CivPro VERBATIM

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Civil Procedure Notes
Civil Procedure
- Is a procedure governing the filing, processing and adjudication of civil action.
- It is a procedural law.
- Also called Remedial Law or Adjective Law because it prescribes the method of
enforcing rights and obtaining redressed for the violation of these rights.
As distinguished from substantive law

Substantive law creates, defines and regulates rights and obligations
Jurisdiction – power or authority of the court to try and decide a case
Requisites for a valid exercise of jurisdiction:

The court must have jurisdiction:
1. Over the persons of the parties

a. Plaintiff – the one who files the complaint
b. Defendant – the one to whom the complaint is filed
How the court acquires jurisdiction?

- As to the plaintiff: when the plaintiff files a complaint in court, he submits himself to the
jurisdiction of the court
- As to the defendant: (1) when the plaintiff files a complaint and the court will issue
summons on the defendant and the summons will be served upon the defendant, the
moment the summons is served and the service of the summons is valid, then the court
acquires jurisdiction over the person of the defendant by means of the valid service of
summons upon him. (2) Defendant’s voluntary appearance in court.
2. Over the subject matter of the action

Over the subject matter of the action is determined by the facts alleged in the complaint (original
complaint), regardless of whether the plaintiff is entitled to recover upon the whole or part of the
claim and by the law enforced at the time of the commencement of the action.
 It will not depend and is not affected on the defenses set up by the defendant in his
answer or in his motion to dismiss. Otherwise, no court can ever try a case anymore.
o EXCEPTION: Ejectment cases. (may either be unlawful detainer or forcible
entry) – it is always the MTC that will have jurisdiction. MTC has the exclusive
original jurisdiction over ejectment cases. If the defendant in his answer sets up an
agricultural tenancy as an affirmative defense, the court will have hearing and if
the court proves that the affirmative defense of agricultural tenancy….. it will
dismiss the case. (39-40 mins)
 Suppose the defendant does not file an answer to the complaint, within the time
prescribed by the rule, the defendant may be in default and there may be a judgment in
default.
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*A civil action is commenced by the filing of the original complaint in court by the plaintiff.
RA 11576 was enacted last August, the RA took effect on August 20, 2021. This law expanded
the jurisdiction of the first level courts in civil cases.
After the enactment of this law, the jurisdiction of the first level courts over civil cases, when it
comes to:
 a personal action, the jurisdiction of the court, MTC or RTC, is based on the total
amount of plaintiff’s claim, exclusive of damages of whatever kind, interest, attorney’s
fees, litigation expenses and costs, so that if the total amount of the plaintiff’s claims
does not exceed 2 Million Pesos, then you file your complaint with the MTC.
o If it exceeds 2 Million Pesos, you file the complaint with the RTC.
NOTE: The Court of Appeals is not a trial court, it’s an appellate court. It doesn’t try cases.
Example: Dean owes you money, because he got a loan from you amounting to 1,500,000 and
the understanding is the amount will earn interest. If the amount earned an interest of 750,000.
And Dean don’t want to pay his debts, and now you want to file a complaint for the total of
2,250,000. Where should you file your complaint?
You should file the complaint in MTC because the law says the total amount of plaintiff’s
claims should be exclusive of damages of whatever kind, interest, attorney’s fees, litigation
expenses and costs.
Example: Dean owes you 3 million based on a promissory note, that is the total amount of the
loan, there is no interest. Dean did not pay you and you want to file a complaint against Dean,
you file the complaint in the RTC. Supposed Dean paid you ½ of the amount, but you forgot that
Dean paid half of the loan already and so you prepared a complaint against Dean for the amount
of 3 million. Your complaint alleges that Dean owes you 3 million. Dean filed his answer, he
said that he made a partial payment of 1.5 million and so the only amount he owes you is 1.5
million and he attached a copy of the receipt paying half of the loan in his answer. Does the RTC
still have jurisdiction over the subject matter of the complaint?
Yes, because the law states that the jurisdiction of the court over the subject matter of the
action is determined by the facts alleged in the complaint (original complaint), regardless of
whether the plaintiff is entitled to recover upon the whole or part of his claim.
Kinds and Nature of Jurisdiction exercised by the Courts
1. Exclusive – it is confined to a particular court. No one else can exercise jurisdiction.

(Example: exclusive jurisdiction of the MTC over ejectment cases.)
2. Concurrent – two or more courts of even different levels can exercise jurisdiction at the
same time. (Example: concurrent jurisdiction of the RTC, CA, and SC over the
extraordinary writs of mandamus, prohibition or certiorari) *Although they have
concurrent jurisdiction, there is a doctrine of hierarchy of courts – a litigant must
immediately seek a initially proper relief from lower courts.
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NOTE: The RTC, Court of Appeals and the Supreme Court may have concurrent jurisdiction
over some specified cases like over a petition for certiorari, prohibition, mandamus and quo
warranto.
Doctrine of Hierarchy of Courts
A litigant must properly seek relief from the lower courts. The fact that the RTC, CA, and SC
have concurrent jurisdiction over particular cases, that will give a litigant an unbridled freedom
to file the case with the Supreme Court; the doctrine of hierarchy of courts will compel him (the
litigant) to seek initially proper relief from the lower courts.
As to when it is exercised
1. Original Jurisdiction - bestowed upon a court in the first instance.
If you file a civil action with the RTC or MTC, the RTC or MTC will exercise
original jurisdiction.
1. Appellate Jurisdiction
If the MTC has rendered a judgment, and the party was not satisfied with the
judgment with the judgment of the MTC , he can appeal with the RTC (appellate
jurisdiction).
NOTE: The RTC and Court of Appeals have both original and appellate jurisdiction.
Doctrine of Primary Jurisdiction

If jurisdiction over a particular case is vested upon an administrative body, no resort to
judicial courts can be had until the administrative body shall have acted on the case.
Example: Money claims under the jurisdiction of The Housing and Land Use Regulatory Board
under PD 957; the law vests upon the human settlement adjudication commission the jurisdiction
to try and decide cases of annulment of mortgage over condominium/subdivision units, or claims
involving refund of money paid to the developer of a subdivision unit or condominium unit.
If the case involves the following, you cannot file it with the court. It will be filed with
Housing and Land Use Regulatory Board:
1. Annulment of mortgage of a condominium or subdivision unit
2. Unsound Real Estate Business Practice
3. Claims involving refund of money paid to the developer for a subdivision unit or
condominium unit
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4. Involving specific performance of contractual or statutory obligations filed by

buyers of subdivision lots or condominium units against the developer, dealer,
broker or salesman.
Levels of subject matter jurisdiction:
Supreme Court
Over what civil cases may the SC exercise jurisdiction?
 The SC has the power to review, revise, modify, affirm on appeal or certiorari final
judgment and orders of lower courts in the following instances:
a. All cases in which the constitutionality or validity of any treaty, executive order,
executive agreement, law, proclamation, instruction, or ordinance is in question.
b. Over all cases involving the legality of any tax imposed, assessment, tolled, or
any penalty imposed in relation thereto;
c. Over all cases in which the jurisdiction of any lower court is in issue; and
d. Over all cases in which only an error or question of law is involved. (Although
there are cases in which the SC may also resolve questions of facts)
Court of Appeals – has both original and appellate jurisdiction

Original Jurisdiction
1. Original exclusive jurisdiction over all actions for annulment of the RTC
judgments
2. Original but is concurrent with the SC and the RTC to issue writs of
mandamus, certiorari, prohibition, habeas corpus, and quo warranto.
Appellate Jurisdiction
1. Over final judgment or resolution of the RTC and quasi-judicial agencies
(such as NLRC)
Regional Trial Court – the second-level court. Has both original and appellate jurisdiction.
Original Jurisdiction
 The RTC has original and concurrent jurisdiction with the CA and SC to issue writs of
mandamus, certiorari, prohibition, habeas corpus, and quo warranto.
 Over actions affecting ambassadors and other public ministers and consuls
 The RTC has original exclusive jurisdiction over the following: (RA 11576)
a. All civil actions in which the subject of the litigation is incapable of pecuniary
estimation.
b. All civil actions which involve the title to or possession of real property or any
interest therein where the assessed value of the property involved exceeds
400,000 except forcible entry and unlawful detainer of lands or buildings,
original jurisdiction over which is conferred upon the MTC (real property)
c. All actions in admiralty and maritime jurisdiction where the demand or claims
exceeds 2,000,000
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d. All matters of probate, both testate and intestate, where the gross value of the
estate exceeds 2M pesos; and
e. All other cases in which the demand exclusive of damages whatever kind,
interest, attorney’s fees, litigation expenses and cost (DIAL-C) where the value
of the property in controversy exceeds 2M pesos. (personal property)
 Before August 2021, it was not 2M, it was 300,000 and 400,000 in Metro Manila.
Appellate Jurisdiction
 The appellate jurisdiction of the RTC over all cases is decided by the first -level courts.
Municipal Trial Court –

Exclusive and Original Jurisdiction:
1. All civil actions and probate proceedings, testate and intestate where the value of the
personal property, estate, or amount of the demand, exclusive of DIAL-C does not exceed
2,000,000 pesos
NOTE: DIAL-C should be excluded in the determination of jurisdiction but it is
included in the computation of the docket fee.
2. Cases of forcible entry and unlawful detainer.
3. All civil actions which involved the title to or possession of real property or any interest
therein where the assessed value of the property does not exceed 400,000
4. In admiralty or maritime actions where the demand or claim does not exceeds 2,000,000
NOTE: Docket fee or filing fee must be paid. It is the payment of docket fee that will enable the
court to acquire jurisdiction over the case.
NOTE: In determining the jurisdiction of the RTC and MTC, it is the payment of the docket fee
that will enable the court to acquire jurisdiction over the case. Note that “DIAL-C” is excluded
in the determination of whether to file the case in the RTC or MTC, but include “DIAL-C” in the
computation of the docket fee.
NOTE: A money claim exceeding 2M pesos which is merely incidental to an ejectment case
must be filed with the MTC, not the RTC.
Example: Suppose you have accumulated an unpaid rent amounting to 10M pesos from Dean.
You now filed a complaint against Dean for unlawful detainer asking Dean to vacate. In the
same complaint, you are also asking Dean to pay the 10M unpaid rental. Is it still the MTC that
has jurisdiction?
 Yes because the demand for the payment for the unpaid rent is only incidental to the main
action for the unlawful detainer.
Suppose you want Dean to stay and you only ask him to pay the unpaid rent. The complaint filed
against Dean is for him to pay the unpaid rent of 10M. what court will have jurisdiction?
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 The RTC because the action for the payment for the unpaid rent is the main action. It will
follow the rule that if the total amount of plaintiff’s claim exceeds 2M exclusive of
DIAL-C then it is the RTC that will have jurisdiction.
Aspects involving the jurisdiction of courts especially the trial courts
 You want to file a complaint, you file it either with the MTC or the RTC except when
you are filing an action to annul the
Nature of the Action Test
Determine whether the action is capable or incapable of pecuniary estimation. If yes, the total
amount of the plaintiff’s claim exclusive of DIAL- C will determine which court it should be
filed (either MTC or RTC). However, if the main cause of action is “damages”, as when it is an
action based in quasi-delict, include (“do not exclude”) the damages in the computation of the
plaintiff’s claim. (e.g., in the civil aspect of a case of oral defamation demanding 2M of moral
damages and 1M of exemplary damages should be filed in the RTC).
 Capable or incapable of pecuniary estimation

 If capable, your claim is translated into a sum of money. There is a peso sign in the
complaint. If the amount does not exceed 2M, file it with the MTC.
 If it is incapable, then it is always the RTC that has jurisdiction.
If the total amount of the plaintiff’s claim or the value of the property involved, does not exceed
2M exclusive of DIAL-C then you file your complaint with the MTC, and if you exceed 2M, you
file it with RTC. But if your main cause of action is damages, then you include all the
damages in determining what court will try the case.
ACTIONS INCAPABLE OF PECUNIARY ESTIMATION
When is the subject of a civil action incapable of pecuniary estimation?
When the action or complaint in which the basic issue is something other than the payment of
money or where the money claim is merely incidental to, or the consequence, of the principal
cause being resolved. It is a claim where the subject cannot be estimated in terms of money.
EXAMPLES:
(1) An action for support (the main issue is the right of the plaintiff to demand support),
(2) An action for rescission of a contract,

(3)An action for specific performance (to compel an obligor to perform his/her obligation),
(4) An action to annul a judgment of the MTC,
(5) An action for expropriation, etc.

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An “action for specific performance and moral damages of 1M” should be filed in the RTC
because the moral damages is merely incidental to the main issue. Meanwhile, an “action for
specific performance or moral damages of 1M” should be filed in the MTC – this is equivalent to
assigning a monetary value, in the alternative, to the claim for specific performance; and by
doing so, the plaintiff himself/herself has made the action capable of pecuniary estimation.
Real Action is one that involves title to or possession of real property or any interest therein. If it
is a real action, jurisdiction is determined by the assessed value of the real property involved.
The phrase “title to or possession of” is a claim of either ownership or possession. Even if a real
property is involved but the claim is neither of ownership nor possession, then it is not a real
action.
If it doesn’t exceeds 400,000 then you file it with the MTC. If it exceeds 400,000, file it with the
RTC.
EXAMPLES:
(1) An action for partition
(2) An action to foreclose mortgages
(3) An action for the redemption of a real property
Issue: Ownership or possession.
It is a real action when if the case or action presents as a legal or factual issue who between the
parties owns the property or has the right to possess it.
How is the assessed value of a land or building determined?
The municipal or city assessor’s office issuing tax declaration of real properties shows the
assessed value and market value of real properties. If there are two or more properties involved,
use the combined assessed value of the parcels of land or buildings.
PRIMARY OBJECTIVE TEST (ULTIMATE OBJECTIVE TEST)
If an action seems to be incapable of pecuniary estimation, but the primary objective of the
plaintiff is to recover ownership or possession over a real property, then the action is a real
action, and jurisdiction is determined by the assessed value of the property involved. (e.g., an
action for annulment of deed of sale and cancellation of certificate of title)
Suppose the assessed value is only 200,000 but you are claiming damages for 10M, you file the
complaint with the MTC because the claim for damages is merely incidental to your main cause
of action which is to recover ownership or possession.
EXAMPLE: What if Dean trusted you to oversee his property while he’s gone for 1 year and a
half. His property is registered under his name and he has a certificate of title. When Dean is
back, the property was already registered to your name because you falsified a deed of sale and
presented it to the Register of Deeds. Dean filed a case against you, a complaint for the
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annulment of the deed of sale and certificate of title. Suppose the assessed value of the land is
250,000. Dean alleged that annulment is incapable of pecuniary estimation. Does the RTC has
jurisdiction over the complaint? NO
THE MAIN OBJECTIVE IS TO GET BACK DEAN’S PROPERTY
 No. You should use the primary objective test, even if the action appears to be incapable
of pecuniary estimation, if the primary objective of the plaintiff is to recover ownership
or possession of the real property, then it is a real action and jurisdiction is determined by
the assessed value of the real property involved.
EXAMPLE: You have a contract called Memorandum of Agreement or Contract to Sell with
Dean. You sell to Dean a parcel of land for 1.8M, the purchase price is to be paid through
installment with understanding that upon payment of the last installment you will have to execute
a deed of sale in favor of Dean. The assessed value of the land is 200,000. After all the payments
of installment, you did not execute a Deed of Absolute Sale and so Dean filed a case against you
to compel you to execute the Deed of Absolute Sale to transfer ownership to his name. Dean’s
complaint is denominated as “Action for Specific Performance” to compel you to execute the
deed of absolute sale. Where should Dean file the complaint?
 It should be filed with the MTC because although it would seem like it is incapable of
pecuniary estimation, it is an action for specific performance and Dean’s primary
objective is to get the title to the land.
Personal Action
In a personal action, the plaintiff seeks to recover personal property, or the enforcement of a
contract, or the payment of a sum of money or damages.
NOTE: Whether a case is a real action or a personal action will determine not only the court
which has jurisdiction over the case but also the venue.
If the complaint fails to state the value of the real property, the case may be dismissed
outright because if the assessed value of the property is not alleged, there is no way to
determine whether it is the MTC or the RTC that has jurisdiction over the case.
If the complaint involves two or more parcels of land, the combined assessed value will
determine the jurisdiction of the court.
You need to be able to tell personal action from real action. Not only for the purposes of
knowing what course to try the case but also to determine the venue of the action.
CLASSIFICATION OF ACTIONS
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A. According to foundation or basis
1. Real action
a. Accion Interdictal
b. Accion Publiciana
c. Accion Reivindicatoria
2. Personal action
B. According to the object against whom is the complaint directed
1. Action in personam
In an action in personam, the complaint is filed against a specific person (there is a

defendant) or a definite individual based on his personal liability; and seeks personal
judgment against him (the defendant). The decision rendered in this action is called a
judgment in personam and it is binding only between the parties.
2. Action in rem
It is directed against the res or the thing itself and it seeks a

judgment enforceable against the whole world. It is an action against all who might
be minded to make an objection against the right sought to be established. The
decision rendered in this case is called a judgment in rem and it binds the whole
world.
In action in rem, it is the publication of it is the publication of the notice in a

newspaper of general circulation that brings the whole world into the action, and the
judgment rendered in this case is binding upon the whole world. The notice is
published because it is a constructive notice upon everyone (everybody is deemed
notified).
EXAMPLES:
(1) land registration proceeding

(2) petition for cancellation or correction of entries in the civil registry
3. Action quasi in rem
It is an action which names a person as a defendant, but the object of the action is to
subject the interest of that person (the defendant) in a property to the obligation
burdening that property, or the action pertains to the personal status of a person.
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It subjects the interest of a person in a property to a lien or an obligation burdening

that property.
TWO KINDS OF QUASI IN REM ACTION:
a. Action against a defendant who is a non-resident defendant who is not in the

Philippines and the action affects the personal status of the plaintiff who is in the
Philippines.
b. The defendant is a non-resident defendant who is not in the Philippines and the
subject of the action is the property is situated in the Philippines in which the
defendant claims an interest or a lien, or the property belonging to the defendant
is attached in the Philippines.
NOTE: If the non-resident defendant is in the Philippines, he can be sued in any action. But, if
the defendant is a non-resident who is not in the Philippines, then he can be sued
only in the two quasi in rem actions.
QUESTION: If a defendant is a non-resident defendant who is not in the Philippines, can he be

sued in the Philippines?
ANSWER: Yes, but only in those two quasi in rem actions. The nonresident defendant who is
not in the Philippines cannot be sued in an action in personam because the court
cannot acquire jurisdiction over his person.
QUESTION: Why must we know whether the action is an action in personam, in rem, or quasi
in rem?
ANSWER: Because in an action in personam, the court must be able to acquire jurisdiction
over the person of the defendant so that it can validly try and decide the case. But,
in an action in rem
or quasi in rem, the court need not have jurisdiction over the person of the
defendant; provided, it has jurisdiction over the res.
QUESTION: What is the ‘res’?
ANSWER: In an action affecting the status of the plaintiff, the res is the status of the plaintiff. If
it affects a property of the defendant situated in the Philippines, the res is the
property of the defendant.
SITUATIONAL EXAMPLES:
(1) C, a person residing in the United States and comes to the Philippines, borrowing money
from J, a resident of the Philippines, and C went back to the United States without any
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intention to return to the Philippines. C has no property in the Philippines. J filed against
C a collection for a sum of money. May the action prosper?
No, because the action is an action in personam. A judgment in personam that the court
will render cannot be enforced outside of the Philippines. The judgment cannot be
enforced against C because he is a non-resident defendant who is not in the
Philippines.
(2) C, a non-resident of the Philippines came to the Philippines and married J, a Filipina
resident of the Philippines. After a week, C (the husband) came back to where he came
from. J (the wife) alleges that she was forced into the marriage, so she files an action for
the annulment of the marriage against C who is a non-resident defendant who is not in the
Philippines. Can the plaintiff Filipina wife maintain the action in the Philippines against
C?
Yes, because the action affects the personal status (marital status) of the plaintiff who is
in the Philippines. If the marriage is annulled, then the marital status of J will change
from married to an unmarried individual.
(3) C, a Filipino citizen, when he was 18, migrated to the US and lived there until he became
an American citizen. At the age of 70 he came to the Philippines and married J, a young
Filipina. C went back to the US without any indication of returning to the Philippines. J
filed a complaint against him for annulment of marriage alleging that her consent was
vitiated by violence. In the same complaint, J asked for damages. The court rendered
judgment declaring the marriage annulled and ordering C, the defendant husband, to pay
damages to J, the plaintiff, in the amount of 5 million pesos. Is the judgment valid?
As to the portion of the judgment declaring the marriage annulled, it is valid because it is
a judgment quasi in rem. But, as to the part of the judgment ordering the defendant to pay
damages to the plaintiff wife, it is void because it is a judgment in personam. If the
defendant is a non-resident defendant who is not in the Philippines, actions taken against
the defendant should be limited to the two kinds of quasi in rem actions.
(4) C, a non-resident defendant who is not in the Philippines, owns properties in the
Philippines. J is in the Philippines. C owes J money. Can J file a case of collection for a
sum of money?
Generally, J cannot file an action in personam against C to collect for a sum of money.
But, if C has a property in the Philippines, then at the commencement of the action, J
(plaintiff) should seek the attachment of the property of C so he can sue him in the
Philippines. This is the second kind of a quasi in rem action where the defendant is a non-
resident who is not in the Philippines but the subject of the action is a property of the
defendant attached in the Philippines. The attachment of the property of C makes the
action quasi in rem.
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Legal basis: paragraph (f) of RULE 57, Section 1. (Grounds upon which attachment
may issue.) “(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.”
NOTE: If the defendant is a non-resident of the Philippines (the defendant who may be in the
Philippines or may not be in the Philippines):
If the non-resident is not in the Philippines and the action does not affect the status of
the plaintiff and it does not also affect the property of the defendant situated in the
Philippines, if none of these is obtaining, the plaintiff cannot sue the defendant in the
Philippines.
If the non-resident is actually in the Philippines he/she can be sued in any action
because the defendant can be served with summons and the court can acquire jurisdiction
over the person of the nonresident defendant.
QUESTION: How may a non-resident defendant who is not in the

Philippines defend his property in the Philippines?
ANSWER: In rule 14, even if the defendant is a non-resident who is not in the Philippines,
summons will be served upon him, for the purpose of complying to the
requirement of due process. The defendant may choose to defend or not to defend
his/her property in the Philippines. If the defendant chooses to defend the property
in the Philippines here is nothing preventing him/her from engaging an attorney in
the
Philippines to appear on his behalf in the action. Otherwise, if the defendant does
not appear in court, then the court can go on with the case even if the defendant
does not appear in court because this an action quasi in rem and it is only required
that the court will have jurisdiction over the res.
PAYMENT OF DOCKET FEES (FILING FEES)
It is not enough that the plaintiff files the complaint (physical act of filing), the case will not be
docketed unless the docket fee or filing fees are paid. When the clerk of court computes the
docket fee, DIAL-C will be included in determining how much will be paid as docket fees. The
payment of the docket fee is what will enable the court to acquire jurisdiction over the subject
matter of the case or over the nature of the case. If docket fees are not paid, the court will never
acquire jurisdiction over the case and on motion of the defendant, the case may be dismissed
because the docket fees have not been paid. EXCEPTION: when the plaintiff is authorized to
litigate as an indigent litigant, then he/she is exempt from the payment of docket fees or filing
fees.
The 1997 Rules of Civil Procedure

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- It shall apply to all courts except as otherwise provided by Supreme Court and in all civil,
criminal and special proceedings.
RULE 1
What is a civil action?
 A civil action is an action by which a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong.
 A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action.
What is a criminal action?
 A criminal action is one by which he State prosecutes a person for an act or omission
punishable by law.
What is a special proceeding?
 A special proceeding is a remedy by which a party seeks to establish a status, a right, or a

particular fact.
COMMENCEMENT OF A CIVIL ACTION
When is a civil action commenced?
 A civil action is commenced by the filing of the original complaint in court. But if an
additional defendant is impleaded in the later pleading (amended complaint), the action is
commenced as to him, the civil action is commenced upon the filing of the later pleading.
Why must you know when a civil action is commenced?
 Because it is the commencement of the civil action that will interrupt the running of
applicable prescriptive period.
 So you will know if it was already a pending action because if two actions ascertain the
same cause of action between the same parties then one of them may be dismissed on the
ground of pendency of another action.
You can amend your complaint. The amended complaint will take the place of the original
complaint.
When can you amend your complaint or pleading?

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 If no responsive pleading has yet been filed, then the plaintiff can amend his complaint
once without leave of court. If an answer has already been filed, the plaintiff needs a
leave of court to amend the complaint.
MEMORIZE SEC. 6 RULE 1
Sec. 6. Construction. – These Rules shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and proceeding.
When may a party invoke a liberal construction?
 If you failed to comply with the Rules, you beg to the judge to apply the Rules liberally
 You must explain adequately his failure to comply with the rules.
RULE 2
CAUSE OF ACTION
When you file an action in court, then you have instituted a civil action, the civil action is
commenced but you cannot maintain an action in court if you do not have a cause of action.
An ordinary civil action must be based on a cause of action.
Cause of action is not the same as action.
What is a cause of action?
 A cause of action is the act or omission by which a party violates a right of another.
Requisites of a Cause of action

1. There must be an existence of a plaintiff’s right;
2. An obligation on the part of the defendant to respect and not to violate such right; and
3. An act or omission on the part of the defendant constituting a violation of plaintiff’s right,
resulting to damage or injury to the plaintiff.
One action basing it from the single cause of action.

NB: A party cannot file a more than suit in a single cause of action
If a plaintiff or a part has only one or single cause of action then he can file only one action
based on the single cause of action.
RULE: A party cannot institute more than one suit for a single cause of action.
Splitting a single cause of action

- not allowed.
- Process of dividing a cause of action into many parts and filing a complaint based on
each parts.
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- If two or more suits are instituted on the basis of the same cause of action, the filing of
one or a judgment upon the merits in any one is available as a ground for the dismissal of
others.
- When both are pending, one of them may be dismissed.
Grounds for Dismissal

1. Litis pendentia or lis pendens – There is another action pending between the same parties and
for the same cause of action.
- Litis pendencia is obtained even if the positions of the parties in the second case is reversed.
2. Res judicata – The action is barred by prior judgment.
Examples: Dean owes you 3M, there is only one loan agreement between Dean and you. The due
date is on Jan. 11 and Dean didn’t pay even upon demand. You filed a complaint against Dean
for the amount of 3M. Where should you file the case if your claim is 3M? RTC. But lets say
that the MTC judge is close to you so you want to file the case in MTC, so you divided Dean’s
debt. You filed 1.5M complaint with MTC and filed another complaint the next week with the
same cause of action.
 One of your complaint may be dismissed because you only have one cause of action.
How will you know if the plaintiff has only single cause of action or several cause
 The basis of determining is what kind of action is the plaintiff instituting (based on quasi-
delict, contract, ex delicto, ex contracto)
Example:
Quasi-delict:
Dean intruded into your house. Once inside, Dean is attempting to get the TV set and when you
tried to stop Dean, he slapped you 10 times and ran away. You filed a case against Dean, one for
intruding to your house and ten more complaints for the ten slaps you got from Dean.
 The complaint is not correct. Dean committed only one delict.
Ex contracto: (if the obligation is indivisible, then there is only one cause of action if the contract
is violated regardless of the number of violations. If the obligation is divisible, then there would
be as many cause of action as there are divisible actions not performed but if at the time of filing
of the complaint, all the divisible obligations are already due then they are deemed integrated
into a single cause of action.)
Joinder of causes of action

- If the plaintiff has many causes of action, he may join them in one complaint.
- It is permissive. – plaintiff may or may not join the choice belong to the plaintiff.
- Process of uniting two or more causes of action in one complaint.
- It is the process of uniting two or more demands or causes of action in one complaint.
- If there are several causes of action, they may be joined in one complaint.
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- If the plaintiff decides to join them in one complaint, he must comply with the following
requisites:
Requisites:
1. The party joining the causes of action must comply with the rules on joinder of parties;
2. The joinder cannot include a special civil action or an action governed by special rules;
3. Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the
causes of action falls within the jurisdiction of said court and the venue lies therein; and
4. Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction.
Explanation of the Requisites:

Requisite #1. Joinder of parties are also permissive.
 This applies only in instances when there are multiple parties because if there is only 1
plaintiff against a solo defendant, there is no need to comply. The situation does not call
for the compliance of joinder of parties.
Combination of Parties in a Joinder

a) PP v. D several plaintiffs against 1 defendant
b) P v. DD 1 plaintiff against several defendants
c) PP v. DD several plaintiffs against several defendants then the party joining must
comply with the rule on joinder of parties.
Requisites so that the parties may be joined:

1) The right to relief must arise out of the same transaction or event or series of transactions or
events;
2) There is a question of fact or a question of law common to all of them.
Scenario
Many passenger on the bus and most died because of the accident. 1 family of the victim can file
for his own or he/she can have a joinder with the others because joinder is permissive.
Requisite #2. The joinder cannot include a special civil action or an action governed by
special rules;
If you have an ordinary civil action, you cannot join them with special civil action. Like, if you
have an ordinary civil action, you cannot join it with expropriation.
Requisite #3. Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the jurisdiction of said court and the venue
lies therein;
Example: You borrowed money from Dean 1M, you both reside in Baguio City. One time, you
went to Agoo and you saw a parcel of land (assessed value 500,000) and you found out that the
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land belongs to Dean. You falsified a Deed of Sale and you were able to transfer the title to your
name. Dean learned about what you did and filed a case against you. Dean can file 2 separate
complaints. Can Dean file just 1 complaint against you and join his cause of action in one
complaint? Yes, because the causes of action are between the same parties. Dean can file it
with the RTC provided one of the causes of action falls within the jurisdiction of the said
court and the venue lies therein
Cases that can be filed:
1. Collection for a sum of money involving 1M – MTC – Baguio (venue)
2. Recover ownership of the land in Agoo – RTC – Agoo (venue)
Requisite #4. Where the claims in all the causes of action are principally for recovery of
money, the aggregate (total) amount claimed shall be the test of jurisdiction. (TOTALITY
RULE)
Example: You borrowed money from Dean in the amount of 1.5M in 2020. You borrowed
another 1M in 2021 and both loan obligation fell due on Feb. 10, 2022. Dean can file 2 separate
complaints. If Dean filed 2 complaints, both should be filed with the MTC. Can Dean file just
one complaint with these two causes of action against you? Yes, Dean can join them. If Dean
join them, with what court should Dean file his complaint? Dean will file it with the RTC
because it is the aggregate amount claimed shall be the test of jurisdiction.
Quieting of title over a real property is a special civil action governed by Rule 63. An action for
declaration of nullity of title is an ordinary civil action. If these are joined you will have
misjoinder of causes of action. They may not be joined in one complaint because one of the
conditions for rejoinder of causes of action under Section5, Rule 2 is that the joinder shall not
include special civil action or actions governed by special rules.
REMEDY IF CAUSES OF ACTION ARE MISJOINED: Severance of the misjoined causes

of action. Upon the motion of the party or upon the court’s own initiative, the misjoined cause of
action may be severed and proceeded separately.
MISJOINDER OF CAUSES OF ACTION

- Is not a ground for dismissal.
CASE: ADA v. BAYLON – May the court render decision on both causes of action although
misjoined? Yes, provided the court has jurisdiction over both causes of action.
RULE 3
PARTIES TO CIVIL ACTION
Who can be parties in a civil action?

 Only natural persons, juridical persons, or entities authorized by law can be parties in a
civil action.
Who can be a plaintiff?

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 Plaintiff is one who has an interest in the subject of the action and in obtaining the relief
demanded. He may be the claimant in the original complaint, the counter-claimant in a
counterclaim, or the cross-claimant in a cross-claimant in a cross claim.
Who can be a defendant?

 Defendant is one who has an interest in the controversy adverse to the plaintiff. He
maybe the original defending party, the defendant in a counterclaim, or the cross-
defendant in a cross-claim.
Who are the juridical persons?

 Corporation, partnership, state and its political subdivisions (e.g. City government)..
Who are “entities authorized by law”?

 Labor union, labor organizations, estate of a deceased person.
NOTE: If you have two or more persons not organized as an entity with juridical personality,
enter into a transaction under a common name, they can be sued under that common name but
they cannot sue under that common name.
What happens if the sole proprietorship files a complaint as a plaintiff against a defendant? May
the complaint be dismissed?
 Yes, on the ground that the plaintiff has no legal capacity to sue.
What if the sole proprietorship is sued as a defendant?

 No, the complaint may be dismissed if the defendant is a sole proprietorship on the
ground that the complaint failed to state a cause of action.
What happens if the plaintiff is not a natural persons, juridical persons, or entities authorized by
law?
 The case may be dismissed on the ground that the plaintiff has no legal capacity to sue.
What happens if the defendant is not a natural persons, juridical persons, or entities authorized
by law?
 The complaint may be dismissed if the defendant is a sole proprietorship on the ground
that the complaint failed to state a cause of action.
Real Party in interest
The rule requires that every action must be prosecuted or defended in the name of the real party
in interest. The plaintiff and defendant must be a real party in interest.
EXCEPTION: Class suit
Who is a real party in interest?

 One who stands to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit.
 His interest in the case must be substantial, present, actual and real as supposed to mere
expectancy.
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 The parties in a contact is the real party in interest.
Example: a parcel of land is owned by X but the one in possession is Y based on a contract of
lease. The term is 50 years. Y the lessee built a commercial building. One day, Z went to this
land and grab the land to possessor Y.
 Y is the proper person to file the action to recover possession because he is the real party
in interest.
If the issue in the case is possession, the proper person to file the action to recover
possession is the possessor because he is the real party in interest.
X lent 10M to Z. X is going away, X appointed Y his attorney-in-fact to institute the money
collection in his absence. When debt became due and Z failed to pay, Y filed a complaint. (Y, as
atty-in-fact of X <plaintiff> v Z). Can this case be dismissed?
 Yes, the action can be dismissed on the ground that the ….
 REMEDY: X represented by his atty-in-fact, Y v. Z.
Kinds of real parties in interest:

1. Indispensable party – one without whom no final determination can be had of an action.
 If an indispensable party is omitted in an action, then the court rendered a judgment, the
status of the judgment is void because of the absence of an indispensable party. The court
will have no authority to act not only to the parties who are absent but also to the parties
who are present.
 Without the indispensable party, no final decision can be had of an action.
 Non-joinder of an indispensable party is not a ground for dismissal. There is no outright
dismissal.
 REMEDY: The court must issue an order directing the plaintiff to amend his complaint
so as to implead the omitted indispensable party.
 Supposed the plaintiff refuses to comply with the order of the court, it will be a ground
for dismissal of the complaint. (Sec 3, Rule 17)
2. Necessary party – one who is not indispensable but who ought to be joined as a party if
complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action.
 If a necessary party is omitted, the judgment is valid but there will be no complete
determination or settlement of the claim subject of the action.
 EXAMPLE: X is the creditor, he lent 10M to Y and Z. the obligation of Y and Z is
joined. (A joined debtor is liable to pay only what is pertained to him) The debt became
due and so the creditor would like to file a complaint but he can’t locate Z so he filed his
complaint only to debtor Y. Can the court render a valid judgment to this case? Yes, but
only up to 5M because it is the extent of the obligation of Y.
What about if in the same example, the obligation of the debtors is solidary? (Solidary- any of
the debtors is compelled to pay the entire amount) X only filed a complaint against Y because Z
was not impleaded. Is Z an indispensable party or a necessary party?
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 Z is neither an indispensable party or a necessary party, the only indispensable party is

the one being sued because there is a valid judgment for the entire amount of 10M even if
in the absence of Z.
What does the rule require the plaintiff to do if a necessary party is not impleaded in an action?
 He must state in his complaint the name of the omitted necessary party and he must also
state the reason why he is not impleaded or the reason of his omission. If the court finds
that the reason is not meritorious, then the court will require the plaintiff to implead the
omitted necessary party. If the plaintiff refused to implead the omitted necessary party
notwithstanding the order, the failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against the necessary party.
Joinder of parties is only permissive – you may join or may not join parties. However if the party
to be joined is a indispensable party, his joinder is compulsory.
EXCEPTION: Class Suit/Action – one who belongs to a class is a indispensable party, he may
not be joined because it is impracticable to join all as parties. It may be a plaintiff as a class or a
defendant as a class.
What are the requisites of a class suit?

1. The subject matter of the controversy must be of common or general interest to many
person. – the right affecting many individuals must be indivisible. The interest of any one
of them must not be separable from the interest of all the others. The interest of anyone of
those alleged to belong to a class must not be capable of being separated from the interest
of all the others. The benefit to one must be a benefit to all.
2. The parties affected are so numerous that is impracticable to join all as parties.
3. 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 concerned.
Example of a class suit: We all live in a one community and not too far away is a
manufacturing plant that emits poisonous smoke constantly. You field a case against the
company to prevent it from operating the plant because it imposes danger to the inhabitants. This
is a class suit because the subject matter of the controversy is of common or general interest to
many person.
RULE: If you cannot obtain the consent of a person to be a plaintiff, you implead him as a
defendant. (Unwilling co-plaintiff)
What must be done if a person who must be joined as plaintiff but his consent cannot be
obtained?
 He should be impleaded as a defendant, he is called an unwilling co-plaintiff.
How do you implead an unwilling co-plaintiff?

 You implead him as a defendant.
Suppose you joined him as plaintiff even without his consent?

 You violate his right to due process.
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What do you do if you have a cause of action but you do not know who among several
individuals is liable to you?
 You can sue them and implead them as defendants in the alternative.
 EXAMPLE: X was a passenger going to Manila, the bus was involved in a collision with
a truck. There is a contract between X and the owner of the bus company (Contract of
Carriage). You filed a cause of action based on a contract (ex contracto). X do not know
who between the drivers was negligent and caused the accident. X can sue both of them
although his causes of action in each one of them is inconsistent. If X is not certain who
is liable to him, X can sue them and implead them as defendants in the alternative.
What is the effect of the death of the party?

 If the action is purely personal to the plaintiff, his death abates the action.
What is the duty of the counsel of the deceased party?

 You have to distinguish if the action is one that survives or it is one that does not survive.
 DOES NOT SURVIVE - There are cases that is extinguish by the death of a party. The
death of a party extinguishes the claim or case itself. It is extinguished by the death of a
party. This happens in most instances where the action is personal to the plaintiff or to the
defendant.
o EXAMPLE: Wife files an action for support and legal separation against
husband, while the case is pending, the wife dies. Can the action survive? No, it is
extinguish for both instances because if the wife dies, the husband has no longer
obligation to support her.
 SURVIVE - The action will continue despite the death of a party. The claim is not
extinguished by the death of a party.
o EXAMPLE: An action for the recovery of a real property or a personal property,
an action for damages based on quasi-delict, an action for the payment of a sum of
money based on a contract.
NOTE: The death of the party abates the action.
RULES (Sec. 16) – When a party to a pending action dies, and his claim is not thereby
extinguished, it shall be the duty of the counsel of the deceased party to inform the court within
30 days after such death of the following:
1. The fact of death of the deceased party; and
2. The name and address of the legal representatives or heirs of the deceased party.
The moment the counsel has informed the court (notice of death), the court must issue an order
directing the legal representatives or heirs to appear in court within 30 days from notice for
substitution. They will be substituted in lieu or in place of the deceased party. It is substitution
because the case is not extinguished, the case must go on.
Suppose the legal representatives or heirs so named in the notice of death refused to appear or to
be substituted?
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 The opposing party must secure the appointment of an executor or an administrator of the
estate of the deceased party, once there is an appointed executor or administrator, then he
will appear on behalf of the estate.
Civil action from money claim arising from a contract (express or implied)
Example: X (lender) lent money to Y (borrower). There is a loan (mutuum) contract between
them. (A MONEY CLAIM BECAUSE BASED ON A CONTRACT)
X claims to be the subject of a libelous article and in a complaint that he filed, he alleges that he
was humiliated, and so he was claiming the amount of 5M as damages from the defendant who is
the writer of the libelous article. (NOT MONEY CLAIM BECAUSE NOT BASED ON A
CONTRACT)
It is the defendant who dies. The defendant dies before entry of judgment.
What will happen to the action?
 The action will continue until entry of judgment.
 ENTRY OF JUDGMENT – when the judgment has become final. If the judgment
become final, the clerk of court will enter the judgment in the book of entry of judgment.
The date of the finality of judgment shall deemed to be the date of its entry.
 NOTE: If there is a judgment but the judgment is on appeal and the appeal has not been
resolved yet, then the judgment has not become final yet because it is the subject of an
appeal.
Who is going to be the defendant?

 There will be a substitution but the action will continue until entry of judgment.
What will the judgment obligee or plaintiff do with the judgment?

 Plaintiff (judgment obligee) will present it as a money claim based on judgment in the
settlement of the estate of the deceased defendant.
What is the remedy of the plaintiff if the defendant dies before entry of judgment?
 The remedy is not to execute the judgment. The judgment will not be executed because
the remedy of the plaintiff is present it as a money claim based on judgment in the
settlement of the estate of the deceased defendant.
How to satisfy a judgment?

 If a judgment becomes final, ordinarily the way to enforce the judgment that has become
final is for the judgment oblige (the prevailing party) to move for execution. He will file a
motion for execution. Writ of execution will be issued by the court and the sheriff will
enforce the writ of execution by levying on the property of the judgment obligor. After
the levy, the property levied upon will be sold in an execution sale, the proceeds of the
sale will be applied in the payment of the judgment obligation.
How will you enforce the judgment if the defendant does not die?
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 The judgment obligee or plaintiff will have to move for execution, file a motion for
execution and the sheriff will enforce the writ of execution issued by the court.
What if the defendant dies before levy?

 The execution proceeding will not be continued. The sheriff must stop the execution
proceedings because judgment obligee or plaintiff will have to present the judgement as a
money claim in the settlement of the estate of the deceased defendant.
What if the defendant dies after the levy?

 The execution proceeding will continue until it is terminated. If the defendant dies after
the levy, the next step is sale of the property levied upon in an execution sale.
NOTE: The civil action is commenced by the filing of the original complaint in court. At that
point, the case is a pending case. From that point up to before levy, if the defendant dies, present
the judgment as a money claim.
What if there is no case yet filed to the debtor, he owes money and did not pay then he died?
What is the remedy of the creditor?
 The creditor cannot sue him because you cannot sue a dead person. The remedy is to file
it as a money claim in the settlement of the estate of the deceased debtor.
What is the difference in filing it as a money claim based on a judgment and a money claim not
based on a judgment?
 If the money claim is not based on a judgment, the claimant will have to present evidence
to prove his claim (there is a likelihood that if he cannot prove his claim, it will be denied
by the court) but if the claim is based on judgment he does not have to prove it anymore
because the judgment itself is the proof of his claim.
NOTE: Not all claims can be filed against the estate, the claim is secured by a mortgage, you
cannot present it as a money claim. Unless, you waive the mortgage.
DEATH OR SEPARATION OF A PUBLIC OFFICER
The public officer has brought an action or an action is brought against him in his public capacity
or official capacity, it is not his personal liability, then the public officer dies, resigns or seizes to
hold office as when he’s dismissed or promoted to another office, then he will have a successor.
If a public official is a party in a pending action in his official capacity and then he dies, resigns
or seizes to hold office, what will happen to the action?
RULE WHEN A PARTY TO A PENDING ACTION IS SUED OR HE SUES IN HIS
OFFICIAL CAPCITY.
 The action may be maintained or continued by or against the successor if it is shown that
there is a need for continuing or maintaining it because the successor adapts or continues
to adopt the action of his predecessor.
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Requisites for substitution:

1. There must be a satisfactory proof by any party that there is a substantial need for
continuing or maintaining the action;
2. The successor adopts or continues to adopt or continue the acts of his predecessor;
3. The substitution must be effected within 30 days after the successor assumes office or
within the time granted by the court;
4. There must be a reasonable notice of the application for the substitution given to the
successor so that he may be afforded an opportunity to be heard.
TRANSFER OF INTEREST PENDING LITIGATION/TRANSFER OF INTEREST

PENDENTE LITE
What happens if there is a pending action in a civil case between plaintiff and defendant and
while the action is pending, one or both of them transfer their interest over the property subject
of litigation.
Subject of the controversy must be a property (real or personal).

The transfer can be by any means of conveyance. (e.g. sale, donation)
EXAMPLE: X, while the action is pending, he transfers his interest to A.

X - transferor pendente lite
A – transferee pendente lite
RULE: The action may be continued by or against the original party. Upon motion, the
transferee may be substituted in the action.
Example: The action is between X and Y. X transfer his interest to A. There was no motion and
the action remains between X and Y. There was a judgment and the judgment will bind A.
The transferee may be joined with the original party. There must be a motion.
Example: X and A versus Y.
NOTE: The transferee is bound by the judgment. Even when the action is continued by or
against the original party, the transferee is bound by the judgment because the transferee stand in
the same place as the transferor.
What happens if a person is filing a civil case and he cannot pay the docket fees?
 At the time of the filing of the complaint, he may also file an ex parte motion or
application for an authority to litigate as an indigent party, attached to the motion is his
affidavit of disinterested person.
Who is an indigent litigant (pauper litigant)?

 One who has no money or property sufficient and available for food, shelter, and basic
necessities for himself and his family.
 Whose gross income and that of their immediate family do not exceed an amount double
the monthly minimum wage of an employee
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 Who do not own real property with a fair market value as stated in the current tax
declaration of more than 300,000.
Who will assist the indigent litigant?

 He will be assisted by an attorney. He can seek legal assistance to the Public Attorney’s
Office or to the IBP Office or any office who provides pro bono work.
What happens if the indigent litigant was able to get affidavit of disinterested person but he is not
really a poor guy?
 If the court find that out, that will be a ground for the dismissal of his complaint. His
complaint will be dismissed outright. He may also be criminally charged for perjury.
There is an affidavit of disinterested person, what should be stated in the affidavit?

 Whose gross income and that of their immediate family do not exceed an amount double
the monthly minimum wage of an employee
 Who do not own real property with a fair market value as stated in the current tax
declaration of more than 300,000.
RULE 4
VENUE
In a criminal case, there is no distinction of venue and jurisdiction but in a civil case, venue is
not the same as jurisdiction.
Venue is the place where the action is to be commenced and tried.
What are the distinction between venue and jurisdiction?

1. Venue refers to the place where the action is to be commenced; jurisdiction refers to the
authority of the court to hear and decide the action
2. Venue may be waived; jurisdiction (over the subject matter of the action) cannot be
waived (although jurisdiction over the person of the defendant can be waived)
3. The court cannot motu proprio dismiss the complaint on ground of improper venue, but it
can motu proprio dismiss the complaint on ground of lack of jurisdiction over the subject
matter.
NOTE: Reside – place of abode, whether permanent or temporary, of the plaintiff or defendant,
as distinguished from “domicile”. The actual residence of a person.
What is the venue of real action?

 The place where the property or any portion thereof, is situated.
What is the venue of personal action?

 Where the plaintiff or any of the principal plaintiffs resides or where the defendant or any
of the principal defendants resides, or in the case of a non-resident defendant where he
may be found, at the election of the plaintiff.
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 EXAMPLE: Amount involve is 1M. Plaintiff resides in Urdaneta, defendant resides in

Bontoc. It should be filed with the MTC of Urdaneta. It can also be filed with the MTC of
Bontoc because the plaintiff can choose between Urdaneta and Bontoc.
 Suppose the plaintiff is a constant visitor of Baguio, and decided to file the complaint
with the MTC of Baguio. The MTC of Baguio has jurisdiction but the case is filed with
the improper venue. Venue can be waived. The one who can raise the question of
improper venue is the defendant.
How can the defendant raise the question of improper venue?

 By asserting it as an affirmative defense in his answer and the court will rule on the
affirmative defense.
Suppose that a court noticed that it was filed in improper venue and dismissed the case motu
proprio:
 It is not right. The court cannot motu proprio dismiss the complaint on ground of
improper venue.
If the defendant is a non-resident defendant, what is the venue of the action?

a. If the non-resident defendant is in the Philippines, the venue of the action shall be
where the plaintiff or any of the principal plaintiffs resides or where the non-
resident defendant may be found, at the election of the plaintiff;
b. If the non-resident defendant is not found in the Philippines, and the action affects
the personal status of the plaintiff or any property of the defendant located in the
Philippines, the venue of the action shall be in the place where the plaintiff resides
or where the property or any portion thereof is situated or found.
NOTE: If the non-resident is not in the Philippines, he can be sued only in actions in rem or
quasi in rem.
What is the meaning of reside?

 Reside means the place of abode, whether permanent or temporary, of the plaintiff or the
defendant, as distinguished from “domicile”’.
The parties can agree In the venue of the action, it is a valid agreement provided it is in writing
and made before the filing of the civil action. They can even provide for the exclusive venue of
the civil action by using a word that will restrict the venue to a certain place (e.g. only).
If the contract will provide for the exclusive venue of the action, it is a valid stipulation.
If there is a written agreement between the parties but the parties do not limit it to a certain place,
they do not use any word that will restrict the venue, that place mentioned in the agreement is
considered as an additional venue.
Example: X and Y have an agreement, a contract of lease, in that contract, it provided that in
case in an event of any litigation arising from the contract, the action shall be instituted in the
proper court of Baguio City. (Baguio City will be an additional venue.)
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RULE 6
KINDS OF PLEADINGS
Definition of “Pleadings”
 Pleading is defined as the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment.
 The word trial is not in the definition anymore because there can be a judgment without
trial in some instances.
What is the purpose of a pleading?

 They are designed to define and narrow the issues.
 The issues to be tried in a case are made out in the pleadings.
 The pleadings define the issues.
A pleading may state a claim or a cause of action.
What pleadings state claims or causes of action?

1. Complaint
2. Counterclaim
3. Cross-claim
4. Third party complaint (fourth, fifth, etc.)
5. Complaint-in-intervention
In what pleadings may a party state his defenses?

 In an answer and reply.
How should a pleading be construed?

 A pleading should be construed liberally so as to do substantial justice. However, a party
is still bound by the allegations or statements that he makes in his pleading.
NOTE: a judicial submission does not require evidence.
What is a complaint?
 A complaint is the pleading alleging the plaintiff’s cause or causes of action.
What is an answer?
 An answer is a pleading in which the defending party sets forth his defenses.
 The answer states the defenses of the defendants.
 The purpose of an answer is to secure a joinder of issues.
 If the answer contains admission, it does not deny the allegations in the complaint, then
the answer does not tender an issue. If the defendant denies the issue in the complaint,
and the denial is specific, then the answer tenders an issue.
 The answer contains defenses.
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Kinds of defenses:
1. Negative defenses – is in the form of specific denial of a material fact or facts alleged in
the pleading of the plaintiff or claimant essential to his cause or causes of action.
How may the defendant make his specific denial or how to make a specific denial?
1. Absolute Denial - By denying specifically the material allegation or averment in the
complaint or pleading of the adverse party setting forth the substance of the matter upon
which the defending party relies in his denial.
2. Partial Denial - By admitting only a part of the allegation or averment, by specifying so
much of it as true and deny the remainder.
3. Denial by disavowal - By alleging lack of knowledge or information sufficient to form a
belief as to the truth of the allegation in the pleading of the adverse party.
NOTE: General denial amounts to an admission.

Negative pregnant denial is also an admission. Simply repeating the allegation.
2. Affirmative defenses – an allegation of new matter which although hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless
prevent or bar recovery by the defendant.
 Prevent the defendant from recovering from the plaintiff
What affirmative defenses may a defending party set up in his answer?

 Fraud,
 statute of limitation,
 release,
 payment,
 illegality,
 statute of frauds,
 estoppel,
 former recovery,
 discharge in bankruptcy, and
 any other matter by way of confession and avoidance.
If defendant’s answer contains these affirmative defenses what will the court do?
 The court may conduct a summary hearing within 15-calendar days from the filing of the
answer and the court will resolve such affirmative defenses within 30-calendar days from
the termination of the summary hearing.
The defending party may also plead the following affirmative defenses:
 That the court has no jurisdiction over the person of the defendant
 That the venue is improperly laid
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 Plaintiff has no legal capacity to sue

 The complaint or pleading fails to state a cause of action
 That a condition precedent for filing the claim has not been complied with.
If defendant’s answer contains affirmative defenses what will the court do?
 If the defenses are any of those stated above, then the court should motu proprio resolve
these affirmative defenses within 30-calendar days from the filing of the answer.
May affirmative defenses be set up in a motion to dismiss?

 A motion to dismiss is a prohibited motion unless it is upon any of the following
grounds:
o Lack of the jurisdiction over the subject of the action
o There is another action pending between the same parties for the same cause
o The cause of action is barred by prior judgment
o The cause of action is barred by statute of limitations
What is a counterclaim?
 A counterclaim is a claim by a defending party against the opposing party (plaintiff).
 May be compulsory or permissive
 The defending party is the plaintiff in a counterclaim.
 The counter-claimant is always the defendant or defending party.
 It is a pleading.
Requisites of a Compulsory Counterclaim:

1. It arises out of or is necessarily connected with the transaction or occurrence that is the
subject matter of the opposing party’s claim;
2. It does not require for its adjudication the presence of a third parties of whom the court
cannot acquire jurisdiction;
3. It must be cognizable by the regular courts of justice;
4. It must be within the jurisdiction of the court both as to the amount and the nature
thereof, except that in an original action before the RTC, the counterclaim is considered
compulsory regardless of the amount thereof;
5. It must already be existing at the time of the filing of the complaint.
 If one or some of the requisites are not complied with, then it may be a permissive
counterclaim.
Example: The main case is X(plaintiff) vs. Y(defendant). If Y has a counterclaim against X,
whether permissive or compulsory, X will be the defendant and Y will be the plaintiff in the
counterclaim.
Suppose the case is filed and is now pending before the MTC, the defendant files a counterclaim
for the amount of 10M. Is that a correct counterclaim?
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 It must be within the jurisdiction of the court both as to the amount and the nature
thereof. Even if the defendant can prove his counterclaim of 10M, the MTC won’t be
able to award because that is beyond its jurisdiction.
 If the case is filed with the RTC and the defendant has a counterclaim against the plaintiff
of only 1M, it is a good counterclaim because if it is before the RTC, the counterclaim is
compulsory regardless of the amount.
Which of the following is a pleading?

a. Motion to dismiss
b. Motion for a bill of particulars
c. Counterclaim
NOTE: The counterclaim is incorporated in the defendant’s answer most of the time.
Distinctions between a compulsory and permissive counterclaim:

1. A compulsory counterclaim arises out of or is necessarily connected with the transaction
or occurrence that is the subject matter of the opposing party’s claim; a permissive
counterclaim does not arise out of or is necessarily connected with the transaction or
occurrence that is the subject matter of the opposing party’s claim.
2. A compulsory counterclaim is barred if not set up in the answer; while a permissive
counterclaim is not barred even if not set up in the answer.
3. The plaintiff is not required to answer a compulsory counterclaim, he cannot be declared
in default; a defendant must answer a permissive counterclaim, if he does not file an
answer, he may be declared in default in respect thereto.
4. A compulsory counterclaim is not an initiatory pleading, it does not requires a
certification on non-forum shopping; a permissive counterclaim is an initiatory pleading
and requires a certification on non-forum shopping.
Default – if the defendant fails to file his answer within the time allowed him on motion of the
plaintiff, the defendant may be declared in default and he will lose his standing in court and there
will be a judgment in default against him.
If the counterclaim is compulsory, it must be set up in the answer because it cannot be the
subject of an independent suit or action.
May a counterclaim implead a person not yet a party to the action?

 Yes, so that the claim of the counterclaimant be fully settled and the counterclaim be
adjudicated.
NOTE: A counterclaim may also implead a person not yet a party to the original action so that
the claim of the counterclaimant can be fully settled.
Reply – is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged in or relating to an actionable document attached to the answer
of the defending party.
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- The only function of a reply is to deny the genuineness and due execution of an
actionable document attached to defendant’s answer. It is not the function of a reply to
introduce a new cause of action against a defendant.
What is the remedy of the plaintiff if he has a new cause of action?

 To amend his complaint to include the new cause of action.
NOTE: The plaintiff must file a reply only when the answer is based on or relates to an
actionable document.
Actionable document – a document that can be a basis of a claim or a defense. (e.g. promissory
note, contract)
RULE ON ACTIONABLE DOCUMENT

To produce the effect of specific denial must the denial be under oath?
 No, except when the claim is based on an actionable document to deny the genuineness
and due execution of an actionable document.
 What happens if it is not under oath? There will be an implied admission.
Who can plead an actionable document?

 Either the plaintiff as the basis of his claim or the defendant as the basis of his defense.
What if the reply of the plaintiff is also based on a actionable document?

 The defendant may file a rejoinder to deny under oath the genuineness and due execution
of the actionable document attached to plaintiff’s reply.
Third-party complaint – is a claim that a defending party may, with leave of court, file against
a person not a party to the action, called the third-party defendant, for contribution, indemnity,
subrogation or any other relief, in respect of his opponent’s claim(plaintiff’s claim).
Example: The plaintiff is X and the defendant is Y as to the main case. If a third party should be
filed, it is the defendant who will file the third party complaint and will be filed against a
person who is not yet a party to the action, with leave of court. Y will be referred to a third-
party plaintiff as to the third-party complaint. If the third party complaint is filed against Z, Z
will be the third-party defendant.
Example: Y and Z borrowed 10M from X and bound their selves to pay solidarily. Any of them
may be compelled to pay the amount of 10M. When the debt became due, X filed a complaint
against Y to pay the whole amount of 10M. X can sue the both of them. What is the remedy of Y
so that he can bring into action the other debtor?
 To file a third-party complaint against Z, with leave of court, for contribution. So that if
there will be a judgment against Y, ordering him to pay the entire amount of 10M to X, in
the same judgment, Z will be ordered to pay 5M to Y.
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RULE 7
PARTS OF A PLEADING
What are the parts of a pleading?

 Caption – includes the name of the court, the title of the action (includes the name of the
parties including their designations) and the docket number if one has already been
assigned.
o Title and caption do not mean the same thing. Title is part of the caption.
 Body – sets forth the designation, the allegations of the party’s claims or defenses, the
relief prayed for, and the date of the pleading.
May a court render a judgment for an amount more than what is prayed for in the pleading?
 Yes because the pleading like the complaint, may add a general prayer for such other
relief as may be deemed as such equitable, except in the following instances:
o In a judgment by default – cannot exceed the amount or the different in kind from
that prayed for nor award unliquidated damages
o When the amount will be beyond the jurisdiction of the court to grant
NOTE: Every pleading should contain a date.
 Signature
 Address
Who may sign a pleading?

 The party himself or the counsel representing him.
What is pro se?

 When the party himself signs his own pleading without the assistance of any counsel,
then he is signing it pro se.
 Verification – pleading need not to be verified except in the instances where there is a
law or rule requiring the pleading to be verified.
o How is the pleading verified? By an affidavit of an affiant duly authorized to sign
the verification whether in the form of a secretary certificate or a SPA must be
attached to the pleading, and the verification affidavit must state the attestations:
1. The allegations in the pleading is true and correct based on his personal
knowledge or authentic documents
2. The pleading is not filed to harass, or cause unnecessary delay or needlessly
increase the cause of litigation
3. The factual allegations therein have evidentiary support or if specifically so
identified will have evidentiary support after a reasonable opportunity for
recovery
Pleadings that need verification:

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1. Petition for certiorari

2. Petition for prohibition
3. Petition for mandamus
4. Petition for quo warranto
5. Complaint for expropriation
Certification on non-forum shopping (Certification against forum shopping)

Purpose: To assure the court that the litigant is not engaging in this deplorable act of forum
shopping.
- Is required only in a complaint or other initiatory pleading. (e.g. permissive counterclaim)
- Should be incorporated in the pleading, it must accompany the filing of the pleading.
Either appended or incorporated in the complaint.
- It cannot be a subject of a separate complaint
- Required when you file: a.) third party complaint; b.) complaint in intervention; c.) any
petition or application where the party asserts a claim or relief.
Forum shopping exists when all elements of lis pendentia or res judicata are present.
Certification on non-forum shopping is not required in the following:

1. Petition for issuance for writ of possession
2. Compulsory counterclaim
3. Application for search warrant
4. Complaint filed in the Ombudsman
Does a Petition for issuance for writ of possession require a certification on non-forum
shopping?
 No, because although it is denominated as a petition, it is really a motion. (Rule 15,
Section 4)
Memorize Rule 7, Section 5, Paragraph 1
What if the complaint or initiatory pleading that was filed in court was not accompanied by
Certification on non-forum shopping?
 The complaint or initiatory pleading will be dismissed. The dismissal is without prejudice
(you can refile the complaint). But if the court finds out that you are engaged in a
deliberate act of forum shopping, then the complaint will be dismissed and the dismissal
will be with prejudice and you might be cited for contempt.
Is the defect of lack of certification on non-forum shopping curable by amendment?

 No, it is not curable by amendment. The remedy is refile the complaint.
NOTE: If you have multiple parties, ALL must sign the Certification on non-forum shopping
except in the following:
1. The execution by one of the plaintiff in a case constitute substantial compliance where
the plaintiff being relatives and co-owners share a common interest in the subject matter
of the litigation
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2. The case is filed as a collective raising only one cause of action or defect.
3. If the petitioners are spouses, one spouse signing the certification is a substantial
compliance because they have e common interest in the property
4. If those who did not sign the certification at the time of the filing of the complaint or
petition are outside of the country, their failure to file the petition may be excused.
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1 – Defenses and objections not pleaded. Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.
What are the 4 defenses that are not deemed waived even if not pleaded in a motion to dismiss or
in an answer?
1. That the court has no jurisdiction over the subject matter
2. That there is another action pending between the same parties for the same cause
3. That the action is barred by prior judgment
4. That the action is barred by statute of limitations
NOTE: If any of the aforesaid grounds appears from the pleadings or the evidence on record, the
court shall dismiss the claim or the complaint.
Default
What triggers the defendant to be declared in default is his failure to file an answer. If the
defendant does not file From the time summons is served upon the defendant he has (30) days to
file the answer and this is subject to a one-time extension of another (30) days, a total of (60)
days. But for the defendant to be allowed extension he must file a motion (motion for extension),
if he does not file a motion for extension then the original 30-day period will apply. If he does
not file an answer within (30) days or (60) days as the case may be then he may be declared in
default.
May the court declare the defendant in default 'motu proprio'?

 NO, the plaintiff must file a motion to declare the defendant in default.
1. File a motion to declare the defendant in default
2. Serve a notice of his motion on the defendant
3. Show proof of failure on the part of the defendant to file his answer within the
reglementary period
What is the effect of the order of default?

 A defendant declared in default is entitled to notices of subsequent proceedings but
cannot take part at the trial. He loses his standing in court.
If a defendant is declared in default, the court has (2) options:

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(1) The court can proceed to render judgment granting the plaintiff or claimant such relief as
his complaint or pleading may warrant; the court has the option of rendering a judgment.
What will be the basis of the judgment? The facts alleged in the complaint or
(2) The court in its discretion may require the plaintiff or claimant to present evidence ex
parte. The presentation of evidence ex parte may be made before the clerk of court
provided the clerk of court is a member of the Philippine Bar.
What is the extent of the relief that the court may award if the defendant was declared in default?
 The judgment by default cannot award an amount more than the amount prayed for nor
award unliquidated damages. This is why an amendment to conform to evidence does not
apply to a defendant declared in default.
Suppose the defendant is declared in default, what are the remedies of the defendant?
Before the judgment, the defendant can:
1. File a Motion to Set Aside Order of Default (the order of default, being merely
interlocutory, not appealable) – the motion should be under oath and shall be filed at any
time after notice of the declaration of default before judgment. The defendant must show
by an affidavit of merit that his failure to file an answer was due to fraud, accident,
mistake, or excusable negligence, and that he has a meritorious defense. The Order of
default is the order that declares the defendant in default, it is not the final judgment yet.
The court has yet to render a judgment called a judgment in default.
If the court has rendered a judgment, the remedies of a defendant declared in default for his
failure to file an answer are the following:
2. Motion for New Trial – which should be on the ground of fraud (extrinsic fraud),
accident, mistake or excusable negligence
3. Appeal from the judgment of default, if there has already been a judgment by
default. -
4. Petition for Relief of Judgment on any of the grounds of fraud, accident, mistake or
excusable negligence. - Provided no appeal was taken from the judgment, this petition
should be filed within 60 days from notice of judgment and six months from entry of
such judgment
5. Action to Annul Judgment on the ground of extrinsic or collateral fraud. – This

action may be instituted within 4 years from the discovery of the extrinsic or collateral
fraud.
6. Certiorari -
NOTE: An order of default is not appealable but a judgment in default is appealable.
Example of Final Order: The defendant files a motion to dismiss on the ground that the cause
of action is barred by the statute of limitations. The court issued an order granting the motion to
dismiss, meaning the court issued an order dismissing the case. This is a final order because it
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puts an end to the case or it terminates the case. If not appealed, the order will become final.
What about if the court issues an order denying the motion to dismiss? The order denying
the motion to dismiss is interlocutory. WHY? Because the case is not terminated or dismissed.
What about if the court issues an order declaring the defendant in default, is that a final
order or interlocutory? It is interlocutory, because the issuance of this order in default does not
put an end to the case.
How about if the defendant did not file that motion or even if he filed that motion it was
denied? There is a judgment by default.
NOTE:
The order of default is not the same as judgment by default. The order of default is the
order that declares the defendant in default (not final yet) because the court has yet to render a
judgment and this is called as judgment by default.
The judgment becomes final after (15) days from notice of the judgment if no appeal is
taken therefrom.
1) File a motion for new trial ; if the judgment has been rendered but it has not become final
yet on the ground of fraud, accident, mistake or excusable negligence (FAME).
2) Appeal from the judgment by default; the judgment by default is appealable but the order
of default is not appealable. On appeal, the judgment may be assailed on the ground that
the judgment is excessive or it is different in kind from that prayed for or the plaintiff
failed to prove his allegations.
If the judgment is not yet final, there are (2) remedies for the defendant: a) file a motion for
new trial; or b) file an appeal.
If before the judgment, the remedy of the defendant is to file a motion to set aside the order of
default.
QUESTION: May the defendant appeal from the judgment even if he did not file a motion
to set aside order of default? Yes, there is no requirement under the law that the defendant must
first file a motion to set aside order of default before he can appeal from the judgment by default.
EXTRINSIC FRAUD – if the fraud is committed outside the court or not during the trial and it
has the effect of depriving the defendant of his stay in court.
EXAMPLE: X and Y are friends since childhood. One day, Y borrowed 5M Php from X, and X
gave him this loan without telling his wife about it. But then Y did not pay his debt, so X filed a
case against him. There was summons issued to Y and when he received the summons he
confronted X about it. X gave P150, 000.00 to Y so he can go to Hong Kong to take a vacation.
Y went to HK and after (30) days X filed a motion to declare Y in default and a judgment by
default was declared against Y. The fraud committed by X was committed outside the court or
trial.
Assuming that the judgment is not yet final, Y can file a motion for new trial on the ground of
fraud. Suppose the judgment is final, he can file a petition for relief from judgment or annulment
of judgment on the ground of fraud.
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What happens if there are multiple defendants and others did not file an answer.
Can the court divide the case so that it may now render a judgment against the defaulting
defendants and hear the case as against the non-defaulting defendants?
 No, the rule is that when a complaint if a complaint asserts a common cause of action
against several defendants, some do not file an answer and some filed an answer, then the
court will try the case as against all of them as the basis of the answer that was filed.
What if the judgment is favorable to the answering defendants?

 It will also benefit the defendants who were declared in default because it is a common
cause of action. This will apply only if the complaint asserts a common cause of action
against all of the defendants,
What if the judgment is executed and then it is annulled?

 Assuming that the judgment is annulled, there will be restitution. Otherwise, it will result
to unjust enrichment.
If a defendant is declared in default and a judgment by default was rendered against him, can he
appeal in this judgment rendered against him?
 Yes.
There are certain cases where default is not allowed:

1. Action for annulment of marriage – if the defendant does not file an answer, then the
plaintiff cannot file a motion to declare the defendant in default.
2. Action for declaration of nullity of marriage
3. Action for legal separation
4. Action for expropriation
5. Action governed by the Rule on Summary Procedure
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Amendment may be formal or substantial.

- Formal amendment – defects in the designation of parties, misspelling, incomplete
allegations and clerical and typographical errors. This can be corrected summarily.
- All other amendments, especially those that affect the cause of action or the defense of
the parties are substantial amendments.
NOTE: - The rule is that a party may amend his pleading once as a matter of right. Before a
responsive pleading has been served.
- A reply can be amended as a matter of right within 10 days from the time it is served.
Example: X is the plaintiff and Y is the defendant. The responsive pleading to a complaint is a
defendant answer. X filed a complaint against Y. Y has not filed his responsive pleading yet,
therefore X has not been served with Y ‘s responsive pleading. If X would like to amend his
complaint, can he do so as a matter of right?
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 Yes. A party may amend his pleading once as a matter of right. X does not need leave of
court to amend his complaint. Amendment here does not need a leave of court.
 X will file an amended complaint.
Suppose Y has not filed his answer to the amended complaint. There’s no answer yet. Can X
amend his amended complaint?
 Yes, but with leave of court.
Suppose Y files a motion to dismiss, X would like to amend his complaint. Can X amend his
complaint without leave of court as a matter of right?
 Yes, because motion to dismiss is not a responsive pleading.
- If the court granted the motion to dismiss, but the order is not final yet, X can still amend
his complaint.
- But if the order dismissing the complaint has attain finality, X cannot amend his
complaint.
NOTE: If a responsive pleading has already been filed and served upon the party, wanting to
amend his pleading, can he still amend his complaint?
 Yes, but with leave of court.
If there is no responsive pleading yet, what kind of amendment can the party make?
 He can make a substantial or formal amendment and the amendment is as a matter of
right because there is no responsive pleading yet.
 If the responsive pleading has already been served then the party can still amend his
pleading by making either formal or substantial amendment provided there is leave of
court.
If a responsive pleading has been served, can a party still make substantial amendment?
 Yes, the only requirement is to have leave of court.
What should be the attitude of the court toward the amendment?

 It should be one of liberality,
o To avoid multiplicity of suits
o To enable the parties to present to the court the real controversies
Limitations to the right of a party to amend his pleadings: (the court may refuse to amend the
complaint)
1. A responsive pleading has been filed and served, and the motion for leave to amend is
made with intent to delay;
2. The purpose of the amendment is to confer jurisdiction upon the court; or
Example: X files a complaint with the RTC demanding the payment of 1.8M pesos
exclusive of DIAL-C. the defendant filed a motion to dismiss alleging that in lieu of the
subject matter involved, the RTC has no jurisdiction. The plaintiff amended the
complaint to increase the amount of the claim. THIS IS NOT ALLOWED.
3. The purpose of the amendment is to cure the defect of non-existent cause of action.
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Example: Last January 5, X filed a complaint against Y demanding a payment of 5M

based on a promissory note. But the date stated in the promissory note was Feb. 1. X does
not have a cause of action because the obligation has not yet been due at that time. The
answer asserts that the complaint does not state a cause of action because the debt is not
yet due so in Feb. 16 X amended the complaint (when he filed the amended complaint,
the debt was already due but when he filed the original complaint, the debt was not yet
due) Can X amend his complaint so as to cure the defect of a non-existent cause of
action? No because the amended complaint will retroact to the date of the filing of
the original complaint.
When a plaintiff filed his complaint, he has a cause of action but because of the lack of
skill in the drafting of complaint, his complaint failed to state a cause of action because of
the language used. Can he amend his complaint so as to state a cause of action?
o Yes.
AMENDMENT TO CONFORM TO EVIDENCE (Sec 5)

 There is no need to actually make the physical amendment of the pleading or complaint.
The pleading is deemed amended, automatically amended to conform to evidence.
 Does not apply to a situation where the defendant was declared in default
AMENDMENT TO AUTHORIZE PRESENTATION OF EVIDENCE

- Example: When the plaintiff was presenting evidence to show that what the defendant
owes him is 6.2M higher that 5.8. if the defendant objects, then the court must sustain the
objection.
What is the remedy of the plaintiff?

 To ask the court to allow him to amend his complaint so as to authorize the presentation
of evidence.
What are the effects of an amended pleading?

1. An amended pleading supersedes the pleading that it amends;
2. Admissions in the superseded pleading are now considered extra-judicial admissions
3. Claims or defenses alleged in the superseded pleading but not incorporated in the
amended pleading shall be deemed waived.
Distinctions between an amended pleading and supplemental pleadings:

1. An amended pleading is filed either as a matter of right or with leave of court; a
supplemental pleading is always with leave of court.
2. Amended pleading alleges matters or facts occurring before the filing of the original
pleading; supplemental pleading alleges matters or facts occurring after the filing of the
original pleading.
3. Amended pleading supersedes the original pleading; supplemental pleading does not
supersede the original pleading but assumes that the original pleading is to stand.
SUPPLEMENTAL PLEADING
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- States transactions, occurrences, events that have happened after the filing of the original
pleading.
RULE 11
WHEN TO FILE RESPONSIVE PLEADING
- It does not include a complaint.
When will you file a complaint?

 File it any time before the cause of action is barred by statute of limitations.
When to file a responsive pleading?

 Answer to the complaint - 10 days after the service of summons if the case is governed
Rule on Summary Procedure
 Cases governed by regular rules – Answer to the complaint - 30 days after the service
of summons. Upon motion of the defendant, it may be extended for another 30 days, the
extension is only for one time.
 Answer to the amended complaint – this is not an amended answer.
o As a matter of right – 30 days from service of summons
o With leave of court – 15 days from notice of the order admitting the amended
complaint
o Suppose Y does not file an answer to the amended complaint, then his answer to
the complaint will stand as his answer to the amended complaint. He can’t be
declared in default.
 Answer of a defendant foreign private juridical entity - must file an answer to the
complaint within 30 days if the summon is served upon its resident agent.
 60 calendar days from receipt of the summons together with the copy of
the complaint by the defendant at his home office if the summon is served
upon the government official designated by law to receive summons.
 Answer to third-party complaint – 30 days from service of summons with a one-time
extension of another 30 days
 Answer to complaint-in-intervention – 15 days from notice of the order admitting the
complaint-in-intervention
 Answer to supplemental complaint – 20 calendar days from notice of the order
admitting the supplemental complaint.
o If you want to file a reply – 15 calendar days from the service of the pleading to
be responded to.
 Answer to counterclaim or crossclaim - 20 calendar days from service of the pleading
containing the counterclaim or crossclaim. If the counterclaim is a compulsory
counterclaim, it need not be answered but it’s okay to answer it. If it’s a permissive
counterclaim, the plaintiff now the defendant as to the counterclaim must file an answer,
otherwise he may be declared in default as to the permissive counterclaim.
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NOTE: Exclude the first, include the last. Include Saturday, Sunday and legal holidays. If the
last day falls on a Saturday, Sunday or legal holiday in the place where the court sits, then you
can file it on the next business day.
RULE 12
BILL OF PARTICULARS
Motion for a bill of particulars – the defendant will file this to point out the defective
allegations and the details desired. If the motion is granted and the court will direct the plaintiff
to comply, then the plaintiff will file a bill of particulars.
- Is not the same as the bill of particulars.
- The clerk of court must immediately bring it to the attention of the court which may
either deny or grant it outright, or allow the parties the opportunity to be heard.
Who will file a bill of particulars?

 The plaintiff.
When may the defendant file a motion for a bill of particulars?

 Before responding to a pleading, before filing his answer.
Suppose the defendant already filed his answer to the complaint, can he still file a motion for a
bill of particulars?
 No.
How may a plaintiff file a bill of particulars?

 Either by amending his complaint or by filing it as a separate bill of particulars.
Suppose the court denies or grants the motion for bill of particulars. What is the next thing to
happen?
 If the court grants the motion, the plaintiff now will file a bill of particulars. Then, the
defendant will now file his answer.
 If the court denies the motion because in the mind of the court, the complaint is clear and
definite, then the defendant will file his answer.
 IN EITHER CASE, THE DEFENDANT WILL FILE HIS ANSWER WITHIN THE
REMAINING NUMBER OF DAYS, BUT IN NO CASE SHALL BE LESS THAN 5
CALENDAR DAYS.
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS
What is filing?
 Filing is the act of presenting the pleading or other paper to the clerk of court.
What is service?
 Service is the act of providing a party with a copy of the pleading or other court
submission.
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If you are serving a copy of the pleading or other court submission, upon whom may the
pleading or other court submission be served?
 It should be served upon the party, but if the party is represented by a counsel, then
service will be made upon counsel.
What happens if several counsel are representing the same party?

 The service must be made upon the lead counsel, if one has been designated. But if none
has been designated, then upon any of them.
GRAMMAR: The word counsel does not take an ‘s’ even as used as plural.
How to file? MODES OF FILING:

 Personal filing – by submitting personally the original copy of the pleading or other
court submission, plainly indicated as such, to the Court. But should not do it by yourself.
 Filing by registered mail – by sending them to the court by registered mail.
 Filing by accredited courier – like LBC, etc.
 Filing by electronic mail (e-mail) or other electronic means – by transmitting them to
the court by email or other electronic means, as may be authorized by the court in places
where the court is electronically equipped.
o The following cannot be filed electronically, unless the court has granted express
permission:
 Initiatory pleadings and initial responsive pleadings, such as an answer;
 Subpoena
 Appendices
 Sealed and confidential documents or records
When is the pleading or other court submission deemed filed?

 Personal filing – the Clerk of Court must shall indorse on the pleading or any other court
submissions the date and time of the filing. It will be stamped in the first page of the
pleading,
 Registered mail – the date of mailing is the date of filing. (Mailbox rule)
 Electronic mail or any other electronic means – the day of the electronic transmission
shall be considered as the day of filing.
What are the papers that are required to be filed to the clerk and served?
 Judgment
 Pleadings subsequent to the complaint
 Written motion, notice, appearances, etc.
Should a judgment be filed with the Clerk of Court?

 Yes, it must be filed. (Rule 36, Sec 1)
NOTE: When it comes to judgment or final order or resolution, service by mail should only
be by registered mail. Service of a judgment by accredited courier may only be made upon
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an ex parte motion of any party and when granted by the court, it should be at expense of such
party. Service of a judgment by publication can be made only when the defendant is
summoned by publication and he did not appear in the action.
MODES OF SERVICE OF PLEADINGS OR ANY OTHER COURT SUBMISSIONS:

 Personal service – by personally delivering a copy of the pleading or any other court
submission to the party or his counsel or by leaving a copy at his office. If his office is
unknown, or no office, then by leaving a copy between 8am-6pm in his residence with a
person of sufficient age and discretion then residing therein.
 Service by mail – may be by registered mail or ordinary mail.
o When it comes to judgment, final order or resolution should only be by registered
mail.
Presumptive service or notice - there shall be presumptive notice to a party of a court setting if
such notice appears on the records to have been mailed at least 20 calendar days prior to the
scheduled date of hearing and if the addressee is from within the same judicial region of the
court where are the cases pending, or at least 30 calendar days if the addressee is from outside
the judicial region. (Sec 10)
The notice of pre-trial was mailed to plaintiff’s counsel more than 30 days ago but the counsel
did not received the mail?
What is the effect if the plaintiff or counsel fails to appeal in the pre-trial?
 The complaint will be dismissed.
What is the rule on completeness of service?

 If by personal service, it is complete upon actual delivery.
 If by ordinary mail, it is complete upon the expiration of 10 days after mailing, unless
the court otherwise provides.
 If made by registered mail, it is complete upon actual receipt by the addressee, or after 5
days from the date he received the first notice of the postmaster, whichever date is earlier.
 If by substituted service, it is complete at the time of the delivery of a copy to the clerk
of court.
 If by accredited courier, it is complete upon actual receipt of the addressee.
What is lis pendens? Notice of lis pendens?

 It is an announcement to the world that a certain real property is the subject of a pending
litigation.
When may a party cause the recording of a notice of lis pendens?

 A notice of lis pendens can be recorded only when there is a pending real action
involving a real property. The action should affect title to or right to possession over a
real party. In particular, the action is to recover possession of a real property or to quiet
title thereto, or to remove a cloud therefrom, or for partition, or any other proceeding in
court directly affecting the title to the land or the use or occupation thereof, or any
building thereof.
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Who can cause the recording of notice of lis pendens?

 The plaintiff or defendant (if asking for affirmative relief)
If you like to record a notice of lis pendens, where will it be recorded?

 It is recorded in the office of Register of Deeds.
Do you need a court action or order of the court to be able to cause the recording of the notice of
lis pendens in the office of Register of Deeds?
 No, you don’t need a court action. You only need to write a letter.
 But if recorded and wants cancellation, you need an order of the court. You have to file
a motion on the ground that (1) the purpose is to molest the adverse party (2) it is not
necessary to protect the rights of the party who caused it to be recorded.
RULE 14
SUMMONS
What is summons?
 Summons is the writ issued by the Clerk of Court upon the order of the court. It is issued
by the Clerk of Court upon filing of the complaint and payment of the docket fees …
What is the significance of summons?

 Summons is the primary means by which the court is able to obtain or acquire
jurisdiction over the person of the defendant, and it also notifies the defendant..
How may the court acquire jurisdiction over the person of the defendant?
1. By valid service of summons upon him
2. By defendant’s voluntary appearance in court
When may the court direct the Clerk of Court to issue..

 If the complaint is not dismissible in its…
NOTE: When serving summons..
Who will serve the summons?

 The summons may be served by the sheriff, his deputy or other proper court officer
 By the plaintiff if authorized by the court in case there’s a failure..
Instances where
 The plaintiff is authorized by the court in case there is a failure in service of summons
 If the summons is to be served outside the judicial region of the court where the case is
pending
 If summons is returned without being served in any or in all of the defendants
What is the lifetime of summons? How many days will summons take effect?
 Summons has no definite lifetime, once issued it should remain valid…
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 If the summons is lost or destroyed without being served, then the court may, upon
motion, may issue an alias summons.
Modes of service of summons:

1. Service in person on the defendant – by handing a copy of the summons to the
defendant in person and informing the defendant that he is being served with summons. If
he refuses to receive the summons and sign for it, by leaving the summons within the
view and within the presence of the defendant.
2. Substituted service of summons – made only for justifiable causes, when service in
person upon the defendant cannot be effected after at least 3 attempts on 2 different days.
How…
a. By leaving a copy of the summons to defendant’s residence with…
b. By leaving a copy of the summons at 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 …
d. By sending an electronic mail to the defendant’s email address if allowed by the
court.
NOTE: Return of summons -

What shall the return state? If the summons is by substituted service, the return
must state the following:
A. Impossibility of prompt
B. Date and time of the ..
C. The name of the person at least 18 years of age an
3. Service of summons by publication –

Instances when summons by publication may be made:
a. Any action where the identity of the defendant is unknown
b. Any action where the whereabouts of the defendant is unknown and cannot be…
c. If the defendant does not reside and is not found in the PH but the suit can
properly be maintained against him in the PH, it being in rem or quasi in rem
d. If the defendant is a resident of the PH but is temporarily out of the country.
Modes of extra-territorial service of summons – requires leave of court. The summons may be
effected outside the PH.
1. By personal service
2. As provided for in international conventions (HAGUE SERVICE CONVENTION) to
which the PH is a party.
3. By publication in a newspaper of general circulation in such places and for such time as
the court may order
4. Any other manner the court may deem sufficient.
Upon whom the summons be served?

 Upon the defendant.
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Supposed the defendant is a domestic private juridical entity, upon whom the summons be
served?
 President
 Managing partner
 General manager
 Corporate secretary
 Treasurer
 In-house counsel
o In their absence or unavailability, service may be made upon their secretaries.
o If they refuse to receive, it shall be made upon the person who customarily
receives correspondences for the defendant at its principal office.
NOTE: If there is no resident agent, the defendant may file his answer to the complaint to the
government official (SEC)
If the defendant is a foreign juridical entity, upon whom the summons be served?
 If the foreign juridical entity is doing business of insurance, the insurance commissioner.
 If bank or financial institution, the superintendents of banks.
 If not registered in the PH but has transacted or is doing business in PH, service of
summons may, with leave of court, be effected outside the PH by any of the following
means:
o By personal service coursed through the appropriate court in the foreign country
with the assistance of the DFA
o By publication once in a newspaper of general circulation in the country where
the defendant may be found
o by serving a copy of the summons and court order by registered mail at the last
known address of the defendant
o by facsimile or electronic means
o by such other means as the court may direct
SECTION 13 – A defendant claims that the service of summons upon him was not valid or
improper, a counsel will appear to question the service of summons then the counsel may be
deputized to serve the summons in his or her client.
RULE 15
MOTIONS
What is a motion?
 A motion is an application for relief other than by a pleading.
What are the requisites of a valid motion?

1. Must be in writing, except if made in open court or in the course of a hearing or trial
2. Must state the relief sought to be obtained and the grounds upon which it is based, and if
required to prove the facts alleged in the motion, it shall be accompanied by supporting
affidavits and other papers
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3. Must be served by personal service, accredited private courier, registered mail or

electronic means so as to ensure its receipt by the other party
4. There must be proof of service of the motion
If the motion is prohibited, you should not file the motion because it can be denied outright by
the court.
When is a motion non-litigious?

 If the court can act upon it without prejudicing the right of the adverse party. The
following motions are non-litigious:
o Motion for issuance of alias summons
o Motion for extension to file answer
o Motion for postponement
o Motion for the issuance of a writ of execution
o Motion for issuance of alias writ of execution
o Motion for the issuance of a writ of possession
o Motion for the issuance of an order directing the sheriff to execute the final
certificate of sale
o Other similar motions
 If the motion is non-litigious, it shall not be set for hearing, the court must resolve the
motion within 5 calendar days from receipt of the motion.
What are the motions that are litigious?

 The opposing or adverse party may file is opposition to the motion within 5 calendar days
from receipt of the motion, then the court will resolve the motion within 15 days from its
receipt of opposition or upon expiration of the period to file such opposition if no
opposition is filed.
o Motion for bill of particulars
o Motion to dismiss
o Motion for new trial
o Motion for reconsideration
o Motion execution pending appeal
Do motions require a notice of hearing?

 If the motion is non-litigious, it does not require notice of hearing.
 If the motion is litigious, a notice of hearing is discretionary on the part of the court. The
court may call a hearing on a litigious motion, it should issue a notice of hearing to all of
the party.
Motions that are not allowed (prohibited motions):

1. Motion to dismiss except when: (1) That the court has no jurisdiction over the subject
matter (2) That there is another action pending between the same parties for the same
cause (3) That the action is barred by prior judgment (4) That the action is barred by
statute of limitations
2. Motion to hear affirmative defenses
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3. Motion for reconsideration of the court’s action on the affirmative defenses

4. Motion to suspend proceedings without a temporary restraining order or injunction issued
by a higher court
5. Motion for extension of time to file pleadings, affidavits, etc. except a motion for
extension to file an answer (one-time answer)
6. Motion for postponement intended for delay
NOTE: A dismissal without prejudice is non-appealable because the remedy is refile.
If the court grants the affirmative defenses asserted in the answer or set up in a motion to dismiss
(if allowed), and it dismisses the complaint, is the dismissal with prejudice or without prejudice?
 The dismissal is with prejudice and therefore the refiling of the same action is barred if
the dismissal is based on any of the following grounds:
o That the cause of action is barred by prior judgment or res judicata
o Barred by statute of limitation or prescription
o That the claim or demand has been paid, waived, abandoned or otherwise
extinguished
What is an omnibus motion?

 A motion that attacks a pleading, judgment, final order or proceeding.
What is the omnibus motion rule?

 It is the rule that requires a motion that attacks a pleading, order, judgment, or proceeding
to include all objections and defenses then available, and all those not included shall be
deemed waive except for Rule 9, Section 1.
RULE 17
DISMISSAL OF ACTIONS
It is about the plaintiff who has neglected to prosecute his action, or disobeyed the order of the
court, or failed to appear at the time when he needs to present his evidence to prosecute his
claim. Because of his own fault, the action will be dismissed.
This is the dismissal of a motion at the instance or because of the fault or act of the plaintiff. The
plaintiff may dismiss his complaint in two ways:
1. Filing a notice of dismissal
2. Filing a motion to dismiss
When may the plaintiff dismiss his complaint by notice of dismissal?

 At any time before service upon him of an answer or a motion for summary judgment.
What will the court do if the plaintiff files a notice of dismissal?

 The court will issue an order confirming the dismissal.
Example: The plaintiff files a notice of dismissal on Feb. 25, the court issued an order
confirming the dismissal on Mar 2. When was the complaint considered to be dismissed?
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 The complaint is dismissed in Feb. 25 when the notice of dismissal was filed. The court
will only confirm the dismissal.
What is the nature or effect of the dismissal?

 The dismissal is without prejudice to the right of the plaintiff to refile his complaint.
In the following instances, the dismissal is with prejudice:

1. If the notice of dismissal states that the dismissal is with prejudice.
2. If the refiling of the complaint is barred by the two-dismissal rule.
Suppose the plaintiff will file a notice of dismissal to dismiss his complaint, can the plaintiff get
a refund of the docket fee?
 No, he cannot get a refund.
Can he apply his payment to his second/refiled complaint?

 No, he has to pay the docket fees again.
Suppose the defendant already filed an answer to the complaint, may the plaintiff may still cause
the dismissal of the complaint?
 Yes, but it must be by motion to dismiss.
NOTE: The complaint is dismiss only upon approval of the court of the motion.
Suppose the defendant has asserted a counterclaim against the plaintiff, the counterclaim could
either be compulsory or permissive (the same rule applies). If the plaintiff files a motion to
dismiss to dismiss his own complaint and the court will issue an order approving the motion.
What is dismissed, is it the case or the complaint?
 What is dismissed is only the complaint. The rule says that the only dismissed is the
complaint. The counterclaim is not dismissed because the defendant can continue with
his counterclaim against the plaintiff.
If the court approves the dismissal, what is the nature of the dismissal?
 It is without prejudice to the right of the plaintiff to refile his complaint.
 Except if the order approving the order states that the dismissal is with prejudice.
Section 3. Dismissal due to fault of plaintiff

1. If, for no justifiable reason, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint
PLAINTIFF/DEFENDANT
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EVIDENCE IN CHIEF
-
REBUTTAL/SUR-REBUTTAL
2. Fails to prosecute his complaint for an unreasonable length of time
3. Fails to obey or comply with the Rules of Court or an order of the court.
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 If any of these grounds are present in a given situation, the court on its own (motu
proprio) can dismiss the complaint.
 The dismissal is an adjudication of the case on its merit. It is with prejudice except only if
in order of dismissal, the court itself says that the dismissal should be without prejudice.
NOTE: If the dismissal is with prejudice – REMEDY: APPEAL from the order dismissing the
complaint.
If the dismissal is without prejudice – REMEDY : REFILE the complaint
NOTE: Double jeopardy is also known res judicata in prison grey.

If demurrer to evidence in a criminal case is granted, the case is dismissed and no appeal
because of double jeopardy.
If demurrer to evidence in a civil case is granted, the case is dismissed and you can appeal
because there is no double jeopardy in a civil case.
RULE 18
PRE-TRIAL
Concept and nature of pre-trial:

 Pre-trial is mandatory. It cannot be dispensed with. It is a device intended to clarify and
limit the basic issues between the parties. Its main objective is to simplify, abbreviate and
expedite the trial, or otherwise totally dispense with it.
As when the parties will stipulate on the facts, the stipulation and agreement is in writing, and
submit the case for decision based on the facts agreed upon. – this is allowed. The parties can
stipulate on the facts and the stipulation is in writing and they can simply submit the case to the
court for decision.
When may a civil action be set for pre-trial?

 The case may be set for pre-trial after the last responsive pleading has been served and
filed.
What is the last responsive pleading?

 The last responsive pleading will depend on what pleadings have already been filed.
Example: X files a complaint against Y and in due time, A files his answer to the complaint and
the answer contains a permissive counterclaim against X. is the answer the last responsive
pleading?
 No, because the last responsive pleading would be X’s answer to the permissive
counterclaim.
Example: X files a complaint against Y, but Y did not file an answer to the complaint despite the
lapse of more than 2 months, may this case be set for pre-trial?
 NO, because the last responsive pleading has not been filed. In fact, there is no
responsive pleading. Y may be declared in default but only if X files a motion to declare
him in default.
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o Suppose X also neglected to file that motion, therefore the court cannot declare Y
in default, the case will be dismissed. Can the court dismiss the complaint motu
proprio? YES, because by not doing anything about the case, the plaintiff can be
said to have failed to prosecute his action for an unreasonable length of time.
If the last responsive pleading has been served and filed, what is the next step?
 The clerk of court shall issue the notice of pre-trial within 5 calendar days from the filing
of the last responsive pleading.
What must be stated in the notice of pre-trial?

 Date and time of the pre-trial and also the court-annexed mediation, judicial dispute
resolution.
 Must contain a directive requiring the parties to file their respective pre-trial briefs and
serve a copy on the other party in such a manner as to ensure its receipt at least 3 calendar
days before the date of pre-trial.
Suppose the court conducts a pre-trial although no notice of pre-trial has been served to the
parties. What is the effect of the holding of a pre-trial of the court when no notice of pre-
trial has been served to the parties?
 The pre-trial is void and all the proceedings conducted by the court, including judgments
if any, shall also be void. The absence of the notice of pre-trial violates the right of the
parties to due process.
Upon whom the notice of pre-trial be served?

 It shall be served on counsel or on the party if not represented by counsel.
 If a party is represented by a counsel, then the notice of pre-trial shall be served upon the
counsel. The counsel has the duty to notify his client of the date and time of the pre-trial.
Suppose at the pre-trial, there was a notice given to the counsel but at the pre-trial, the party
failed to appear although the counsel was in court. What is the effect of the failure to appear of
the party and his counsel?
 BOTH PARTY AND THE COUNSEL SHOULD APPEAR IN COURT.
 If it is the plaintiff and his counsel that failed to appear, the complaint may be dismissed
and the dismissal is with prejudice unless the order states the dismissal to be without
prejudice.
 If it is the defendant and his counsel, then the failure will authorize the plaintiff to
present his evidence ex parte against the defendant.
What are the purposes of a pre-trial? What are the matters to be taken up at the pre-trial?
1. The possibility of an amicable settlement or of submission of the dispute to the
alternative modes of dispute resolution.
2. The simplification of issues.
3. The possibility of obtaining stipulations or admission of facts and of documents to avoid
unnecessary proof
4. The limitation of the number of witnesses
5. The advisability of a preliminary reference of issues to a commissioner
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6. The propriety of rendering judgment on the pleadings, or summary judgment, or of

dismissing the action should a valid ground therefor be found to exist
7. Marking of evidence, exhibits, documentary exhibits or object evidence
8. Other matters as may aid in the prompt disposition of the action.
What are the alternative modes of dispute resolution?

1. Arbitration
2. Mediation
3. Conciliation
4. Early Neutral Evaluation
5. Mini-Trial
6. Any combination of the forgoing
May a party be represented by someone at the pre-trial?

 Yes, but that person should be authorized by means of Special Power of Attorney.
NOTE: Special Power of Attorney must authorized the duly appointed representative (attorney-
in-fact) to enter into an amicable settlement with the adverse party, to enter into any stipulation
of facts or of documents.
May the attorney-in-fact be his counsel himself?

 Yes.
May the counsel himself be represented by an attorney-in-fact?

 No, but if he cannot be present in the pre-trial, there will be a co-counsel or corroborating
counsel.
What happens after the pre-trial?

 The court will issue a pre-trial order. The contents of the pre-trial order shall control the
subsequent proceedings.
Court-annex mediation – part of pre-trial. It is mandatory. The court will refer the parties for a
court-annex mediation.
When will the court refer the parties to CAM?

 After the pre-trial. Whatever the parties will say is a privilege and cannot be used against
the parties. The discussion is free-willing and will not be recorded. There will be an
accredited mediator from the Philippine Mediation Center, he will assist the parties in the
conduct of the court-annex mediation.
Judicial Dispute Resolution – not mandatory. But the court may refer the case to another court
for JDR if the judge of the court to which the case was raffled is convinced that settlement is still
possible despite the failure of the court-annex mediation.
Who will conduct the JDR?

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 The judge of a co-equal court. So if the court to which the case was assigned by raffle is
RTC Branch 5, the RTC Branch 5 will refer the case to another court for JDR.
What happens if the JDR fails?

 The trial before the original court shall proceed on the date agreed upon as stated in the
pre-trial order.
RULE 19
INTERVENTION
Intervention is a proceeding by which a third person is allowed by the court to become a party
in a pending action. The process is known as intervention.
 A person cannot intervene unless the court allowed hm to do so.
 Intervention is always with leave of court. A person cannot intervene unless the court
allows him to do so. The initiative comes from the person.
 If a person does not intervene, the court cannot also compel him to intervene.
If the pending action is between X and Y, Z is not a party to the action, the decision to intervene
comes from Z.
It is unlike a third-party complaint. In a third-party complaint, it is the defendant who files the
complaint to compel a person that is not a party in the case to bring him into the action.
In an intervention, the third person (intervenor), if allowed by the court to intervene, may join the
plaintiff in claiming what is sought in the complaint against the defendant. In which case he will
file a pleading known as Complaint in intervention.
Or he can intervene against both the plaintiff and the defendant, in which case his pleading in
intervention is also known as Complaint in intervention.
He may also join by uniting with the defendant in resisting the claim of the plaintiff, in which
case his pleading is known as Answer in intervention.
Who can intervene?

 A person who has a legal interest in the matter of litigation
 A person who has a legal interest in the success of either of the parties
 A person who has an interest both the plaintiff or defendant
 A person is so situated as to be adversely affected by a distribution or disposition of the
property in the custody of the court.
How may a party intervene?

 It is always with leave of court. File a motion for leave, attached to the motion is the
proposed pleading in intervention.
When to intervene?
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 At any time before rendition of judgment by the trial court.
Is intervention allowed when the case is already on appeal?

 No, because when the case is on appeal there is already a judgment by the trial court.
NOTE: If the one seeking to intervene is an indispensable party but was omitted or not
impleaded at the trial - The SC allowed intervention even when the case was already on appeal
because the one was an indispensable party, in those cases in which the SC allowed
intervention even on appeal, this is a intervention being sought by a person or a party who turns
out to be a indispensable party. Otherwise there will be an undue prejudice against him.
RULE 20
CALENDAR OF CASES
RULE 21
SUBPOENA
Define subpoena.
 A subpoena is a process directed to a person requiring him to attend and testify at the
hearing or the trial of an action, or at any investigation conducted by competent authority,
or the taking of his deposition.
What are the kinds of subpoena?

1. Subpoena ad testificandum – directs and requires a person to attend and testify.
2. Subpoena duces tecum – requires the person to bring to the court books, objects,
documents, papers and any other things under his control.
Who issues a subpoena? By whom issued?
1. The court before whom the witness is required to attend and testify;
2. The court where his deposition is to be taken;
3. The officer authorized by law to conduct an investigation
4. Any justice of the Supreme Court or Court of Appeals in any case or investigation
pending within the Philippines;
NOTE: A witness is bound by a subpoena.

Suppose you got a subpoena, and you simply disobey the subpoena. You might be cited in
contempt. Disobedience to subpoena is punishable as contempt.
There may be some justifications when you are not bound by subpoena but if you are not bound
by the subpoena, you file a motion to quash subpoena alleging that you are not bound.
When is a witness not bound by a subpoena?

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1. If the witness resides more than 100 kilometers from his residence to the place where he
is to testify (place of trial) by ordinary course of travel. He can file a motion to quash the
subpoena. [STATED OTHERWISE: If the witness resides more than 100 kilometers
from the place of trial]
2. The witness is a prisoner.
What do you call the right of the witness not to be compelled to testify in a civil case if he
resides more than 100 kilometers from the place of trial?
 This is called the viatory right of the witness.
What will you do if the witness invokes his viatory right?

 Issue a notice for the taking of the deposition copy furnished of all the other parties. If
you have proof of service of the notice, then file it with a court in the same location. The
same court will issue a subpoena to him for the taking of his deposition in the same
locality.
RULE 23, 24, 25, 26, 27, 28, and 29

MODES OF DISCOVERY
Is there a way to know the facts or documents in the possession of the adverse party to uncover
your opponent?
 Yes, the way to do it is to take advantage or to use the modes of discovery.
The nature of the modes of discovery is fishing expedition to know the facts from your
opponent. These are legal ways on finding out the facts from your opponent.
What are the modes of discovery?

1. Deposition pending action (Deposition de bene esse) – there must be a pending case.
2. Deposition before action or pending appeal (Deposition in perpetuam rei memoriam)
3. Written interrogatories
4. Request for admission
5. Production or inspection of documents or things
6. Physical and mental examination of a party
DEPOSTION
 The person whose deposition is to be taken or has been taken or will be taken is also
known as deponent.
Whose deposition can be taken? Who can you depose?

 You can take the deposition of your opponent or of a person who is not a party to the
action.
If you take the deposition of a party, for what purpose can you use that deposition?
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 If the deposition is the deposition of a party, it can be used for any purpose. (any
purpose of proving his claim if that is the plaintiff or his defense if that is the defendant).
 But if the deposition is the deposition of a person who is not a party to the case, the
deposition can only be used only for the purpose of impeaching or contradicting him if he
testifies.
 You impeach a witness by prior and inconsistent statement. You impeach a witness by
showing that he had given a statement that is inconsistent to his present testimony.
 Suppose he does not testify, then you cannot use his deposition.
Why do you need to impeach a witness?

 To show to the court that the witness does not have any credibility, so that the court will
not give weight to his testimony.
RULE 30
TRIAL
Among the matters or items
What does the rule require the parties to do regarding the sched of hearings agreed upon by them
and set forth..
 The rule requires the parties to observe strictly the..
The issues to be tried are stated in the pre-trial order. The trial of issues shall be limited to those
stated in the pre-trial order.
May the parties agree as to the facts involving the case and then submit the case for decision
based on the facts agreed upon by them?
 Yes, provided the agreement as to the facts is in writing.
NOTE: Stipulation of facts is not allowed in the following cases:

1. Legal separation
2. Annulment of marriage
3. Declaration of annulment of marriage
Who will receive the evidence at the hearing?

 The judge of the court in which the case is being tried. The judge shall receive the
evidence personally.
In the following instances, the..

1. In ex parte hearings
2. In default hearings
3. In cases in which the parties will agree in writing
RULE 31
CONSOLIDATION OR SEVERANCE
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May take place when the action involves a common question of law or common question of
facts. It may be made even if the cases are pending in different courts.
May there be consolidation of cases even when the cases are pending..
 Yes.
There can also be consolidation of civil action with criminal action.
If you have a petition for the issuance of writ of possession based on a mortgage that has been
foreclosed.
May…with an action for the annulment for the foreclosure of mortgage?

 No, because a petition for the issuance of a writ for possession is a non-litigious
procedure and it is summary in nature.
RULE 32
TRIAL BY COMMISSIONER
RULE 33
DEMURRER TO EVIDENCE
One distinction between demurrer to evidence in civil and criminal:

 In a civil case, there is no need to obtain a leave of court
 In a criminal case, the filing of demurrer to evidence may be with or without leave of
court.
What is demurrer to evidence?

 It is in the nature of a motion to dismiss filed by the defendant after the plaintiff has
completed the presentation of evidence on the ground that, the evidence presented by the
plaintiff is insufficient.
Who files a demurrer to evidence?

 The defendant.
When is demurrer to evidence filed?

 After the plaintiff has completed the presentation of evidence.
How will the court resolve the demurrer to evidence?

 The court may grant or deny the demurrer to evidence.
If the court denies the demurrer, what is the remedy of the defendant?
 The remedy is to present his evidence because a defendant who files a demurrer has not
waive his right to present his evidence in the event his demurrer is denied…
If the court grants the demurrer, what will happen to the case?
 The case is dismissed.
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If the court granted the demurrer, what is the remedy of the plaintiff?
 Appeal from the order granting the demurrer because the case is dismissed.
 If the plaintiff appeals
BAR Q:
Plaintiff completed the presentation of his evidence, defendant ..
Demurrer to evidence granted. Plaintiff appealed to the CA. the CA found the evidence of the
plaintiff sufficient and reversed the dismissal. The CS remanded the case to the RTC, with an
order for the RTC to receive the evidence of the defendant. Is the CA correct?
 No, the CA is not correct because if it reverses the order of dismissal, it should not
remand the case. The CA should decide the case…
If the demurrer is granted but on appeal, the order of dismissal is reversed, the defendant shall be
deemed to have waived his right to present evidence.
NOTE: In a civil case, if the case is at the trial court, if the defendant files a demurrer and it is
granted, the plaintiff can appeal but in a criminal case, in the same situation, the plaintiff cannot
appeal because in a criminal case, the order granting the demurrer is equivalent to an acquittal
because it is a dismissal made upon…
RULE 34
JUDGMENT ON THE PLEADINGS
The court may render a judgment on the pleadings upon motion of the plaintiff or motu proprio
by the court on the ground that the answer filed by the defendant fails to tender a issue or it
otherwise admits the material allegations in the complaint.
When does an answer fails to tender an issue?

 If the denials contained in the answer are not in the form of a specific denial.
… it confesses to the truth of allegations or it fails to deal with it at all.
Who may file a motion for judgment

 The plaintiff. The defendant cannot file a motion for the judgment of the pleadings.
Suppose the court would like to render.. but the plaintiff is not filing a motion. May the court on
its own…
 Yes.
Section 2 – the court may now render judgment
When you try a case, you try only the issues. If you try an issue that is not in the pleadings, ….
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How will you know the issues?

 The issues are made out in the pleadings and defined by the pleadings. At the pre-trial,
the court will assist the parties
The answer does not tend an issue: there is nothing to try. The court might as well render a
judgment based on the pleadings.
Example: Debate about gambling. Team A says it should be legalized. Team B says it should not
be legalized. The issue is whether or not gambling should be legalized.
The complaint is the defendant borrowed 5,000,000 from plaintiff…
RULE 35
SUMMARY JUDGMENTS (ACCELERATED JUDGMENTS)
A motion for summary judgment can be filed by either the plaintiff or the defendant.
When may the plaintiff file

 After the defendant has filed his answer.
When may the defendant file

 Before or after… on the ground that there is no genuine issue.. and the moving party is
entitled
In summary judgment, there is an apparent issue but it can be shown by affidavit, deposition or
by admission that the issue is not genuine.
Distinctions:
1. In judgment on the pleadings, there is no genuine issue beause the answer fails to tender
an issue…
RULE 36
JUDGMENTS, FINAL ORDERS, AND ENTRY OF JUDGMENT
Requisites of judgment:
1. It must be in writing.
2. It must be personally and directly prepared by the judge.
3. It must state clearly and distinctly the facts and the law on which it is based. -
CONSTITUTIONAL REQUIREMENT (Art. 8, Sec 14 )
4. It must be signed by the judge.
5. It must be filed with the clerk of court.
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Suppose… is the judgment still valid?

 Yes, although it is wrong.
What is the remedy if the judgment is valid but wrong?

 The remedy is to appeal to correct the wrong judgment.
Suppose the judgment does not state the facts and the law but it is a correct judgment?
 Although it might be correct, it is void because it does not state the fact and the law
which it Is based. The remedy is petition for certiorari to nullify the judgment.
The judgment must be promulgated
Memorandum decision – one rendered by appellate court. It adopts the findings of facts and
conclusion of law of the lower court contained in the appealed decision. It is valid.
Can you assail the memorandum decision on the ground…

 No, because there is a finding of facts. It adopts the findings of facts of the lower court.
SIN PERJUICIO JUDGMENT – is void because it does not state the facts and the law upon
which it is based.
PARTS OF A JUDGMENT OR DECISION:

1. Body of the decision – Ratio decidendi
2. Dispositive portion – Fallo
If there is an ambiguity in the judgment or decision but a valid judgment, what is the remedy?
 File a motion for clarificatory judgment.
When may a ju
 A judgment may be rendered only after trial.
May a…
 No, a judgment must only be rendered after trial.
EXCEPTION: Is there a judgment that may be rendered even without trial?

 Yes:
o Judgment on the pleadings
o Summary judgments
o Judgment upon a compromise
o Judgment based on stipulation of facts
o Judgment upon confession
o Order of dismissal under Rule 17 which have the effect of adjudication…
o Judgment covered by the Rule on Summary Procedure
Period for a court to render a decision?

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 If it is the Supreme Court – 24 months from the date of the submission of the case for
decision.
 If it is the Collegiate Courts (CA, TC, SB) – 12 months from the date of the submission
of the case for decision.
 All other trial courts (MTC, RTC) – 3 months from the date of the submission of the case
for decision.
There is distinction between rendition and promulgation of judgment:

 Rendition of judgment – when it is filed with the clerk of court, when the clerk of court
officially release the decision
 Promulgation of judgment –
The moment the judgment attain finality, it is the duty of the clerk of court to enter it in the book
of entry of judgment.
NOTE: The date of finality shall be deemed to be the date of entry. Even if the date of entry
happened in another day.
Several Judgment – in an action in which there are several defendants, the court may render
judgment against some of them, leaving the case as to the other defendants.
Separate Judgment – if the case was filed alleging two or more causes of action, the other
causes of action was disputed, …
Bar Q; The case involves 2 lot, the decision mentioned only 1 lot in the … you appealed in the
decision, then the plaintiff filed a appeal for..
 Your appeal should inure to your benefits (defendant-appellant), so much so.. because
you already appealed when you received the first decision…
RULE 37
NEW TRIAL OR RECONSIDERATION
These are not prohibited motions.
Who can file a motion for new trial or reconsideration?

 Any of the parties – plaintiff or defendant.
The motion for reconsideration - is a motion for reconsideration of a judgment.
When may a motion for new trial or reconsideration be filed?

 Within the period for taking an appeal. the judgment has not become final yet because if
the judgment became final, …
What are the grounds?

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 Fraud – extrinsic fraud

 Accident – fortuitous event/circumstance that happened beyond sway of human …
 Mistake - mistake of fact not mistake of law
 Excusable negligence -…\
 Newly discovered evidence –
Grounds in Filing a Motion for New Trial
If you file a motion for new trial, you need to have grounds that you can set up in your motion
for new trial.
1) FAME –
a) Fraud – extrinsic or collateral fraud
b) Accident
c) Mistake
d) Excusable negligence

· Fraud
The fraud here is extrinsic fraud. What is the other word that you can use to replace the word
‘extrinsic’? It is ‘collateral.’ The opposite is intrinsic fraud.
*extrinsic fraud – fraud that prevented a party from having his day in court; fraud committed
outside the trial/court

· Accident – a fortuitous event or a fortuitous circumstance or happening that is
beyond the control of a party (examples – sickness of a party, lack of notice because the
notice was sent to another address or to another person)

· Mistake – refers to mistake of fact, not mistake of law (example: the 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 which a prudent
person would have done under the same circumstances (example: the failure to submit on
time because of the distance involved)

2) Newly discovered evidence – one which the aggrieved party could not, with reasonable
diligence, have discovered or produced at the trial, at which if presented and admitted would
probably alter the result
Requisites
1) The evidence is discovered after trial
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2) Such evidence could not have been discovered and produced at the trial with
reasonable diligence
3) The evidence is material and not merely cumulative or corroborative or
impeaching and is of such weight that if presented and admitted would probably alter the
result (would probably change the judgment)
Grounds in Filing a Motion for Reconsideration (AID )

1) award of excessive damages
2) insufficiency of evidence to justify the decision
3) decision is contrary to law
If you filed motion for reconsideration

If denied: You either appeal from the judgment or accept the result
If granted: The effects of the order granting new trial are:
1. The judgment is vacated (set aside).
2. The action shall stand for trial de novo. – there will be a new trial
3. The recorded evidence shall be used at the new trial without need of retaking them
The court must resolve the motion:

MTC/RTC - 30 days from the time the motion for submission for resolution
CA - 90 days after it declares the incidence submitted for resolution
SC - no specified number of days
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
It has been said that relief from judgments is an equitable remedy because other remedies are not
available to the petitioner through no fault of his own.. Sometimes you say, a remedy in equity.
RFJ or Petition for RFJ is available as a remedy when the judgment has been final.
But if the loss of appeal for new trial is due to his own negligence, he cannot file a petition for
RFJ. Otherwise, he is only abusing the process.
Section 1: available only in MTC or RTC not CA and SC.
The petition must be verified.

Q: Where do you file the petition? You file the petition in the same case and with the same court.
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Q: When do you file the petition? Within 60 days from the time the petitioner learns of the
judgment but within 6months from entry of judgment.
Steps:
1. Filing of the verified petition for relief from judgment, order, or other
proceedings with the same court and in the same case.
2. The court issues an order directing the respondent to file his answer to the
petition within 15 days from receipt of the order.
3. The respondent files an answer to the petition.
4. With or without an answer, the court will conduct a hearing on the petition to
determine if the allegations regarding fraud, accident, mistake, and excusable
negligence are true.
5. The court may grant or deny the petition:
(a) If the court finds that the allegations are not true, then it will deny
the petition and that is the end because an order denying the petition
is not appealable.
(b) If the petition is granted, the court shall then proceed to conduct a
hearing and determine the case as if a timely motion for a new trial
had been granted.
6. After the hearing of the case, the court will render a judgment.
If you are a party in a civil action and you are not able to present your evidence because there
was fraud against you, and there was a judgment rendered and the judgment is adverse to you,
what will you file?
 If the judgment is not yet final, file a motion for new trial on the ground of fraud.
 If the judgment has already become final, there is now an entry of judgment, then what
you will file is a petition for relief.
DISTINCTIONS BETWEEN MOTION FOR NEW TRIAL AND PETITION FOR RELIEF
FROM JUDGMENT:
1. A motion for new trial is filed before judgment becomes final, while petition for relief
from judgment is filed after judgment becomes final.
2. A motion for new trial applies to judgment or final orders only, while petition for relief
from judgment applies to judgments, final order or a proceeding.
3. The grounds for a motion for new trial are FAME and newly discovered evidence while a
petition for relief is limited to FAME.
4. A motion for new trial is filed within the period for perfecting an appeal, while petition
for relief is filed within 60 days from the time the petitioner learns from the judgment but
within 6 months from entry of judgment.
5. If a motion for new trial is denied, appeal from the judgment is a remedy but an order
denying a petition for relief is not appealable.
6. A motion for new trial is a legal remedy while a motion for petition for relief is an
equitable remedy.
7. A motion for new trial does not require any verification, a petition for relief must be
verified.
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RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENT
Execution – satisfaction of a judgment.
2 kinds of execution:
1. Compulsory or Execution as a matter of right
2. Discretionary or Execution pending appeal or exceptional execution
NOTE: This happens when the judgment is final because the judgement was not appealed there
was no motion for new trial or reconsideration so it was allowed to lapse on finality.
Suppose the judgment is now final and executory, the prevailing party (called judgment obligee)
files a motion for execution:
 It is the ministerial duty of the court to issue the writ of execution. It is the dispositive
portion that is the subject of the execution.
NOTE: A motion for execution is a non-litigious motion. A motion for execution pending appeal
is a litigious motion.
In what court will you file your motion for execution?

 File it with the trial court or court of origin.
If the judgment of the RTC becomes final and not appealed, where will you file your motion for
execution?
 Of course in the RTC.
 What do you need to file? The motion for execution only.
 What is the remedy if the court refuses to issue the writ of execution?
o File a petition for mandamus with the CA to compel the RTC to issue the writ of
execution because if it is a ministerial duty, the refusal to comply is compellable
by mandamus.
Suppose the judgment of the RTC was appealed to the CA and the CA rendered a judgment in
the appealed case and the judgment of the CA in the appealed case also became final, where will
you file your motion for execution?
 File it in the court of origin, the RTC.
 What do you need to file? The motion for execution but it should be supported by a
certified copy of the decision of the appellate court and a certificate of the finality of
judgment.
 What is the remedy if you comply with all the requirements and yet the court of origin
refuses to issue the court of execution?
o File a motion in the appellate court and in the same case for an order direction the
court of origin to issue the writ of execution.
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When can you execute a judgment by means of a motion? How will you execute a judgment that
has become final and executory?
 By motion for execution – within 5 years from the entry of judgment
 By action to revive the judgment – after 5 years but within 10 years. File an action in
court only to revive the judgment.
How can you execute a judgment reviving a judgment in the same way….
Can you novate a judgment?

 Yes, because it is a civil action, you can compromise it at any time even when there is
already a judgment. In criminal action, the outcome of a criminal case does not depend
on the will of the parties, you cannot compromise the case.
Instances when execution may be denied:

1. The judgment obligee can show that he has voluntary complied
2. The judgment has been novated
3. There is a petition for relief and the court has issued a TRO or an injunctive writ
4. The execution is applied for more that 5 years from entry of judgment
5. The execution is sought against a property except from execution
6. When the judgment is void as when the judgment is conditional
…. Is the levy valid?

 No because the writ of execution is not anymore valid.
Motion for execution pending appeal

 The subject matter of the motion is a judgment or final order that has not attained finality
yet.
 It is a litigious motion because the adverse party has the right to oppose the motion.
 It does not issue as a matter of right.
What do you need to file a petition for execution pending appeal?

1. File a motion for execution pending appeal.
2. There must be a good reason for execution pending appeal.
3. The good reason must be stated in a special order.
Where do you file a motion for execution pending appeal?

1. File it with the trial court.
2. Suppose the trial court has lost jurisdiction, file it with the appellate court.
3. Although the trial court has lost jurisdiction, the motion may still be filed with the trial
court, provided that the record of the case has not yet been transmitted to the appellate
court.
a. Can the trial court still ..? Yes, in the exercise of its residual jurisdiction.
When does the trial court loses its jurisdiction over the case?
 Upon the perfection of the appeal and expiration of the time to appeal of the other party.
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Examples of good reasons that may justify execution pending appeal?

…
What is the lifetime of the writ of execution? For how long..

 It shall remain in effect during all the time that the judgment may be enforced by means
of a motion (5 years from entry of judgment).
You file an alias..
Who will enforce the…

 The sheriff….
Can you still file a motion for..

 Yes, if the writ of execution is lost or destroyed or cannot be located.
Example:….
Who is a third-party claimant?

 One who claims title to, or right of possession of the property levied upon by the sheriff.
What is the remedy of a third-party claimant?

1. File a third-party claim (terceria).
How? By filing an affidavit of third-party claim.in that affidavit, he will state

facts showing his title to, or right to possession… and attached to that affidavit is
evidence showing his title to or right to possession. He will file that with the
sheriff. The moment the sheriff received the affidavit, the sheriff should not
proceed with the execution because if he does and the third-party claim is found
to be tenable, then the sheriff alone will be liable to the third-party claimant.
How may the judgment obligee make the sheriff continue? The judgment
obligee should post an indemnity bond to protect the sheriff from any liability.
The amount of the indemnity bond is equal…
2. If an indemnity bond is filed, he can file an action against the bond within 120 days from
the date of its filing.
3. The third-party claimant may file a separate civil action for the purpose of litigating his
claim or ownership of the property levied upon.
If a property of the judgment obligor was sold on an execution sale, is there a right of
redemption? Can the judgment obligor…
RULE 39 - EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENT
Execution is the satisfaction of a judgment.

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2 kinds of execution
1. Compulsory execution – also known as execution as a matter of right. - this happens
when a judgment is final or has attained finality because the judgment was not appealed
and there was no motion for new trial or reconsideration or appeal from judgment.
2. Execution pending appeal – also known as discretionary execution or also known as
exceptional execution. (it goes with so many names and it might be well for us to know
all the names or terms being used)
Supposed the judgment is now final and executory and the judgment obligee files the motion of
execution, it is the ministerial duty of the court to issue the writ of execution. It is the dispositive
portion that is the subject of execution.
Note: The prevailing party called judgment obligee.

A motion for execution is a non-litigious motion. But a motion for execution pending appeal is a
litigious motion.
Q: There was a judgment and has become final. In what court will you file a motion for
execution? You file it in the trial court or court of origin.
1. In the case where the case has been final in the RTC, you file it in RTC
2. In the case where it was appealed in the CA, you file a motion for execution in RTC.
In number 2, you need to file (1) the motion for execution but it must be supported by the (2)
certified copy of the decision of the appellate court and (3) certificate of finality of the judgment.
Remedy if RTC refuses to issue writ of execution. File a motion for an order directing the court
of origin to issue the writ of execution.
In number 1, supposed you filed a motion of execution. If refuses to issue the writ of execution.
File a petition for mandamus with the CA to compel the RTC to issue the writ of execution. The
refusal to comply is compellable by mandamus. This is filing a case.
Q: How may a judgment that has become final be enforced?

1. By means of a motion. Motion for execution
2. By means of an action.
Within 5 years of entry of judgment, a judgment may be enforced by a motion.

After 5 years from entry but within 10 years, by means of an action to revive the judgment. In
this period, the judgment is dormant.
After 10 years, you can no longer execute because it has been prescribed.
Q: Can you novate a judgment? Yes in civil actions.
Q: Is there an instance where an execution may deny? Yes.

1. The judgment obligee showed that he has voluntary complied.
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2. The judgment has been novated.

3. There is a PFR and the court has issued a TRO or an injunctive writ.
4. The execution is applied for more than 5 years from entry of judgment.
5. If the judgment is void for being conditional.
6. Properties exempt from execution (Rule 39, Section 12)
If the issuance of the writ is made within five years but the levy was made after 5 years pursuant
to that writ is not valid.
A MFE pending appeal is a litigious motion.
1. There must be a MFE pending appeal

2. There must be a good reason (Old age, deterioration of goods, inability of the judgment
obligee to enjoy the fruit of the decision
3. Good reason must be stated in a special order
Q: Where do you file the MFE pending appeal?

1. File it with the Trial Court
2. But if the TC lost jurisdiction, file it with the appellate court
3. Although the TC has lost jurisdiction, the motion may still be filed in the TC provided
that the record of the case has not yet been transmitted to the AC - in its exercise of
residual jurisdiction.
Q: Can the TC still issue the execution? Yes
Q: When does the TC lost its jurisdiction?

A: The court loses jurisdiction over the case upon the perfection of the appeal and the expiration
of the time to appeal of the other party.
Q: What is the lifetime of the WOE?

A: A WOE shall remain in effect during all the time that the judgment may be enforced by
means of a motion.
Q: Can you file an alias WOE? Yes. If it was lost, misplaced, or destroyed. File a motion for the
issuance of alias WOE.
Q: Who will enforce the WOE? The sheriff of his deputy.
Now, Y is the owner of the property. Before the issuance of the writ of execution or before the
case was instituted Y had mortgaged the property to Z. Z is the mortgagee. There is a contract of
real estate mortgage between Y and Z. Later the case between X and Y was decided and the
judgment became final. The judgment was in favor of X and so the sheriff is bout to enforce the
judgment. There is now a writ of execution and the sheriff levies on this property that was earlier
mortgaged to Z.
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Q: Is Z a mortgagee, a third party claimant?

A: No, because the property is owned by Y, it was only mortgaged to Z. The rule on mortgage:
The mortgagee will not be in possession of the property mortgaged to him. The mortgagor will
continue in possession of the property. And so Z is not a third party claimant because he is not
the possessor or the owner of the property.

Go back to the firs example:
Z is a third party claimant. If Z is a third party claimant because the property being levied upon
belongs to him. He owns it and he has the right of possession over it.
*By the way, the third party claimant is either the person the person who owns the property or
the person who has right of possession over the property.
Q: What are the rights of a third party claimant or what are the remedies of a third party
claimant.
A: The following are his remedies:
1. To file a third party claim.
Take note class that the word is “claim”, so that in the examination instead of writing “claim”
you wrote complaint, you are wrong. Because a third party complaint is not the same as a third
party claim. I would like you to take note of that and I would like to emphasize that point. A
third party claim is not the same as a third party complaint.
A third party claim is also known “terceria”. So if in the bar exam, you say bar exam you say
“file a terceria” then you are correct
Q: How does the third party claimant file for a third party claim?
A: He will execute or make an affidavit of third party claim. In that affidavit of third party claim,
he will state facts showing his title to or right of ownership over the property being levied upon
and attached to his affidavit pertinent documents showing his title or ownership or right of
possession over the property levied upon. Then he will serve his affidavit of third party claim on
the sheriff and on the judgment obligee. If the sheriff is served with a copy of the third party
claim, then the sheriff must stop his proceedings. The sheriff is not bound to proceed with the
levy.
If the sheriff continues with the levy, he will be the one liable with the third party claimant.
Q: If you are the judgement obligee and you want the sheriff to proceed with the levy or to go to
the next step of the proceedings, what should the judgment obligee do if he wants the sheriff to
proceed with his levy.
A: The judgement obligee must file an indemnity bond. The indemnity bond will protect the
sheriff from any liability.
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2. If an indemnity bond has been filed by the judgment obligee then on remedy to the third party
claimant is to file an action against the bond within 120 days from the filing of the bond.
3. File a separate action to vindicate his claim to the property. For the purpose of litigating his
right over the property levied upon.
Note: The amount of the indemnity bond is equal to the market value of the property levied
upon.
Redemption
So here, the property is levied upon. After the levy, there will be a sale on execution. Although,
if the property to be sold in execution is a real property, there will be notices of sale that will be
published. We will talk about this later class.
Property is sold in a sale on execution. Is there a right of redemption? And who can exercise the
right of redemption?
A: If what is levied upon and what is sold in the execution sale is a movable or a personal
property then there is no right of redemption.
But if what is sold is a real property or an immovable then there is a right of redemption within
one year from the date of the sale (date where the sale is registered in the office of the register of
deeds)
Q: Who can redeem?
A: The following can redeem:
1. The judgment obligor; and
2. The redemptioner
Q: There is a land and it was sold in an execution sale. You have A, B, C and D. A is the
judgment obligor. B, C and D are the redemptioner as defined in the rules. Who can
redeem?

A: Any one of them can redeem. If B redeems, then C can also redeem it from B. And D
can redeem it from C. There can be a redemption even among redemptioners within a
certain time.

If the one who redeems is A, then there can be no further redemption from him.
Meaning, if the only or last person to redeem is the judgment obligor there can be no
further redemption from him.

In our example, if A was the first to redeem, then B, C, D cannot redeem from him. But if
the first to redeem it is B, can A redeem it from B? Yes, A can redeem it from B.

Q: Can C redeem it from A?
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A: No.

Q: Who is redemptioner?
A: A redemptioner is a creditor who has a lien by virtue of a judgment, attachment or
mortgage on the property sold subsequent to the lien under which the property was
sold.
IF NO REDEMPTION, the sheriff will issue a certificate of final sale. You register this
certificate and your ownership becomes absolute.
RULE 40
APPEALS
Within the time for perfecting the appeal, the appellant should also pay the appellate court docket
fee. Non-payment of the appellate court docket fee is a ground for the dismissal of the appeal,
although the dismissal is not automatic, it depends on the sound discretion of the court.
Section 1 Rule 41
1. What is the proper subject of an appeal – An appeal may be taken from a judgment or
final order that completely disposes of a case or a particular matter therein when
declared by these rules to be appealable.
2. What cannot be the subject of an appeal – No appeal may be taken from (1) an order
denying a petition for relief or any similar motion seeking relief from judgment. (2) an
interlocutory order (3) an order disallowing or dismissing an appeal (4) an order denying
a motion to set aside a judgment by consent, confession or compromise on the ground of
fraud, mistake or any other ground vitiating consent because the remedy here could be
annulment for judgment (5) order of execution (6) a judgment or final order for or against
one or more of several parties or in a separate claims, counterclaims, crossclaims and
third-party complaints while the main case is pending unless the court allows an appeal
from that judgment (7) an order dismissing an action without prejudice because if a
complaint or action is dismissed without prejudice, the remedy is refile the complaint.
Suppose the court renders a partial summary judgment?

 It is not appealable because it is interlocutory.
RULE 40–56: APPEALS

Appeal is the remedy to tame a reversal of a judgment of a lower court.
Note:
 CONTEXT: If a lower court renders a judgment and a party believes that the judgment
is
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not correct or not in accordance with law or jurisprudence, and you would like to obtain
a reversal, then the remedy is appeal to the judgment. Bring it to a higher court by means
of appeal.
 The right to appeal is not part of due process. It is a mere statutory privilege (granted by
law). Therefore, it must be exercised in a manner and in accordance with the
requirements of the rules. You have to comply with the modes of appeal.
 If you take the wrong mode of appeal, or go to the wrong court, then your appeal will be
dismissed; because it is a statutory right.
 When you appeal from a judgment of a lower court, the moment you perfected the
appeal, in due time, you will receive a notice from the appellate court directing you to file
your memorandum of appeal or appellant’s brief.
 If your appeal is from MTC to RTC, then the RTC will notify you and will direct you
to submit within 15 days your memorandum of appeal or appeal memorandum.
 If the appeal is from RTC to CA, in due time CA will notify you that the record of the
case has been received by the CA and you will have to submit the appellant's brief.
 The appellant's brief or memorandum of appeal must contain assignment of errors.
 RULE: The higher court shall not consider any error unless it is stated in the assignment
of errors. Exception: a) An error affecting the jurisdiction of the lower court over the
subject matter of the action; b) An error that affects the validity of the judgment being
appealed from; c) An error that affects the proceedings or trial itself; d) An error closely
related to or dependent on an assigned error; and e) Plain and clerical errors.
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 When it comes to the SC, even if the error is not assigned if it finds that the consideration
of the unassigned error is necessary in arriving at a just decision of the case, then SC may
consider it even if it is not assigned. [REMEMBER THESE]
 Higher court → Appellate court; Lower Court → Trial Court
 Aside from filing your petition (if the appeal is by means of petition) or by notice of
appeal,
the appellant must pay the appellate court the docket fees within the time of perfecting an
appeal. It is mandatory.
 Failure to pay the appellate court’s docket fee is a ground for the dismissal of the
appeal. Although the dismissal is NOT automatic, it depends on the sound discretion of
the court.
Sec 1, Rule 41 tells us: (1)what is the proper subject of an appeal and (2) what cannot be
the subject of an appeal.
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First Part: What you can appeal from is a judgment or final order Second Part: You
cannot appeal from:
1. an order denying a petition for relief or any similar motion seeking relief from judgment;
2. an interlocutory order;
3. an order disallowing or dismissing an appeal;
4. 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;
5. an order of execution;
6. A judgment or final order for or against one or more of several parties or in a separate
claims, counterclaims, cross-claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom;
7. An order dismissing an action without prejudice;
In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil
action as provided in Rule 65 (CErtiorari, Prohibition, and mandamus)
Recap of Petition for Relief from Judgment
1. File a verified petition

2. The court will issue an order directing the respondent to file his answer within 15 days
from notice of the order
3. Filing of the answer; if no answer is filed the respondent cannot be declared in default
4. Hearing on the petition (to determine if the allegations are true) → Happens whether an
answer is filed or not
Note: If the court finds that the allegations in the petition are true then you go to the next step,
but if the court finds based on the evidence presented that the allegations are not true, then it will
issue an order denying the petition. This order denying the petition is not appealable.
Letter c discussed
Q: What is the remedy if an order is issued dismissing an appeal?
can show that he was prevented by FAME from perfecting his appeal on time. Then the remedy
is to file a petition for relief asking the court to give due course to his appeal.
If the appeal was filed on time, but notwithstanding this, the court dismisses it just the same,
the remedy is a petition for certiorari.
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Letter d discussed
Remedy: Annulment of Judgment based on Compromise, or petition for relief, or petition for
certiorari.
Letter e discussed
• If the order of execution varies the judgment, and the writ of execution is issued and the writ
also varies the judgment, then the remedy is a motion to quash the writ of execution.
Letter f discussed
• While the main case is pending you cannot appeal, unless the court allows an appeal from
the judgment.
Q: When can there be a separate judgment?
A: If there are so many claims and a judgment is rendered on any one of these separate claims or
counterclaims, cross-claims and third-party complaints, while the main case is pending, then
you have to wait until there is a judgment rendered in the entire case.
Letter g discussed
• If a complaint or an action is dismissed without prejudice, the remedy is to refile the complaint.
Q: The court renders a partial summary judgment, is it appealable?
A: No, a partial summary judgment is interlocutory.
Q: The court dismissed a complaint on any of the grounds mentioned in Sec 3, Rule 17
(dismissal is because of the fault of the plaintiff; he fails to prosecute his action within a
reasonable time without justifiable cause, etc.), what is the nature of the dismissal?
A: The dismissal is with prejudice. The dismissal amounts to an adjudication of the case on its
merits. Therefore, the remedy is appeal.
Q: What if the third-party complaint is dismissed and it is with prejudice, what is the
remedy?
A: Appeal.
CASE: Palma vs. Galvez; March 2010
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Facts: X filed a case against Y and Z. Y files a motion to dismiss, Z did not. The defendants are
represented by 2 different lawyers. They have set up defenses not common to both of them. Y
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filed a motion to dismiss; Z filed an answer. The court granted the motion to dismiss, and
dismissed the complaint as against Y. Z’s case was not dismissed.
Q: What is the remedy of plaintiff X against the order of the court dismissing the
complaint as against Y?
A: The remedy is a petition for certiorari because you cannot file an appeal while the main case
is pending (Rule 41, Sec 1).
BAR Q: Is the remedy of Plaintiff X appealable?
A: No, unless the court allows an appeal from the judgment. The remedy is petition for certiorari.
RULE: An appeal is not available as a remedy if the judgment is final and executory.
 The judgment was issued today, but it was final and executory upon its rendition or
issuance
like a Judgment upon a Compromise.
Example: Plaintiff and defendant agreed to settle their dispute and they submitted a
written compromise agreement to the court and they asked the court to render a
judgment based on the compromise agreement. The court then renders a judgment based
on the compromise agreement. Q: Is this appealable?
A: No, because it is final immediately.
 Also, judgment of the court in summary judicial proceeding under the Family Fode is
immediately final and executory (as stated in Article 247 of the Family code). Hence, it
is not appealable.
Example: (look at Art 239 of the Family Code) When a husband and a wife are
separated in fact and there is a need to obtain the consent of one spouse for a
conveyance of a property belonging to the community or the conjugal partnership but the
consent of the other party cannot be obtained; then you can file a petition in court.
Appeal is from an MTC → RTC exercising jurisdiction over the area to which the
MTC belongs/pertains
Example: If the MTC is in La Trinidad, then appeal is to the RTC of La Trinidad. You
cannot bring the appeal to the RTC in Baguio or La Union because they do not have
jurisdiction over the area to which the MTC of La Trinidad belongs.
Note: The title of the case in the court below remains, but there will be additional
designation that the party bringing the appeal shall be further designated as an appellant
(the one appealing) and the other party an appellee.
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Q: When can an appeal be taken? What is the period for perfecting an appeal?
A: If the appeal is an ordinary appeal (Notice of Appeal), the appeal should be taken 15 days
from notice of judgment or final order being appealed from. But if a record on appeal is required
along with the Notice of appeal, the period to appeal is 30 days from notice of judgment or final
order being appealed from.
Notice of judgment or final order being appealed from means the time the appellant receives a
copy of the judgment.
Note:
 Ordinary appeal is perfected by filing a notice of appeal within 15 days; Record on

appeal is not required except on the following instances:
1. In Special Proceedings (settlement of estate of a deceased person);
2. In Separate Appeals when permitted by the court (i.e. Sec 1(f), Rule 41 → If a
case allows appeal therefrom you need a record on appeal because the main case
is still pending)
3. [when the case involves] Multiple Appeals

 There can be multiple appeals in the following cases: a. Expropriation proceedings
b. Judicial Foreclosure of Mortgage
c. Judicial Partition
 Appeal by Notice of Appeal is an ordinary appeal also known as Appeal by Writ of

Error
** If the one appealing is the defendant, then you say “Defendant-appellant, by counsel,
respectfully gives notice that he is appealing from the judgment rendered by this
honorable court, a copy of which was received by Defendant-appellant on July 1, 2020,
to the CA on the ground that the decision is contrary to law and the evidence.”
Date→ Signed → CC
Q: What must a notice of appeal state?

A: If the appeal is from the MTC to RTC, it should state the following:
1. Names of the parties;

2. Judgment or final order or part thereof which is being appealed from; 3. Material dates
(to show that the appeal is being perfected on time);
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*If the appeal is from RTC to a higher court (*aside from the 3 mentioned above):
4. Specify the court to which the appeal is being taken (you cannot just leave it blank)
**Note: The appeal to the SC cannot be by notice of appeal.
Q: If the appeal is by notice of appeal, in what court or with what court must the
notice of appeal be filed? Where do you file a notice of appeal?
A: File with the same court and in the same case.
Example:
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• Appeal from the MTC to RTC, then you file your notice of appeal with the MTC.
• Appeal from the RTC to a higher court, then you file your notice of appeal with the RTC.
Note: In due time, the clerk of court will assemble the record of the case and it will have a
subject index with the corresponding pages (every page will contain a page number), then the
record of the case will be transmitted to the appellate court. What is left to the trial court is
simply a copy of the transmittal letter, nothing else, because the record is transmitted to the
appellate court.
If the case allows multiple appeals or in separate appeals, or in special proceedings, the
record of the case cannot be transmitted to the appellate court. What will be transmitted to
the appellate court, in these cases, is the record on appeal.
Example: (Expropriation Case) Plaintiff vs. Defendant, the case is filed with the RTC. The
assessed value of the land being expropriated is below P20,000. The case was filed to the RTC
because it is incapable of pecuniary estimation. If the court finds that the plaintiff is entitled to
expropriate then it will issue an order of expropriation; which is appealable. The moment the
court issues an order of expropriation, the case will go to the second stage which is the
determination of just compensation. The court will appoint commissioners to determine just
compensation. In due time, the court will issue an order fixing just compensation; this order is
also appealable.
If you appeal from the order of expropriation, what will be transmitted to the appellate court is
not the record of the case but the record on appeal because the RTC needs the record of the case
to be able to go to the second stage, which is the determination of just compensation.
• The same thing can be said in settlement of estate of a deceased person, in separate appeals,
and in other cases involving multiple appeals.
• You submit the record on appeal to the trial court for its approval because it will simply
reproduce the record of the case. This is so that the trial court will be satisfied that the record on
appeal faithfully reproduces the record of the case.
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CASE: Neypes vs. CA; 2005

RULING: Laid down the fresh 15-day period to appeal. This means that if the party adversely
affected by the judgment files a motion for new trial or a motion for reconsideration, but the
motion is denied. He will have another 15 days from the receipt of the order denying his motion.
Example: A judgment was rendered by the trial court; the defendant received his copy of the
judgment on July 1; and he would like to appeal from the judgment because it is adverse to him.
Then he has 15 days from July 1 to July 16, to appeal from the judgment. On July 15, the
defendant filed a motion for reconsideration, and it was denied; the defendant received a copy
of order denying the motion on August 1. Then he will have another 15 days from August 1 to
appeal from the judgment
Q: Is the filing for a motion for new trial or a motion for reconsideration a precondition to
the perfection of an appeal? If a party would like to appeal from judgment, is he required
to first file an MR or MNT?
A: No, he is not required to file a MR or MNT, but he may. And if he does and his motion is
denied, then he will have another 15 days from receipt of the order denying his motion.
Exception:
1. Action for annulment of marriage

2. Action for declaration of nullity of marriage
3. Action for legal separation
4. Habeas Corpus involving custody of a minor.
Note: In ordinary appeal the period for perfecting an appeal is 15 days from notice of the
judgment being appealed from, subject to the ruling in Neypes vs. CA. But, if the appeal
requires a record on appeal, then the period to appeal is 30 days from notice of the judgment
being appealed from. This 30-days is also subject to the ruling laid down in Neypes vs. CA.
Example: You file a MNT or MR on the 29th day, however your motion was denied, and you
received a notice of the denial. Then, you will have another 30 days from notice of the denial of
your MNT or MR.
Modes of Appeal (How to appeal)

1. Ordinary Appeal or Appeal by Writ of Error
a. By notice of appeal
b. By notice of appeal and record on appeal
Q: What are the instances when a record on appeal is required?
A: The following are the instances when a record on appeal is required:
1. Special proceedings (settlement of estate of a deceased person)

2. Separate appeals → the court renders a judgment for one claim leaving the other
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claims for trial. Note (recap): A separate judgment is not appealable unless the court
allows appeal therefrom
3. Multiple appeals → allowed in the following cases: a) Expropriation proceedings; b)

Judicial Foreclosure of Mortgage; and c) Judicial Partition
** When an appeal is taken from a judgment.
Example: RTC rendered a judgment, appeal is to the CA. When the appeal is perfected, then the
RTC will transmit the record of the case to the CA. What remains with the trial court is only the
transmittal letter because the record of the case is transmitted to the CA. In expropriation cases
or judicial partition or judicial foreclosure, what is transmitted is the record on appeal not
the record of the case. Why?
A: The case is not yet finished and the trial court still has to try other aspects of the case.
Example: The case before the RTC is a case for expropriation. The case will undergo 2
stages. The first stage is concerned with the determination of the right of the plaintiff to
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expropriate the property belonging to or owned by the defendant. The court will inquire into the
authority or right of the plaintiff to expropriate. After the evidence is presented, then the court
will issue an order called an order of expropriation. If the defendant believes that the plaintiff is
not entitled to expropriate the property, then he can appeal from the order, to the CA. But the
case is not yet finished because the moment the RTC issues the order of expropriation, then the
case goes into the second stage, which is the determination of Just compensation. The court will
appoint commissioners, and they will submit the report to the court. The court may adopt or
reject it;or adopt it in part or reject it in part. But eventually, the court will have to issue an
order fixing just compensation (this is also appealable).
If the defendant appeals from the order of expropriation, the defendant will have to file a record
on appeal and a notice of appeal. The record on appeal requires the approval of the court.
Q: Does a notice of appeal require the approval of the court?
A: No, it does not.
Q: Does a record on appeal require the approval of the court?
A: Yes. The record on appeal must be approved by the trial court before it is transmitted to the
appellate court, because it may not accurately reflect the pleadings filed in the case.
Q: How does a record on appeal look like?

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A: It merely states the pleadings and the proceedings taken or had in the case where the appeal is
being taken.
Rule 43: Governs appeal from quasi-judicial agencies to the court of appeals. Like the office of
the president, etc.
Rule 44: Procedure in the CA (in an ordinary appealed case under Rule 41)
Q: What are the modes of appeal from the judgment of RTC?
A: Three modes of appeal from the judgment of the RTC ** RTC → CA (Original
jurisdiction)
 Ordinary appeal, or appeal by writ of error governed by Rule 41 by notice of appeal or by

notice of appeal and record of appeal.
 Appellant can only raise questions of fact or mixed question of fact and law
 You cannot raise pure question of law, if you raise this, the appeal will be dismissed
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 In Ordinary appeal, the RTC within a certain time will also transmit to the CA the record
of the case or the record on appeal. The moment the CA receives the record of the case or
record on appeal, then it will issue a notice to the appellant to file his appellant’s brief
within 45 days from the receipt of notice.
 The appellant’s brief will contain the following: a) Statement of the case; b) Statement of
facts; c) Statement of the issues raised; d) Assignment of errors; e) arguments on the
assigned errors; and f) the relief demanded → If it is more than 20 pages, it must contain
a subject index.
 The appellant's brief will be filed within 45 days, copy furnish the appellee who will also
have 45 days to file the appellee’s brief. Then, the appellant may also file a reply brief
within 20 days from receipt of the appellee’s brief.
** RTC → CA (Appellate Jurisdiction)
 The appeal to the CA is by petition for review governed by Rule 42; Petitioner can raise
questions of fact, law, or mixed
 The party appealing will be referred to as Petitioner before the CA
** RTC → SC (Original Jurisdiction)
 You can only raise pure question of law

 A direct appeal to the SC governed by Rule 45 (A petition for review on Certiorari).
Note:
 A petition for review on certiorari is different from a petition for certiorari under Rule 65
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 There can be a direct appeal from RTC → SC; CA → SC; Sandiganbayan → SC; Court
of
Tax Appeal → SC.
 The appeal to the SC should raise pure questions of law subject to some exceptions.
Q: What happens if the MTC dismisses the case without trial and the ground for
dismissal is lack of jurisdiction? May the order of dismissal be appealed to the
RTC?
A: Yes.
Q: What will the RTC do?
A: It may either reverse the dismissal or affirm it. If it reverses the dismissal, then the
case will be remanded to the MTC. If the RTC affirms the dismissal because in its own
opinion the MTC has no jurisdiction, and RTC has jurisdiction over the case, then it shall
try the case as if the case has been originally filed with the RTC (Sec 8, Rule 40).
Q: When is Ordinary Appeal perfected? This is not the same as when an appeal is
brought within what time or when to perfect an appeal.
Answer:
a. If the appeal is by notice of appeal, it is perfected as to the appellant upon the filing
of the
notice of appeal in due time (within the time of perfecting an appeal, which is 15 days,
subject to the Neypes Ruling).
Example: You received a copy of judgment on July 1, and the appeal is by notice of appeal, then
you may file a notice of appeal on or before July 16 and at the same time you pay the appellate
court docket fee. If you pay the docket fee and file an appeal on July 15, then as to you as the
appellant, your appeal is perfected upon the filing of notice of appeal on July 15.
Suppose you file your notice of appeal on July 18, then it is no longer filed in due time because
you filed it out of time. Your appeal was not perfected because it was not filed in due time.
Q: If the appeal is by notice of appeal, when will the court lose jurisdiction over the case?
A: The court loses jurisdiction over the case upon the perfection of the appeal and expiration of
the time to appeal of the other parties.
Example: (Plaintiff X vs. Defendant Y)

X received a copy of the judgment on July 1. Y received a copy of the judgment on July 5. 15
days from July 1 is July 16; 15 days from July 5 is July 20. Q: When does the trial court lose
jurisdiction over the case?
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A: Upon the perfection of the appeal if the appeal is by notice of the appeal and expiration of me
to appeal of the other parties.
Suppose X filed his notice of appeal on July 16. Q: Did the court lose jurisdiction over the
case?
A: Not yet, because the time to appeal of Y has not yet expired. Because we cannot assume that
Y would not appeal from the judgment. The rule is, the court will lose jurisdiction over the case
upon the perfection of appeal and expiration of me to appeal of the other parties. The court will
lose jurisdiction on July 21.
Note: Both the plaintiff and defendant may appeal from the judgment.
b. If the appeal is by notice of appeal and record on appeal, then the appeal is perfected as to
the appellant with respect to the subject matter of the appeal upon the approval of the record of
appeal filed in due time.
Recap: A record on appeal must be approved by the court of origin.
Q: When will the court lose jurisdiction over the subject matter of the appeal? (note:
jurisdiction over the subject matter of the appeal not jurisdiction over the case)
A: Upon the approval of the record on appeal filed in due time and expiration of the time to
appeal of the other parties.
Example: (Plaintiff X vs. Defendant Y → Expropriation case; this falls within the jurisdiction of
RTC because it is incapable of pecuniary estimation)
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First Stage: Determination of the authority of the plaintiff to expropriate the property of the
defendant. Just like any case there will be pre-trial, trial, presentation of evidence. After which
the court will determine if X has the right to expropriate the subject matter of the action. If the
court finds that indeed X has the right to expropriate, then it will issue an order of
expropriation (used to be called order of condemnation) and then immediately the case will
go to the 2nd stage.
Second Stage: Determination of just compensation
Note: The order of expropriation is appealable. Here, the record of the case will not be
transmitted to the CA, what will be transmitted is the record on appeal. The time to appeal is not
15 days but 30 days from notice of order being appealed from. Here there will be a record on
appeal which will be submitted to the trial court for its approval.
Q: When is the appeal perfected?

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A: It is perfected as to him with respect to the subject matter of the appeal, upon the approval of
the record of appeal filed in due time.
Q: When will the court lose jurisdiction over the subject matter of the appeal?
A: The court will not lose jurisdiction over the case but only over the subject matter of the
appeal, because, notwithstanding the appeal, the case will go to the second stage and it is the trial
court that will conduct the proceedings regarding the 2nd stage of the case. The court will lose
jurisdiction over the subject matter of the appeal upon the approval of the record on appeal filed
in due time and expiration of the time to appeal of the other parties.
Note: Before the transmittal of the record of the case, if it is appealed by notice of appeal or by
notice of appeal and record on appeal, the trial court or the court of origin may issue the
following orders:
1. For the protection and preservation of the rights of the parties not involving any matter
litigated by the appeal
2. Approve compromises. (Notwithstanding that the trial court has lost jurisdiction over the
case or over the subject matter of the appeal, it can still approve compromises, before the
transmittal of the record of the case or record on appeal to the appellate court.)
3. Permit appeals of indigent litigants
4. Order execution pending appeal
5. Allow withdrawal of the appeal
Q: Why is it that the court can still perform these functions, notwithstanding that it has lost
jurisdiction over the case or the subject matter of the appeal?
A: Because it still has residual jurisdiction, or retained jurisdiction.
Residual Jurisdiction: An extension of the original jurisdiction of the court for certain specific
purposes after the perfection of the appeal but before the transmittal of the record of the case or
record on appeal to the appellate court.
**Appeal from MTC → RTC
MEMORIZE
1. Filing of petition in the same court and in the same case. It should be verified.
2. The court will issue an order directing the respondent to file his answer to the petition within
15 days from the receipt of the order.
3. The respondent files an answer to the petition
4. With or without an answer, petition will be heard. Thus, hearing on the petition. (There is no
default) (what will be heard is the petition if the allegations concerning FAME are true. If the
court finds the allegation not true, it will deny the petition and that is the end. The order denying
the petition is not appealable.)
If Denied: that order is not appealable.
If granted: the court will issue an order granting the petition. Then go to the next step
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5. Hearing on the case. What will be heard is the case. The effect of an order granting the petition
is as if a new trial is granted.
Distinction between MFNT
If a judgment is not yet final, you file motion for new trial on the ground of fraud
If the judgment has become final, file a petition for relief
The distinctions are:

1. MFNT is filed before judgment becomes final
While a PFR is filed after judgment becomes final
2. MFNT applies to judgment or final order

PFR applies to judgment, final order, or a proceeding
3. The ground is FAME and keme of new evidence

PFR is limited to FAME
4. MFNT is filed within the period for perfecting an appeal

PFR is filed within 60 days upon the time the petitioner learns of the judgment of 6
months
5. If MFNT is denied,
A motion for PFR is an equitable remedy.
6. MFNT does not require any verification. PFR must be verified.
RULE 39 - EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENT
Execution is the satisfaction of a judgment.
2 kinds of execution
1. Compulsory execution – also known as execution as a matter of right. - this happens
when a judgment is final or has attained finality because the judgment was not appealed
and there was no motion for new trial or reconsideration or appeal from judgment.
2. Execution pending appeal – also known as discretionary execution or also known as
exceptional execution. (it goes with so many names and it might be well for us to know
all the names or terms being used)
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Supposed the judgment is now final and executory and the judgment obligee files the motion of
execution, it is the ministerial duty of the court to issue the writ of execution. It is the dispositive
portion that is the subject of execution.
Note: The prevailing party called judgment obligee.

A motion for execution is a non-litigious motion. But a motion for execution pending appeal is a
litigious motion.
Q: There was a judgment and has become final. In what court will you file a motion for
execution? You file it in the trial court or court of origin.
1. In the case where the case has been final in the RTC, you file it in RTC
2. In the case where it was appealed in the CA, you file a motion for execution in RTC.
In number 2, you need to file (1) the motion for execution but it must be supported by the (2)
certified copy of the decision of the appellate court and (3) certificate of finality of the judgment.
Remedy if RTC refuses to issue writ of execution. File a motion for an order directing the court
of origin to issue the writ of execution.
In number 1, supposed you filed a motion of execution. If refuses to issue the writ of execution.
File a petition for mandamus with the CA to compel the RTC to issue the writ of execution. The
refusal to comply is compellable by mandamus. This is filing a case.
Q: How may a judgment that has become final be enforced?

1. By means of a motion. Motion for execution
2. By means of an action.
Within 5 years of entry of judgment, a judgment may be enforced by a motion.

After 5 years from entry but within 10 years, by means of an action to revive the judgment. In
this period, the judgment is dormant.
After 10 years, you can no longer execute because it has been prescribed.
Q: Can you novate a judgment? Yes in civil actions.
Q: Is there an instance where an execution may deny? Yes.

1. The judgment obligee showed that he has voluntary complied.
2. The judgment has been novated.
3. There is a PFR and the court has issued a TRO or an injunctive writ.
4. The execution is applied for more than 5 years from entry of judgment.
5. If the judgment is void for being conditional.
6. Properties exempt from execution (Rule 39, Section 12)
If the issuance of the writ is made within five years but the levy was made after 5 years pursuant
to that writ is not valid.
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A MFE pending appeal is a litigious motion.
1. There must be a MFE pending appeal

2. There must be a good reason (Old age, deterioration of goods, inability of the judgment
obligee to enjoy the fruit of the decision
3. Good reason must be stated in a special order
Q: Where do you file the MFE pending appeal?

1. File it with the Trial Court
2. But if the TC lost jurisdiction, file it with the appellate court
3. Although the TC has lost jurisdiction, the motion may still be filed in the TC provided
that the record of the case has not yet been transmitted to the AC - in its exercise of
residual jurisdiction.
Q: Can the TC still issue the execution? Yes
Q: When does the TC lost its jurisdiction?

A: The court loses jurisdiction over the case upon the perfection of the appeal and the expiration
of the time to appeal of the other party.
Q: What is the lifetime of the WOE?

A: A WOE shall remain in effect during all the time that the judgment may be enforced by
means of a motion.
Q: Can you file an alias WOE? Yes. If it was lost, misplaced, or destroyed. File a motion for the
issuance of alias WOE.
Q: Who will enforce the WOE? The sheriff of his deputy.
Now, Y is the owner of the property. Before the issuance of the writ of execution or before the
case was instituted Y had mortgaged the property to Z. Z is the mortgagee. There is a contract of
real estate mortgage between Y and Z. Later the case between X and Y was decided and the
judgment became final. The judgment was in favor of X and so the sheriff is bout to enforce the
judgment. There is now a writ of execution and the sheriff levies on this property that was earlier
mortgaged to Z.
Q: Is Z a mortgagee, a third party claimant?
A: No, because the property is owned by Y, it was only mortgaged to Z. The rule on mortgage:
The mortgagee will not be in possession of the property mortgaged to him. The mortgagor will
continue in possession of the property. And so Z is not a third party claimant because he is not
the possessor or the owner of the property.

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Go back to the firs example:

Z is a third party claimant. If Z is a third party claimant because the property being levied upon
belongs to him. He owns it and he has the right of possession over it.
*By the way, the third party claimant is either the person the person who owns the property or
the person who has right of possession over the property.
Q: What are the rights of a third party claimant or what are the remedies of a third party
claimant.
A: The following are his remedies:
1. To file a third party claim.
Take note class that the word is “claim”, so that in the examination instead of writing “claim”
you wrote complaint, you are wrong. Because a third party complaint is not the same as a third
party claim. I would like you to take note of that and I would like to emphasize that point. A
third party claim is not the same as a third party complaint.
A third party claim is also known “terceria”. So if in the bar exam, you say bar exam you say
“file a terceria” then you are correct
Q: How does the third party claimant file for a third party claim?
A: He will execute or make an affidavit of third party claim. In that affidavit of third party claim,
he will state facts showing his title to or right of ownership over the property being levied upon
and attached to his affidavit pertinent documents showing his title or ownership or right of
possession over the property levied upon. Then he will serve his affidavit of third party claim on
the sheriff and on the judgment obligee. If the sheriff is served with a copy of the third party
claim, then the sheriff must stop his proceedings. The sheriff is not bound to proceed with the
levy.
If the sheriff continues with the levy, he will be the one liable with the third party claimant.
Q: If you are the judgement obligee and you want the sheriff to proceed with the levy or to go to
the next step of the proceedings, what should the judgment obligee do if he wants the sheriff to
proceed with his levy.
A: The judgement obligee must file an indemnity bond. The indemnity bond will protect the
sheriff from any liability.
2. If an indemnity bond has been filed by the judgment obligee then on remedy to the third party
claimant is to file an action against the bond within 120 days from the filing of the bond.
3. File a separate action to vindicate his claim to the property. For the purpose of litigating his
right over the property levied upon.
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Note: The amount of the indemnity bond is equal to the market value of the property levied
upon.
Redemption
So here, the property is levied upon. After the levy, there will be a sale on execution. Although,
if the property to be sold in execution is a real property, there will be notices of sale that will be
published. We will talk about this later class.
Property is sold in a sale on execution. Is there a right of redemption? And who can exercise the
right of redemption?
A: If what is levied upon and what is sold in the execution sale is a movable or a personal
property then there is no right of redemption.
But if what is sold is a real property or an immovable then there is a right of redemption within
one year from the date of the sale (date where the sale is registered in the office of the register of
deeds)
Q: Who can redeem?
A: The following can redeem:
1. The judgment obligor; and
2. The redemptioner
Q: There is a land and it was sold in an execution sale. You have A, B, C and D. A is the
judgment obligor. B, C and D are the redemptioner as defined in the rules. Who can
redeem?

A: Any one of them can redeem. If B redeems, then C can also redeem it from B. And D
can redeem it from C. There can be a redemption even among redemptioners within a
certain time.

If the one who redeems is A, then there can be no further redemption from him.
Meaning, if the only or last person to redeem is the judgment obligor there can be no
further redemption from him.

In our example, if A was the first to redeem, then B, C, D cannot redeem from him. But if
the first to redeem it is B, can A redeem it from B? Yes, A can redeem it from B.

Q: Can C redeem it from A?
A: No.

Q: Who is redemptioner?
A: A redemptioner is a creditor who has a lien by virtue of a judgment, attachment or
mortgage on the property sold subsequent to the lien under which the property was
sold.
acc
IF NO REDEMPTION, the sheriff will issue a certificate of final sale. You register this
certificate and your ownership becomes absolute.
If the appeal is an ordinary appeal, it is by notice of appeal.
When can you apply for writ of preliminary attachment? Before entry of judgment.
May a WPA issue ex parte? Yes. If you still notify the defendant of the application, what you
seek to prevent, the defendant might as well do it.
Q: Plaintiff filed a complaint which is those mentioned in section 1

Upon filing of the complaint, he also filed and incorporated the writ of preliminary attachment.
No levy on attachment cannot be made unless it is preceded or contemporaneous accompanied

with summons with bond,
Prior or contemporaneous rule does not apply in the following instances:
If the summons cannot be served in person despite diligent efforts
Defendant is a resident defendant temporarily outside the Philippines
Defendant is Non-resident defendant not in the Philippines
Action in rem
Remedy
Special civil actions. There are certain rules that apply only to them
In interpleader, the plaintiff does not assert any right to the subject matter of the complaint.
Two individuals have conflicting claims
Mandamus
There are two aspects of mandamus:
1. The respondent unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, station or trust.
-ministerial duty. If he refuses to perform his ministerial duties, mandamus is available as a
remedy for him to do his ministerial duties.
2. The respondent unlawfully excludes another from the use or enjoyment of a right or office in
which the other is entitled.
If a judgment becomes final, the court has a duty to issue the writ of execution upon motion. If
the court refuses, the court can be compelled by mandamus.
RULE 66 - Quo Warranto

Q: What is a Quo Warranto?
Answer:
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 • literary means by what authority

 • It is a special civil action to determine the right to the use or exercise of a public office
or franchise and to oust the holder from its enjoyment if his claim is not well founded or
if he has forfeited his right to enjoy the privilege.
May be commenced by the Republic of the Philippines by the Solicitor General.
Q: May a private individual file an action for quo warranto?

Yes. But he must prove that he is entitled for controverted position.
Q: Against whom may a petition for a quo warranto be instituted?

A: A petition for a quo warranto may be instituted against:
1. A person who usurps, intrudes into, or unlawfully holds or exercise a public position, office,
or franchise;
2. A public officer who performs an act that constitutes a ground for the forfeiture of his office;
3. An association that acts as a corporation within the PH without legally being incorporated or
without a lawful authority to act.
Q: How will you distinguish a quo warranto from an election protest?

Answer:
1. In quo warranto, the issue is the disqualification or ineligibility of the proclaimed candidate
(i.e. he was elected but he is not qualified because he is not a Filipino Citizen, etc.). If the issue
is the irregularity in the election, then it is an election protest (i.e. allegations that there were
votes that are not valid, like trump ahahhaha or marcos hahaha, or if people who should not be
voting and they are allowed to vote).
2. In quo warranto, if the respondent is found to be ineligible, then the petitioner, even if he is
qualified, will not occupy the position (i.e. there was an election and the position was contested
by X and Y, X got the highest number of votes, the next higher was Y. X was
proclaimed the winner and Y filed a petition for quo warranto alleging that X is not qualified
because he is not a Filipino citizen. X was found to be ineligible because he did not possess the
qualification at the time of the election, and he was ousted then Y cannot be seated).
Q: What are the distinctions between quo warranto involving an elective position and a
quo warranto involving an appointive position?
Answer:
1. In quo warranto involving an elective position, the issue is the eligibility or qualification of
the candidate elected, while in a quo warranto involving an appointive position, the issue is
the legality of the appointment.
2. In quo warranto involving an elective position, if the respondent is found to be ineligible or
not qualified, then the second highest vote-getter, even if eligible or qualified, cannot be declared
elected (he cannot occupy the position); while in quo warranto involving an appointive
position, the resolution or decision shall determine who between the two of them is legally
appointed and will be declared to be entitled to occupy the office.
acc
Example (quo warranto involving an appointed position): Petitioner Y, who claims to have been
ousted by X, filed a petition for quo warranto. The issue is the legality of the appointment. It is
found that the appointment of X is not valid but the appointment of Y is valid. X will be removed
from that position and Y will be installed as the duly appointed official for that position.
Q: What are the distinctions between quo warranto and impeachment?

Answer:
1. Quo warranto grants the relief of ouster (i.e. the petitioner succeeds in his petition for quo
warranto, the respondent will simply be ousted). In impeachment, the official subject of the
impeachment proceeding will be removed from office.
2. Quo warranto is the remedy to determine a person’s right or title to a public office, and if
found to be ineligible or without valid appointment, to oust him from his position. It will simply
determine the qualification or eligibility of the person who is occupying the position.
Impeachment is the process to determine whether the public officer committed any impeachable
offense (i.e. culpable violation of the constitution, treason, bribery, graft and corruption,
betrayal of public trust, or other high crimes). If found to be liable to these impeachable
offenses, he will be removed from office.
3. Quo warranto is a judicial proceeding while impeachment is a political process undertaken by
the legislature.
4. Quo Warranto can apply to anyone. Meanwhile, impeachment will apply only to a limited
number of officials; only those impeachable officials under the constitution, may be subject to
impeachment proceedings.
Expropriation
-Filed by means of a verified complaint
-Regardless of the assessed value of the real property involved, the complaint must be filed with
the RTC. Because an action for expropriation is incapable of pecuniary estimation.
Q: what can be expropriated?

A: Any or all property, real or personal, can be expropriated. Except money.
Supposed it is an LGU that will institute this proceeding, under RA 6210 (LGCode)
Q: May a local government unit (i.e. municipality, province, city, barangay) exercise the
power of expropriation?
A: Yes, but subject to the following requisites:
1. An ordinance must be enacted authorizing the local chief executive to exercise the power of
eminent domain through expropriation;
• It should not be a resolution, if it is a resolution, it is void. RA 7610 states that it should
be an ordinance
2. The purpose is for public use, or for welfare or benefit of the poor and the landless;
3. There is a payment of just compensation; and
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4. Valid and definite offer was previously made to the owner but the offer was not accepted.
Supposed the defendant did not file an answer, he cannot be declared in default.
Counterclaim, cross-claim, third-party complaint is not allowed.
Q: Suppose the plaintiff (one seeking expropriation) would like to take possession of the
property subject of the expropriation immediately?
A: Yes, if he deposits with an authorized government depositary (i.e. landbank) an amount equal
to the assessed value of the property for purposes of taxation.
If the one seeking to expropriate is a local government unit, then the plaintiff may take
possession if he deposits with the court an amount equivalent to 15% of the fair market value of
the property, based on the current tax declaration.
If the expropriation involves a government infrastructure project under RA 8974 or right of way,
then the plaintiff may take immediate possession upon payment to the property owner upon
filing of the complaint of an amount equivalent to 100% of the value of the property based on the
zonal value.
Rule 68: Foreclosure of Real Estate Mortgage
 • This Rule is also applicable to Foreclosure of Chattel Mortgage

 • This is a real action so the venue is where the land is situated. But if it involves several
parcels of land and they are located in different provinces and there is only one mortgage
contract involving these parcels of land, the foreclosure may be filed in any place where
one of the parcels of land is located and the judgment that the court will render may be
executed in the other provinces.
When can the mortgagee foreclose extrajudicially?

If the mortgagee appointed an AIF authorizing the mortgagee to sell the property through the
failure of payment. When there is an SPA
Judicial foreclosure
Mortgage is a security for the payment of the obligation. If you can’t pay the obligation, the
mortgagee has the choice either to file an action for collection or to foreclose the mortgage.
Order the judgment obligor to pay to the court, the amount so found due no more than 120 days
Q: What will happen?

A: The plaintiff mortgagee will file a complaint to foreclose the REM. The action will proceed
like in the case of an ordinary civil action (pre-trial, trial, etc).
Q: Against whom should the complaint be filed?
A: The defendants should be (1) the debtor, (2) the mortgagor, if the debtor is not the mortgagor
himself, and (3) against all persons having or claiming an interest in the property that was
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mortgaged, subordinate in right to that of the mortgagee, such as the second mortgagee, the
subsequent attaching creditor, the subsequent purchaser, if any.
 • The indispensable parties are the debtor and the mortgagor. The second mortgagee, the
subsequent attaching creditor, and the subsequent purchaser are mere necessary parties.
Thus, they may or may not be impleaded. If they are not impleaded, their equity of
redemption shall remain unforeclosed. So, they can exercise the equity of redemption
even after the confirmation of the sale.
Q: If after trial, the court finds that the facts alleged in the complaint to be true, what will
it do?
A: The following:
1. The court will ascertain the amount due the plaintiff.
2. The court will render judgment [on foreclosure] for the amount so found due (judgment is
appealable and allows multiple appeals). It will order that the amount shall be paid by the
adverse party (mortgagor-debtor) to the court or to the judgment-obligee within a period of not
less than 90 days nor more than 120 days from entry of judgment.
• The period of not less than 90 days nor more than 120 days from entry of judgment within
which the mortgagor-debtor may pay the amount so found due to the judgment obligee is known
as the mortgagor’s Equity of Redemption.
• If the judgment of foreclosure is appealed, there will be no equity of redemption, in the
meantime, because it is reckoned from the entry of judgment (finality of judgment).
• Note: The mortgagor may still exercise his equity of redemption even after the 120 days,
provided that the sale has not yet been confirmed.
3. In case of failure to pay, the property will be sold at public auction (foreclosure sale). In
accordance to Rule 39.
 If the mortgagor exercised his equity of redemption (by paying the court or the judgment-
obligee the amount due within the period), then the proceedings for foreclosure will come
to an end. But if the mortgagor does not exercise his equity of redemption (no payment is
made), then the judgment-obligee will file a motion for the sale of the mortgaged
property.
 • If the court grants the motion, then the court issues an order for the sale of the mortgage
property in the manner and under the provisions of Rule 39 (Foreclosure Sale - the
property is sold in the same way that a sale on execution is conducted)
 4. After the sale of the property, the judgment-obligee should file in court a motion for
the confirmation of the sale. If the court grants the motion, it will issue an order
confirming the sale (Note: this is a litigable motion and the order confirming the sale is
appealable).
 • The court will not issue an order confirming the sale if the judgment-obligee will not
file the motion for the confirmation of the sale.
 • The order confirming the sale is also appealable but if the order becomes final, then it
will be registered with the Registry of Deeds and the purchaser at the foreclosure sale
may now take possession. If there are occupants in the property mortgaged, his remedy is
to obtain a writ of possession.
acc
 • The confirmation of the sale shall operate to divest the rights in the property of all the
parties in the action and to vest the rights in the purchaser, subject to such rights of
redemptions as may be allowed by law.
ANy amount in excess of 2million shall be deemed waived
If a claimant has a counterclaim of 5million, can he assert that as a counterclaim governed by the
rules in his summary procedure? Yes. but he shall waive the amount exceeding 2 million
If the MTC renders a judgment governed by the summary procedure, it is appealable

If the RTC renders a judgment based on the appealed case by Notice of Appeal, it is final,
executory, and unappealable. The moment it is rendered, you can move for execution because it
is already final.
Small claims actions

The action is purely civil.
It should not exceed 1 million pesos and the claim and demand is owed under:
1. Contract of lease
2. Contract of loan
3. Contract of services
4. Contract of sale of personal property
5. Enforcement of barangay
Q: Supposed X lent money to Y in the amount of 2 million pesos. Y did not pay. And so, X
wanted to collect the amount of pesos. Is it a small claims case? No. To be a small claim action,
the amount should not exceed 1 million, exclusive of interest and cause.
Supposed, you are renting an apartment and accumulated an unpaid rent of 1 million pesos.
RULE 70
EJECTMENT CASES
Unlawful detainer
Forcible entry
These are both accion interdictal.
There are 3 actions to recover possession of a real property:

 Accion interdictal – the issue is actual possession, or physical or material possession
(possession de facto) of the property subject of the litigation.
7. Accion publiciana – the issue here is legal possession or possession de jure
8. Accion reivindicatoria – the issue here is ownership, the plaintiff seeks to recover
ownership which may also include possession
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If your action is Unlawful detainer or Forcible entry, with what court will you file your action?
 Regardless of the assessed value, it is the MTC that has exclusive original jurisdiction.
Suppose in an unlawful detainer, can the plaintiff / lessor can also seek …
 Yes, he will file a complaint for unlawful detainer…
Suppose the amount of the unpaid rent is already 10M, may the plaintiff still seek the payment of
the unpaid rent in the same action…
 Yes, because it is merely incidental to…
Suppose the lessor does not really want to eject the lessee from the building, and so the lessor
only wants to collect the unpaid rent and so he filed … with what court shall he file his..
 it is now to be filed in the RTC because it is clearly a money claim.
What is forcible entry?

 It is an action instituted by a person who is alleged to have been deprived of possession
of a land or building by means of force, intimidation, strategy, threat or stealth.
 Force – it does not mean that the defendant should have instituted a state of war against
the plaintiff. Provided there was an unlawful entry, …..
What is unlawful detainer?

 Action brought by a lessor or a venhdor or a vendee or any other person against whom
possession of a land or building is unlawfully withheld…
What are the distinctions between forcible entry and unlawful detainer?
1. In forcible entry, possession of the real property by the defendant is unlawful from the
beginning because that possession was obtained by the defendant by means of FISTS.
On the other hand, in unlawful detainer, the defendant's possession of property is
inceptively lawful (lawful at the beginning but becoming unlawful at a later time).
Example (unlawful detainer): There is a contract of lease between X, lessor and Y, lessee.
The lease involves an apartment and the rent was to be paid at the end of each month.
The lease is from July 1, 2020 to June 30, 2021. The rent for September and October was
not paid and X wrote a letter to Y to vacate the property. At the beginning of July 1, it
was lawful, however, from the time there was a demand to vacate the property, it became
unlawful.
2. In forcible entry, prior demand to vacate is not required. In unlawful detainer, demand to
vacate (which is jurisdictional) if the ground is non-payment of the rent is required,
except if the ground is the expiration of period of the lease.
Example: If the lessee fails to pay rent for 2 months and there is no demand to vacate yet
by the lessor, then his possession would still be lawful. His possession becomes unlawful
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if there is a demand for him to vacate and an action for unlawful detainer may be
instituted against him.
NOTE:
• A demand to vacate and pay is allowed.

• A demand to pay does not transform the possession of the lessee from lawful to
unlawful.
• A demand to vacate or pay, and the subsequent failure to pay is not a basis for an
action for unlawful detainer.
3. In forcible entry, the plaintiff must allege and prove that he was in prior physical
possession until he was deprived of possession by the defendant by means of FISTS. In
unlawful detainer, the plaintiff need not be in prior physical possession of the property.
4. In forcible entry, the one-year period to institute the action is counted from the date of
actual entry by the defendant into the property. In unlawful possession, the one- year
period is counted from the last demand to vacate.
*In forcible entry cases, if you do not institute the action within one year from the date
of dispossession, it would be now an accion publiciana (better right of possession).
ACCION PUBLICIANA OR ACCION REIVINDICATORIA –

 If it does not exceed 400k, file with MTC
 If exceeds 400k, file with RTC
Demand – must be a written demand and it must be a demand to vacate

 If it’s a demand to vacate and to pay, it is sufficient
 If it’s a demand to vacate or to pay, it is not sufficient
Suppose several demands to pay was made, can you file the complaint for unlawful detainer
today?
 It was explained by the SC that if several demands was made, then the 1 year period in
which,.. must be reconned or computed from the date of the last demand.
Suppose the defendant does not want to abandon or leave the premises yet, so he does not want
execution immediately, what is the remedy of the defendant?
 The defendant may stay the execution of the judgment of the MTC by doing all of the ff:
• Appeal from the judgment
• File a supersedeas bond
• Make a periodic deposit in court of the rental or reasonable rental value of the
property as it falls due.
acc
When should the defendant file the supersedeas bond?

 …
What is the purpose of a supersedeas bond?

 The bond is intended to cover the payment of all damages, costs and unpaid rent accruing
down to the time of the judgment appealed from.
Q: Supposed the amount of the unpaid rent is 10 million pesos. May it seek the unpaid rent
Forcible entry - an action instituted by a person who is alleged to have been deprived of
possession of a land or building by force, intimidation, strategy, threat or stealth (FISTS).
FORCE- it does not mean the defendant should have instituted a state of war. The moment the
defendant entered unlawfully, then it has been accomplished by means of force.
Unlawful detainer - an action brought by a lessor or a vendor or a vendee or any other person
against whom possession of a land or building has been unlawfully withheld even termination of
the right to possess
What are the distinctions?

1. In forcible entry, possession of the real property by the defendant is unlawful from the
beginning because that possession was obtained by the defendant by means of FISTS. On
the other hand, in unlawful detainer, the defendant's possession of property is inceptively
lawful (lawful at the beginning but becoming unlawful at a later time).
2. In forcible entry, prior demand to vacate upon the defendant is not required. In unlawful
detainer, a prior demand to vacate upon the the defendant (which is jurisdictional) is
required, except if the ground is the expiration of term of the lease.
3. In forcible entry, the plaintiff must allege and prove that he was in prior physical
possession until he was deprived of possession by the defendant by means of FISTS. In
unlawful detainer, the plaintiff need not be in prior physical possession of the property.
4. In forcible entry, the one-year period to institute the action is counted from the date of
actual entry by the defendant into the property. In unlawful possession, the one-year
period is counted from the last demand to vacate.
The complaint must be filed within one year.
If more than one year, it will now be an accion publiciana.
The demand must be a written demand and is a demand to vacate.
Demand to vacate and/or to pay is not sufficient.

acc
Q: Supposed, several demand were made on the defendant.
X owns a land. And he is also in possession of the land. And then one day, Y entered into his
land with backhoe and
What if there were several demands to vacate made to the defendant?

You reckon the one-year period to institute an action for unlawful detainer from the date of the
last demand.
Dean, we ended po sa discussion on the reckoning of the one-year period to institute an action
for unlawful detainer from the date of the last demand.
If there is a judgment rendered by the MTC, the judgment is appealable to RTC. The judgment in
the RTC is unappealable
Applicable only in ejectment cases.
If the MTC renders a judgment in an ejectment case and the judgment IS AGAINST THE
DEFENDANT although it is appealable to the RTC yet the judgment of the MTC against the
defendant is subject to immediate execution provided that a copy of the judgment is served upon
the defendant.
A judgment is rendered on May 12 and given a copy on the same day. The same day can be
executed without prejudice to the right of the defendant to appeal to the RTC. Suppose the
defendant does not want to abandon or to leave the premises yet so he does not want execution
immediately. Does the defendant have any remedy at all? Yes. The defendant may stay the
execution of the judgment of the MTC by doing all the following:
1. He must appeal from the judgment
2. He must file a supersedeas bond
3. He must make a periodic deposit in court of the rental or reasonable rental value of the
property as it falls due.
Stay - suspend or hold it in abeyance.
For reasons:
He is doing business in the premises. So his objective is to suspend the execution to not disrupt
the business.
When should the defendant file the supersedeas bond?

Within the time for the perfection of an appeal.
What is the purpose of the supersedeas bond?

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To cover the payment of all unpaid rentals, damages and cost, accruing down to the time of the
judgment.
The periodic deposit will cover the rent that would fall due during the pendency of the appeal.
If the defendant fails to make a monthly deposit, the judgment of unlawful detainer or forcible
entry shall become subject to immediate execution.
It has been said that a motion to fix the amount of supersedeas bond is totally uncalled for
because you can easily compute it.
NOTE: It cannot be appeal to CA up to SC.
In an ejectment case, there is the following provisional remedies that may be availed of.
1. Preliminary prohibitory injunction to prevent the defendant from committing further acts of
dispossession against the plaintiff;
2. A writ of preliminary mandatory injunction to restore the plaintiff in his possession. Plaintiff
must file the motion for the issuance of preliminary mandatory injunction within 5 days from the
filing of the complaint; and
3. Preliminary mandatory injunction to restore plaintiff in his possession if the MTC has already
rendered a judgment, and the judgment is appealed to the RTC.
• The plaintiff must file this motion within 10 days from the perfection of the appeal.
• The RTC will issue the writ of preliminary mandatory injunction if it is satisfied that:
a. defendant’s appeal is frivolous or dilatory; or
b. plaintiff’s appeal is prima facie meritorious.
Now we will start our discussion sa Rule 71 on Contempt.
Contempt may be:

1. Direct Contempt - Section 1, Rule 71
2. Indirect Contempt - Section 3, Rule 71
There is also a Criminal and Civil Contempt
If it is indirect contempt, how may the proceedings be initiated or commenced?

A: It may be commenced:
1. motu proprio by the court by issuing an order or any formal charge requiring the
respondents to explain why he should not be punished for contempt; or
2. by a verified petition filed in court against the respondent - here, the charge is contained in
a verified petition filed by the petitioner against the respondent. All the requirements of an
initiatory pleading must be complied with. Like a certification of non-forum shopping, and
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payment of docket fees or filing fees, and then it will be docketed, like any civil action. If
commenced by a verified petition, it will be treated as a special civil action.
If the act constituting indirect contempt is within the knowledge of the court, then the
proceedings may be initiated motu proprio by the court. If without the knowledge of the court,
then it can be initiated by a means of a verified petition.
Problem: Supposed you have a case in court and you submitted a pleading and a motion and you
did not like the judge so your petition contained malicious statements against the judge. Is that
direct contempt or indirect contempt?
If submitted in the same court where the judge is presiding, that constitutes direct contempt.
If submitted elsewhere, not in the same court, that constitutes indirect contempt.
KATARUNGANG PAMBARANGAY
All disputes must undergo conciliation and mediation before the Lupon. The complaint may be
filed to the Lupon Chairman which is the Baranggay Chairmain which will conduct mediation. If
he fails, he will convene the Pangkat tagapagkasundo.
The lupon chairman or pangkat cannot render a decision. What they can do is to try to bring the
parties together for an amicable settlement. If they fails in their mediation effort, then they will
issue a certification to file action which will be appended to the the complaint to be filed in the
court.
No case may be filed in a court or government agency unless there is a confrontation between the
parties in lupon or pangkat.
The complaint may be dismissed on the ground that a condition precedent has not been met.
all disputes will require a conciliation before the Lupon, before you can file an action in court.
EXCEPT THE FOLLOWING:
a. Where one party is the government or any subdivision or instrumentality thereof; i.e. you
are filing a civil case against the government, subject to the principle of non-suability of
state or against the local subdivision (city or municipal gov’t)
b. Where one party is a public officer or an employee and the dispute relates to the
performance of his official functions; i.e. The one party is a government official and a
public officer and the dispute has something to do and it relates to the performance of his
duties and functions, then you do not have to refer your dispute to the Lupon. - When we
say one party, the plaintiff or defendant or complainant may be the government, or public
officer.
c. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00;
d. Offenses where there is no private offended party; i.e. Like illegal possession of firearms,
this is not included because the penalty exceeds 1 year imprisonment
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e. Where the dispute is brought by or against a corporation, a partnership or a juridical

entity;
f. Where the dispute involves real properties located in different cities or municipalities,
unless the party agrees to submit their defenses to amicable settlement by an appropriate
Lupon; i.e. one property is in Baguio and the other is n La Trinidad or in Sablan, then
this does not require prior conciliation before the Lupon
g. Where the dispute involves parties who actually reside in different cities or
municipalities; i.e. the complainant resides in Baguio and the respondent resides in La
Trinidad
h. Such other classes of disputes which the President may determine in the interest of justice
or upon the recommendation by the Secretary of Justice;
i. Disputes arising from the implementation of the CARP;
j. Employer-Employee Disputes; and i.e. case of illegal dismissal shall be filed with DOLE
or NLRC
Petition for habeas corpus.

Actions coupled with provisional remedies
Actions that may be barred by statutes of limitations
An action to annul a judgment upon a compromise.
Q: How do you file your complaint?

You can file it orally or in writing.
Q: What is the venue of the dispute?

-If the dispute is between parties who actually resides in the same baranggay, then the complaint
should be filed with the Lupon of the same baranggay.
-But if the parties reside in different baranggay but the same city or municipality, then the
complaint should be filed in the baranggay where the respondent resides.
-If the dispute involves a property, it ishould be in the baranggay where the property is located or
the greater part of the property is located.
-If the dispute happens in the workplace or school, the complaint should be filed in the lupon in
the baranggay where the workplace or institution is located.
Note:
The purpose of the confrontation before the lupon or pangkat is for the parties to be encouraged
to arrive in an amicable settlement.
In what form should be the amicable settlement be?

In writing and in the dialect both can understand and should be signed by both parties and the
lupon
May the amicable settlement be repudiated by the party?

Yes. But it must occur within 10 days from the date of the amicable settlement.
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How? By making a statement of repudiation on the ground that your consent was vitiated by
fraud, Violence or intimidation.
How do you enforce an amicable settlement?

By execution within the first 6 months from the date of the amicable settlement by means of
execution by the lupon.
Supposed there was no execution within the first six months. May the amicable settlement be
executed? Yes. By means of an action filed to the court.
If it does not exceed 1 million pesos, it will be governed by small claims.

If more than 1 million, it will be governed by the summary procedure.
Q: Can they refer their dispute to the Lupon Chairman or pangkat for arbitration?
Yes. A panel of arbitrators can decide on the dispute and render an arbitral award.
They should have a written agreement TO ARBITRATE and will agree to be bound by the
award by the arbitrators.
The arbitration award cannot be repudiated. What can be repudiated is the written agreement to
arbitrate. But it should be within 5 days from the date of the written agreement to arbitrate. If not
repudiated within 5 days, the pangkat or the lupon will render an arbitration award.
If a party is a minor, he should be represented by a next of kin who is not a lawyer.

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Civil Procedure Notes

As distinguished from substantive law

Jurisdiction – power or authority of the court to try and decide a case

Requisites for a valid exercise of jurisdiction:

1. Over the persons of the parties

How the court acquires jurisdiction?

2. Over the subject matter of the action

Kinds and Nature of Jurisdiction exercised by the Courts

1. Exclusive – it is confined to a particular court. No one else can exercise jurisdiction.

Doctrine of Hierarchy of Courts

1. Original Jurisdiction - bestowed upon a court in the first instance.

Doctrine of Primary Jurisdiction

4. Involving specific performance of contractual or statutory obligations filed by

Levels of subject matter jurisdiction:

Court of Appeals – has both original and appellate jurisdiction

Municipal Trial Court –

Aspects involving the jurisdiction of courts especially the trial courts

Nature of the Action Test

 Capable or incapable of pecuniary estimation

ACTIONS INCAPABLE OF PECUNIARY ESTIMATION

When is the subject of a civil action incapable of pecuniary estimation?

(2) An action for rescission of a contract,

(5) An action for expropriation, etc.

Issue: Ownership or possession.

How is the assessed value of a land or building determined?

PRIMARY OBJECTIVE TEST (ULTIMATE OBJECTIVE TEST)

THE MAIN OBJECTIVE IS TO GET BACK DEAN’S PROPERTY

A. According to foundation or basis

B. According to the object against whom is the complaint directed

In an action in personam, the complaint is filed against a specific person (there is a

It is directed against the res or the thing itself and it seeks a

In action in rem, it is the publication of it is the publication of the notice in a

(1) land registration proceeding

3. Action quasi in rem

It subjects the interest of a person in a property to a lien or an obligation burdening

TWO KINDS OF QUASI IN REM ACTION:

a. Action against a defendant who is a non-resident defendant who is not in the

QUESTION: If a defendant is a non-resident defendant who is not in the Philippines, can he be

QUESTION: What is the ‘res’?

QUESTION: How may a non-resident defendant who is not in the

PAYMENT OF DOCKET FEES (FILING FEES)

The 1997 Rules of Civil Procedure

What is a civil action?

What is a criminal action?

What is a special proceeding?

 A special proceeding is a remedy by which a party seeks to establish a status, a right, or a

COMMENCEMENT OF A CIVIL ACTION

When is a civil action commenced?

Why must you know when a civil action is commenced?

When can you amend your complaint or pleading?

MEMORIZE SEC. 6 RULE 1

When may a party invoke a liberal construction?

An ordinary civil action must be based on a cause of action.

Cause of action is not the same as action.

What is a cause of action?

Requisites of a Cause of action

One action basing it from the single cause of action.

Splitting a single cause of action

Grounds for Dismissal

Joinder of causes of action

Explanation of the Requisites: