent as
distinguished from domicile
May the parties stipulate on the venue of an
action?

Yes, parties can validly agree in writing an

exclusive venue of the action. Provided—
a. The agreement must be in writing; and
b. Must be made prior to the institution of
the civil action

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

VI. Module 6 – Rules 6, 7, and 8 KINDS OF DEFENSES:

(Pleadings)
1. Negative Defenses – in the form of
specific denial of a material fact/s
What is a pleading?
alleged in the pleading of the claimant
essential to his cause of action
Pleading is a written statement of the
respective claims and defenses of the parties NOTE: If there is no specific denial, it
submitted to the court for appropriate does not tender an issue; hence,
judgement. constituting an admission.
• Necessary to secure the jurisdiction of The word “specific” does not constitute
the court as a denial if the denial is still general.
• Means by which the issues are laid To be specific, defendant must state
before the court the substance of the matter upon which
he relies for his denial.
How should a pleading be construed?
KINDS OF SPECIFIC DENIAL:
Pleadings are liberally construed so as to do
substantial justice. Formal defects in a pleading a. Absolute Denial - Specifically
may be cured at any stage of the proceeding denying the material allegation
by means of an amendment. in the pleading of the adverse
Still, a party is bound by the allegations or party and setting forth the
statements or admissions made by him in his
substance of the matter upon
pleadings and he cannot take a position that is which the defendant relies for
inconsistent with his allegations, statements or his denial
admissions. • General denial = admission
(judicial)
What are the kinds of pleadings?
• Negative pregnant denial
= admission
a. Complaint
• It is not clear what
b. Counter-claim
portion of the
c. Cross-claim
allegation is being
d. Third-party complaint
denied
e. Complaint in intervention
b. Partial Denial - Denying a part
f. Answer
of the allegation by specifying
g. Reply to the answer
so much of it as true and deny
only the remainder
Pleadings allowed in a summary proceeding:
c. Denial by disavowal – denying
by stating lack of knowledge or
a. Complaint
information sufficient to form a
b. Compulsary Counterclaim
belief as to the truth of the
c. Cross claim
allegation in the pleading of
d. Answers thereto
the adverse party
a. Complaint
NOTE: This denial shall be set
up in good faith
• First pleading filed in court; it
commences the civil action
2. Affirmative Defenses – allegation of
• Pleading alleging the plaintiff’s or new matter, which although
claiming party’s cause or causes of hypothetically admitting the material
action allegations in the pleading would
What will the defendant state in his answer? nevertheless bar or prevent recovery
by the plaintiff
It will contain the defendant’s defenses. • Admitting the existence of
the obligation, the defense,
if proven, will prevent the

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
plaintiff from recovery from
the defendant
• Court must resolve the
affirmative defenses.
KINDS:
a. Fraud
b. Statute of Limitations
c. Release
d. Payment
e. Illegality
f. Statute of Frauds
g. Estoppel
h. Former recovery
i. Discharge in bankruptcy
j. Other matters by way of
confession and avoidance
NOTE: Motion to dismiss is not allowed except
if defendant set up the following:
• court has no jurisdiction over
the subject matter of the action
• litis pendentia – pending action
between same parties/same
cause
• res judicata – action is barred by
prior judgement
• Action is barred by Statute of
Limitations
Affirmative defenses in motion to dismiss
allowable in the past, can be set up by the
defendant:
1. court has no jurisdiction over the
person of the defendant
2. that the venue is improperly laid
3. plaintiff has no legal capacity to sue
4. the pleading asserting a claim states
no cause of action
5. the condition precedent for the filing
of the complaint has not been
complied with
GROUNDS FOR MOTION TO DISMISS:
GR: Under the present rule, a motion to dismiss
is a prohibited motion
XPNs:
1. The court has no jurisdiction over the
subject matter of the action
2. Litis pendentia
3. Res judicata
4. Barred by statute of Limitations
NOTE: Affirmative defenses must be invoked at
the earliest opportunity. Failure to do so shall
constitute a waiver thereof.
0 0
What is the earliest opportunity?
Asserting them as affirmative defenses in the
answer is deemed to be the “earliest
opportunity”. But if the grounds are any of the
grounds for motion to dismiss, invoking them
may also be considered an “earliest
opportunity.”
What does the rule require the court to do if
affirmative defenses are set up in the answer?
The court must conduct a summary on the
affirmative defenses within 15 days from the
filing of the answer.
Within 30 days from the termination from the
summary hearing, the court will resolve the
affirmative defenses.
But, if the affirmative defenses are set up by the
defendant and his answer are any of the
following—
• court has no jurisdiction over the
person of the defendant;
• that the venue is improperly laid;
• plaintiff has no legal capacity to sue;
• the pleading asserting a claim states no
cause of action; and
• the condition precedent for the filing of
the complaint has not be complied
with,
Then the court must resolve motu propio within
30 days from the filing of the filing of the
answer.
REQUISITES OF LITIS PENDENTIA:
1. There must be identity of parties or at
least as such representing the same
interests in both actions;
Identity of parties – there is a community
of interests in the party in the first case and
the party in the second case
2. Identity of rights ascertain and the
reliefs prayed for the reliefs being
founded on the same facts; and
3. The identity in both cases is such the
judgement that may be rendered in the
pending case regardless of which party
is successful will amount to res judicata
in the other case.
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
• There can still be identity of parties
even when the position of parties is
reversed
SUFFICIENCY OF COMPLAINT
Failure to state a cause of cause of action may
be asserted as an affirmative defense. If the
court finds this is true, then it may dismiss the
complaint.
In determining whether the complaint states a
cause of action, should the require the parties
to present evidence?
No. The court will simply confine itself within
the four corners of the complaint; will look at
the facts, and if the court can render a valid
judgement based on the facts, then the
complaint is sufficient.
Otherwise, the cause of action is insufficient;
hence, complaint should be dismissed.
REQUISITES OF RES JUDICATA:
1. There must be a former judgement that
is already final;
2. The judgement must have been
rendered by a court having jurisdiction
over the subject matter of the action
and over the parties;
3. The judgement must be a judgement
on the merits; and
4. There must be between the first and
second actions, identity of parties,
identity of subject matter, and identity
of causes of action.
Cause of action as distinguished from
remedy
• Cause of action may give rise to two or
more different remedies
NOTE: A party cannot escape res judicata by
varying the form of his action.
LACK OF LEGAL CAPACITY TO SUE
• The plaintiff is not in the exercise of his
civil rights;
• Does not have the necessary
qualifications to appear in the action;
• Does not have the character or
representation he claims
This in not the same as lack of legal personality
to sue. The latter means that the person is not a
real party in interest.
0 0
A CONDITION PRECEDENT FOR THE FILING
OF A CLAIM HAS NOT BEEN COMPLIED
WITH
When:
1. The plaintiff fails to exhaust
administrative remedies;
2. When the plaintiff fails to comply with
the prior requirements of prior referral
of the dispute to the lupon;
3. When the suit is between members of
the same family, it must be alleged in a
verified complaint that an earnest effort
toward compromise has been made
but the same has failed
b. REPLY
If the answer contains an affirmative defense
based on an actionable document, then the
plaintiff must file a reply to deny under oath the
genuineness and due execution of the
actionable document.
If the plaintiff fails to do so, he is deemed to
have admitted the genuineness and due
execution of the actionable document.
Definition of Reply: a pleading the office or
function of which is to deny or allege facts in
denial or avoidance of a new, matter alleged in
or relating to an actionable document attached
to the answer of the defending party.
To produce the effect of a specific denial, a
negative defense, must be denial be under
oath?
GR: No. The denial will produce the effect of a
specific denial by absolute denial, partial
denial, and denial by disavowal.
XPN: To deny the genuineness and due
execution of the actionable document that is
the basis of the cause of action or defense.
c. COUNTER CLAIM
A claim where the defending party may have
against an opposing party.
KINDS:
1. Compulsory
Requisites:
a. Arises out of or necessarily
connected with the transaction
or occurrence that is the
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

subject matter of the require a certification on non-

opponent’s complaint certification on non- forum- shopping
b. Does not require for its forum shopping
adjudication the presence of a
third person over whom the d. CROSSCLAIM
court cannot acquire
A claim by one party against a co-party arising
jurisdiction out of a transaction or occurrence that is the
c. It must be cognizable by the subject matter either of the original action or
regular court of justice counterclaim therein.
d. Must be within the jurisdiction
of the court both as to the THIRD PARTY COMPLAINTS
amount and nature thereof,
except that in an original action A claim that a defendant may, with leave of
before the RTC, the court, file against a person not a party, called a
counterclaim is still third party, to the action for contribution,
compulsory regard indemnity, subrogation or any other relief in
e. It must be already existing at respect of his opponent’s claim.
the time at the time the
PARTS OF A PLEADING:
defending party files his
1. Caption
answer
• Name of the court
• Title of the case
May a compulsory counterclaim implead a • Docket number (if one has
party who is not an original party in the already been assigned)
complaint? 2. Body
3. Signature
Yes, so that there can be a complete 4. Address
adjudication of the claim subject matter of the 5. Verification
action. 6. Certification on non-forum shopping

DISTINCTIONS: ACTIONABLE DOCUMENTS:

COMPULSORY PERMISSIVE If an actionable document is properly pleaded

Arises out of or Does not arise out of and the adverse arty fails to specifically denies
necessarily or is not necessarily it under oath, he is deemed to have admitted
connected with the connected with the the genuineness and due execution of the
transaction or transaction or actionable document. As such, he will not be
occurrence that is occurrence that is allowed to set up defenses that are inconsistent
the subject matter of the subject matter of with his implied admission (e.g. forgery)
the opponent’s the opponent’s
complaint claim
Barred if not set up in Not barred even if
the answer not set up in the
answer
Not required to Must file an answer
answer a compulsory after paying the
counterclaim and if docket fees;
he does not file an otherwise, he may
answer, he cannot be be declared in
declared in default default as to the
with respect thereto permissive
counterclaim
Not an initiatory An initiatory
pleading and pleading which
therefore it does not requires a

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
VII. MODULE 7 – Rule 9 (Effect of
Failure to Plead)
What is the rule on waiver of defenses? What
are the exceptions?
GR: (Sec. 1) All objections or defenses must be
pleaded either in a motion to dismiss or in an
answer; otherwise, it shall be deemed waived.
XPN: If it appears from the pleading or
evidence on record that the following exists:
1. The court has no jurisdiction over the
subject matter of the action;
2. Litis pententia
3. Res judicata
4. Barred by statute of limitations
Then, the court shall dismiss the claim.
NOTE: Motion to dismiss is a prohibited
motion.
DEFAULT (Failure to file an answer)
When may a defendant be declared in default?
A defendant may be declared in default from
his failure to file an answer.
Requisites:
1) The plaintiff must file a motion to
declare the defendant in default
2) There must be notice of his motion to
the defendant (served with a copy of
the motion)
3) Proof of failure on the part of the
defendant to file his answer within the
reglementary period
NOTE: Period is within 30 days from the date of
service of summons; motion for extension is not
prohibited for filing answers (before the
original period expires)
May the court, on its own, declare the
defendant in default?
No, the court cannot motu propio declare that
the defendant is in default. This is for the
plaintiff to protect his own interest.
Other instances where a defendant may be
declared in default
0 0
1. Refuses to obey an order requiring him
to comply with the modes of discovery
2. The defendant or managing agent
wilfully fails to appear before the officer
who is to take his deposition
NOTE: If the case is governed by the rule on
summary procedure, then a motion to declare
defendant in default is a prohibited motion.
Instead, on its own or upon motion, can simply
render judgement as may be warranted by the
facts alleged in the complaint and limited to
what is prayed for therein.
Options of the court:
1. Can immediately proceed to render
judgement granting the claimant or the
plaintiff such relief as his pleading or
complaint may warrant
2. The court in its discretion requires the
claimant or plaintiff to submit evidence
ex parte
The presentation of evidence may be
delegated to the clerk of court
provided he is a member of the
Philippine bar.
Order of default – order declaring the
defendant in default (not appealable –
interlocutory)
Effect: The defaulted defendant shall
be entitled to notice of subsequent
proceedings but shall not take part in
the trials; he loses his standing in court.
o The court may render
judgement as may be
warranted by the facts alleged
in the complaint and limited to
what is prayed for therein.
What is the extent of the relief that may be
awarded?
• In a judgement by default, it shall not
exceed the amount or be different in
kind from that prayed for nor award
unliquidated damages
NOTE: The rule on amendment to
conform to evidence does not apply
when defendant is in default.
What is the effect of partial default?
Where a plaintiff asserts a common cause of
action where one of them files an answer and
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

the others did not, the court should try the case
against the defendants on the basis of the
answer that was filed; should not split the case.
What are the remedies of a defendant declared
in default, and within what period may the
defendant avail himself of such remedies?
• An action for legal separation
• An action for expropriation
• Forcible entry or unlawful detainer
• Other cases governed by the rules in
summary procedure

1. Motion to set aside order of default;

must be under oath and filed by the
defendant anytime from the notice of
the declaration of default but before
judgement; must show by an affidavit
of merit that his failure to file his answer
was due to the following:
• Fraud – extrinsic
• Accident
• Mistake
• Excusable negligence

Time frame: from the notice of the declaration

of default but before judgement, he may file a
motion to set aside order of default.

2. Motion for new trial on the ground of

FAME; there must be already a
judgement but has not become final
yet
3. Appeal from the judgement by default.
Within 15 days from the notice of the
judgement, he may file a notice of
appeal.
4. Petition for relief from judgement
based on FAME; this petition should be
filed if appeal is not available as a
remedy through no fault of the
defendant himself; filed within 60 days
from notice of the judgement but
within 6 months from entry of
judgement.
5. Action for the annulment of the
judgement based on extrinsic fraud
within 4 years from the discovery of the
fraud
6. Petition for certiorari within 60 days
from the notice of the judgement
subject of the petition. If motion for
reconsideration, the 60 days should be
reckoned from the denial of his motion
for reconsideration

Cases where no default can be declared:

• In annulment of marriage
• Declaration of nullity of marriage

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

VIII. MODULE 8 – Rule 10

Amendment
• Consist of adding or striking out an
allegation or the name of any parties
• Correction of mistakes in the name of
the parties or mistaken or inadequate
allegation or description of an object in
a pleading
Purpose: so that the actual merits of the
controversy may be determined without regard
of technicalities
KINDS:
1. Formal
2. Substantial
When is amendment a matter of right? When
is it a matter of discretion?
When amended:
They can be made once as a matter of right
before a responsive pleading is served. Or, in
case of a reply, at any time within 10 days, after
it is served.
Responsive pleading - Filed by a party to deny
an allegation against him.
After the filing of responsive pleading,
substantial amendments require leave of court
When may the court refuse leave to amend?
1. A responsive pleading has been
served and filed and the motion for
leave to amend is with the intention to
delay
2. The purpose of the amendment is to
confer jurisdiction upon the court
3. The purpose of the amendment is to
cure the defect of a non-existent cause
of action
Effects of an amended pleading:
1. It supersedes the pleading that it
amends
2. Admissions in the superseded
pleading may be received in evidence
against the pleader
3. Claims or defenses alleged in the
superseded pleading but not
incorporated in the amended pleading
shall be deemed waived
Distinguish an amended pleading from a
supplemental pleading.
Supplemental pleading – to allege facts or
events that occurred after the filing of the
complaint
1. An amended pleading is filed as a
matter of right or with leave of court,
while a supplemental pleading is
always with leave of court;
2. An amended pleading alleges matters
or facts occurring before the filing of
the original pleading, while
supplemental pleadings allege matters
or facts occurring after the filing of the
original pleading; and
3. An amended pleading supersedes the
pleading that it amends, while a
supplemental allows the original
pleading to stand.

What is an amendment to conform to

evidence? Or, to authorize presentation of
evidence?

When issues not raised in the pleadings are

tried with express or implied consent of the
parties, they shall be treated in all respect as if
they have been raised in the pleadings and
there can be an amendment to conform to the
evidence, but failure to amend will not affect
the result of the trial of the issues.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

IX. MODULE 9 – Rule 11 the supplemental complaint

unless a different period is
What are the periods for filing of responsive fixed by the court
pleadings? NOTE: If no new supplemental
answer filed, the answer to the
1. Answer to a complaint in a case complaint shall serve as the
governed by the rules on summary answer to the supplemental
procedure complaint
o 10 days from service of 9. Reply
summons From 15 days of the service of the
2. Answer to the complaint governed by pleading responded to
the regular rules
o 30 calendar days from service May the period for filing of a responsive
of summons upon the pleading be extended by the court? May this
defendant, unless a different period be shortened?
period is fixed by the court
No, a motion for extension to file a pleading is
3. Answer to the amended complaint
a prohibited motion.
o If a matter of right, 30 calendar
days from service of a copy of No, the court may not except in quo warrant
the amended complaint. If with cases, the period may be shortened by the
leave of court, 15 days from the court.
notice of the order admitting
the amended complaint What is the remedy of a party who fails to file
4. If the defendant is a foreign private his responsive pleading within the time
juridical entity allowed by the rules?
o If the summons is served upon
its resident agent, he has 30 Remedy: file answer after the period for filing.
days from service of summons. Along with the answer, file a motion to admit
the answer.
But, if summons is severed on a
government official,
designated by law to receive
such summons on behalf of the
a foreign private juridical
entity, he has 60 calendar days
after receipt of such summons
by such entity.
5. Answer to 4th/3rd party complaints
o Within 30 calendar days after
service of summons unless a
different period is fixed by the
court
6. Answer to a complaint in intervention
o Within 15 calendar days from
notice of the order admitting
the complaint in intervention
unless a different period is
fixed by the court
7. Answer to a counterclaim/crossclaim
o 20 calendar days from service
of the counterclaim/crossclaim
8. Answer to a supplemental complaint
o 20 calendar days from the
notice of the order admitting

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

X. MODULE 9A – Rule 12

Bill of particulars

A definite statement of any matter which is not

alleged with sufficient definiteness or
particularity

What is the purpose of a motion for a bill of

particulars?

• To enable the defendant or a party to

properly prepare his responsive
pleading

Who may file a motion for a bill of particulars,

and when?

The motion for a bill of particulars may be filed

by the defendant before filing an answer or
before responding to a pleading.

When may a defendant who has filed a motion

for a bill of particulars file his answer?

After service of the bill of particulars assuming

the motion is granted, the plaintiff will serve
him of the bill of particulars. After this, if the
motion is granted or notice of the denial of the
defendant’s motion if denied, the defendant
has the remaining period that he was entitled
to at the time of the fling of the motion which is
not less than 5 days in any event.

What does the defendant need to do in a

motion for a bill of particulars?

Point out the defects in the complaint, the

paragraph where it is found, the details
desired.

Duty of the clerk of court

The clerk must bring the motion to the

attention of the court, and the court may deny
or grant the motion outright or allow the parties
an opportunity to be heard.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XI. Module 10 – Rule 13
Filing – the act of submitting the pleading or
other paper to the court.
Service – providing a party with a copy of the
pleading
What are the modes of filing?
1. Personal filing – By submitting
personally the original copy of the
pleading, motion, or other papers to
the court, plainly indicated as such.
2. Filing by registered mail
3. Filing by accredited courier
4. Filing by electronic mail or other
electronic means (in places where the
court is electronically equipped)
NOTE: Sec 14 of Rule 13, the above
must only be served or filed personally
or registered mail unless express
permission is granted by the court.
The following must be filed only
through personal filing/registered
mail:
1. Initiatory pleading (e.g. answer);
2. Subpoena, protection orders, and
writs;
3. Appendices and exhibits and
motions and other documents that
are not amenable to electronic
scanning;
4. Sealed and confidential records;
At what point, considered filed – if through
personal filing, the clerk of court shall endorse
on the pleading motion or other court
submissions, the date and hour of filing.
If through registered mail/accredited courier,
the date of the mailing and the payment or
deposit as shown by the post office staff on the
envelope or registry receipt shall be
considered as the date of its filing. The
envelope shall be attached to the record of the
case.
Papers required to be filed with the court and
served on the parties affected:
1. Judgement
0 0
2. Resolution
3. Order
4. Pleading subsequent to the complaint
5. Written motion
6. Notice
7. Appearance
8. Demand
9. Offer of judgement
10. Other similar papers
What are the modes of service?
1. Personal service – serve on the other
party or his counsel of a copy of the
pleading by personally delivering it.
2. Service by mail – this may either be by
registered mail or ordinary mail; made
by depositing the copy in the post
office in a sealed envelope
3. Service by accredited courier
4. Service by electronic mail or other
electronic means
5. Substituted service – delivering a
copy to the clerk of court with proof of
failure of personal service or service by
mail
What are the modes of service when it comes
to judgements, final orders or resolutions?
1. Personal service
2. Service by mail
3. Service by accredited courier
4. Service by electronic mail or other
electronic means
5. Service by publication – made only
when the defendant is summoned
through publication and he did not
appear in the action
What is presumptive service? Does
presumptive service apply to service of
judgments? Why?
For notice of hearing:
1. Presumptive service – to a party of a
court setting; if such notice appears on
record to have been mailed at least 20
calendar days prior to the scheduled
date of hearing and the addressee is
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

from the same judicial region where Is court order required to: (a) record a notice of
the case is pending lis pendens; (b) to cancel a notice of lis pendens
that is already recorded?
No, there is no presumptive service of
judgements a. No, no court order is needed to record
a notice of list pendens since the
What is the rule regarding completeness of recording is extrajudicial
service? b. Yes, for it to be cancelled, there must
be a court order. The court shall issue
1. Personal service → upon actual an order directing the cancellation of
delivery the notice if it is shown that –
2. Ordinary mail → expiration of 10 1. It is for the purpose of molesting
calendar days after mailing unless the the adverse party
court provides otherwise 2. It is not necessary to protect the
3. Registered mail → actual receipt by the right of the part who caused it to be
addressee or after 5 calendar days recorded
from the date the addressee received
the notice of the post master, Who may record: the plaintiff or defendant, if
whichever date is earlier defendant is also asking for a real relief.
4. Accredited courier → actual receipt by
the addressee or after at least two
attempts to deliver by the courier or
upon expiration of 5 calendar days
after the first attempt, whichever is
earlier.
5. FAX transmission → receipt by the
other party as indicted in the FAX
printout
6. Electronic service → at the time of the
electronic transmission
7. Substituted service → at the time of the
actual delivery to the clerk of court

What is a notice of lis pendens?

NOTE: May be recorded only if the action is a

real action

An announcement to the world that a real

property is the subject of a pending litigation;
serves as a warning to everyone who want to
enter into a transaction involving such property
that he will acquire subject to the outcome of
the litigation.

Where recorded: In the office of Registry of

Deeds of the province or city where the real
property is located

In what action may a notice of lis pendens be

recorded?

Only available in a real action, an action

affecting the possession or title to a real party.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XII. Module 11 – Rule 14
What is summons?
A writ issued and signed by the clerk of court
upon the filing of the complaint and payment
of the docket fees, addressed to the defendant,
and directing him to file an answer, with a
warning that, if he fails to do so, then the
plaintiff will take a judgement by default and he
may be granted the relief applied for.
Contains the following:
1) name of the court;
2) the name of the parties;
3) an authorization for the plaintiff to
serve the summons to the defendant if
authorized by the court upon ex parte
motion;
4) A direction that the defendant answer
within the ft=time fixed and a notice
that unless the defendant so answers,
plaintiff will take a judgement by
default and may be granted the relief
applied for; and
5) A copy of the complaint and order of
for the appointment of a guardian
admitted shall be attached dt o the
original and each copy of the summons
What is its two-fold purpose?
• To enable the court to acquire
jurisdiction over the person of the
defendant; and
• To notify the filing of the complaint
against him
Note: For residents outside the PH, summons
is served to acquire the jurisdiction over the res
and to comply with the requirement of due
process.
The voluntary appearance of the defendant
in the action shall be equivalent to service of
summons.
When may the court direct the clerk of court to
issue summons to the defendant?
If the complaint is not dismissible on its face
under Sec 1 Rule 9, the court shall within 5
calendar days from receipt of the complaint or
initiatory pleading or proof of payment of legal
fees.
0 0
Who may serve summons? Upon whom may
summons be served?
Summons may be served by—
1. The sheriff or his deputy or other
proper court officer;
2. By the plaintiff if authorized by the
court in case there is a failure of service
of summons by the sheriff or his deputy
or other proper court officer.
Also, the plaintiff shall be authorized to cause
the service of the summons:
1. If the summons is to be served outside
the judicial region of the court where
the case is pending
2. If the summons is returned without
being served on any or all the
defendants
NOTE: If the plaintiff fails to comply with the
order will cause the dismissal of the complaint
or initiatory pleading without prejudice.
Until when is the summons valid?
A summons has no definite lifetime. Once
issued, it shall remain valid until duly served or
recalled by the court.
However, if the summons is lost or destroyed
without being served, then the court shall issue
upon motion an alias summons.
What are the modes of extraterritorial service of
summons?
1. Service in person on the defendant
a) By handing a copy of the
summons to the defendant in
person and informing him that
he is being served with
summons
b) If the defendant refuses to
receive and sign for it by
leaving the summons within
the view and in the presence of
the defendant
2. Substituted service – if for justifiable
causes the defendant cannot be served
with summons in person after at least
three attempts on two different dates,
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
then substituted service of summons
shall be made. How made—
a) By leaving a copy of the
summons at defendant’s
residence to a person at least
18 years of age and with
sufficient discretion residing
therein.
b) By leaving copies of the
summons at the defendant’s
office or regular place of
business with some competent
person in charge thereof;
c) By leaving a copy of the
summons if refused entry upon
making his authority and
purpose known with any of the
Home Owners Assoc or
Condominium Corp or its chief
security officer in charge of the
community or building where
the defendant may be found;
d) By sending an electronic mail
to the defendant’s email
address if allowed by the court
3. Service of summons by publication
Upon whom should summons be served?
• Domestic private juridical entities:
Corporations, partnerships
➔ President, managing partner,
general manager, the corporate
secretary, treasurer, in house
counsel
If summons cannot be served, they can be
served upon their secretaries or any person
who customarily receives correspondence for
the defendant at its principal office. If still
unavailable, summons may be made
electronically if allowed by the court.
• Foreign private juridical entities
➔ If doing business in the PH, service
may be made upon its resident
agent, upon the government
official designated by law, or any of
its officers, agents, directors, or
trustees within the PH
0 0
➔ If no registered agent, summons
will be effected outside the country
through any of the following means
(extraterritorial service of
summons):
a) personal service coursed
through the appropriate
court in the foreign country
with the assistance of DFA
b) by publication once in a
newspaper of general
publication in the country
where the defendant may
be found and by serving a
copy of the summons and
the court order must be
sent via registered mail to
the defendant at its last
known address
c) FAX or electronic means
with the prescribed proof
of service
d) By such other means as the
court in its discretion may
direct
• Public corporation
➔ If the Republic of the PH, it will be
served upon the Solicitor General
➔ If the defendant is a province, city
or municipality, or public
corporation, served upon the
executive head or any officer as the
law or court may direct
What is the proof of service of summons?
• The proof shall be made in writing
by the server
• shall set forth the manner, the
place, and date of service
• shall specify any papers served
along with the summons
• and the name of the person who
received the summons
• shall be sworn to if made other
than the sheriff or deputy
If served by electronic mail
• Print out of the email with the copy of
the summons as served
• Affidavit of the person mailing
If served by publication
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

• Affidavit of the publisher, editor or

advertising manager; attached is the
copy of the publication

NOTE: If summons was not served in any

modes, the effect is that the service of
summons is void.

Effect of defendant’s voluntary appearance if

no service of summons or if void, equivalent to
a service of summons.

If the defendant files a motion to dismiss, and

he includes other grounds other than lack of
jurisdiction over the person, what is the effect
of such inclusion? It shall be deemed a
voluntary appearance.

Sec. 14, Rule 14. A lawyer makes a special on

behalf of the defendant to question the validity
of summons → the court may deputize the
cousel to serve the summons on his client.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XIII. Module 12 – Rule 15
Motion
Application for an order other than by a
pleading.
GR: A motion must be in writing.
XPN: those named in open court in the course
of the trial or proceeding.
Types:
a) Non-litigious – motion which the court
may act upon without prejudicing the
right of the adverse party; the court
does not need to hear the motion
Examples:
- Motion for an alias summons
- Motion for extension to file
answer
- Motion for issuance of writ of
execution
- Motion for the issuance of
order
- Motion for the issuance of writ
of possession
NOTE: shall be resolved by the court within 5
from the receipt of the motion by the court
b) Litigious – the court, at its discretion,
may set the motion for hearing, in
which case, it shall issue a notice of
hearing specifying the date and time of
the hearing of the motion; otherwise, it
is defective.
Examples:
- Motion for a bill of particulars
- Motion to dismiss
- Motion for New Trial
- Motion for reconsideration
- Motion for execution pending
appeal
- Motion to amend after a
responsive pleading has been
filed
- Motion to cancel a statutory
lien
- Motion to break in
- Motion for intervention
- Demurrer to Evidence
- Motion to declare defendant in
default
- Other similar motions
0 0
NOTE: court has 15 calendar days from receipt
of motion to resolve the motion
Requisites of a valid motion:
1. It must be in writing except if made in
open court or in the course of the
proceeding
2. Must state the relief sought to be
obtained and the ground upon which it
is based
3. Must be served by personal service,
accredited private courier, registered
mail, or electronic means to ensure its
receipt by the other party.
What motions are prohibited?
1. Motion to dismiss
2. Motion to hear affirmative defenses
3. Motion for reconsideration of the
court’s action on affirmative defenses
4. Motion to suspend proceedings if
there is no TRO
5. Motion for extension of time to file
pleadings (except to file an answer—
one time)
6. Motion for postponement (if intended
for delay)
What is an omnibus motion?
A motion attacking a pleading or a proceeding
shall include all objections then available, and
all objections not so included shall be deemed
waived.
Rule: it requires that a motion must state all the
grounds or objections then available, and
those not set up are deemed waived.
XPNs: Those stated in Section 1
What to do if filing for leave to file a
pleading, motion, etc – movant attaches the
proposed amended pleading that he is asking
the court to attend
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XIV. Module 13 – Rule 17 presentation of its evidence in chief of

It may either be caused by the plaintiff or due
to the act of the plaintiff.
May a plaintiff dismiss his own complaint?
How?
the plaintiff
2. If with no justifiable cause, the plaintiff
fails to prosecute his action for an
unreasonable length of time
3. comply with the Rules of Court or
order of the court

Yes, in two ways: NOTE: Dismissal shall be with prejudice, unless

otherwise stated in the order dismissing the
1. File a notice of dismissal complaint. If silent, then it shall be deemed with
• When may the plaintiff do so: before prejudice.
service upon him of defendant’s
Remedy of the plaintiff: If with prejudice, he
answer or a motion of summary
may appeal from the order of dismissal. If
judgement. without prejudice, he may refile
• The court shall order confirming the
dismissal If plaintiff himself dismisses his own complaint,
• The plaintiff can refile his complaint – what is the effect of this dismissal?
the dismissal is without prejudice
Exceptions: If the court dismisses the complaint because
- If it is stated in the notice to be with of plaintiff’s fault, may the plaintiff refile his
prejudice complaint?
- The dismissal shall be considered
Yes, if the order of the dismissal is without
an adjudication of the case on its
prejudice. Otherwise, he may appeal from the
merit if the plaintiff has once
order of the dismissal.
dismissed his action based on or
containing the same claim (two-
dismissal rule)

2. Motion to Dismiss
• Complaint is to have been said
dismissed upon court approval
• Requires a court approval
• Dismissal is without prejudice to the
refiling of the complaint, except
otherwise stated otherwise in the order
• The dismissal shall be limited to the
complaint
• It is without prejudice to the right of the
plaintiff to prosecute his counterclaim
in a separation action unless within 15
days from notice of the motion, he
manifests his preference to have his
counterclaim resolved in the same
action

Upon the defendant’s own motion or upon the

court’s own motion, the complaint may be
dismissed in the ff cases:

1. If with no justifiable cause, the plaintiff

fails to appear on the date of the

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XV. Module 14 – Rule 18
Pretrial
Procedural device intended to clarify and limit
to clarify and limit the basic issues between the
parties.
Objective:
To simply, abbreviate or expedite trials
or otherwise, dispense with it.
When may a case be set for pretrial?
The case may be set for pretrial after the last
responsive pleading has been served and filed.
The last responsive pleading is determined by
what pleadings are already filed.
Notice of pretrial includes the following:
1. Directive for the parties to file their
respective pretrial briefs;
2. The dates of the trial;
3. The court-annexed mediation; and
4. The judicial dispute resolution
To whom may it be served: Must be served
upon a party if not represented by a counsel;
otherwise, it must be served on his counsel.
And the counsel has the duty to notify the
client, the party represented by him of the date
and time of the pretrial.
What are the matters to be taken up at the
pretrial?
Sec 2 provides the following:
1. the possibility of an amicable
settlement or submission to an
alternative modes of dispute
resolution:
- arbitration
- mediation
- conciliation
- early neutral evaluation
- mini trial
- any combination of the
foregoing
2. simplification of the issues
- factual issues
- legal issues
3. the possibility of obtaining stipulations
or admissions of facts and of
documents to avoid unnecessary proof
0 0
4. limitation of the number and
identification of witnesses and setting
of trial dates
5. the advisability of a preliminary
reference to a commissioner
6. the propriety of rendering judgements
on the pleadings or summary
judgement, or of dismissing the action
should a valid ground therefore be
found to exist
7. the requirements of the parties to (1)
mark their respective evidence if not
yet marked in the judicial affidavits of
their witnesses; (2) examine and make
comparisons of the adverse parties vis-
à-vis the copies to be marked; (3)
manifest for the record stipulations
regarding the faithfulness of the
reproductions and the genuineness
and due execution of the adverse
party’s evidence; (4) reverse evidence
not available at the pretrial but only in
the following manner:
- for testimonial evidence, by
giving the name or the
position and the nature of the
testimony of the proposed
witness;
- for documentary evidence, by
giving a particular description
of the evidence
8. such other matters as may aid in the
prompt disposition of the action
What is the effect of the failure of parties and
their counsel to appear for pretrial?
a.) If it is the party and his counsel who fail
to appear at the pretrial without just
cause despite notice, it shall result in a
waiver of any objections to the
faithfulness of reproductions or any
documentary evidence marked or their
genuineness and due execution;
b.) If it is the plaintiff and counsel to
appear without just cause, shall cause
the dismissal of the complaint. The
dismissal shall be with prejudice unless
otherwise ordered by the court.
c.) If the defendant and his counsel, that
will authorize the plaintiff to present his
evidence ex parte against the
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

defendant, and the court to render • Statement of one-day examination of

judgement based on the evidence
Remedy of plaintiff: appeal if with prejudice;
if without prejudice, refile
nd
Note: A 2 pretrial may be held if both parties
consent.
What is a pretrial brief? What is the effect if
the parties fail to file their pretrial brief?
Pre-trial brief
Contains the ff:
• A concise statement of the case and
reliefs prayed for
• Summary of admitted facts
• Proposed stipulation of facts
• Main factual and legal issues to be
resolved
• Propriety of referral of factual issues to
commissioners
• Documents and other object evidence
to be marked and the purpose to be
stated
• The names of the witnesses and the
summary of their witnesses
• Brief statement of points of law and
citation of authorities
The failure to file the pre-trial brief shall have
the same effect as failure to appear at the pre-
trial (Sec. 6, Rule 18, Rules of Court). Hence, if it
is the plaintiff who fails to file a pre-trial brief,
his complaint may be dismissed.
witness and most-important witness
rule
Is a judicial dispute resolution mandatory?
No, it is discretionary on the part of the court.
Note: proceedings here are confidential; thus,
cannot be used at the trial.
• The court may render a summary
judgement. It can be done upon
motion of the party or motu propio by
the court.
• The order of the court that the case will
be submitted for summary judgement
cannot be the subject of an appeal or
petition for certiorari; although, the
said judgement is appealable.
What is the One-Day Examination of Witness
Rule?
The One-Day Examination of Witness Rule
Requires that a witness has to be fully examined
in one (1) day only. The direct and cross
examination of the witness shall be conducted
in one day.
The Most-important-witness Rule
The court shall determine the most important
witnesses and limit the number of witnesses.

What is a pretrial order?

Within 10 calendar days from the termination

of the pretrial, the court shall issue a pretrial
order.
It shall recite in detail the matters taken up at
the pretrial. It shall also state the following:
• An enumeration of admitted facts
• Minutes of the pretrial conference
• Legal and factual issues to be tried
• Applicable law, rules, and
jurisprudence
• The evidence marked
• Specific trial dates for continuous trials
• Case flow chart (different stages of the
proceedings until the promulgation of
the decision)

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XVI. Module 15, 16, and 17
Rule 19 – Intervention
There must be a pending action because a
person will intervene in the action.
The initiative to become a party to the pending
case comes from the intervenor.
Who may intervene:
1. One who has a legal interest in the
matter in litigation
2. A legal interest in the success of either
party
3. A legal interest against both
4. He is so situated as to be adversely
affected by the disposition of a
property or distribution of a property
or distribution of a property on the
custody of the court or an officer
thereof
Legal interest – a material interest; the
intervenor stands to be injured or be benefited
as a result of a judgement that may be
rendered
When may a person intervene:
At any time before rendition of judgement by
the trial court
How can a person intervene:
By filing a motion for leave of court to
intervene, and attach to his motion his
proposed pleading in intervention (a complaint
in intervention). Both would be served to the
original parties.
Note: Except only when the intervenor
unites with the defending party in
resisting the claim of the plaintiff, in
which it is called an answer in
intervention.
Period: filed within 15 days from notice
of the order admitting the complaint n
intervention
When may a court refuse the leave to
intervene:
1. When it will unduly delay or prejudice
the adjudication of the right of the
original parties
0 0
2. When the intervenor’s right may be
fully protected in a separate
proceeding
Intervention not allowed in the following:
1. Land registration cases
2. Cases governed by the rules on
summary procedure
Intervention is merely collateral or ancillary to
the principal action; not an independent
proceeding. Hence, it the main action is
dismissed, the intervention is likewise
dismissed.
Rule 21 – Subpoena
Subpoena - A process directed to a person
requiring him to attend and testify at the
hearing or trial of an action, or any investigation
conducted by a competent authority, or a
taking of a deposition.
Kinds:
1. Subpoena ad testificandum –
requires the person to attend and
testify
2. Subpoena duces tecum – requires the
person to produce or bring to court
certain documents, objects, etc and
testify thereon
Who may issue:
a. The court before whom the witness is
required to attend and testify
b. The court where his deposition his
deposition is to be taken
c. The officer or body authorized by law
to do so in connection with an
investigation that is being conducted
d. Any justice if the SC, CA, in any case or
investigation pending within the
Philippines
NOTE: absent any suit or action commenced or
pending before a court or before any officer
authorized to conduct an investigation, a
subpoena cannot be issued.
When is a witness not bound by a
subpoena?
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
a. If the witness resides more than 100 km
from his residence to the place where
he is to testify be ordinary course of
travel
• The right of the witness not to
be compelled to testify such
case is called the viatory right;
Remedy: take his deposition in
the place where he resides
Steps:
1. File a notice to the other
party stating the time,
place, and name whose
deposition is to be taken
2. Notice will be served on
the other parties; there will
be prof of service of the
notice
3. The proof of service shall
be presented to the clerk
of court of the place where
the deposition is to be
taken
4. On the basis of such proof
of service, the clerk shall
issue the subpoena, then
the such will be served on
the witness, and his
disposition will be taken
therein.
b. The witness is a prisoner
Detention prisoner: If there is no
permission from the court in which his
case is pending, the subpoena does
not bind him
Prisoner serving sentence: Not
bound by the subpoena unless there is
an authority issued by the SC for the
prisoner to be brought out
Grounds to quash a subpoena:
1. If the subpoena is a duces tecume:
- If unreasonable and oppressive
- The relevancy of books,
documents, or things do not
appear
- The person in whose behalf the
subpoena is issued fails to
advance the reasonable cause of
0 0
the production of these books,
documents, or things
- The witness fee allowed by the
rules were not tendered by the
time of the service of the
subpoena
2. If subpoena ad testficandum:
- The witness is not bound by the
subpoena
- The witness fee allowed by the
rules were not tendered by the
time of the service of the
subpoena
Modes of service:
It is in the same manner as personal or
substituted service of summons.
At the time of the service, the following should
be tendered to the witness:
• Witness fee
• Cost for the production of
documents and ither materials
subject of the subpoena
Rule 22 – Computation of Periods
Can a person be compelled to appear
without a subpoena? Yes, for instance, the
person is already in court.
Consequence of disobedience of subpoena:
1. May be arrested and brought to the
court where his attendance is required
2. Citation in contempt by the court
where his subpoena is issued
Computation of time
Rule: Exclude the first, include the last.
• If the last day falls on a weekend or a
holiday in the place where the court
sits, the motion or pleading may be
filed on the next business day
XPN: does not apply in prescription of
offenses or causes of action
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XVII. Module 18 – Rule 23
What are the purposes of the modes of
discovery?
1. Narrow down or clarify the basic issues
between the parties
2. Ascertain the facts that are relevant to
the issues involved in the case
What are the modes of discovery?
1. Deposition pending action/deposition
de bene esse
2. Deposition before action or pending
appeal/deposition in perpetua rei
memoriam
3. Interrogatories to parties
4. Request for admission
5. Production or inspection of documents
or things
6. Physical or mental examination of a
party
What must be done to resort to these
modes:
- Identify which mode he would like to
avail himself of
-
1. If it is a deposition pending
action, a party should file an ex
parte motion in court
2. If a deposition before action,
he should file a verified petition
in the court of any of the
residence of the expected
adverse party
3. If a deposition pending appeal,
he should file a motion in the
court that rendered the
judgement or leave to take the
deposition upon notice and
service thereof as if the action
was pending in that court
4. If interrogatories to parties, he
should file an ex parte motion
with the court where the case is
pending
5. If it is a request for admission,
at any time after issues have
been joined, a party may file
and serve upon the other party,
a written request for admission
0 0
6. If it is a production or
inspection of documents or
things, it is upon motion of any
party with the court where the
court is pending
7. If it a physical or mental
examination of a party, should
be upon notice to the party to
be examined and to all the
parties in an action in which the
physical or mental condition of
a party is a controversy
Is leave of court required for a party to avail
himself of the various modes of discovery?
In deposition pending action, interrogatories
to parties, or request for admission, if an
answer has already been filed, then leave of
court is not required.
If an answer has not been filed, but the court
has already obtained jurisdiction over the
person of the defendant or the subject matter
of the action, then there must be a leave of
court.
In Production or inspection of documents or
things or Physical or mental examination of a
party, there must always be leave of court.
Deposition
The taking of the testimony of any person
whether a party to the action or not at the
instance of a party to the action.
Deponent – The person whose deposition is
taken
How is deposition taken?
The deposition is taken (a) out of court upon
oral examination; or (b) written interrogatory.
Scope of a Deposition
The deponent may be examined regarding any
matter not privileged provided it is relevant to
the subject to the pending action whether it
relates to a claim or defense of any party
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

Before whom may depositions be taken: unable to procure the attendance of

the deponent by means of subpoena,
If within the country, the deposition may be or such other exceptional
taken before a judge or a notary public or a circumstances exist.
person authorized to administer oath.
What are the consequences of refusal to
But in a foreign country, it can be the secretary comply with modes of discovery?
of the embassy or the diplomatic minister or his
staff, consul general, consul, vice consul,
consular agent or before such person or officer
as may be appointed by a commission or
letters rogatory.

What is a commission? letters rogatory?

Commission – An instrument issued by a court

of justice or other competent tribunal of a
foreign country to authorize persons to take a
deposition or to do any other act by authority
by the court or tribunal that issued it.

Addressed to an officer designated by name or

a descriptive title.

Letters rogatory – An instrument sent in the

name and by authority of a judge or court to
another court or judge requesting the a latter
to cause to be examined upon interrogatories
filed in a case pending before a court that
issued, a witness who is within the jurisdiction
of the judge or court to whom the letters of
rogatory are addressed.

Addressed to a judicial authority in a foreign

country. It may be applied for and issued only
after a commission has returned and executed.

May a deposition be used as evidence?

1. If the deponent is a party to a case, his

deposition may be used for any
purpose:
a. to establish a claim or a defense;
b. for the purpose of contradicting or
impeaching him if he testifies;

2. If the deponent is a person not a party

to the case, it may only be used for the
purpose of contradicting him or
impeaching him if he testifies.

XPN: If the witness or deponent is

dead or resides more than 100 km from
the place of trial, or unable to testify
because of age or some other infirmity,
or the party offering the deposition is

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XVIII. Module 20 and 20-A
Rule 32 – Trial by Commissioner
Commissioner
He may be an accountant, surveyor, examiner,
or anyone who may be appointed by the court
by means by an order known as Order of
Reference
When may the court refer the case for trial
by commissioner?
Upon agreement of the parties in writing;
otherwise, the court may refer upon its own
motion or one of the parties.
May a commissioner issue a subpoena?
Yes, he also has the power to rule upon the
admissibility of evidence, unless that power is
withheld by the court from him.
If a witness refuses to obey a subpoena
issued by a commissioner, may the
commissioner punish him for contempt?
No, but it will be the court that will punish the
witness for contempt.
NOTE: In a Trial by Commissioner, trial shall
proceed as it would be held in a court. After
trial, the commissioner will submit his report to
the court.
Objections may not be raised before the court
that appointed the commissioner, unless made
before the commissioner during the hearing.
Is the report of the commissioner final?
If the parties will stipulate that the
commissioner’s findings of facts will be final,
then only questions of law may be considered
by the court.
Are there instances when hearing before a
commissioner is required by the rules?
1. In expropriation cases under Rule 67 to
determine the just compensation of the
property, subject of the case
0 0
2. In partition under Rule 69 when the
parties are unable to agree as to the
matter of partition
Rule 22 – Demurrer to Evidence
What is a demurrer to evidence?
Demurrer to Evidence
A motion to dismiss on the ground of
insufficiency of evidence and is presented after
plaintiff rests his case. What is the ground for
demurrer to evidence in civil case? The only
ground for demurrer to evidence is that the
plaintiff has shown no right to relief.
What is the remedy of the plaintiff against
an order granting demurrer to evidence?
His remedy is to appeal from the order of
dismissal.
What may the appellate court do?
a. If the appellate court finds that the
plaintiff’s evidence is insufficient →
sustain/affirm
b. If the appellate court finds that the
plaintiff’s evidence is sufficient →
reverse
o If so, the appellate should not
receive defendant’s evidence
nor remand the case to the trial
court for presentation of the
defendant’s evidence, but
should decide the case based
on the e evidence presented
by the plaintiff. In which event,
the defendant has lost/waived
the presentation of evidence
What are the distinctions between
demurrer to evidence in civil cases and
demurrer to evidence in criminal cases?
IN CIVIL CASES IN CRIM CASES
Upon motion of the Upon motion of the
defendant accused or the court’s
• The court cannot own initiative after
dismiss the case on giving the prosecution
a demurrer of an opportunity to be
evidence without a heard
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

motion of the • The court may Distinctions between a Motion to Dismiss

defendant dismiss the case and Demurrer to Evidence
upon the foregoing
MOTION TO DEMURRER TO
Leave of court is not May file with leave of DISMISS EVIDENCE
required court (does not waive
right to present Usually filed before the Made after the plaintiff
filing of an answer rests his case
evidence) or without
(submits to the court Based on the ff: Based on the failure of
for decision; waives - no jurisdiction the plaintiff to show a
right to present - res judicata right to relief
evidence) - litis pendentia
If the demurrer to the If the demurrer to the - prescription
evidence is granted, evidence is granted, A denial will require the Requires a subsequent
the plaintiff may appeal the state (plaintiff) subsequent filing of an presentation of the
cannot appeal from the answer defendant’s evidence
order dismissing the
case (amounts to an
acquittal)

Who may file a demurrer to evidence,

when, and on what ground?

In a civil case, it is the defendant who files the

demurrer of evidence.

NOTE: The time to file a demurrer is after the

plaintiff has completed the presentation of his
evidence, or after the plaintiff has rested.

The ground is upon the facts and the law, the

plaintiff has shown no right to relief
(insufficiency of evidence)

Is leave of court required? In a civil action, it

is nor required.

How resolved:

a. The court may deny because in the

opinion of the court, the plaintiff has
presented sufficient evidence.

Remedy: To present the defendant’s

evidence. A defendant whose
demurrer to evidence has been denied
by the court does not lose his right to
present his evidence.

b. The court may grant the demurrer to

evidence → the case is dismissed

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XIX. Module 21 and 21-A
Rule 34 – Judgement on the pleadings
- Based on the complaint or the answer;
plaintiff in the main case or in a
counterclaim, cross claim, or third-party
complaint may move for the judgement
when an answer has already been filed
- Ground: the answer fails to tender an
issue or otherwise admits the material
allegations in the complaint:
1. It expressly confesses to the material
allegations;
2. It fails to deal with it at all
NOTE: The court cannot motu propio render a
judgement on the pleadings without motion of
the party
Rule 35 – Summary Judgement/Accelerated
Judgment
- Device of weeding out sham claims or
defenses at an early stage of the litigation
thereby avoiding the expense or loss of
time in a trial; the plaintiff or the defendant
may move for a summary judgement
- If the plaintiff, he may move for the
judgement at any time an answer has been
filed;
Ground: although there Is an apparent
issue, it can be shown that the issue is
sham or false, that there is no genuine
issue to any material fact and the plaintiff
is entitled to a judgement as a matter of
law
- If the defendant, then he may move for
judgement before or after he has filed an
answer
Ground: plaintiff’s claim against him is
false/sham—there is an apparent claim but
not genuine.
0 0
When is an issue a sham?
An issue is sham/false if it is not genuine.
An issue is said to be genuine when the
issue requires presentation of evidence.
Procedure:
1. Plaintiff/defendant serves on the
other party a copy of the motion.
The motion should cite supporting
affidavits,
depositions/admissions, and it
must also cite the law applicable
and relied upon
2. The adverse party files a comment
and serves upon the moving party
opposing affidavits, depositions,
and admissions within a non-
extendable period of five days
from receipt of the motion
NOTE: Unless the court will set the
case for hearing, the court shall
render a summary judgement
forthwith (i.e. hearing is optional)
What may the court do?
• If plaintiff – justified, it will render a
summary judgement; not justified –
deny the motion
• If defendant – justified, then the court
will issue an order dismissing the
complaint; not justified – deny the
motion
NOTE: Summary judgement is appealable.
However, if the court denies the motion for
summary judgement, the order denying the
motion is not appealable.
May there be a partial summary judgement?
Yes, but not appealable since it is interlocutory
(does not put an end to the case).
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XX. Rule 36

Requisites of a judgement:

1. Must be in writing
2. Must be directly and personally prepared
by the judge
3. It must state clearly and distinctly the facts
and the law upon which it is based
4. Signed by the judge and filed with the
clerk of court

NOTE: If dictated in open court, the judgement

will never become final.
• If judgement is valid but wrong,
remedy is appeal (error of judgement)
• If judgement is void, remedy is to file a
petition for certiorari.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XXI. Module 23 – Rule 37
The motion for new trial or reconsideration
must be filed within the period for perfecting
an appeal, which is usually 15 days from the
notice of judgement.
Who can file: the plaintiff or the defendant
What are the requisites of a new trial?
Grounds:
1. Fraud (extrinsic), accident, mistake, or
excusable negligence
• Extrinsic fraud - Fraud that
prevented a party from having
his day in court; committed
outside the trial or court
• Accident – fortuitous event or
happening that is beyond the
control of a party
• Mistake – refers to mistakes of
fact (e.g. failure to answer
because of the belief that it is
not anymore necessary as
there is a pending discussion
regarding settlement of the
dispute)
• Excusable Negligence – there
is an omission to do
something, where a prudent
person would have done
something
2. Newly discovered evidence
Where the agreed party could not, with
reasonable diligence, have discovered
or produce at the trial at which, if
presented and admitted, would alter
the results
What are the requisites of newly discovered
evidence as a ground for new trial?
Requisites:
1. Discovered after trial
2. Such evidence could not have
been discovered and
produced at the trial with
reasonable diligence
0 0
3. Evidence is material and not
merely cumulative or
corroborative or impeaching
On what grounds may a motion for
reconsideration be filed?
1. Award of excessive damages
2. Insufficiency of evidence
3. Decision is contrary to law and
evidence
Form of the motion: it must be in writing
• If the motion is based on FAME, it
should be supported by an affidavit of
merit; should state facts constituting
the FAME
• If the motion is based on newly
discovered evidence by whom such
evidence is expected to be given, or
duly authenticated
❖ If testimonial – affidavit of
testimony
❖ If documentary evidence – by
duly authenticated copy of his
document
• If motion for reconsideration, point out
specifically the findings or the
conclusions not supported by
evidence or which is alleged to be
contrary to law
May there be a second motion for
reconsideration?
If denied, there can be no second motion for
reconsideration. No second motion for
reconsideration is allowed if it is asking for the
reconsideration of a judgement or final order.
Exception: If directed against an interlocutory
order, a second motion for reconsideration is
allowed.
• MTC/Ras 30 days from the time it was
submitted for resolution to resolve the
motion
• CA has 60 days after it declares the
motion submitted for resolution
• SC – no period prescribed
What are the effects of an order granting a
motion for new trial?
1. The judgement is vacated or set aside.
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

2. The action shall stand for trial de novo.

(There will be a new trial).

Cannot appeal if no motion for new trial or

reconsideration in the ff cases:
1. In habeas corpus, in relation to
custody of minors
2. Annulment of marriage
3. Declaration of nullity of marriage
4. Legal separation

Motion for Reopening of Trial

The motion must be filed within the period for
perfecting an appeal, which is usually 15 days
from the notice of judgement.

Ground: To prevent a miscarriage of justice.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XXII. Rule 38
Petition for relief from judgement
Grounds for availing of the remedy (petition
for relief)
5. When a judgment or final order is
entered, or any other proceeding is
thereafter taken against a party in any
court through (a) fraud, (b) accident, (c)
mistake, or (c) 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 (Sec. 1, Rule 38).
6. When the petitioner has been prevented
from taking an appeal by fraud, mistake,
or excusable negligence (Sec. 2).
NOTE: Petition for relief from judgement is an
equitable remedy
• A party may resort to this remedy only
if there is no other available remedy
• Not a substitute for appeal
• A petition for relief from judgment is an
equitable remedy that is allowed only
in exceptional cases when there is no
other available or adequate remedy.
When a party has another remedy
available to him, which may be either a
motion for new trial or appeal from an
adverse decision of the trial court, and
he was not prevented by fraud,
accident, mistake or excusable
negligence from filing such motion or
taking such appeal, he cannot avail
himself of this petition (Trust
International Paper Corp. vs. Pelaez, GR
164871, 08/22/2006).
When may be filed: A petition for relief from
judgment must be filed within 60 days after
petitioner learns of the judgment, final order,
or proceeding and within six (6) months from
entry of judgment or final order. A petition for
relief of judgment filed beyond the
reglementary period is dismissed outright.
A party filing a petition for relief from judgment
must strictly comply with two (2) reglementary
periods: first, the petition must be filed within
sixty (60) days from knowledge of the
judgment, order or other proceeding to be set
0 0
aside; and second, within a fixed period of six
(6) months from entry of such judgment, order
or other proceeding. Strict compliance with
these periods is required because a petition for
relief from judgment is a final act of liberality on
the part of the State, which remedy cannot be
allowed to erode any further the fundamental
principle that a judgment, order or proceeding
must, at some definite time, attain finality in
order to put an end to litigation. (Philippine
Amanah Bank v. Contreras, GR No. 173168,
09/29/2014).
In what case and court should the petition
be filed?
The petition should be filed in the same case
and in the same court
Relief: The relief in the petition is for the
judgement to be set aside.
Who may file: plaintiff or the defendant.
Steps to follow when filing for a petition for
relief from judgement:
NOTE: The petition should be a verified
petition.
1. The filing of a verified petition in the
same court and in the same case.
Should be accompanied by an affidavit
of merit; should state facts and
circumstances surrounding the FAME
and that the petitioner has a
meritorious cause of action
2. The court will issue an order directing
the respondent to file his answer within
15 days from service of the order
3. The filing of an answer. But if the
respondent doesn’t file an answer,
there is no default.
4. With or without an answer, the court
will hear the petition.
• If the court finds no FAME, the
court will issue an order
denying the petition (not
appealable). But if the court
acted with grave abuse of
discretion, a petition for
certiorari may be filed.
• If allegations are true, the court will
issue an order granting the petition;
hence, a hearing will commence. The
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

court will render a judgement

(appealable)
• Effect: as if a new trial has been
granted

REMEDIES:
• If a person can show that he was
prevented from perfecting his appeal
by FAME, then his remedy is to file a
petition for relief to give due course
for his appeal.
If the court finds it true, then the court
will grant the petition.
• If the notice of the appeal and
appellate docket fees were made
within the prescribed time but court
dismissed it, the remedy is a petition
for certiorari

MOTION FOR NEW TRIAL vs PETITION FOR

RELIEF FROM JUDGEMENT

MOTION FOR NEW PETITION FOR

TRIAL RELIEF FROM
JUDGEMENT
Must be filed before Must be filed after
the judgement the judgement
becomes final becomes final
File if judgement or Filed if a judgement
final order has been or final order has
rendered been rendered or a
proceeding has
thereafter taken
FAME and Newly FAME
discovered evidence
Filed during the Filed within 60 days
period of perfecting after petitioner
an appeal (15 days) learns of the
judgment, final
order, or proceeding
and within six (6)
months from entry of
judgment or final
order
If denied, there can Not appealable if
be an appeal from denied
judgement
Legal remedy Equitable remedy
Must be verified Need not be verified

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XXIII. Rule 39

Final order vs interlocutory order

• Final order can be the subject of an

appeal

Judgement obligee files a motion for

execution

In what court may you file for the motion

for execution?

It is filed in the court of origin.

Requirements:

1. Certified copy of the judgement of the

appellate court
2. Certificate of finality of the judgement

Remedy if the court of origin refused to

issue an execution: File a motion with the
appellate court and in the same case asking the
court to compel the court of origin to issue an
order directing the court of origin to issue an
execution.

Remedy of the judgement obligee if the court

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XXIV. Rule 40 – Rule 56
APPEALS
Rule 41, Sec 1. Proper subject of an appeal
Section 1. Subject of appeal. — An appeal may
be taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by
these Rules to be appealable.
MATTERS NOT APPEALABLE
The following are not appealable
a) An order denying a motion for new trial
or reconsideration;
b) An order denying a petition for relief or
any similar motion seeking relief from
judgment;
c) An interlocutory order;
d) An order disallowing or dismissing an
appeal;
e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
f) An order of execution;
g) A judgment or final order for or against
one or more of several parties or in
separate claims, counterclaims, cross-
claims and third-party complaints, while
the main case is pending, unless the
court allows an appeal therefrom; and
h) An order dismissing an action without
prejudice.
and prove that the same were issued without
jurisdiction, with grave abuse of discretion or in
excess of jurisdiction, all amounting to lack of
jurisdiction.
NOTE:
• Partial summary judgement is not
appealable because it is interlocutory.
• In this case, the RTC Order granting the
motion to dismiss filed by private
respondent is a final order because it
terminates the proceedings against
her, but it falls within exception (g) of
the Rule since the case involves several
defendants, and the complaint for
damages... against these defendants is
still pending. Since there is no appeal,
or any plain, speedy, and adequate
remedy in law, the remedy of a special
civil action for certiorari is proper as
there is a need to promptly relieve the
aggrieved party from... the injurious
effects of the acts of an inferior court or
tribunal (Palma vs Galvez)
• Appeal is not available if judgement is
final and executory (e.g. summary
proceedings in the Family Code)
Period for perfecting an appeal:
• If ordinary appeal (or writ of error),
within 15 days from the notice of final
order being appealed from
• If by notice of appeal and record on
appeal, within 30 days from the notice
of final order being appealed from

In all the above instances where the judgment

or final order is not appealable, the aggrieved
party may file an appropriate special civil action
under Rule 65.

Remedy against judgments and orders

which are not appealable

In those instances where the judgment or final

order is not appealable, the aggrieved party
may file the appropriate special civil action
under Rule 65. Rule 65 refers to the special civil
actions of certiorari, prohibition and
mandamus. Practically, it would be the special
civil action of certiorari that would be availed of
under most circumstances. The most potent
remedy against those judgments and orders
from which appeal cannot be taken is to allege

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

2. Perfection of Appeal by Petition for

Cases that need record on appeal: Review under Rule 42. (Sec. 8)
1. Special proceedings (settlement of the a. Upon the timely filing of a petition for
estate of the deceased person) review and the payment of the
2. Separate appeals when permitted by corresponding docket and other
the court lawful fees, the appeal is deemed
3. The case involves multiple appeals perfected as to the petitioner. The
a) Expropriation proceedings RTC loses jurisdiction over the case
b) Judicial foreclosure of mortgage upon the perfection of the appeals
c) Judicial partition filed in due time and the expiration of
the time to appeal of the other
Notice of Appeal shall state the following
(MTC → RTC) parties.
a) Names of the parties; NOTE: Before the transmittal of the record of
b) The judgement or final order or part the case or record on appeal, the trail court or
thereof being appealed from; the court of origin may issue the ff orders:
c) The material dates to show that the
appeal is being perfected on time; 1. For the protection and preservation of
d) *Specify the court to which the appeal the rights of the parties not involving any
is being taken (RTC → higher court) matter litigated in the appeal
2. Approved compromises
PERFECTION OF APPEALS
3. Permit appeals of indigent litigants
4. Order execution pending appeal
1. For Ordinary Appeals from MTC to the
5. Allow withdrawal of the appeal
RTC (Rule 40) and from the RTC to the
CA (Rule 41). Rationale: the court still has residual
a) A party’s appeal by notice of appeal is jurisdiction or retained jurisdiction –
deemed perfected as to him upon the extension of the original jurisdiction for
filing of the notice of appeal in due certain specific purposes after the
time; perfection of the appeal but before the
b) A party’s appeal by record on appeal is transmittal of the case or the record on
deemed perfected as to him with appeal to the appellate court.
respect to the subject matter thereof
ILLUSTRATION OF THE MODES OF APPEAL
upon the approval of the record on
appeal filed in due time;
c) In appeals by notice of 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
time to appeal of the other parties;
d) 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 Sec. 2, Rule 39, and
allow withdrawal of the appeal (Sec. 9,
Rule 41).

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XXI. Module 23 – Rule 37
The motion for new trial or reconsideration
must be filed within the period for perfecting
an appeal, which is usually 15 days from the
notice of judgement.
Who can file: the plaintiff or the defendant
What are the requisites of a new trial?
Grounds:
1. Fraud (extrinsic), accident, mistake, or
excusable negligence
• Extrinsic fraud - Fraud that
prevented a party from having
his day in court; committed
outside the trial or court
• Accident – fortuitous event or
happening that is beyond the
control of a party
• Mistake – refers to mistakes of
fact (e.g. failure to answer
because of the belief that it is
not anymore necessary as
there is a pending discussion
regarding settlement of the
dispute)
• Excusable Negligence – there
is an omission to do
something, where a prudent
person would have done
something
2. Newly discovered evidence
Where the agreed party could not, with
reasonable diligence, have discovered
or produce at the trial at which, if
presented and admitted, would alter
the results
What are the requisites of newly discovered
evidence as a ground for new trial?
Requisites:
1. Discovered after trial
2. Such evidence could not have
been discovered and
produced at the trial with
reasonable diligence
0 0
3. Evidence is material and not
merely cumulative or
corroborative or impeaching
On what grounds may a motion for
reconsideration be filed?
1. Award of excessive damages
2. Insufficiency of evidence
3. Decision is contrary to law and
evidence
Form of the motion: it must be in writing
• If the motion is based on FAME, it
should be supported by an affidavit of
merit; should state facts constituting
the FAME
• If the motion is based on newly
discovered evidence by whom such
evidence is expected to be given, or
duly authenticated
❖ If testimonial – affidavit of
testimony
❖ If documentary evidence – by
duly authenticated copy of his
document
• If motion for reconsideration, point out
specifically the findings or the
conclusions not supported by
evidence or which is alleged to be
contrary to law
May there be a second motion for
reconsideration?
If denied, there can be no second motion for
reconsideration. No second motion for
reconsideration is allowed if it is asking for the
reconsideration of a judgement or final order.
Exception: If directed against an interlocutory
order, a second motion for reconsideration is
allowed.
• MTC/Ras 30 days from the time it was
submitted for resolution to resolve the
motion
• CA has 60 days after it declares the
motion submitted for resolution
• SC – no period prescribed
What are the effects of an order granting a
motion for new trial?
1. The judgement is vacated or set aside.
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

2. The action shall stand for trial de novo.

(There will be a new trial).

Cannot appeal if no motion for new trial or

reconsideration in the ff cases:
1. In habeas corpus, in relation to
custody of minors
2. Annulment of marriage
3. Declaration of nullity of marriage
4. Legal separation

Motion for Reopening of Trial

The motion must be filed within the period for
perfecting an appeal, which is usually 15 days
from the notice of judgement.

Ground: To prevent a miscarriage of justice.

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XXII. Rule 38 aside; and second, within a fixed period of six

(6) months from entry of such judgment, order
or other proceeding. Strict compliance with
Petition for relief from judgement
these periods is required because a petition for
relief from judgment is a final act of liberality on
Grounds for availing of the remedy (petition
the part of the State, which remedy cannot be
for relief)
5. When a judgment or final order is allowed to erode any further the fundamental
principle that a judgment, order or proceeding
entered, or any other proceeding is
must, at some definite time, attain finality in
thereafter taken against a party in any
order to put an end to litigation. (Philippine
court through (a) fraud, (b) accident, (c) Amanah Bank v. Contreras, GR No. 173168,
mistake, or (c) excusable negligence, 09/29/2014).
he may file a petition in such court and in
the same case praying that the In what case and court should the petition
judgment, order or proceeding be set be filed?
aside (Sec. 1, Rule 38).
6. When the petitioner has been prevented The petition should be filed in the same case
from taking an appeal by fraud, mistake, and in the same court
or excusable negligence (Sec. 2).
Relief: The relief in the petition is for the
judgement to be set aside.
NOTE: Petition for relief from judgement is an
equitable remedy Who may file: plaintiff or the defendant.
• A party may resort to this remedy only
if there is no other available remedy Steps to follow when filing for a petition for
• Not a substitute for appeal relief from judgement:
• A petition for relief from judgment is an
NOTE: The petition should be a verified
equitable remedy that is allowed only
petition.
in exceptional cases when there is no
other available or adequate remedy.
0 0
1. The filing of a verified petition in the
When a party has another remedy
same court and in the same case.
available to him, which may be either a
Should be accompanied by an affidavit
motion for new trial or appeal from an
 motion for new trial or appeal from an
adverse decision of the trial court, and
he was not prevented by fraud,
accident, mistake or excusable
negligence from filing such motion or
taking such appeal, he cannot avail
himself of this petition (Trust
International Paper Corp. vs. Pelaez, GR
164871, 08/22/2006).
When may be filed: A petition for relief from
judgment must be filed within 60 days after
petitioner learns of the judgment, final order,
or proceeding and within six (6) months from
entry of judgment or final order. A petition for
relief of judgment filed beyond the
reglementary period is dismissed outright.
A party filing a petition for relief from judgment
must strictly comply with two (2) reglementary
periods: first, the petition must be filed within
sixty (60) days from knowledge of the
judgment, order or other proceeding to be set
of merit; should state facts and
circumstances surrounding the FAME
and that the petitioner has a
meritorious cause of action
2. The court will issue an order directing
the respondent to file his answer within
15 days from service of the order
3. The filing of an answer. But if the
respondent doesn’t file an answer,
there is no default.
4. With or without an answer, the court
will hear the petition.
• If the court finds no FAME, the
court will issue an order
denying the petition (not
appealable). But if the court
acted with grave abuse of
discretion, a petition for
certiorari may be filed.
• If allegations are true, the court will
issue an order granting the petition;
hence, a hearing will commence. The

Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

court will render a judgement

(appealable)
• Effect: as if a new trial has been
granted

REMEDIES:
• If a person can show that he was
prevented from perfecting his appeal
by FAME, then his remedy is to file a
petition for relief to give due course 0 0
for his appeal.
If the court finds it true, then the court
will grant the petition.
 • If the notice of the appeal and
appellate docket fees were made
within the prescribed time but court
dismissed it, the remedy is a petition
for certiorari

MOTION FOR NEW TRIAL vs PETITION FOR

RELIEF FROM JUDGEMENT

MOTION FOR NEW PETITION FOR

TRIAL RELIEF FROM
JUDGEMENT
Must be filed before Must be filed after
the judgement the judgement
becomes final becomes final
File if judgement or Filed if a judgement
final order has been or final order has
rendered been rendered or a
proceeding has
thereafter taken
FAME and Newly FAME
discovered evidence
Filed during the Filed within 60 days
period of perfecting after petitioner
an appeal (15 days) learns of the
judgment, final
order, or proceeding
and within six (6)
months from entry of
judgment or final
order
If denied, there can Not appealable if
be an appeal from denied
judgement
Legal remedy Equitable remedy
Must be verified Need not be verified

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XXIII. Rule 39

Final order vs interlocutory order

• Final order can be the subject of an

appeal

Judgement obligee files a motion for

execution

In what court may you file for the motion

for execution?

It is filed in the court of origin.

Requirements:

1. Certified copy of the judgement of the

appellate court
2. Certificate of finality of the judgement

Remedy if the court of origin refused to

issue an execution: File a motion with the
appellate court and in the same case asking the
court to compel the court of origin to issue an
order directing the court of origin to issue an
execution.

Remedy of the judgement obligee if the court

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

XXIV. Rule 40 – Rule 56
APPEALS
Rule 41, Sec 1. Proper subject of an appeal
Section 1. Subject of appeal. — An appeal may
be taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by
these Rules to be appealable.
MATTERS NOT APPEALABLE
The following are not appealable
a) An order denying a motion for new trial
or reconsideration;
b) An order denying a petition for relief or
any similar motion seeking relief from
judgment;
c) An interlocutory order;
d) An order disallowing or dismissing an
appeal;
e) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
f) An order of execution;
g) A judgment or final order for or against
one or more of several parties or in
separate claims, counterclaims, cross-
claims and third-party complaints, while
the main case is pending, unless the
court allows an appeal therefrom; and
h) An order dismissing an action without
prejudice.
and prove that the same were issued without
jurisdiction, with grave abuse of discretion or in
excess of jurisdiction, all amounting to lack of
jurisdiction.
NOTE:
• Partial summary judgement is not
appealable because it is interlocutory.
• In this case, the RTC Order granting the
motion to dismiss filed by private
respondent is a final order because it
terminates the proceedings against
her, but it falls within exception (g) of
the Rule since the case involves several
defendants, and the complaint for
damages... against these defendants is
still pending. Since there is no appeal,
or any plain, speedy, and adequate
remedy in law, the remedy of a special
civil action for certiorari is proper as
there is a need to promptly relieve the
aggrieved party from... the injurious
effects of the acts of an inferior court or
tribunal (Palma vs Galvez)
• Appeal is not available if judgement is
final and executory (e.g. summary
proceedings in the Family Code)
Period for perfecting an appeal:
• If ordinary appeal (or writ of error),
within 15 days from the notice of final
order being appealed from
• If by notice of appeal and record on
appeal, within 30 days from the notice
of final order being appealed from

In all the above instances where the judgment

or final order is not appealable, the aggrieved
party may file an appropriate special civil action
under Rule 65.

Remedy against judgments and orders

which are not appealable

In those instances where the judgment or final

order is not appealable, the aggrieved party
may file the appropriate special civil action
under Rule 65. Rule 65 refers to the special civil
actions of certiorari, prohibition and
mandamus. Practically, it would be the special
civil action of certiorari that would be availed of
under most circumstances. The most potent
remedy against those judgments and orders
from which appeal cannot be taken is to allege

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
Cases that need record on appeal:
1. Special proceedings (settlement of the
estate of the deceased person)
2. Separate appeals when permitted by
the court
3. The case involves multiple appeals
a) Expropriation proceedings
b) Judicial foreclosure of mortgage
c) Judicial partition
Notice of Appeal shall state the following
(MTC → RTC)
a) Names of the parties;
b) The judgement or final order or part
thereof being appealed from;
c) The material dates to show that the
appeal is being perfected on time;
d) *Specify the court to which the appeal
is being taken (RTC → higher court)
PERFECTION OF APPEALS
1. For Ordinary Appeals from MTC to the
RTC (Rule 40) and from the RTC to the
CA (Rule 41).
a) 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;
b) 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;
c) In appeals by notice of 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
time to appeal of the other parties; 0
d) In either case, prior to the transmittal of
the original record or the record on
appeal, the court may issue orders for
2. Perfection of Appeal by Petition for
Review under Rule 42. (Sec. 8)
a. Upon the timely filing of a petition for
review and the payment of the
corresponding docket and other
lawful fees, the appeal is deemed
perfected as to the petitioner. The
RTC 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.
NOTE: Before the transmittal of the record of
the case or record on appeal, the trail court or
the court of origin may issue the ff orders:
1. For the protection and preservation of
the rights of the parties not involving any
matter litigated in the appeal
2. Approved compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal
5. Allow withdrawal of the appeal
Rationale: the court still has residual
jurisdiction or retained jurisdiction –
extension of the original jurisdiction for
certain specific purposes after the
perfection of the appeal but before the
transmittal of the case or the record on
appeal to the appellate court.
ILLUSTRATION OF THE MODES OF APPEAL
0
 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 Sec. 2, Rule 39, and
allow withdrawal of the appeal (Sec. 9,
Rule 41).

Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

Appellant’s brief

• Statement of facts
• Note the pages
• Footnotes

NOTE:

• A motion for the extension of an appellant’s brief is allowed

• Give a copy to the appellee; he likewise has 45 days to file his
brief

Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

ANNULLMENT OF JUDGEMENT motion for new trial had been granted therein
(Sec. 7, Rule 47).
0
A judgement that has to be annulled is one that 0
is final and executory.

A petition for annulment of judgment is a

remedy in equity so exceptional in nature that
it may be availed of only if the judgment, final
order, or final resolution sought to be annulled
was rendered by a court lacking jurisdiction or
through extrinsic fraud, and only when other
remedies are wanting.

• Correctness’ of judgment is not an

issue for the petition of the annulment
of judgment.

Grounds:

1. Extrinsic fraud
XPN: 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 (Sec. 2,
Rule 47).
2. Lack of jurisdiction.
3. Lack of due process*

Period to file 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 estoppels (Sec. 3).

Where to file:

1. If the judgement to be annulled is the

judgement of the RTC → the file with
CA
2. If the judgement to be annulled is the
judgement of MTC → the file with RTC

Effects of judgment of annulment

(1) 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

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XXV. MODULES 25 and 26
PROVISIONAL REMEDIES
• Only ancillary; there must be a main
action.
Provisional remedies are temporary,
auxiliary, and ancillary remedies
available to a litigant for the protection
and preservation of his rights while the
main action is pending. They are writs
and processes which are not main
actions and they presuppose the
existence of a principal action.
• Provisional remedies are resorted to by
litigants for any of the following
reasons:
a. To preserve or protect their
rights or interests while the
main action is pending;
b. To secure the judgment;
c. To preserve the status quo; or
d. To preserve the subject matter
of the action.
• Provisional remedies specified under
the rules are:
a) Preliminary attachment (Rule
57); A
b) Preliminary injunction (Rule
58); I
c) Receivership (Rule 59); R
d) Replevin (Rule 60); and R
e) Support pendente lite (Rule
61). S
Purposes:
1. To preserve and protect the rights or
interest of the litigants while the main
action is pending
2. To secure a judgement that may be
rendered by the court in the main
action
3. To presser the status quo
4. To preserve the subject matter of the
action
Rule 57: PRELIMINARY ATTACHMENT
A provisional remedy issued upon order of the
court where the action is pending to levy upon
the properties of the defendant therein, the
same to be held thereafter by the sheriff as
0 0
security for the satisfaction of whatever
judgment may be rendered in the case.
Purpose: To serve as security for the
satisfaction of whatever judgement may be
rendered by the court in favor of the attaching
creditor
• It can extend to a property of the
defendant in the hands of a third
person or money owed by such third
person to the defendant (writ of
garnishment)
Lifetime: The rules do not provide for any
definite lifetime for the writ of preliminary
attachment.
What are the grounds upon which writ may
issue? (Sec 1, Rule 57)
a. In an action for the recovery of a
specified amount of money or
damages, other than moral and
exemplary, on a cause of action
arising from law, contract, quasi-
contract, delict or quasi-delict
against a party who is about to
depart from the Philippines with
intent to defraud his creditors;
b. In an action for money or property
embezzled or fraudulently
misapplied or converted to his
own use by a public officer, or an
officer of a corporation, or an
attorney, factor, broker, agent or
clerk, in the course of his
employment as such, or by any
other person in a fiduciary
capacity, or for a willful violation of
duty;
c. In an action to recover the
possession of property unjustly or
fraudulently taken, detained or
converted, when the property, or
any party thereof, has been
concealed, removed, or disposed
of to prevent its being found or
taken by the applicant or an
authorized person;
d. In an action against a party who
has been guilty of a fraud in
contracting the debt or incurring
the obligation upon which the
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
action is brought, or in the
performance thereof;
e. In an action against a party who
has removed or disposed of his
property, or is about to do so, with
intent to defraud his creditors; or
f. In an action against a party who
does not reside and is not found in
the Philippines, or on whom
summons may be served by
publication (Sec. 1).
Who may avail? A plaintiff or any proper party.
When: At the commencement of the action or
at any time before entry of judgement.
What are the kinds of attachment? Distinguish
one from the other?
a. Preliminary attachment – one issued
at the commencement of the action or
at any time before entry of judgment as
security for the satisfaction of any
judgment that may be recovered. Here
the court takes custody of the property
of the party against whom attachment
is directed.
b. Garnishment – plaintiff seeks to
subject either the property of
defendant in the hands of a third
person (garnishee) to his claim or the
money which said third person owes
the defendant. Garnishment does not
involve actual seizure of property which
remains in the hands of the garnishee.
It simply impounds the property in the
garnishee’s possession and maintains
the status quo until the main action is
finally decided. Garnishment
proceedings are usually directed
against personal property, tangible or
intangible and whether capable of
manual delivery or not.
c. Levy on execution – writ issued by the
court after judgment by which the
property of the judgment obligor is
taken into custody of the court before
the sale of the property on execution
for the satisfaction of a final judgment.
It is the preliminary step to the sale on
execution of the property of the 0 0
judgment debtor.
What are the remedies of the defendant whose
property is attached?
1. File a motion for the discharge of the
preliminary attachment upon the
following grounds:
• Allege in the motion that the
attached property is exempt
from execution
2. Make a cash deposit or file a
counterbond in court
3. The attachment was improperly or
irregularly issued or enforced
4. The attachment bond is insufficient
5. The attachment affidavit is defective
6. The attachment is excessive, so it will
be discharged as to excess
7. The judgement in the main case is
rendered against the attaching party
When discharge of attachment not allowed:
When the preliminary attachment is issued
upon a ground which is at the same time, the
applicant’s cause of action, then a motion to
discharge the attachment is not allowed.
How applied for: by way of a motion or the
application may be incorporated in the
complaint itself. The application must be
accompanied by an affidavit containing the
following:
1. Who executes the affidavit;
2. The grounds as stated in Section 1;
3. That there is no other sufficient security
for the claim sought to be enforced by
the action
4. The amount due the applicant or the
value of the property that he is entitled
to recover is as much as the sum for
which the order is granted above all
legal counterclaims.
There must also be a bond, which s executed
to the adverse party in the amount fixed by the
court conditioned that the applicant or the
plaintiff will pay all cost which may be adjudged
and all damages sustained by reason of the
attachment, if the court shall finally adjudge
that the applicant is not entitled to the
attachment.
Purpose: to indemnify the defendant and to
pay all damages that the defendant may suffer
or sustain as a result of the attachment if the
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

court shall finally adjudge that the applicant is

not entitled to the attachment.

Prior or Contemporaneous Rule

The writ cannot be enforced without serving on

the defendant a copy of the summons, along
with the copy of the complaint, application for
the writ of attachment, affidavit, bond, order
and writ of attachment.

Exceptions:

• When the defendant cannot be served

with summons personally or by
substituted service within a reasonable
time despite efforts to serve the
summons
• The defendant is a non-resident
defendant
• Resident defendant temporarily
outside the Philippines
• Action in rem and quasi in rem

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XXVI. Rule 59 – 61
RULE 59: RECEIVERSHIP
When a receivership should be appointed:
Section 1. Appointment of receiver. —
1. Upon a verified application
2. One or more receivers of the property
subject of the action or proceeding
may be appointed by the court where
the action is pending or by the Court of
Appeals or by the Supreme Court, or a
member thereof, in the following
cases:
a. When it appears from the
verified application, and such
d. Whenever in other cases it
appears that the appointment
of a receiver is the most
convenient and feasible means
of preserving, administering,
or disposing of the property in
litigation.
During the pendency of an appeal, the
appellate court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin and the receiver
appointed to be subject to the control of said
court. (1a)
0 0
NOTE: The appellate court may allow the
application for the appointment of a receiver to
be filed in the court of origin.
 other proof as the court may
require, that the party applying
for the appointment of a
receiver has an interest in the
property or fund which is the
subject of the action or
proceeding, and that such
property or fund is in danger of
being lost, removed, or
materially injured unless a
receiver be appointed to
administer and preserve it;
b. When it appears in an action by
the mortgagee for the
foreclosure of a mortgage that
the property is in danger of
being wasted or dissipated or
materially injured, and that its
value is probably insufficient to
discharge the mortgage debt,
or that the parties have so
stipulated in the contract of
mortgage;
c. After judgment, to preserve
the property during the
pendency of an appeal, or to
dispose of it according to the
judgment, or to aid execution
when the execution has been
returned unsatisfied or the
judgment obligor refuses to
apply his property in
satisfaction of the judgment, or
otherwise to carry the
judgment into effect
For whom: None. The receiver is not acting in
the benefit of any parties; an officer of the court
exercising his functions of neither the plaintiff
or defendant but in the interest of all the
parties.
HOW APPLIED
• Should by means of verified
application
NOTE: More than one receiver may be
appointed by the court.
• Application may be denied when the
adverse party files a bond executed by
the applicant to the effect that such
party will pay to the applicant all
damages that he may suffer by reason
of the acts, omissions, or other matters
specified as grounds in the application
RULE 60: REPLEVIN
• Recovery of a personal or movable
property.
• May be a main action, provisional
remedy
• Mixed action: partly in rem, partly in
personam
o As far as the claim for the
recovery of the personal
property = in rem
o As to the claim for damages =
in personam
When may it be applied for?

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
At the commencement of the action or at time
before the defendant files his answer.
HOW APPLIED FOR:
• Must execute an affidavit if done at the
commencement of the action
• Before the defendant files his answer,
file for the issuance of the writ
Requisites:
1. Show facts in the affidavit showing
that he is the owner of the property
or entitled to the possession of the
property
2. That the property is wrongfully
detained by the defendant
alleging the cause of the detention
according to the best of his
knowledge
3. That the property has not been
taken for task assessment or
payment of fine, or ceased under
execution, preliminary attachment,
or custodia legis. If it has been
seized, then the affidavit must state
that it is exempt from such seizure
or custody.
4. The actual market value as
declared by the applicant
5. The applicant must give a bond,
executed to the adverse party and
double the value of the property.
Affidavit and bond; Redelivery Bond
1. Affidavit, alleging:
a. That the applicant is the owner
of property claimed,
describing it or entitled to its
possession;
b. That the property is wrongfully
detained by the adverse party,
alleging cause of its detention;
c. That the property has not been
distrained or taken for tax
assessment or fine or under
writ of execution/attachment
or placed under custodia legis
or if seized, that it is exempt or
should be released; and
d. The actual market value of the
property.
0 0
2. Bond, which must be double the value
of property, to answer for the return of
property if adjudged and pay for such
sum as he may recover from the
applicant (Sec. 2).
3. It is required that the redelivery bond
be filed within the period of 5 days after
the taking of the property. The rule is
mandatory
Sheriff’s duty in the implementation of the writ;
when property is claimed by third party
1. 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. 4).
2. 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, of 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 (Sec. 6).
3. A third-party claimant may vindicate his
claim to the property, and the applicant
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures

may claim damages against such third- NOTE: order is interlocutory but can be
party, in the same or separate action. A enforced
claim on the indemnity bond should be
filed within 120 days from posting of
such bond.
4. 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
the sum not less

RULE 61: SUPPORT PENDE LITE

When to file: At the commencement of the

action or at any time prior to judgement or final
order.

In what action:
• Proper action
• Legal separation
• Action for recognition of a natural child

A verified application for support pendente lite

may be filed by any party stating
a) the grounds for the claim
b) the financial conditions of both parties
c) accompanied by affidavits, depositions
or other authentic documents in
support thereof

Requisites (criminal case):

1. a child is born to the offended
party because of the offense
2. the civil liability arising from the
criminal action includes
support for the child
3. the civil action has not been
waived, reserved or executed
prior to the filing of the criminal
action

0 0
Notes by Glorianne E.
CIV PRO - Dean Agranzamendez lectures
XXVII. Rule 62-65
RULE 62: INTERPLEADER
When is interpleader proper?
Whenever conflicting claims upon the same
subject matter are made against a person who
claims no interest whatever in the subject
matter. He may bring an action against the
conflicting claimants to compel them to
interplead and litigate among themselves.
Requisites for interpleader
1. There must be two or more claimants
with adverse or conflicting interests to
a property in the custody or possession
of the plaintiff;
2. The plaintiff in an action for
interpleader has no claim upon the
subject matter of the adverse claims or
if he has an interest at all, such interest
is not disputed by the claimants;
3. The subject matter of the adverse
claims must be one and the same; and
4. The parties impleaded must make
effective claims.
When to file: Whenever conflicting claims
upon the same subject matter are or may be
made against a person who claims no interest
whatever in the subject matter, or an interest
which in whole or in part is not disputed by the
claimants, he may bring an action against the
conflicting claimants to compel them to
interplead and litigate their several claims
among themselves (Sec. 1).
RULE 63: DECLARATORY RELIEF AND
SIMILAR REMEDIES
Declaratory Relief
Special Civil action brought before the RTC by
a person who is interested in a deed, will, 0 0
contract or other written instrument, or whose
rights are affected by a statute, EO, regulation,
ordinance, or any other government
regulation, before the breach thereof, asking
A. Citizenship
B. Abstract, hypothetical question
C. Hereditary rights
D. Based on contingent event
E. No administrative remedy has been
exhausted
F. Pretends to be declaratory relief
G. Third-party complaint
Similar remedies that may be brought under
Rule 63:
1. An action for reformation of instrument
2. Action to quiet tile or remove cloud
from a real property
3. An action to consolidate ownership
under Art. 1607
Who may file the action:
1. Any person interested under a deed,
will, contract or other written
instrument or whose rights are affected
by a statute, executive order or
regulation, ordinance or other
governmental regulation may before
breach or violation thereof, bring an
action in the RTC to determine any
question of construction or validity
arising and for a declaration of his
rights or duties, thereunder (Sec. 1).
2. Those who may sue under the contract
should be those with interest under the
contract like the parties, the assignees
and the heirs as required by
substantive law (Art. 1311, Civil Code).
3. If it be a statute, executive order,
regulation or ordinance, the petitioner
is one whose rights are affected by the
same (Sec. 1, Rule 63). The other
parties are all persons who have or
claim any interest which would be
affected by the declaration. The rights
of person
Requisites:
a. There must be a justiciable
controversy;