CivPro Reviewer

San Beda College of Law
10
MEMORY AID IN REMEDIAL LAW
CIVIL PROCEDURE
REMEDIAL LAW COMMITTEE

!CHAIRPERSON: Jinky Ann Uy ! ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea !EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala ! SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
10
RULE 1
GENERAL PROVISIONS
(B)
Statutes regulating the procedure of ACTION IN ACTION IN ACTION
courts will be construed as applicable to REM PERSONAM QUASI IN
actions pending and undetermined at the REM
time of their passage so long as vested
rights will not be impaired.
Directed Directed Directed
Under the 1987 Constitution, the rule- against the against against
making power of the Supreme Court has thing itself particular particular
the following limitations: persons persons
1. shall provide a simplified and
inexpensive procedure for the Judgment is Judgment is Judgment
speedy disposition of cases; binding on binding only binding upon
2. Uniform for all courts of the the whole upon parties particular
same grade, and world impleaded persons, but
3. Shall not diminish, increase or or their the real
modify substantive rights (Art. successors motive is to
VIII Sec. 5[5]). in interest deal with
real property
Section 3. Cases governed. or to subject
said property
ACTION CLAIM to certain
claims.
An ordinary suit in a A right possessed by Ex. Land Ex. action Ex. Unlawful
court of justice one against another registration to recover detainer or
case; damages; forcible
probate action for entry;
One party The moment said proceedings breach of judicial
prosecutes another claim is filed before for contract foreclosure
for the enforcement a court, the claim is allowance of of mortgage.
or protection of a converted into an a will.
right or the action or suit.
prevention or
redress of a wrong. The distinction is important in
determining the EFFECT of the
CLASSIFICATION OF ACTIONS. judgment.
(A) (C)
ORDINARY CIVIL SPECIAL CIVIL REAL PERSONAL MIXED
ACTION ACTION ACTION ACTION ACTION
Ownership or personal property Both real
Governed by Also governed by possession of is sought to be and
ordinary rules ordinary rules but real property recovered or personal
SUBJECT to specific is involved where damages properties
rules prescribed for breach of are
(Rules 62 to 71). contract are involved
sought
Formal demand of Special features not Founded on Founded on privity Founded on
one’s legal rights in found in ordinary privity of of contract both
a court of justice in civil actions estate
the manner
prescribed by the
court or by the law


Ventura, Jocelyn Zabala ! SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
11
ex. Accion Ex. Action for a ex. Accion which case, it is the date of mailing that
reinvidicatori sum of money publiciana is considered as the date of filing, and
a with a not the date of the receipt thereof by
claim for the clerk of court.
damages
The date of the filing of an amended

complaint joining additional defendant is
The distinction is significant in the
the date of the commencement of the
determination of venue. With respect to
action with regard to such additional
mixed actions, the rules on venue of real
defendant.
actions shall govern, i.e., where the real
property is located.
Section 6. Construction.
(D)
General Rule: Liberal construction .
LOCAL ACTION TRANSITORY Exceptions:
ACTION a. reglementary periods
b. rule on forum shopping 
Must be brought in a Generally, must be
particular place, in brought where the
RULE 2
the absence of an party resides
agreement to the regardless of where CAUSE OF ACTION
contrary the cause of action
arose Section 2. Cause of Action, defined.
Essential elements of cause of action
1. Existence of a legal right of the
Ex. Action to Ex. Action to plaintiff;
recover real recover sum of 2. Correlative legal duty of the
property money defendant to respect one’s right;
3. Act or omission of the defendant
Section 5. Commencement of action. in violation of the plaintiff’s
legal right; and
An action is commenced by: 4. Compliance with a condition
1. filing of the complaint (the date of precedent.
the filing determines whether or not
the action has already prescribed); CAUSE OF RIGHT OF ACTION
and ACTION
2. payment of the requisite docket fees
(determined on the basis of the delict or wrongful remedial right or
amount of the claim including the act or omission right to relief
damages indicated in body or the committed by the granted by law to a
prayer of the pleading) defendant in party to institute an
  violation of the action against a
It is not simply the filing of the primary rights of the person who has
plaintiff committed a delict
complaint or the appropriate initiatory or wrong against
pleading but also the payment of the him
prescribed docket fee that vests a trial
court with jurisdiction over the subject The reason for the the remedy or
matter or nature of the action.   action means afforded or
  the consequent
The court may allow the payment of the relief
deficient docket fee within a reasonable
the formal right that is given –
period but not beyond the applicable statement of the right to litigate
prescriptive or reglementary period. alleged facts because of the
occurrence of the
An action can be commenced by filing alleged facts
the complaint by registered mail. In

12
Determined by facts determined by B. An answer alleging either of the

as alleged in the substantive law above-cited grounds as affirmative
complaint and not defense (Rule 16, Sec. 6)
the prayer therein
General Rule on Divisible Contract
A contract to do several things at several
RELIEF REMEDY SUBJECT times is divisible, and judgment for a
MATTER single breach of a continuing contract is
not a bar to a suit for a subsequent
the redress, the the thing,
breach.
protection, procedure wrongful
award or or type of act,
coercive action contract or Doctrine of Anticipatory Breach
measure which which may property Even if the contract is divisible in its
be which is performance and the future periodic
deliveries are not yet due, if the obligor
has already manifested his refusal to
comply with his future periodic
obligations, “the contract is entire and
the breach total,” hence there can only
be one action for damages (Blossom &
Co. vs. Manila Gas Corp., 55 Phil. 226)
the plaintiff availed of directly Section 5. Joinder of causes of action.

prays the by the involved in Rule in this section is PERMISSIVE and the
court to plaintiff as the action, plaintiff can always file a separate
render in his the means concerning action for each cause of action.
favor as a to obtain which the
consequence the wrong has
of the delict desired been done Par. (a): The joinder of causes of action
committed by relief and with may involve the same or different
the defendant respect to parties. If the joinder involved different
which the parties, it must comply with Sec. 6 Rule
controversy 3, thus, there must be a question of fact
has arisen. or law common to both parties joined
arising out of the same or series of
transactions.
Section 4. Splitting a single cause of
action, effect of.
Par. (b) requires that: only causes of
action in ordinary civil actions may be
SPLITTING OF CAUSE OF ACTION – is the
joined, obviously because they are
practice of dividing one cause of action
subject to the same rules.
into different parts and making each
part subject of a separate complaint.
Par. (c) As long as one cause of action
falls within the jurisdiction of the RTC,
Applies NOT only to complaints but also
the case can be filed there even if the
to counterclaims and crossclaims.
MTC has jurisdiction over the others.
Pars. (d) embodies the TOTALITY RULE

Remedy against splitting a single cause
Section 33 BP129, as amended by RA
of action:
7691 - Where there are several claims or
A. Motion to dismiss on the ground of:
❖ Litis pendentia, if the first causes of actions between the same or
different parties, embodied in the same
complaint is still pending (Rule
complaint, the amount of the demand
16, Sec. 1[e]); or
❖ Res judicata, if any of the shall be the totality of the claims in all
the causes of actions, irrespective of
complaints is terminated by final
whether the causes of action arose out
judgment (Rule 16, Sec. 1[f])
of the same or different transactions.

13
SPLITTING OF JOINDER OF consent thereto, the reason

CAUSE OF ACTION CAUSES OF therefore being stated in the
ACTION complaint.
Neither a dead person nor his estate may

There is a single Contemplates be a party plaintiff in a court action…
cause of action several causes of Considering that capacity to be sued is
action correlative of the capacity to sue, to the
same extent, a decedent does not have
the capacity to be sued and may not be
PROHIBITED. Causes ENCOURAGED.
multiplicity of suits Minimizes named a party defendant in a court
and double vexation multiplicity of suits action (Ventura vs. Militante 316 SCRA
on the part of the and inconvenience 226).
defendant on the parties
Section 3. Representatives as parties.

REAL PARTY IN INTEREST – the party
Section 6. Misjoinder of causes of who stands to be benefited in the suit or
action. the party entitled to the avails of the
Not a ground for dismissal of an action. A suit.
misjoined cause of action may be
severed and proceeded with separately.
There is no sanction against non-joinder
of separate causes of action since a Impleading the beneficiary as a party in
plaintiff needs only a single cause of the suit is now mandatory, in cases
action to maintain an action. allowed to be prosecuted or defended by
a representative.
RULE 3
PARTIES TO CIVIL ACTIONS C L A S S I F I C AT I O N O F PA RT I E S I N
INTEREST
Section 1. Who may be parties; 1. Indispensable parties – those without
plaintiff and defendant. whom no final determination can be had
of an action. (must be joined)
REQUIREMENTS FOR A PERSON TO BE A
PARTY TO A CIVIL ACTION: 2. Necessary (or proper) parties – those
1. he must be a natural or juridical who are not indispensable but ought to
person or an entity authorized by be parties if complete relief is to be
law; accorded as to those already parties, or
2. he must have a legal capacity to sue; for a complete determination or
and settlement of the claim subject of the
3. he must be the real party in action. (may or may not be joined)
interest.
3. Representative parties – someone
PLAINTIFFS- Those having an interest in acting in fiduciary capacity. Maybe a
the subject matter of the action or in trustee, guardian, executor or
obtaining the relief demanded. administrator, or a party authorized by
law or these Rules.
DEFENDANTS:
1. persons who claim an interest in the An agent acting in his own name and for
controversy or the subject thereof the benefit of an undisclosed principal
adverse to the plaintiff; or may sue or be sued without joining the
principal except when the contract
2. who are necessary to a complete involves things belonging to the principal
determination or settlement of the
questions involved therein; or 4. Pro forma parties – those who are
required to be joined as co-parties in
3. all those who ordinarily should be suits by or against another party as may
joined as plaintiffs but who do not be provided by the applicable

14
substantive law or procedural rule such

as in the case of spouses under Sec. 4. No valid judgment if The case may be
indispensable party determined in court
5. Quasi parties – those in whose behalf is not joined but the judgment
a class or representative suit is brought. therein will not
resolve the entire
Section 5. Minor or incompetent controversy if a
persons. necessary party is
not joined
Under the present rule, a person need
not be judicially declared to be They are those with They are those
incompetent in order that the court may such an interest in whose presence is
appoint a guardian ad litem. It is enough the controversy that necessary to
that he be alleged to be incompetent. a final decree would adjudicate the
The suit can be brought by or against the necessarily affect whole controversy
minor or incompetent person personally their rights so that but whose interests
BUT with the assistance of his parents or the court cannot are so far separable
proceed without that a final decree
guardian.   their presence can be made in
their absence
without affecting
them
Section 6. Permissive joinder of
parties.
PERMISSIVE JOINDER – the aggregate JOINT DEBTORS – indispensable party

sum of all the claims, determines the with respect to own share and a
jurisdiction of the court. necessary party with respect to the
share of the others.
Requisites of permissive joinder of
parties.
1. Right to relief arises out of the same
transaction or series of transactions; SOLIDARY DEBTORS – either is
2. There is a question of law or fact indispensable and the other is not even a
common to all the plaintiffs or necessary party because complete relief
defendants; and may be obtained from either.
3. Such joinder is not otherwise
proscribed by the provisions of the Section 9. Non-joinder of necessary
Rules on jurisdiction and venue. parties to be pleaded.
SERIES OF TRANSACTIONS – transactions The non-inclusion of a necessary party

connected with the same subject of the may be excused only on meritorious
action. grounds.
The court may order the inclusion of the

INDISPENSABLE NECESSARY omitted necessary party if jurisdiction
PARTIES PARTIES over his person may be obtained by
ordering plaintiff to file an amended
The action cannot The action can complaint impleading the necessary
proceed unless they proceed even in the party therein as co-defendant.
are joined absence of some
necessary parties The only sanction for failure to implead
a necessary party when ordered by the
court and jurisdiction can be obtained
over said party is a waiver of the claim
against him. This is considered as an
exception to the provision on penalties
imposed on a disobedient party under
Sec. 3 of Rule 17 which would have

15
entailed the dismissal of the complaint

itself. Requisites:
1. there is a defendant
Section 11. Misjoinder and non-joinder 2. his identity or name is unknown
of parties. 3. fictitious name may be used
because of ignorance of
Neither misjoinder nor non-joinder of defendant’s true name and said
parties is a ground for dismissal of the ignorance is alleged in the
action. complaint
4. identifying description may be
Objections to defects in parties should used: sued as unknown owner,
be made at the earliest opportunity – the h e i r, d e v i s e e , o r o t h e r
moment such defect becomes apparent – designation
by a MOTION TO STRIKE THE NAMES OF 5. amendment to the pleading
THE PARTIES impleaded. when identity or true name is
discovered
If there is misjoinder, a separate action 6. defendant is the defendant
should be brought against the party being sued, not a mere
misjoined. additional defendant
The absence of an indispensable party Service of summons upon a defendant

renders all subsequent actions of the whose identity is unknown may be made
court null and void for want of authority by publication in a newspaper of general
to act, not only as to the absent parties circulation in accordance with Section 14
but even as to those present. of Rule 14.
Section 12. Class suit. Section 15. Entity without juridical

personality as defendant.
REQUISITES OF A CLASS /
REPRESENTATIVE SUIT. They may be sued under the name by
1. s u b j e c t m a t t e r o f t h e which they are generally known, but
controversy is one of common or they cannot sue under such name for
general interest to many lack of juridical personality.
persons;
2. parties affected are so numerous The service of summons may be effected
that it is impracticable to bring upon all the defendants by serving upon
them all before the court; any of them, or upon the person in
3. parties bringing the class suit are charge of the office or place of business
sufficiently numerous or maintained under such name. (Sec. 8,
representative of the class and Rule 14)
can fully protect the interests of
all concerned. INSTANCES WHERE SUBSTITUTION OF
PARTIES IS PROPER:
Class Suit Permissive
A. Death of party; duty of counsel (Sec.
Joinder of Parties
16)
There is one single There are multiple This provision applies where the claim is
cause of action causes of action not thereby extinguished as in cases
pertaining to separately belonging involving property and property rights
numerous persons to several persons. such as:
1. recovery of real and personal
  property against the estate.
2. enforcement of liens on such
Section 14. Unknown identity or name
properties
of defendant.

16
3. recovery for an injury to person failure to do so does not warrant the

or property by reason of tort or dismissal of the case. A transferee
delict committed by the pendente lite is a proper, and not an
deceased. indispensable party.

In this case, the heirs will be substituted The case will be dismissed if the interest
for the deceased OR if no legal of plaintiff is transferred to defendant
representative is named then the court UNLESS there are several plaintiffs, in
will order the opposing party to procure which case, the remaining plaintiffs can
the appointment of an executor or proceed with their own cause of action.
administrator for the estate of the
deceased. Section 20. Action on contractual
money claims.
In case of minor heirs, the court may
appoint a guardian ad litem for them. Requisites:
1. The action must primarily be for
The substitute defendant need not be recovery of money, debt, or
summoned. The ORDER OF interest thereon, and not where
SUBSTITUTION shall be served upon the the money sought therein is
parties substituted for the court to merely incidental thereto.
acquire jurisdiction over the substitute
party 2. The claim, subject of the action,
arose from a contract, express or
implied, entered into by the
decedent in his lifetime or the
liability for which had been
assumed by or is imputable to
If there is failure to notify the fact of him.
death: the case may continue and
proceedings will be held valid, and If defendant dies before entry of final
judgment will bind the successors in judgment in the court where it was
interest. pending at that time, the action shall
not be dismissed but shall be allowed to
B. Death or separation of a party who continue until entry of final judgment
is a public officer (Sec. 17) thereon.
The action may be maintained by and However, execution shall not issue in
against his successor. favor of the winning party. It should be
filed as a claim against the estate of the
The action contemplated here is one decedent.
brought against the public officer in his
official capacity. Section 21. Indigent party.
C. Supervening Incompetence or Indigent – one who has no property or

incapacity of a party (Sec. 18) income sufficient for his support aside
The action shall continue to be from his labor, even if he is self-
prosecuted by or against him, personally supporting when able to work and in
or assisted by the corresponding employment. He need not be a pauper
guardian. to entitle him to litigate in forma
pauperis.
D. Transfer of interest (Sec. 19)
Substitution of parties in this section is While the authority to litigate as
NOT mandatory, it being permissible to an indigent party may be granted upon
continue the action by or against the an ex parte application and hearing, it
original party in case of transfer of may be contested by the adverse party
interest pendente lite. Unless the at any time before judgment is
substitution by or the joinder of the rendered.
transferee is required by the court,

17
RULE 4 If case involves two properties located

VENUE OF ACTIONS in two different places:
1. If the properties are the object
VENUE – the place where an action must of the same transaction, file it in
be instituted and tried. any of the two places.
2. If they are the subjects of two
distinct transactions, separate
VENUE JURISDICTION
actions should be filed in each
place unless properly joined.
Place where the Power of the court
action is instituted to hear and decide Section 2. Venue of personal actions.
a case RESIDENCE – the place where the party
actually resides with continuity and
consistency, whether permanent or
May be waived Jurisdiction over
temporary, at the time the action is
the subject matter
and over the nature instituted.
of the action is
conferred by law Means of waiving venue:
and cannot be 1. failure to object via motion to
waived dismiss
2. affirmative relief sought in the
court where the case is filed
Procedural Substantive 3. voluntary submission to the
court where the case is filed
May be changed by Cannot be the 4. laches
the written subject of the
agreement of the agreement of the Section 3. Venue of actions against
parties parties non-residents.
RULES
The rule on VENUE IS NOT APPLICABLE
1. NON-RESIDENT FOUND IN THE
in cases
PHIL. –
1) Where a specific rule or law
a. for personal actions –
provides otherwise; or
where the plaintiff
2) The parties have validly agreed
resides; and
in writing before the filing of the
b. for real actions – where
action on the exclusive venue
the property is located.
thereof (Sec. 4).
2. NON RESIDENT NOT FOUND IN
THE PHIL. –
Requisites for venue to be exclusive
An action may be filed only
1. A valid written agreement
when the case involves:
2. Executed by the parties before
a. P e r s o n a l s t a t u s o f
the filing of the action; and
plaintiff – venue: where
3. Exclusive nature of the venue.
plaintiff resides;
b. Any property of said
In the absence of qualifying or
defendant located in the
restrictive words, venue stipulation is
Phil. – venue: where the
merely permissive meaning that the
property or any portion
stipulated venue is in addition to the
thereof is situated or
venue provided for in the rule (Polytrade
found.
Corp. vs. Blanco 30 SCRA 187)
 
The Supreme Court has the power to
Section 1. Venue of real actions.
order a change of venue to prevent a
miscarriage of justice.
If property is located at the boundaries
of two places: file one case in either
Dismissal of Action for Improper Venue
place at the option of the plaintiff.
The court may not motu propio dismiss a
complaint on the ground of improper

18
venue. An exception is provided in

Section 4 of the Revised Rule on Filing of verified
complaint with the
Summary Procedure.
court may court may

summon the dismiss the case
RULES ON SUMMARY PROCEDURE

SUMMARY PROCEDURE IN CIVIL CASES
The Court should not dismiss the W/in 10 days If Defendant fails to
complaint or counterclaim if they are from receipt of answer in 10 days –
not verified. The requirement is merely summons, The court, motu propio
a formal one, and not jurisdictional. It defendant or on plaintiff’s motion,
answers, may render judgment
should therefore simply direct the party
incoporating based on facts alleged in
concerned to have it verified. compulsory the complaint w/o
counterclaim or prejudice to
PROHIBITED PLEADINGS / MOTIONS crossclaim, and R9, S3 (c)
U N D E R T H E R U L E O N S U M M A RY serves a copy on
PROCEDURE. plaintiff
1. Motion to dismiss the complaint
or to quash the complaint or
information except on the
ground of lack of jurisdiction Answer to If plaintiff fails to
over the subject matter or counterclaim and appear in prelim
failure to comply with prior crossclaim w/in 10 conference, complaint
barangay conciliation (referral to days may be dismissed.
the Lupon) Defendant entitled to
2. Motion for a bill of particulars decision based on his
3. Motion for a new trial or for counterclaim. All
reconsideration of a judgment or Preliminary
for reopening of trial conference w/in 30
4. Petition for relief from judgment days after last
5. Motion for extension of time to answer is
file pleadings, affidavits, or any
If sole
other paper defendant fails to
6. Memoranda appear, plaintiff
W/in 5 days after
7. P e t i t i o n f o r c e r t i o r a r i , entitled to judgment
conference, court
mandamus, or prohibition issues record of based on complaint
against any interlocutory order preliminary and what is proved
issued by the court
8. Motion to declare defendant in
default
9. D i l a t o r y m o t i o n s f o r W/in 10 days from
postponement receipt of order,
10. Reply submission by the
11. Third party complaints parties of affidavits
12. Interventions and position papers
The filing of a prohibited pleading will

not suspend the period to file an answer
or to appeal. Rendition of
judgment w/in 30 days
from receipt of last
affidavit, or w/in 15
days after last

19
Although a motion to dismiss is a 2. t h a t n o c o n c i l i a t i o n o r

prohibited pleading, its filing after the settlement has been reached OR
answer had already been submitted does unless the settlement has been
not constitute a pleading prohibited by repudiated by the parties
the summary rules. What the rules thereto.
proscribe is a motion to dismiss that
would stop the running of the period to
file an answer and cause undue delay.
While a motion to declare the defendant

in default is prohibited by the rules on CASES NOT COVERED BY THE
summary procedure, the plaintiff may KATARUNGANG PAMBARANGAY LAW:
nevertheless file a motion to render
judgment as may be warranted when the 1. W h e r e o n e p a r t y i s t h e
defendant fails to file an answer. government or any subdivision or
instrumentality thereof;
The issuance of the pre-trial order is an 2. Where one party is a public
important part of the summary officer or employee, and the
procedure because it is its receipt by the dispute relates to the
parties that begins the ten-day period to performance of his official
submit the affidavits and other functions;
evidence. 3. O f f e n s e s p u n i s h a b l e b y
imprisonment exceeding 1 year
TRIAL PROCEDURE IN CIVIL CASES or a fine exceeding P5,000.00;
4. Offenses where there is no
No trial date is set. No testimonial private offended party;
evidence is required nor cross- 5. Where the dispute involves real
examination of witnesses allowed. All properties located in different
that is required is that within (10) days cities or municipalities UNLESS
from receipt by the parties of the court’s the parties thereto agree to
pre-trial order, they shall submit (1) the submit their differences to
affidavits of their witnesses (2) and amicable settlement by an
other evidence on the factual issues set appropriate lupon;
forth in the pre-trial order, Together 6. Disputes involving parties who
with their position papers setting forth actually reside in barangays of
the law and the facts relied upon by different cities or municipalities,
them. EXCEPT where such barangay
units adjoin each other and the
Judgments of inferior courts in cases parties thereto agree to submit
governed by summary procedure are their differences to amicable
appealable to the RTC. settlement by an appropriate
lupon;
The decision of the RTC in civil cases 7. Such other classes of disputes
under this rule, including ejectment w h i c h t h e Pr e s i d e n t m a y
cases, are IMMEDIATELY executory.  determine in the interest of
justice.
KATARUNGANG PAMBARANGAY LAW
(Title One, Book III, RA 7160) However, the court may, at any time
before trial, motu proprio refer the case
No complaint, petition, action, or to the lupon concerned for amicable
proceeding involving any matter within settlement, non criminal cases not
the authority of the lupon shall be filed falling within the authority of the latter.
or instituted directly in court or any
other government office for adjudication While the dispute is under mediation,
UNLESS conciliation, or arbitration, the
1. there has been a confrontation prescriptive periods for offenses and
between the parties before the cause of action under existing laws shall
lupon chairman or pangkat, AND

20
be interrupted upon filing of the

complaint with the punong barangay. 4. D i s p u t e s a r i s i n g a t t h e
WORKPLACE where the
THE PARTIES MAY GO DIRECTLY TO contending parties are employed
COURT IN THE FOLLOWING INSTANCES: or at the INSTITUTION where
1. Where the accused is under such parties are enrolled for
detention; study – in the barangay where
2. Where the person has otherwise such workplace or institution
been deprived of personal located.
liberty calling for habeas corpus
proceeding; CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE
3. Where the actions are coupled 22.
with provisional remedies such
as preliminary injunction, PROCEDURE IN REGIONAL TRIAL
attachment, delivery of COURTS
personal property, and support
pendente lite; and RULE 6
4. Where the action may otherwise KINDS OF PLEADINGS
be barred by the statute of Section 1. Pleadings defined.
limitations.
PLEADINGS – the written allegations of
The parties may, at any stage of the the parties of their respective claims and
proceedings, agree in writing to have the defenses submitted to the court for
matter in dispute decided by arbitration appropriate judgment.
by either the Punong Barangay or
Pangkat. In such case, arbitrational A motion to dismiss is NOT a pleading.
hearings shall follow order of It is the allegations or averments in the
adjudicative trials. pleading that determines the jurisdiction
of the court and the nature of the
The settlement and arbitration action.
agreement may be repudiated on the
ground that consent is vitiated by fraud,
violence, or intimidation. Such PLEADING MOTION
repudiation shall be sufficient basis for
the issuance of the certification for filing It relates to the An application for
a complaint in court or any government cause of action; an order not
office for adjudication. interested in the included in the
matters to be judgment
RULES ON VENUE UNDER THE included in the
KATARUNGANG PAMBARANGAY LAW judgment.
1. Disputes between residents of
the same barangay shall be May be initiatory Cannot be initiatory
brought for settlement before as they are always
lupon of said barangay made in a case
2. Residents of different barangays already filed in
within the same city or court
municipality – in the barangay
where the respondent or any of
the respondents reside at the Always filed before May be filed even
election of the complainant judgment after judgment
3. Disputes involving real property
or any interest therein- where Section 3. Complaint.
real property or larger portion
COMPLAINT – is a concise statement of
thereof is situated
the ultimate facts constituting the
plaintiff’s cause or causes of action, with

21
2 kinds of defenses that may be set

forth in the answer:
a specification of the relief sought, but a. AFFIRMATIVE DEFENSES – allegation
it may add a general prayer for such of a new matter which while
further relief as may be deemed just or hypothetically admitting the
equitable. material allegations in the pleading,
would nevertheless prevent or bar
ULTIMATE FACTS - essential facts recovery by him. It is in the nature
constituting the plaintiff’s cause of of Confession and Avoidance
action. b. NEGATIVE DEFENSES – specific
denial of the material facts or facts
What are NOT ultimate facts: alleged in the pleading
1. Evidentiary or immaterial facts.
Insufficient denial or denial amounting
2. Legal conclusions, conclusions or to admissions:
inferences of facts from facts 1. General denial
not stated, or incorrect 2. Denial in the form of a
inferences or conclusions from negative pregnant
facts stated.
Section 6. Counterclaim
3. The details of probative matter
or particulars of evidence, COUNTERCLAIM – any claim which a
statements of law, inferences defending party may have against an
and arguments. opposing party.
4. An allegation that a contract is Nature of counterclaim: A counterclaim
valid or void is a mere conclusion is in the nature of a cross-complaint.
of law. Although it may be alleged in the
answer, it is not part of the answer. Upon
TEST OF SUFFICIENCY: if upon its filing, the same proceedings are had
admission or proof of the facts being as in the original complaint. For this
alleged, a judgment may be properly reason, it must be answered within ten
given. A fact is essential if it cannot be (10) days from service.
stricken out without leaving the
statement of the cause of action Section 7. Compulsory Counterclaim
insufficient.
RULES ON COUNTERCLAIM
Section 4. Answer A counterclaim before the MTC must be
within the jurisdiction of said court,
ANSWER – the pleading where the both as to the amount and nature
defendant sets forth his affirmative or thereof (De Chua vs. IAC).
negative defenses.


22
KATARUNGANG PAMBARANGAY PROCEDURE
Filing of complaint
w/ the Punong
W/in the next working At any time during
Issuance of Parties agree to

summons to submit the
dispute for
the parties and
arbitration
the witnesses
Arbitration Hearings
Mediation (hearing)
Failure of Settlement
mediation
Execution w/ Repudiation of Award to be

Constitu- in 6 months arbitration made after the
tion of the from date agreement lapse of the
thereof within 5 days period to
from date of repudiate and
agreement w/in 10 days
thereafter
Pangkat convenes not
later than 3 days from
its constitution and
summons the parties
Execution w/in
6 months from
the date of the
award
Pangkat must
arrive at a Conciliation
settlement w/ (hearing)
in 15 days from
the day it
Repudiation of
Settlement settlement w/in 10 Note: Repudiation shall
days from date only be allowed on ground
thereof of vitiation of consent by
fraud, violence or
intimidation.
Execution w/in 6
months from the date Failure of Conciliation
ISSUANCE OF hearings at the Pangkat
CERTIFICATION FOR Level and of Arbitration
FILING OF A COMPLAINT hearings shall also lead to
IN COURT the issuance of certification
for filing a complaint in
court.

23
DOCTRINE OF ANCILLARY JURISDICTION

In an original action before the RTC, the
counterclaim may be considered
compulsory regardless of the amount
(Sec. 7, Rule 6 ). Section 8. Cross-claim
CROSS-CLAIM – any claim by one party
If a counterclaim is filed in the MTC in against a co-party arising out of the
excess of its jurisdictional amount, the transaction or occurrence that is the
excess is considered waived (Agustin vs. subject matter either of the original
Bacalan). In Calo vs. Ajax Int’l, the action or counterclaim.
remedy where a counterclaim is beyond
the jurisdiction of the If it is not set up in the action, it is
barred, except:
MTC is to set off the claims and file a 1. when it is outside the jurisdiction of
separate action to collect the balance. the court or;
2. i f t h e c o u r t c a n n o t a c q u i r e
jurisdiction over third parties whose
COMPULSORY PERMISSIVE
presence is necessary for the
COUNTERCLAIM COUNTERCLAIM
adjudication of said cross-claim.
One which arises It does not arise out In which case, the cross-claim is
out of or is of nor is it considered permissive.
necessarily necessarily  
connected with the connected with the The dismissal of the complaint carries
transaction or subject matter of with it the dismissal of a cross-claim
occurrence that is the opposing party’s which is purely defensive, but not a
the subject matter claim.
cross-claim seeking affirmative relief.  
of the opposing
party’s claim.
Cross Counterclai 3rd-party

It does not require It may require for
Claim m Complain
for its adjudication its adjudication the
the presence of presence of third t
third parties of parties over whom
whom the court the court cannot
Against a co- A g a i n s t a n Against a
cannot acquire acquire jurisdiction.
party opposing party person not
jurisdiction.
a party to
the action
It is barred if not It is NOT barred
set up in the action. even if not set up in
Must arise May arise out Must be in
the action.
out of the of or be respect of
transaction necessarily the
Need not be Must be answered, that is the connected opponent’s
answered; no otherwise, the subject with the claim
default. defendant can be matter of transaction or (Plaintiff)
declared in default. the orig. that is the
action or of subject matter
a of the
GENERAL RULE: A compulsory counterclaim opposing
counterclaim not set up in the answer is therein. party’s claim,
deemed barred. in which case,
it is called a
compulsory
EXCEPTION: If it is an after-acquired counterclaim,
counterclaim, that is, such claim or it may not,
matured after filing of the answer. In in which case
this case, it may be pleaded by filing an it is called a
amended answer or a supplemental permissive
answer or pleading. counterclaim.

24
plaintiff has or may have to the

Section 10. Reply. plaintiff’s claim.
REPLY - the response of the plaintiff to Leave of court to file a third-party

the defendant’s answer. complaint may be obtained by motion
under Rule 15.
EFFECT OF FAILURE TO REPLY: new
facts that were alleged in the answer are Summons to new party (third, fourth,
deemed controverted. Hence, the filing etc.) is needed for the court to obtain
of the reply is optional except for the jurisdiction over his person, since he is
denial of the genuineness and due not an original party.
execution of an actionable document
used as defense in the answer. Where the trial court has jurisdiction
over the main case, it also has
Section 11. Third (fourth, etc.) – party jurisdiction over the third party
complaint. complaint, regardless of the amount
involved as a third party complaint is
T H I R D ( F O U RT H , E T C . ) – PA RT Y merely auxiliary to and is a continuation
COMPLAINT – a claim that a defending of the main action (Republic v. Central
party may, with leave of court, file Surety & Insurance Co. L-27802, Oct. 26,
against a person not a party to the 1968).
action for contribution, indemnity,
subrogation or any other relief, in Section 12. Bringing new parties.
respect of his opponent’s claim.
Distinguished from 3rd-party complaint:
A 3rd-party complaint is proper when not
THIRD-PARTY COMPLAINT IN
one of the third-party defendants
COMPLAINT INTERVENTION
therein is a party to the main action. But
if one or more of the defendants in a
Brings into the Same counterclaim or cross-claim is already a
action a third party to the action, then the other
person who was not necessary parties may be brought in
originally a party. under this section.
RULE 7
Initiative is with the Initiative is with a
person already a non-party who seeks PARTS OF A PLEADING
party to the action. to join the action.
Section 3. Signature and address.
The signature of the counsel is a
TESTS to determine whether the third- certification that:
party complaint is in respect of 1. That he has read the pleading;
plaintiff’s claim: 2. There is good ground to support
1. Where it arises out of the same it; and
transaction on which the 3. It is not interposed for delay
plaintiff’s claim is based, or, Only the original copies must be signed.
although arising out of another UNSIGNED PLEADING may be stricken
or different transaction, is out as sham and false, and the action
connected with the plaintiff’s may proceed as though the pleading has
claim; not been served. It has no legal effect.
2. W h e t h e r t h e t h i r d - p a r t y
defendant would be liable to the Section 4. Verification.
plaintiff or to the defendant for
all or part of the plaintiff’s claim Pleadings need NOT be verified EXCEPT
against the original defendant; when otherwise provided by the law or
and rules.
3. W h e t h e r t h e t h i r d - p a r t y
defendant may assert any
defenses which the third-party

25
A verification must now be based on

personal knowledge or based on Pleadings should state ultimate facts
authentic records. essential to the right of action.
ULTIMATE FACTS: those which directly

form the bases of the right sought to be
enforced or the defense relied upon.
Section 5. Certification against forum If the ultimate facts are NOT alleged,
shopping. the cause of action would be
insufficient.
FORUM SHOPPING – the filing of a two
or more cases based on the same cause Section 4. Capacity.
of action in different courts for the
purpose of obtaining a favorable decision Capacity to sue and be sued
in either. either personally or in representative
capacity must be specifically averred by
Test to determine the presence of the party suing or being sued, and
forum-shopping: whether in the two (or specifically denied by the party
more) cases pending, there is identity of questioning such capacity.
(a) parties, (b) rights or causes of
action, and (c) reliefs sought. Capacity is challenged by
specific denial, motion to dismiss or bill
The certificate is to be executed by of particulars.
petitioner, and not by counsel.
Section 5. Fraud, mistake, condition of
Required ONLY for complaints or the condition
initiatory pleadings.
F A C T S T H AT M AY B E AV E R R E D
Certificate of non-forum shopping is not GENERALLY:
required in a compulsory counterclaim 1. Conditions precedent (BUT there
(UST Hosp. vs. Surla). must still be an allegation that
the specific condition precedent
EFFECT OF FAILURE TO COMPLY: has been complied with,
1. Not curable by amendment of otherwise, it will be dismissed
said pleading for failure to state a cause of
2. shall be cause for the dismissal action)
of the case, without prejudice, 2. Malice, intent, knowledge, or
unless otherwise provided, upon other condition of the mind
motion and after hearing 3. J u d g m e n t s o f d o m e s t i c o r
foreign courts, tribunals, boards,
EFFECT OF SUBMISSION OF FALSE or officers (no need to show
CERTIFICATION OR NON-COMPLIANCE jurisdiction)
WITH THE UNDERTAKINGS THEREIN: 4. Official document or act
1. indirect contempt
2. administrative and criminal FA C T S T H AT M U S T B E AV E R R E D
actions PARTICULARLY:
  1. Circumstances showing fraud or
EFFECT OF WILFULL AND DELIBERATE mistake in all averments of
FORUM SHOPPING: fraud or mistake
1. shall be ground for summary 2. Capacity
dismissal of the case with
prejudice; ACTIONABLE DOCUMENT – written
2. direct contempt. instrument upon which the action or
defense is based.
RULE 8
MANNER OF MAKING ALLEGATIONS IN A
PLEADING

26
6. w a n t o r i l l e g a l i t y o f
consideration; or
Two permissible ways of pleading an 7. estoppel
actionable document:
1. By setting forth the substance of BUT the following defenses are
such document in the pleading waived:
and attaching said document a. forgery in the signature;
thereto as an annex (contents of b. want of authority of an agent or
the document annexed are corporation;
controlling, in case of variance c. want of delivery; or
in the substance of the d. the party charged signed the
document set forth in the instrument in some other
pleading and in the document capacity
attached); or
2. By setting forth said document Section 10. Specific Denial
verbatim in the pleading.
THREE WAYS OF MAKING A SPECIFIC
Where the actionable document is DENIAL:
properly alleged, the failure to 1. By specifically denying each
specifically deny under oath the same material allegation of the other
results in: party and, whenever possible,
1. T h e a d m i s s i o n o f t h e setting forth the substance of
genuineness and due execution the matters relied upon for such
of said document, EXCEPT that denial;
an oath is not required: 2. Part admission or part denial;
a. When the adverse party was 3. By an allegation of lack of
not a party to the knowledge or information
instrument; and sufficient to form a belief as to
b. When an order for the the truth of the averment in the
inspection of the original opposing party’s pleading (must
document was not complied be made in good faith).
with.
2. The document need not be A denial must not be general. A general
formally offered in evidence. denial is regarded as an admission of the
facts stated in the complaint and
GENUINENESS entitles plaintiff to a judgment on the
That the document is not spurious, pleadings.
counterfeit, or of different import on its
face from the one executed by the party, NEGATIVE PREGNANT – a form of denial
or that the party whose signature it which at the same time involves an
bears has signed it and that at the time affirmative implication favorable to the
it was signed it was in words and figures opposing party; It is in effect, an
exactly as set out in the pleadings. admission of the averment to which it is
directed; It is said to be a denial
DUE EXECUTION pregnant with an admission of the
That the document was signed substantial facts in the pleading
voluntarily and knowingly by the party responded to.
whose signature appears thereon.  
Section 11. Allegation not specifically
Defenses that the opposing party may denied deemed admitted.
set up even after failure to deny under
oath: GENERAL RULE: Allegations NOT
1. Mistake; specifically denied deemed admitted
2. fraud; (such as allegations of usury in the
3. compromise; complaint, and the authenticity and due
4. payment; execution of actionable documents).
5. prescription; EXCEPTIONS:

27
1. Allegations as to the amount of NO default may be declared in the

unliquidated damages following actions:
2. Immaterial allegations; 1. Annulment of marriage
3. Incorrect conclusions of fact.   2. D e c l a r a t i o n o f n u l l i t y o f
marriage
RULE 9 3. Legal Separation
EFFECT OF FAILURE 4. Special civil actions of certiorari,
TO PLEAD prohibition and mandamus where
comment instead of an answer is
Section 1. Defenses and objections not required to be filed
pleaded.
GENERAL RULE: Defenses and objections The court cannot motu proprio declare a
that are not pleaded in a MOTION TO defendant in default. For defendant to
DISMISS or in the answer are deemed be declared in default, the plaintiff
waived. must:
EXCEPTIONS (not waived even if not 1. F i l e a M O T I O N t o d e c l a r e
raised): defendant in default
1. Lack of jurisdiction over the 2. Prove that summons have been
subject matter properly served on the
2. Litis pendentia defendant
3. Res judicata 3. Prove that the defendant really
4. Prescription of the action failed to answer within the
proper period.
These defenses may be raised at any
stage of the proceedings even for the CAUSES OF DEFAULT
first time on appeal EXCEPT that lack of 1. Failure to answer within the
jurisdiction over the subject matter may proper period
be barred by laches. (Tijam vs. 2. Non-compliance with the order
Sibonghanoy). of the court to file a bill of
particulars or in case of
The presence of these grounds insufficient compliance
authorizes the court to motu proprio therewith (Rule 12, Section 4)
dismiss the claims. These grounds must, 3. Refusal to comply with the
however, appear from the pleadings or modes of discovery (Rule 29,
the evidence on record. Section 3, par. c)
4. Failure to furnish plaintiff with a
Section 3. copy of the answer
DEFAULT – the failure of the defendant If the defendant was declared in default
to answer within the proper period. It is upon an original complaint, the filing of
not his failure to appear nor failure to the amended complaint resulted in the
present evidence. withdrawal of the original complaint,
hence, the defendant was entitled to
file answer to the amended complaint as
to which he was not in default.
ORDER OF JUDGMENT BY
DEFAULT DEFAULT EFFECT OF ORDER OF DEFAULT:
1. While the party in default
issued by the court, Rendered by the
on plaintiff’s motion court following a cannot take part in the trial, he
for failure of the default order or is nonetheless entitled to notice
defendant to file his after it received, ex of subsequent proceedings.
responsive pleading parte, plaintiff’s 2. He may still be called on as a
seasonably. evidence. witness, in behalf of the non-
defaulting defendants.
Interlocutory - not Final – appealable
appealable

28
DEFAULT PARTIAL DEFAULT:

1. The pleading asserting a claim
states a common cause of action
After the lapse against several defending parties
of time to file
2. some of the defending parties
an answer, the Motion denied: answer and the others fail to do
plaintiff may Defendant allowed so
move to declare to file an answer
the defendant in 3. the answer interposes a common
default defense
EFFECT OF PARTIAL DEFAULT: The court

will try the case against ALL defendants
Defendant upon the answer of some EXCEPT where
the defense is personal to the one who
Motion granted: answered, in which case, it will not
Court issues order of benefit those who did not answer.  
default and renders
 
judgment, or require
plaintiff to submit REMEDY FROM JUDGMENT BY DEFAULT
evidence ex parte. (FLOW CHART)
Judgment by default
Court
maintains
Before judgment by order of
default is rendered, Motion for new trial or reconsideration at any
defendant may: time after service of judgment by default
1. move to set
aside order of
default upon
showing:
a. FAME Failure to file motion for new trial/
b. He has a
meritorious
defense
2. Avail of Rule 65 in
Perfect appeal from said judgment by
default within the balance of said
Presentation of
plaintiff’s
Court sets aside evidence ex-
Failure to appeal without
order of default and
defendant is allowed
to file an answer
If If plaintiff
Petition for relief from judgment within 60
plaintiff proves fails to prove
days from notice of the judgment but
his allegations, his allega-
judgment by tions, case is
Case set for
Annulment of Judgment

29
Section 5. Amendment to conform to

EXTENT OF RELIEF TO BE AWARDED IN A or authorize presentation of evidence.
JUDGMENT BY DEFAULT:
Shall not exceed the amount OR be 1 ST PART: refers to amendment to
different in kind from that prayed for conform to evidence when issues NOT
NOR award unliquidated damages.   raised by the pleadings are tried with
the express or implied consent of the
  parties
RULE 10 - but failure to amend does NOT affect
AMENDED AND SUPPLEMENTAL the result of the trial of these issues
PLEADINGS
2ND PART: refers to amendment to
authorize presentation of evidence if
AMENDMENTS evidence is objected to at the trial on
Section 1. Amendments in general. the ground that it is not within the issues
made by the pleadings.
When the complaint is amended, 2
situations may arise: SUPPLEMENTAL PLEADINGS
1. If the complaint merely corrects A cause of action which accrued after
or modifies the original the filing of the original complaint may,
complaint, then the action is in the discretion of the court, be
deemed commenced upon the pleaded in a supplemental complaint if
filing of the original complaint; there was a valid subsisting cause of
2. I f t h e a m e n d e d c o m p l a i n t action at the time the original complaint
alleges a new cause of action, was filed.
then that cause of action is
deemed commenced upon the
filing of the amended AMENDED SUPPLEMENTAL
complaint. PLEADING PLEADING
Section 2. Amendments as a matter of

right. Refers to facts Refers to facts
existing at the time arising after the
Amendment for the first time is a matter of the filing of the original
commencement of pleading.
of right before a responsive pleading is the action.
filed, or in case of a Reply, within 10
days after it was served.
Take the place of Taken together with
Since a motion to dismiss is NOT a the original the original
responsive pleading, an amendment may pleading. pleading.
be had even if an order of dismissal has
been issued as long as the amendment is Can be made as a Always with leave of
made before order of dismissal becomes matter of right as court
final. when no responsive
pleading has yet
Section 3. Amendments by leave of been filed
court.
Instances when amendment by leave of Section 7. Filing of amended pleadings.

court may not be allowed:
1. When cause of action, defense The amended pleading supersedes the
or theory of the case is changed; original pleading.
2. Amendment is intended to
confer jurisdiction to the court; An amendment which merely
3. Amendment to cure a premature supplements and amplifies facts
or non-existing cause of action; originally alleged in the complaint
4. Amendment for purposes of relates back to the date of the
delay. commencement of the action and is not

30
barred by the statute of limitations 4. In case of a non-resident defendant

which expired after service of the on whom extraterritorial service of
original complaint. summons is made, the period to
EFFECT OF AMENDED PLEADING: answer should be at least 60 days.
1. Admissions in the superseded
pleading can still be received in The court may extend the time to file
evidence against the pleader; the pleadings BUT may NOT shorten
2. Claims or defenses alleged them.
therein but not incorporated or
reiterated in the amended The 15-day period begins to run from
pleading are deemed waived. receipt of summons.
The amended or superseded, original Section 3. Answer to amended
pleading is not expunged but remains on complaint.
the record although the admission of the 1. If the filing of an amended
amended pleading amounts to complaint is a matter of right -
withdrawal of the original pleading. within 15 days from service of
  the amended complaint.
RULE 11 2. If the filing of the amended
WHEN TO FILE RESPONSIVE PLEADINGS complaint is NOT a matter of
right – within 10 days counted
Answer to the complaint from notice of the court order
1. Within 15 days after service of admitting the same.
summons, UNLESS a different period
is fixed by the Court (Sec. 1) If no new answer is filed by the
defendant in case an amendment has
2. In case the defendant is a foreign been made after he had filed his answer,
private juridical entity: the original answer of the defendant
a. if it has a resident agent – may serve as the answer to the amended
within 15 days after service complaint, and hence, cannot be
of summons to him declared in default.
b. if it has no resident agent,
but it has an agent or officer Section 5. Answer to third (fourth,
in the Philippines – within 15 etc.)-party complaint.
days after service of The third-party defendant is served with
summons to said agent or summons just like the original
officer defendant, hence, he also has 15, 30, 60
c. if it has no resident agent days from service of summons, as the
nor agent nor officer – in case may be, to file his answer.
which case service of
summons is to be made on Section 7. Answer to supplemental
the proper government complaint.
office which will then send a Leave of court is required in filing, the
copy by registered mail to court may fix a different period for
the home office of the answering the supplemental complaint in
foreign private corporation – lieu of the reglementary 10-day period.  
within 30 days after receipt
of summons by the home Section 10. Omitted counterclaim or
office of the foreign private cross-claim.
entity. The pleader may set up a counterclaim
or cross-claim by amendment before
3. In case of service of summons by judgment when he fails to set it up by
publication – within the time reason of oversight, inadvertence, or
specified in the order granting leave excusable neglect ort when justice
to serve summons by publication, requires. Leave of court is necessary.
which shall NOT be less than 60 days
after notice (Rule 14, Sec.15).


31
RULE 12
BILL OF PARTICULARS 2. If plaintiff, his compliant will be
stricken off and dismissed (Rule
BILL OF PARTICULARS- a more definite 12, sec. 4; Rule 17, sec. 3)
statement of any matter which appears
vague or obscure in a pleading. 3. If defendant, his answer will be
stricken off and his counterclaim
PURPOSE: to aid in the preparation of a dismissed, and he will be
responsive pleading. declared in default upon motion
of the plaintiff (Rule 12, sec. 4;
Motion for bill of particulars must be Rule 17, sec. 4; Rule 9, sec. 3).
filed within the reglementary period for
the filing of a responsive pleading. The
filing of a motion if sufficient in form RULE 13
and substance, will interrupt the time to FILING AND SERVICE OF PLEADINGS,
plead. JUDGMENTS AND OTHER PAPERS
The motion for bill of particulars may be Notice given to a party who is duly
granted in whole or in part as not all the represented by counsel is a nullity,
allegations questioned by the movant unless service thereof on the party
are necessarily ambiguous as to require himself was ordered by the court or the
clarification. technical defect was waived.
A bill of particulars may be filed either

in a separate or an amended pleading. Section 3. Manner of filing.
A bill of particulars becomes part of the 1. Personally
pleading which it supplements. 2. by registered mail
EFFECTS OF MOTION Filing by mail should be through the

1. If the motion is granted, the registry service which is made by deposit
movant can wait until the bill of of the pleading in the post office, and
particulars is served on him by not through other means of
the opposing party and then he transmission.
will have the balance of the
reglementary period within If registry service is not available in the
which to file his responsive locality of either sender or addressee,
pleading. service may be done by ordinary mail.
2. If his motion is denied, he will If a private carrier is availed of by the

still have such balance of the party, the date of actual receipt by the
reglementary period to do so, court of such pleading and not the date
counted from service of the of delivery to the carrier, is deemed to
order denying his motion. In be the date of the filing of that
either case, he will have at least pleading.
5 days to file his responsive
pleading. NOTE: PERSONAL and SUBSTITUTED
service as applied to pleadings have a
Effect of non-compliance: different meaning compared to summons
1. If the Order is not obeyed or in under Rule 14.
case of insufficient compliance
therewith, the court: MODES OF SERVICE
a. may order the striking PLEADINGS
out of the pleading or 1. PERSONAL SERVICE
the portion thereof to a. Delivering personally a copy to
which the order is the party or his counsel or;
directed; or b. Leaving a copy in counsel’s
b. make such order as it office with his clerk or with a
may deem just. person having charge thereof or;

32
c. Leaving the copy between 8 a.m. postmaster, whichever date is

and 6 p.m. at the party’s or earlier.
counsel’s residence, if known,
with a person of sufficient age Section 12. Proof of filing.
and discretion residing therein--- Filing is proved by its existence in the
if no person found in his office, record of the case.
or if his office is unknown, or if
he has no office. If it is not in the record, and:
"If filed personally: proved by the
2. SERVICE BY MAIL written or stamped acknowledgment of
If no registry service is available in the its filing by the clerk of court on a copy
locality, of either sender or addressee, of the same; or
service may be done by ordinary mail.
" If filed by registered mail: proved by -
3. SUBSTITUTED SERVICE the registry receipt and the affidavit of
Delivering the copy to the clerk of court the person who did the mailing.
with proof of failure of both personal
and service by mail. Section 13. Proof of service
1. Proof of personal service:
JUDGMENTS, FINAL ORDERS, a. Written admission of the party
RESOLUTIONS (Sec.9) served; or
1. By personal service; or b. Official return of the server; or
2. By registered mail; c. Affidavit of the party serving.
3. By publication, if party is
summoned by publication and 2. Proof of service by ordinary mail:
has failed to appear in the Affidavit of the person mailing;
action.

They can be served only under the three 3. Proof of service by registered mail:
modes. a. Affidavit, and
b. Registry receipt issued by the
They CANNOT be served by substituted mailing office.
service.
Section 14. Notice of lis pendens.
NOTE: A resort to modes other than by
personal service must be accompanied LIS PENDENS - a notice of a pendency of
by a written explanation why the service the action between the parties involving
or filing was not done personally (Sec. title to or right of possession over real
11). property.
Section 10. Completeness of service. It serves as a warning to all persons,

prospective purchasers or
1. Personal service encumbrancers of the property in
a. by handling a copy to defendant; litigation to keep their hands off the
or property in litigation unless they are
b. tendering him copy if he refuses; prepared to gamble on the result of the
c. complete upon actual delivery proceedings.
2. Service by ordinary mail: The defendant may also record a notice

Complete upon expiration of 10 of lis pendens when he claims an
days after mailing, unless the affirmative relief in his answer.
court provides otherwise.
Notice of lis pendens CANNOT be
3. Service by registered mail: cancelled on an ex parte motion or upon
a. Complete upon actual receipt by the mere filing of a bond by the party on
the addressee; or whose title the notice is annotated, as
b. After 5 days from the date he section 14 provides that such
received the 1st notice of the cancellation may be authorized ONLY

33
upon order of court, after proper and when issued, supersedes the first
showing that: (Section 5).
1. The notice is for the purpose of
molesting the adverse party; or KINDS OF SERVICE OF SUMMONS:
2. It is not necessary to protect the 1. personal service
rights of the party who caused it 2. substituted service
to be recorded. 3. by publication
 
RULE 14 In actions in personam where the
SUMMONS defendant cannot be served with
summons personally or by substituted
PURPOSE OF SUMMONS: service, the case must first be converted
1. to acquire jurisdiction over the into an in rem or quasi in rem action by
person of the defendant, and; attaching the property of the defendant
2. to give notice to the defendant found in the Philippines before summons
that an action has been can be served by publication. If no
commenced against him. property can be found, the action shall
be archived but shall not be dismissed.
EFFECT OF NON-SERVICE: Unless there (Citizens Surety vs. Court Appeals)
is waiver, non-service or irregular service
renders null and void all subsequent SERVICE OF SUMMONS ON DIFFERENT
proceedings and issuances in the action ENTITIES
from the order of default up to and
including the judgment by default and Service on entity Upon any or all
the order of execution. w/o juridical defendants being sued
personality under common name; or
Where the defendant has already been person in charge of
served with summons on the original office
complaint, no further summons is
required on the amended complaint if it
Service upon In case of minors: by
does not introduce new causes of action. minors and serving upon the minor,
incompetents regardless of age, AND
But where the defendant was declared in upon his legal guardian,
default on the original complaint and the or also upon either of
plaintiff subsequently filed an amended his parents.
complaint, new summons must be served In case of
on the defendant on the amended incompetents: by
complaint, as the original complaint was serving on him
deemed withdrawn upon such personally AND upon his
amendment. legal guardian, but not
upon his parents, unless
when they are his legal
guardians
IN ANY EVENT, if the
Section 3. By whom served. minor or incompetent
Summons may be served by: has no legal guardian,
1. Sheriff the
2. Sheriff’s deputy, or
3. Other proper court officers, or plaintiff must obtain
4. For justifiable reasons, by any the appointment of a
suitable person authorized by guardian ad litem for
him.
the court issuing the summons.
Enumeration is EXCLUSIVE. Service upon Serve on officer having

prisoner management of the jail
ALIAS SUMMONS – issued when original or prison
has not produced its effect because it is
defective in form or manner of service,

34
& demands a relief

Service upon To the president, which consists
domestic private managing partner, wholly or in part
juridical entity general manager, in excluding the
ENTITY corporate secretary, defendant from
treasurer, or in-house any interest in
counsel. any property
NOTE: Service upon a within the Phil;
person other than those or
mentioned is invalid and & property of
does not bind the defendant has
corporation. The been attached in
enumeration is the Phil.
EXCLUSIVE.
Mode of service
a. with leave of court
Service upon Serve on resident served outside the
foreign private agent ; or if none; on Phil. By personal
juridical entity gov’t official designated service; or
by law; or b.with leave of court
on any officer or agent serve by
of the corporation publication in a
within the Philippines. newspaper of
general
circulation, in
Service upon in case defendant is the which case copy of
public Republic of the the summons and
corporations Philippines - by serving order of court
upon the Solicitor must also be sent
General by registered mail
in case of a province, to the last known
city or municipality, or address of
like public corporations defendant; or
– by serving on its c. any other manner
executive head, or on the court deem
such other officer or sufficient.
officers as the law or
the court may direct.
Service upon a Substituted service or
resident with leave of court,
Extraterritorial Requisites temporarily out personal service out of
service a. defendant does of the Phil. the Phil. as under
not reside or is extraterritorial service
not found
within the Phil.
b. he action Service upon an With leave of court, by
either: unknown publication in a
& affects the defendant or newspaper of general
personal status whose circulatiuon
of plaintiff; whereabouts are
& relates to or the unknown
subject of which
is property  
within the Section 20. Voluntary appearance.
Philippines in
which defendant
Any form of appearance in court, by the
has a lien or
interest; defendant, by his agent authorized to do
so, or by attorney, is equivalent to
service of summons EXCEPT where such
appearance is precisely to object to the
jurisdiction of the court over the person
of the defendant.

35
Inclusion in a motion to dismiss of other notice or jointly submitted by

grounds aside from lack of jurisdiction the parties, and
over the person of the defendant shall 4. Motions for summary judgment
NOT be deemed a voluntary which must be served at least 10
appearance. days before its hearing
5. Non-litigated motions.
RULE 15
MOTIONS Section 5. Notice of hearing.
NOTICE OF HEARING shall:
1. Be addressed to all parties
MOTION – is an application for relief concerned
other than by a pleading. 2. Specify the time and date of the
hearing which must not be later
GENERAL RULE: Motions must be in than 10 days after the filing of
writing. the motion
EXCEPTION: Those made in open court
or in the course of hearing or trial. NOTE: Any motion that does not comply
with Sections 4, 5 and 6 of this Rule is a
KINDS OF MOTIONS mere scrap of paper, should not be
accepted for filing and, if filed, is not
a. motion EX PARTE- made without the entitled to judicial cognizance and does
presence or a notification to the not affect any reglementary period
other party because the question involved for the filing of the requisite
generally presented is not pleading.
debatable.
Omnibus Motion Rule - All available
b. motion OF COURSE – where the grounds for objection in attacking a
movant is entitled to the relief or pleading, order, judgment, or proceeding
remedy sought as a matter of sh ou ld be in vok e d a t on e t ime ,
discretion on the part of the court. otherwise, they shall be deemed
waived.
c. LITIGATED motion – one made with
notice to the adverse party to give Motion for leave to file a pleading or
an opportunity to oppose. motion shall be accompanied by the
pleading or motion sought to be
d. SPECIAL motion- motion addressed admitted, otherwise, the latter will be
to the discretion of the court. denied.

GENERAL RULE: A motion cannot pray RULE 16
for judgment. MOTION TO DISMISS
EXCEPTIONS:
1. Motion for judgment on the A Motion to Dismiss is NOT a responsive
pleadings pleading.
2. Motion for summary judgment
3. M o t i o n f o r j u d g m e n t o n Section 1. Grounds.
demurrer to evidence. 1. No jurisdiction over the person
of the defending party
Section 4. Hearing on motion. 2. No jurisdiction over the subject
3-DAY NOTICE RULE matter of the claim
GENERAL RULE: Service of the copy of 3. Improper venue
motions should be made in such a 4. No legal capacity to sue
manner as shall ensure its receipt at 5. Litis pendentia
least 3 days before the hearing. 6. Res judicata
EXCEPTIONS: 7. Prescription
1. Ex parte motions 8. States no cause of action
2. Urgent motions
3. Motions agreed upon by the
parties to be heard on shorter

36
9. Claim or demand has been paid, An action cannot be dismissed on a

waived, abandoned, or ground not alleged in the motion even if
otherwise extinguished said ground is provided for in Rule 16.
10. Claim is unenforceable under the
Statute of Frauds EXCEPT:
11. Non-compliance with a condition 1. Those cases where the court may
precedent for filing claim   dismiss a case motu proprio
(Sec. 1, Rule 9)
2. Such ground appears in the
MOTION TO MOTION TO
allegations of the complaint or in
DISMISS UNDER DISMISS UNDER plaintiff’s evidence
RULE 16 RULE 33
REQUISITES OF LITIS PENDENTIA
(demurrer to
1. Parties to the action are the
evidence) same
2. There is substantial identity in
Grounded on based on the cause of action and relief
preliminary insufficiency of sought
objections. evidence. 3. The result of the first action is
determinative of the second in
any event and regardless of
may be filed by any May be filed only by which party is successful
defending party the defendant
against whom a against the Motion to dismiss may be filed in either
claim is asserted in complaint of the
suit, not necessarily in the one instituted
the action. plaintiff.
first.
should be filed May be filed only REQUISITES OF RES JUDICATA

within the time for after the plaintiff 1. Previous final judgment
but prior to the has completed the 2. Jurisdiction over the subject
filing of the answer presentation of his matter and the parties by the
of the defending evidence. court rendering it
party to the
3. Judgment upon the merits
pleading asserting
the claim against 4. In a case prosecuted between
him. same parties
5. Involving the same subject
matter
If denied, defendant If denied, defendant 6. Same cause of action
answers, or else he may present
may be declared in evidence   There could be res judicata without a
default if granted, plaintiff trial, such as in a judgment on the
If granted, plaintiff appeals and the
p l e a d i n g s ( Ru l e 3 4 ) ; a s u m m a r y
may appeal or if Order of the
subsequent case is dismissal is judgment (Rule 35); or an order of
not barred, he may reversed, the dismissal under Section 3 of Rule 17.
re-file the case defendant loses his
right to present When the ground for dismissal is that the
evidence. complaint states no cause of action,
such fact can be determined only from
the facts alleged in the complaint.
Effect of motion to dismiss: A motion to
dismiss hypothetically admits the truth Where the plaintiff has not exhausted
of the facts alleged in the complaint. all administrative remedies, the
complaint not having alleged the fact of
However, such admission is limited only such exhaustion, the same may be
to all material and relevant facts which dismissed for failure to state a cause of
are well pleaded in the complaint. action.

37
N o n - c o m p l i a n c e w i t h P. D . 1 5 0 8 pleading challenged by the motion, in

(Katarungang Pambarangay Law) may which case, the balance of the period to
result to dismissal of the case on the answer runs from his receipt of the
ground of non-compliance with a amended pleading.
condition precedent.
An action cannot be dismissed on the

ground that the complaint is vague or Section 5. Effect of dismissal
indefinite. The remedy of the defendant GENERAL RULE: The action or claim may
is to move for a bill of particulars or be refiled.
avail of the proper mode of discovery. EXCEPTION: The action cannot be
refiled if it was dismissed on any of
GENERAL TYPES OF A MOTION TO these grounds:
DISMISS 1. Res judicata;
1. motion to dismiss before answer 2. Prescription;
under Rule 16 3. Extinguishment of the claim
2. motion to dismiss under Rule 17 or demand;
a. upon notice by plaintiff 4. Unenforceability under the
b. upon motion of plaintiff Statute of Frauds.
c. due to fault of plaintiff
3. motion to dismiss on demurrer to Section 6. Pleading grounds as
evidence after plaintiff has rested affirmative defenses.
his case under Rule 33 If no motion to dismiss had been filed,
4. motion to dismiss the appeal filed any of the grounds for dismissal provided
either in the lower court (Rule for in Rule 16, INCLUDING IMPROPER
41,Sec. 13) or in the appellate VENUE, may be pleaded as affirmative
court (Rule 50, Sec.1 ). defenses and preliminarily heard in the
discretion of the court.
EFFECTS OF REMEDY
Dismissal under this section – WITHOUT
ACTION ON MTD prejudice to the prosecution in the same
or separate action of a COUNTERCLAIM
Order granting Appeal from the
pleaded in the answer
motion to dismiss is order of dismissal
final order
RULE 17
Order denying the Certiorari and DISMISSAL OF ACTIONS
motion to dismiss is prohibition if there
interlocutory is grave abuse of Section 1. Dismissal upon notice by
discretion plaintiff.
amounting to lack
or excess of
Dismissal is effected not by motion but
jurisdiction under
Rule 65 by mere NOTICE of dismissal which is a
matter of right BEFORE the defendant
has answered or moved for a summary
judgment.
Section 4. Time to plead.
But notice of dismissal requires an order
Defendant is granted only the balance of of the court confirming the dismissal.
the reglementary period to which he was Such dismissal is WITHOUT PREJUDICE,
entitled at the time he filed his motion EXCEPT:
to dismiss, counted from his receipt of 1. Where the notice of dismissal so
the denial order, but not less than 5 days provides;
in any event. 2. Where the plaintiff has previously
dismissed the same case in a
The same rule of granting only the court of competent jurisdiction
balance of the period is followed where (TWO-DISMISSAL RULE);
the court, instead of denying the motion 3. Even where the notice of dismissal
to dismiss, orders the amendment of the does not provide that it is with

38
prejudice but it is premised on 1. Plaintiff fails to appear for no

the fact of payment by the justifiable cause on the date of
defendant of the claim the presentation of his evidence
involved. in chief on the complaint
2. Plaintiff fails to prosecute his
Section 2. Dismissal upon motion of action for an unreasonable
plaintiff. length of time (NOLLE
PROSEQUI)
Where the plaintiff moves for the 3. Plaintiff fails to comply with
dismissal of his complaint to which a these Rules or any order of the
counterclaim has been interposed, the court. Unjustifiable inaction on
dismissal shall be limited to the the part of plaintiff to have the
complaint. case set for trial is a ground for
dismissal for failure to
Such dismissal shall be without prejudice prosecute.
to the right of the defendant to either:
1. Prosecute his counterclaim in a Complaint may be dismissed
separate action, 1. Upon motion of the defendant,
or
In this case, the court should 2. Upon court’s own motion.
render the corresponding order
granting and reserving his right Dismissal shall have the effect of an
to prosecute his claim in a ADJUDICATION UPON THE MERITS
separate complaint. (WITH PREJUDICE), unless otherwise
declared by the court.
-OR-

2. To have the same resolved in the SECTION 2 SECTION 3
same action.
In such case, defendant must Dismissal is at the Dismissal is not

manifest such preference to the instance of the procured by plaintiff
trial court within 15 days from plaintiff; though justified by
notice to him of plaintiff’s causes imputable to
motion to dismiss. him;
These alternative remedies of the Dismissal is a matter Dismissal is a matter

defendant are available to him of procedure, of evidence, an
REGARDLESS OF WHETHER HIS without prejudice adjudication on the
COUNTERCLAIM IS COMPULSORY OR unless otherwise merits;
PERMISSIVE. stated in the order
of the court or on
Dismissal under this rule is WITHOUT plaintiff’s motion to
PREJUDICE, EXCEPT: dismiss his own
1. When otherwise stated in the complaint;
motion to dismiss;
2. W h e n s t a t e d t o b e w i t h
prejudice in the order of the
court.
The approval of the court is necessary in

the dismissal or compromise of a class
suit.
Section 3. Dismissal due to fault of

plaintiff.
CAUSES FOR DISMISSAL

39
Dismissal is without Dismissal is without

prejudice to the prejudice to the EFFECT OF NON-APPEARANCE OF
right of the right of the PLAINTIFF:
defendant to defendant to Cause for dismissal of the action, with
prosecute his prosecute his prejudice, unless otherwise ordered by
counterclaim in a counterclaim on the the court.
separate action same or separate
unless w/in 15 days action. EFFECT OF NON-APPEARANCE OF
from notice of the
DEFENDANT:
motion he manifests
his intention to have Cause to allow the plaintiff to present
his counterclaim evidence ex parte and the court to
resolved in the same render judgment on the basis thereof.
action
Pre-trial brief. It is the mandatory duty
of the parties to seasonably file their
pre-trial briefs under the conditions and
with the sanctions provided therein.
Failure to file pre-trial brief has the

RULE 18 same effect as failure to appear at the
PRE-TRIAL pre-trial.
PRE-TRIAL- a mandatory conference and Record of pre-trial. The contents of the
personal confrontation before the judge PRE-TRIAL order shall control the
between the parties and their respective subsequent course of the action, UNLESS
counsel. modified before trial to prevent
manifest injustice.
The plaintiff must promptly move ex
parte that the case be set for pre-trial , A party is deemed to have waived the
and this he must do upon the service and delimitations in a pre-trial order if he
filing of the last pleading. failed to object to the introduction of
evidence on an issue outside of the pre-
The pre-trial and trial on the merits of trial order, as well as in cross-examining
the case must be held on separate the witness in regard to said evidence.
dates.
FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT
When non-appearance of a party may PAGE.
be excused (Sec.4):
1. I f a v a l i d c a u s e i s s h o w n
therefore
2. If a representative shall appear
in his behalf fully authorized in
writing to:
a. Enter into an amicable
settlement
b. Submit to alternative modes
of dispute resolution
c. Enter into stipulations or
admissions of facts and of
documents
A special authority for an attorney to

compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the
Civil Code, a special power of attorney
is required.

40
PRE-TRIAL
No Amicable Failure to Appear

Settlement Settlement
Agreements made
by parties; If plaintiff If
Amendments to is defendant
pleading; Absent, when is absent,
Schedule of trial so required to court may hear
attend, the evidence of
court may plaintiff ex
dismiss the parte
TRIAL
If evidence is insufficient to
prove plaintiff’s cause of
Court action or defendant’s
renders counterclaim, court rules in
favor of either one or
dismisses the case
FACTORS TO BE CONSIDERED BY THE

COURT
1. Whether or not the intervention
will unduly delay or prejudice
the adjudication of the rights of
the original parties;
RULE 19
INTERVENTION
WHO may intervene?

2. Whether or not the intervenor’s
1. One who has legal interest in the rights may be fully protected in
matter in litigation a separate proceeding.
2. One who has legal interest in the
success of either of the parties, The interest which entitles a person to
3. One who has an interest against intervene in a suit must be on the
both parties matter in litigation and of such direct
4. One who is so situated as to be and immediate character that the
adversely affected by a intervenor will either gain or lose by the
distribution or other disposition direct legal operation and effect of the
of property in the custody of the judgment.
court or of an officer thereof.

41
INTERVENTION INTERPLEADER RULE 21

SUBPOENA
An ancillary action. An original action.

SUBPOENA SUMMONS
an order to appear Order to answer
Proper in any of the Presupposes that
and testify or to complaint
four situations the plaintiff has no
produce books and
mentioned in this interest in the
documents
Rule. subject matter of
the action or has an may be served to a Served on the
interest therein, non-party defendant
which in whole or in
part, is not disputed needs tender of does not need
by the other parties kilometrage, tender of
to the action. attendance fee and kilometrage and
reasonable cost of other fees
production fee
Defendants are Defendants are
already original being sued precisely SUBPOENA AD TESTIFICANDUM – a
parties to the to implead them process directed to a person requiring
pending suit him to attend and to testify at the
hearing or the trial of an action, or at
any investigation conducted by
Section 2. Time to intervene. competent authority, or for the taking of
At any time before rendition of his deposition.
judgment by the trial court.
SUBPOENA DUCES TECUM – a process
JUSTIFICATION: Before judgment is directed to a person requiring him to
rendered, the court, for good cause bring with him books, documents, or
shown, may still allow the introduction other things under his control.
of additional evidence and that is still
within the liberal interpretation of the Section 2. By whom issued
period for trial. WHO may issue
1. Court before whom the witness
Since no judgment has yet been is required to attend
rendered, the matter subject of the 2. Court of the place where the
intervention may still be readily resolved deposition is to be taken
and integrated in the judgment disposing 3. Officer or body authorized by
of all claims in the case. law to do so in connection with
investigations conducted by said
REMEDIES FOR THE DENIAL OF officer or body
INTERVENTION: 4. Any Justice of the SC or of the
1. APPEAL CA in any case or investigation
2. MANDAMUS if there is grave pending within the Philippines.
abuse of discretion
If there is improper granting of SUBPOENA TO A PRISONER – must be for a
intervention, the remedy of the party is valid purpose; if prisoner required to
appear in court is sentenced to death,
certiorari.
reclusion perpetua or life imprisonment
and is confined in prison – must be
authorized by the SC.
Section 4. QUASHING A SUBPOENA.

A. Subpoena DUCES TECUM may be
quashed upon proof that:
1. I t i s u n r e a s o n a b l e a n d
oppressive;

42
2. Th e a r t i c le s sou gh t t o b e knowledge of the issues and evidence

produced do not appear prima long before the trial to prevent such
facie to be relevant to the trial from being carried on in the dark.
issues;
3. The person asking for the Modes of discovery under the Rules of
subpoena does not advance the Court
cost for the production of the 1. Depositions pending action (Rule
articles desired. 23).
2. Depositions before action or
B. Subpoena AD TESTIFICANDUM may be pending appeal (Rule 24).
quashed if the witness is not bound 3. Interrogatories to parties (Rule
thereby. 25).
4. Admission by adverse party (Rule
In EITHER case, the subpoena may be 26).
quashed for failure to tender the witness 5. Production or inspection of
fees and kilometrage allowed by the documents, or things (Rule 27).
Rules. 6. Physical and mental examination
of persons (Rule 28).
GENERAL RULE
a. The court which issued the Discovery before answer.
subpoena may issue a warrant It is only in the exceptional or unusual
for the arrest of the witness and case that the need for discovery arises,
make him pay the cost of such or that it should be allowed before
warrant and seizure, if the court service of answer.
should determine that his
disobedience was willful and Modes of Discovery are intended to be
without just cause (Sec. 8); CUMULATIVE, and not alternative nor
mutually exclusive.
b. The refusal to obey a subpoena
without adequate cause shall be Discovery is NOT MANDATORY but failure
deemed a contempt of the court to avail carries sanctions in Rules 25 and
issuing it (Sec.9). 26.
Exceptions:
Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec. RULE 23
9) does not apply where: DEPOSITIONS PENDING ACTION
a. Witness resides more than 100 DEPOSITION – is a written testimony of a
km from his residence to the witness given in the course of a judicial
place where he is to testify by proceeding in advance of the trial or
the ordinary course of travel, hearing upon oral examination or in
g e n e r a l l y, b y o v e r l a n d response to written interrogatories and
transportation (VIATORY RIGHT). where an opportunity is given for cross-
examination.
b. Permission of the court in which
the detention prisoner’s case is Depositions are intended as a means to
pending was not obtained. compel disclosure of facts resting in the
knowledge of a party or other person,
RULES OF DISCOVERY which are relevant in a suit/proceeding.
DISCOVERY - is the procedure by which
one party in an action is enabled to CLASSIFICATIONS OF DEPOSITIONS
obtain before trial knowledge of 1. D e p o s i t i o n s o n O R A L
relevant facts and of material evidence EXAMINATION and Depositions
in the possession of the adverse party or upon WRITTEN INTERROGATORIES
of a witness. 2. Depositions DE BENE ESSE -
those taken for purposes of a
Rationale of discovery: to enable the pending action (Rule 23) ; and
parties to obtain the fullest possible

43
3. Depositions IN PERPETUAM REI

MEMORIAM - those taken to Witness, whether By any party for any
perpetuate evidence for or not a party purpose if the court
purposes of anticipated action, finds the 5 instances
or in the event of further occurring
proceedings in a case on appeal,
and to preserve it against danger
of loss (Rule 24). SCOPE OF INQUIRY IN DEPOSITIONS:
1. Matter which is relevant to the
WHEN TAKEN subject of the pending action;
WITH LEAVE OF COURT 2. Not privileged
1. after jurisdiction has been 3. Not restricted by a protective
obtained over any defendant or order
over the property which is the
subject of the action and Certiorari will not lie against an order
BEFORE answer. admitting or rejecting a deposition in
2. Deposition of a person confined evidence, the remedy being an appeal
in prison. from the final judgment.
Section 7. Effect of taking depositions.

WITHOUT LEAVE OF COURT
AFTER answer AND deponent is not A party shall not be deemed to make a
confined in prison. person his own witness for any purpose
by taking his deposition because
Section 4. Use of depositions. depositions are taken for discovery and
Where the witness is available to testify not for use as evidence.
and the situation is not one of those
excepted under Sec. 4, his deposition is Exception: If a party offers the
inadmissible in evidence and he should deposition in evidence, then he is
be made to testify. deemed to have made the deponent his
witness (Sec.8)
It can be used as evidence by a party for
any purpose under the specific Exception to the Exception: Unless the
conditions in Sec. 4. deposition is that of any adverse party,
and unless, of course, the deposition is
  used for impeaching or contradicting the
DEPONENT USE deponent (Sec.8).
Section 10 and 11. Persons before

Any person By any party for whom depositions may be taken.
contradicting or
impeaching the
testimony of WITHIN THE PHILIPPINES:
deponent as witness 1. judge
2. notary public
3. a n y p e r s o n a u t h o r i z e d t o
A party or any one By an adverse party administer oaths, as stipulated
who at the time of for any purpose by the parties in writing
the deposition was
an OFFICER, OUTSIDE THE PHILIPPINES:
DIRECTOR, or
1. on notice, before a secretary of
MANAGING AGENT
of a public or embassy or legation, consul
private corp., general, consul, vice-consul, or
partnership, or consular agent of the Phil.
association which 2. before such person or officer as
is a party may be appointed by commission
or letters rogatory

44
3. a n y p e r s o n a u t h o r i z e d t o Depositions under this Rule do not prove

administer oaths, as stipulated the existence of any right and the
by the parties in writing   testimony perpetuated is not in itself
conclusive proof, either of the existence
Section 12. Commission or letters of any right nor even of the facts to
rogatory. which they relate, as it can be
controverted at the trial in the same
manner as though no perpetuation of
COMMISSION LETTERS
testimony was ever had. However, in the
ROGATORY absence of any objection to its taking,
and even if the deponent did not testify
Issued to a non- Issued to the
at the hearing, the perpetuated
judicial foreign appropriate judicial
officer who will officer of the foreign testimony constitutes prima facie proof
directly take the country who will of facts referred to in the deposition.  
testimony direct somebody in  
said foreign country Section 6. Use of deposition.
to take down
testimony If deposition is taken under this Rule, it
may be used in any action involving the
Applicable rules of Applicable rules of
SAME SUBJECT MATTER subsequently
procedure are procedure are those
those of the of the foreign court brought.
requesting court requested to act
Section 7. Depositions pending appeal.
Resorted to if Resorted to if the Sec. 7 is the procedure in perpetuating
permission of the execution of the testimony AFTER JUDGMENT IN THE RTC
foreign country is commission is and DURING THE PENDENCY OF AN
given refused in the APPEAL.
foreign country
Leave of court is Leave of court is

not necessary necessary
RULE 25
Section 18. Motion to terminate or INTERROGATORIES TO PARTIES
limit examination.
PURPOSE of Written Interrogatories: to
MAY BE FILED: elicit facts from any adverse party
1. any time during the taking of the (answers may also be used as admissions
deposition of the adverse party)
2. on motion or petition of any
party or of the deponent; or Written interrogatories and the answers
3. u p o n s h o w i n g t h a t t h e thereto must both be FILED and SERVED.
examination is conducted in :
a. bad faith
b. i n s u c h m a n n e r a s Interrogatories Bill of Particulars
unreasonably to annoy, A party may A party may
embarrass, or oppress properly seek properly seek
the deponent or party disclosure of disclosure only of
matters of proof matters which
which may later be define the issues
RULE 24 made a part of the and become a part
DEPOSITIONS BEFORE ACTION OR records as evidence. of the pleadings.
PENDING APPEAL
A party may serve written
Depositions under this Rule are also interrogatories:
taken conditionally, to be used at the 1. WITHOUT LEAVE OF COURT –
trial only in case the deponent is not after answer has been served,
available. for the first set of
interrogatories.

45
2. WITH LEAVE OF COURT – before Depositions Upon Interrogatories to

answer has been served Written Parties under
(REASON: at that time, the Interrogatories to Rule 25
issues are not yet joined and the Parties under
disputed facts are not yet clear, Rule 23 Sec. 25
when more than one set of
interrogatories is to be served.) As to Deponent As to Deponent
Party or ordinary party only
A judgment by default may be rendered witness
against a party who fails to answer
written interrogatories As to Procedure As to Procedure
With intervention of no intervention.
the officer Written
Only one set of interrogatories by the authorized by the interrogatories are
same party is allowed. Leave of court is Court to take directed to the
necessary for succeeding sets of deposition party himself
interrogatories.
As to Scope As to Scope
Section 6. Effect of failure to serve Direct, cross, only one set of
written interrogatories. redirect, re-cross interrogatories
Rule 25 and Rule 26 are directed to the Interrogatories Interrogatories

party who fails and refuses to RESORT to no fixed time 15 days to answer
the discovery procedures, and should not unless extended or
be confused with the provisions of Rule reduced by the
29 which provides for sanctions or other court
consequences upon a party who refuses
or fails to COMPLY with discovery
procedures duly availed of by opponent.
RULE 26
ADMISSION BY ADVERSE PARTY
The justification for this provision is that Section 1. Request for admission.
the party in need of relevant facts
having foregone the opportunity to PURPOSE OF written request for
inquire into the same from the other admission is to expedite trial and relieve
party through means available to him, he the parties of the costs of proving facts
should not thereafter be permitted to which will not be disputed on trial and
unduly burden the latter with courtroom the truth of which can be ascertained by
appearances or other cumbersome reasonable inquiry.
processes.
When request may be made: at any time
Unless a party had been served written after the issues have been joined.
interrogatories, he may not be
compelled by the adverse party: What request may include
1. to give testimony in open court, 1. Admission of the genuineness of
or any material and relevant
2. g i v e a d e p o s i t i o n p e n d i n g document described in and
appeal. exhibited with the request.
2. Admission of the truth of any
The only exception is when the court material and relevant matter of
allows it for GOOD CAUSE shown and to fact set forth in the request.
prevent a failure of justice. 3. Under this rule, a matter of fact
not related to any documents
may be presented to the other
party for admission or denial.

46
The order under this may be issued upon

Section 2. Implied Admission. Rule is issued only an ex parte
The effect of a FAILURE to make a reply upon motion with application.
to a request for admission is that each of notice to the
the matters of which an admission is adverse party
requested is deemed admitted.
A sworn statement either denying

specifically each matter or setting forth RULE 28
in detail the reasons why he cannot PHYSICAL AND MENTAL EXAMINATION
truthfully admit or deny those matters OF PERSONS
must be filed and served upon the party
requesting the admission.
The mental condition of a party is in
Section 3. Effect of admission. controversy in proceedings for
USE: An admission under this section is GUARDIANSHIP over an imbecile or
for the purpose of the pending action insane person, while the physical
only and cannot be used in other condition of the party is generally
proceedings. involved in PHYSICAL INJURIES cases.
The party who fails or refuses to request Since the results of the examination are
the admission of facts in question is intended to be made public, the same
prevented from thereafter presenting are not covered by the physician-patient
evidence thereon UNLESS otherwise privilege.
allowed by the court (Sec.5).  
Section 4. Waiver of privilege.
RULE 27 Where the party examined requests and

PRODUCTION OR INSPECTION OF obtains a report on the results of the
DOCUMENTS OR THINGS examination the consequences are:
1. he has to furnish the other party
Production of documents affords more a copy of the report of any
opportunity for discovery than a previous or subsequent
subpoena duces tecum because in the examination of the same
latter, the documents are brought to the physical and mental condition,
court for the first time on the date of AND
the scheduled trial wherein such 2. he waives any privilege he may
documents are required to be produced. have in that action or any other
The TEST to be applied in determining involving the same controversy
the relevancy of the document and the regarding the testimony of any
sufficiency of their description is one of other person who has so
reasonableness and practicality. examined him or may thereafter
examine him.
PRODUCTION OR SUBPOENA DUCES
INSPECTION OF TECUM RULE 29
DOCUMENTS OR REFUSAL TO COMPLY WITH MODES OF
THINGS DISCOVERY
Essentially a mode means of compelling SANCTIONS

of discovery production of 1. Contempt;
evidence 2. Payment of reasonable fees;
3. The matters regarding which the
The Rules is limited may be directed to questions were asked, character
to the parties to the a person whether a
or description of land et al., be
action party or not
taken to be in accordance with
the claim of party obtaining the
order;

47
4. Prohibition on the refusing party Section 5. Order of trial unless

to produce evidence or support directed by the court.
or oppose designated claims or
defenses;
5. Striking out pleadings, order the
dismissal of the action or stay Plaintiff presents
the action until compliance or to
render judgment by default.
6. Order the arrest of the refusing
party except in cases of physical Defendant presents Defendant
or mental examination. evidence to support files demurrer to
his defense/
RULE 30 counterclaim/
TRIAL crossclaim/
third party
TRIAL – judicial process of investigating complaint
and determining the legal controversies
starting with the production of evidence
by the plaintiff and ending with his
closing arguments. Third party If court If court
defendant grants denies
GENERAL RULE: when an issue exists, presents motion: motion:
trial is necessary. Decision should not be eidence, if Renders Continues
made without trial. any dismisal with
EXCEPTIONS: when there may be hearing
judgment without trial:
1. Judgment on the Pleading
(Rule 34)
2. Summary Judgment (Rule 35) Rebuttal
3. Judgment on Compromise Evidence by After Presentation
4. Judgment by Confession of evidence:
5. Dismissal with Prejudice 1. oral arguments
(Rule 17) 2. submission of
memoranda
Section 3. Requisites of motion to DECISION
postpone trial for absence of evidence.
Unless the court for special reasons
There must be an affidavit showing:
1. materiality or relevance of such otherwise directs, the trial shall be
evidence; and limited to the issues stated in the pre-
2. due diligence in procuring it. trial order.
If the adverse party admits the facts for Section 6. Agreed statements of facts.
which evidence is to be presented, the This is known as STIPULATION OF FACTS
trial will not be postponed. and is among the purposes of a pre-trial.
Section 4. Requisites of motion to The parties may also stipulate verbally in

postpone trial for illness of party or open court. Such stipulations are binding
counsel. unless relief therefrom is permitted by
There must be an affidavit or sworn the court on good cause shown, such as
certification showing: error or fraud.
1. presence of party or counsel at
the trial is indispensable; and But counsel cannot stipulate on what
2. character of his illness is such as their respective EVIDENCE consists of
to render his non-attendance and ask that judgment be rendered on
excusable. the basis of such stipulation.

48
Stipulations of facts are not permitted in REQUISITES FOR CONSOLIDATION:

actions for ANNULMENT OF MARRIAGE 1. W h e n a c t i o n s i n v o l v i n g a
and for LEGAL SEPARATION. common question of law or fact,
and
Section 8. Suspension of actions. 2. The actions are pending before
Art. 2030 of the Civil Code. Every civil the same court
action or proceeding shall be suspended if filed with DIFFERENT
1. If willingness to discuss a courts, authorization from
possible compromise is the SC is necessary.
e xp re sse d b y on e or b ot h
parties; or 3 WAYS OF CONSOLIDATING CASES:
2. If it appears that one of the 1. b y R E C A S T I N G T H E C A S E S
parties, before the ALREADY INSTITUTED,
commencement of the action or conducting only one hearing and
proceeding, offered to discuss a rendering only one decision;
possible compromise but the 2. by CONSOLIDATING THE EXISTING
other party refused the offer. CASES and holding only one
hearing and rendering only one
Section 9. Judge to receive evidence; decision; and
delegation to clerk of court. 3. by HEARING ONLY THE PRINCIPAL
GENERAL RULE: the judge must himself CASE and suspending the hearing
personally receive and resolve the on the others until judgment has
evidence of the parties. been rendered in the principal
However, the reception of such case. (TEST-CASE METHOD)
evidence may be delegated under the
following conditions: Consolidation of cases on appeal and
1. The delegation may be made assigned to different divisions of the SC
only in defaults or ex parte and the CA is also authorized. Generally,
hearings, or an agreement in the case which was appealed later and
writing by the parties. bearing the higher docket no. is
2. The reception of evidence shall consolidated with the case having the
be made only by the clerk of lower docket no.
that court who is a member of  
the bar.
3. Said clerk shall have no power to RULE 32
rule on objections to any TRIAL BY COMMISSIONER
question or to admission of
evidence or exhibits; and COMMISSIONER- a person to whom a
4. He shall submit his report and cause pending in court is referred, for
transcripts of the proceedings, him to take testimony, hear the parties
together with the objections to and report thereon to the court, and
be resolved by the court, within upon whose report, if confirmed,
10 days from the termination of judgment is rendered.
the hearing. Reference to a commissioner may be had
by the written consent of both parties.
RULE 31
CONSOLIDATION OR SEVERANCE Situations when reference to a
Commissioner may be made on motion
GENERAL RULE: Consolidation is (Sec.2):
discretionary upon the court 1. Examination of a long account
EXCEPTIONS: Consolidation becomes a 2. Taking of an account is necessary
matter of duty when: 3. Question of fact, other than
1. if the cases are pending before upon the pleading arises; or
the same judge OR 4. Carrying a judgment or order
2. if filed with different branches into effect.
of a court and one of such cases
has NOT been partially tried. Disobedience to a subpoena issued by
the commissioner is deemed a contempt

49
of the court which appointed the latter.  Defendant need not leave of court is
ask for leave of necessary so that
RULE 33 court; the accused could
DEMURRER TO EVIDENCE present his
evidence if the
Section 1. Demurrer to evidence. demurrer is denied
if the court finds if the court finds

DEMURRER TO MOTION TO plaintiff’s evidence the prosecution’s
insufficient, it will evidence
EVIDENCE DISMISS grant the demurrer insufficient, it will
It is presented after presented before a by dismissing the grant the demurrer
the plaintiff has responsive pleading complaint. The by rendering
rested his case (answer) is made by judgment of dismissal judgment
the defendant is appealable by the acquitting the
plaintiff. If plaintiff accused. Judgment
The ground is based it may be based on appeals and of acquittal is not
on insufficiency of any of those judgment is reversed appeallable;
evidence enumerated in Rule by the appellate double jeopardy
16 court, it will decide sets-in
the case on the basis
of the plaintiff’s
2 Scenarios evidence with the
consequence that the
MOTION DENIED MOTION defendant already
GRANTED BUT loses his right to
present evidence no
REVERSED ON res judicata in
APPEAL dismissal due to
demurrer
Movant shall have the Movant is deemed
right to present his to have waived his if court denies if court denies the
evidence right to present demurrer, defendant demurrer:
evidence. The will present his If demurrer was
decision of the evidence with leave,
appellate court accused may
will be based only present his
on the evidence of evidence
the plaintiff as the If the demurrer
defendant loses his was without leave,
right to have the accused can no
case remanded for longer present his
reception of his evidence and
evidence. submits the case
for decision based
denial is order of the court on the
INTERLOCUTORY. Sec. is an ADJUDICATION prosecution’s
1 , Rule 36 (that ON THE MERITS, evidence
judgment should hence, the
state clearly and requirement in
distinctly the facts Sec. 1, Rule 36
and the law on which should be complied JUDGMENT ON DEMURRER TO EVIDENCE
it is based), will not with. is a judgment rendered by the court
apply. dismissing a case upon motion of the
The denial is NOT defendant, made after plaintiff has
appealable. rested his case, on the GROUND that
CIVIL CASES CRIMINAL CASES upon the facts presented by the plaintiff
and the law on the matter, plaintiff has
not shown any right to relief.  
RULE 34
JUDGMENT ON THE PLEADINGS

50
A judgment on the pleadings must be on RULE 35

motion of the claimant. (NO SUMMARY JUDGMENTS
SUPPORTING PAPERS ARE REQUIRED
BECAUSE EVERTHING IS BASED ON THE SUMMARY JUDGMENT
PLEADINGS.) One granted by the court for the prompt
disposition of civil actions wherein it
HOWEVER, if at the pre-trial the court clearly appears that there exists NO
finds that a judgment on the pleadings is genuine issue or controversy as to any
proper, it may render such judgment material fact.
motu proprio.
GROUNDS: Who can File

1. Answer fails to tender an issue 1. Plaintiff: he must wait for the
because of: answer to be filed and served, and
a. general denial of the thus for the issue to be joined,
material allegations of before he can move for summary
the complaint; judgment.
b. insufficient denial of the 2. D e f e n d a n t : h e c a n m o v e f o r
material allegations of summary judgment at anytime, that
the complaint ; or is, anytime after filing and service of
2. A n s w e r a d m i t s m a t e r i a l the complaint even before he
allegations of the adverse party’s answers
pleading
The motion for summary judgment must
• By moving for judgment on the be supported by (1) affidavit, (2)
pleading, plaintiff waives his claim depositions of the adverse party or a
for unliquidated damages. Claim for third party, or (3) admissions of the
such damages must be alleged and adverse party, all intended to show that:
proved. a. there is no genuine issue as to
any material fact, except
NO JUDGMENT ON THE PLEADINGS IN damages which must always be
ACTIONS FOR proved, and
1. D e c l a r a t i o n o f n u l l i t y o f b. the movant is entitled to a
marriage judgment as a matter of law.
2. Annulment of marriage
3. Legal Separation The summary judgment may be a
judgment on the merits, in which case,
an appeal may be taken therefrom.
Motion to Motion for

SUMMARY JUDGMENT JUDGMENT
Dismiss judgment on
JUDGMENT ON THE BY
the pleadings
PLEADINGS DEFAULT
(Rule 9)
Filed by a Filed by the
defendant to a plaintiff if the Based on based solely based on
c o m p l a i n t , answer raises no the on the the
counterclaim, issue. pleadings, pleadings. complaint
cross-claim or 3rd- depositions, and
party complaint admissions evidence, if
and presentation
affidavits is required.
If the complaint states no cause of
action, a motion to dismiss should be
filed and not a motion for judgment on
the pleading.

51
Available to generally Available to coupled with notice to the parties or

both available plaintiff. their counsel.
plaintiff and only to the
defendant plaintiff, MEMORANDUM DECISION- a decision of
unless the the appellate court which adopts the
defendant findings and the conclusion of the trial
presents a court.
counterclaim JUDICIAL COMPROMISE
. • A judgment based on a
There is The answer no issues as compromise which has the force
no genuine fails to no answer is of law and is conclusive between
issue tender an filed by the parties.
between the issue or there defending • Not appealable.
parties, i.e. is an party.
there may admission of A JUDGMENT is considered RENDERED
be issues material Upon filing of the signed decision. This
but these allegations. includes an amended decision because
are
an amended decision is a distinct and
irrelevant
separate judgment and must follow the
1 0 - d a y 3-day notice 3-day notice established procedural rule.
n o t i c e required rule applies.
required The power to amend a judgment is
inherent to the court before judgment
May be On the On the becomes final and executory.
interlocutor merits merits
y or on the
After judgment has become executory,
merits
the court cannot amend the same

EXCEPT:
RULE 36 1. To make corrections of
JUDGMENTS, FINAL ORDERS AND ENTRY clerical errors, not
THEREOF substantial amendments, as
by an amendment nunc pro
tunc.
JUDGMENT- final consideration and 2. To clarify an ambiguity which
determination by a court of the rights of is borne out by and
the parties, upon matters submitted to it justifiable in the context of
in an action or proceeding. the decision.
3. In judgments for support,
The date of finality of the judgment or which can always be
final order shall be deemed to be the amended from time to time.
date of its entry.
REQUISITES OF A JUDGMENT: MANNER OF ATTACKING JUDGMENTS:

1. It should be in writing, personally
and directly prepared by the judge 1. Direct attack
2. Must state clearly and distinctly the a. before finality
facts and the law on which it is 1. motion for new trial or
based reconsideration;
3. It should contain a dispositive part 2. appeal
and should be signed by the judge b. after finality
and filed with the clerk of court. 1. relief from judgment, rule
38
PROMULGATION- the process by which a 2. annulment of judgment, Rule
decision is published, officially 47.
announced, made known to the public or
delivered to the clerk of court for filing, 2.Collateral attack  

52
Judgment NUNC PRO TUNC (literally

means “now for then”)
PROMULGATION OF JUDGMENT • rendered to enter or record such
judgment as has been formerly
rendered but has not been
Court Renders Decision entered as thus rendered
• its only function is to record
some act of the court which was
Filing appeal within done at a former time, but
Losing Party 15/30 days from notice which was not then recorded, in
order to make the record speak
the truth, without any changes
in substance or any material
respect.
Accepts decision Within 15/30 days from
without further notice of judgment: Judgment upon Agreement or
contest Motion for
Compromise
reconsideration; or
motion for new trial A compromise agreement between the
parties to a case on which the decision
of the court was based has upon the
parties the effect and authority of res
Court
maintains judicata. It is immediately executory.
Court grants motion: Judgment by Confession
1.modifies decision; or
Judgment upon confession is one which
If no appeal is is rendered against a party upon his
taken or did petition or consent. It usually happens
not avail of when the defendant appears in court
remedies, and confesses the right of the plaintiff to
judgment
Losing party may appeal judgment or files a pleading expressly
becomes final
and executory within the remaining agreeing to the plaintiff’s demand.
Two kinds of judgment by confession

1. A j u d g m e n t b y C O G N O V I T
Section 4. Several judgments. ACTIONEM – here, the defendant
Several judgment is proper where the after service instead of entering
liability of each party is clearly a plea, acknowledged and
separable and distinct from his co- confessed that the plaintiff’s
parties such that the claims against each cause of action was just and
of them could have been the subject of rightful.
separate suits, and the judgment for or 2. A judgment by CONFESSION
against one of them will not necessarily RELICTA VERIFICATIONE – after
affect the other. pleading and before trial, the
defendant both confessed the
A several judgment is NOT proper in plaintiff’s cause of action and
actions against solidary debtors. withdrew or abandoned his plea
or other allegations, whereupon
Section 6. Separate Judgments judgment was entere against him
Proper when more than one claim for without proceeding to trial.
relief is presented in an action and a
determination as to the issues material
to the claim has been made. The action
shall proceed as to the remaining
claims.

53
The provisions and An affirmative and An order denying a motion for new trial
terms are settled voluntary act of the is not appealable.
and agreed upon by defendant himself.
the parties to the The court exercises NEW TRIAL - the rehearing of a case
action, and which is a certain amount of already decided by the court but before
entered in the supervision over the the judgment rendered thereon becomes
record by the entry of judgment. final and executory, whereby errors of
consent of the law or irregularities are expunged from
court. the record, or new evidence is
introduced, or both steps are taken.
Purpose: to set aside the judgment or
Clarificatory Judgment
final order and grant a new trial.
rendered by the court, upon motion,
when a judgment previously rendered is
WHEN to file: within period for taking
ambiguous and difficult to comply with.
appeal.
AMENDED OR SUPPLEMENTAL WHERE to file: with the trial court

CLARIFIED DECISION which rendered the questioned
JUDGMENT judgment.
It is an entirely new Does not take the MOTION FOR A MOTION FOR
decision and place of or NEW TRIAL RECONSIDERATION
supersedes the extinguish the
original judgment original judgment The grounds are: The grounds are:
fraud, accident, the damages
mistake or excusable awarded are
Court makes a Serves to bolster or negligence or newly excessive, that the
thorough study of add to the original discovered evidence evidence is
the original judgment which could not, insufficient to
judgment and with reasonable justify the decision
renders the diligence, have or final order, or
amended and discovered and that the decision or
clarified judgment produced at the final order is
only after trial, and which if contrary to law.
considering all the presented would
factual and legal probably alter the
issues result
Second motion may Second motion

RULE 37 be allowed from same party is
NEW TRIAL OR RECONSIDERATION prohibited
If a new trial is if the court finds

granted the trial that excessive
Order denying motion
court will set aside damages have been
for new trial
the judgment or final awarded or that
order the judgment or
final order is
contrary to the
Second motion for new trial based evidence or law, it
on grounds not existing or available may amend such
when 1st motion was filed judgment or final
order accordingly

Appeal from the judgment or final
order and assign as one of the
errors the denial of the motion for
new trial

54
REQUISITES for NEWLY-DISCOVERED MOTION FOR MOTION FOR

EVIDENCE NEW TRIAL REOPENING OF
1. Must have been discovered after THE TRIAL
trial
2. Could not have been discovered Specifically Not mentioned in the
and produced at the trial mentioned in the Rules but is
3. If presented, would alter the Rules nevertheless a
result of the action recognized
4. O t h e r w i s e i t i s c a l l e d procedural recourse
FORGOTTEN EVIDENCE. or device deriving
validity and
acceptance from
A motion suspends or tolls the running of long established
the reglementary period for appeal usage
except when the same is pro-forma. NOTE: It is actually
mentioned in the
PRO-FORMA MOTION - when it does not Rules of Criminal
comply with Rule 15 and Rule 37, e.g. it Procedure
does not point out specifically the
findings or conclusions of the judgment Proper only after May properly be
promulgation of presented only after
as are contrary to law, making express judgment either or both the
reference to the testimonial or parties have formally
documentary evidence or to the offered and closed
provisions of law alleged to be contrary their evidence
to such findings or conclusions, and is before judgment
merely intended to delay the
proceedings OR if there is no affidavit of Based upon specific Controlled by no
merit. grounds set forth other rule than the
under Rule 37 in paramount interests
civil cases and Rule of justice, resting
Section 6. Effect of granting of motion 121 in criminal entirely on the sound
for new trial cases discretion of a trial
When motion is granted, the original court, the exercise
judgment is thereby vacated and the of which discretion
action stands for trial de novo, but the will not be reviewed
recorded evidence taken upon the on appeal UNLESS a
former trial so far as the same is clear abuse thereof
material and competent to establish the is shown
issues, shall be used at the new trial
taking the same.
The order denying a motion for new trial MOTION FOR RECONSIDERATION
is NOT appealable.   Purpose: To reconsider or amend
judgment or final order
WHEN to file: within period for taking an
appeal
WHERE to file: with the trial court

which rendered the judgment or final
order sought to be reconsidered  
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
REMEDIES AGAINST FINAL AND

EXECUTORY JUDGMENTS OR ORDERS
1. P e t i t i o n f o r R e l i e f f r o m
Judgment (Rule 38)

55
2. Annulment of judgments or final If denied, the order If denied, the order

orders or resolutions (Rule 47) on of denial is NOT denying a petition
the ground of: appealable, hence for relief is NOT
o Extrinsic fraud, to be filed remedy is appeal appealable; the
within 4 years from the from the judgment remedy is
discovery of the fraud; appropriate civil
o Lack of jurisdiction, before action under Rule 65
it is barred by laches or Legal remedy Equitable remedy
estoppel
3. Direct or collateral attack Motion need not be Petition must be
against a void or voidable verified verified
judgment
o DIRECT ATTACK – when the
validity of the judgment TWO HEARINGS UNDER RULE 38
itself is the main issue of the 1. Hearing to determine whether
action, a petition for the judgment should be set aside
certiorari and action to 2. If yes, a hearing on the merits of
annul judgment on the the case.
ground of extrinsic fraud or
lack of jurisdiction The period fixed by Rule 38 is non-
o COLLATERAL ATTACK – if the extendible and is never interrupted.  
judgment can be resisted in
any other action in which it RULE 39
is involved. EXECUTION, SATISFACTION AND EFFECT
OF JUDGMENTS
RULE 37 RULE 38
Available BEFORE Available AFTER EXECUTION – remedy provided by law
judgment becomes judgment has for the enforcement of a final judgment.
final and executory become final and
executory
AGAINST WHOM ISSUED: execution can
Applies to Applies to only issue against a party and not against
JUDGMENTS or judgments, final one who has not had his day in court.
FINAL ORDERS only orders and other
proceeding: WRIT OF EXECUTION: judicial writ
issued to an officer authorizing him to
1.Land Registration execute the judgment of the court.
2.Special
Proceedings ESSENTIAL REQUISITE OF A WRIT OF
3. Order of Execution
EXECUTION: a writ of execution to be
valid, must conform strictly to the
GROUNDS: GROUNDS: decision or judgment which gives it life.
i. FAME FAME
ii. Newly It cannot vary the terms of the judgment
discovered it seeks to enforce
evidence
FINAL JUDGMENT OR ORDER- one which
WHEN AVAILED OF: WHEN AVAILED OF:
disposes of the whole subject matter or
Within the time to within 60 days from
appeal knowledge of the terminates the particular proceedings or
judgment AND action, leaving nothing to be done by the
court but to enforce by execution what
within 6 months from has been determined.
entry of judgment

56
EXECUTION OF JUDGMENT Section 1. Execution Upon Judgments

and Final Orders.
EXECUTION ISSUES AS A MATTER OF

Judgment is If the winning RIGHT:
executed by party does not 1. on motion
motion within 5 move for 2. upon a judgment or order that
years from date execution w/in disposes of the action or
of its entry 5 years but
proceeding AND
before 10 years
from the date of 3. upon expiration of the period to
entry of appeal therefrom and NO appeal
judgment, the has been duly perfected.
same can only
Execution is a be revived by GENERAL RULE: court cannot refuse
matter of right means of a new execution
after expiration action / UNLESS:
of period to petition 1. E x e c u t i o n i s U N J U S T O R
appeal and no
appeal is IMPOSSIBLE
perfected 2. Equitable grounds like a CHANGE
IN SITUATION of the parties
which makes execution
inequitable
Discretionary 3. Judgment NOVATED by parties
execution upon 4. Execution is enjoined
good reasons
5. Judgment has become DORMANT
stated in a
special order
after due QUASHAL OF WRIT PROPER WHEN:
hearing 1. Improvidently issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment already satisfied
5. Issued without authority
Sheriff enforces writ of execution
Section 2. Discretionary Execution
Losing party is made to indemnify thru: DISCRETIONARY EXECUTION AS A

1. payment with interest; EXECUTION MATTER OF RIGHT
2. levy and sale of personal property;
3. levy and sale of real property;
4. delivery of personal and real property
May issue before Period to appeal has
the lapse of period already lapsed and
to appeal no appeal is
perfected
TEST TO DETERMINE WHETHER A
JUDGMENT OR ORDER IS FINAL OR
INTERLOCUTORY: The test is whether Discretionary upon Ministerial duty of
the judgment or order leaves nothing the court; there is the court PROVIDED
more for the court to do with respect to inquiry on whether there are no
the merits of the case. there is GOOD supervening events
REASON for
execution
SPECIAL JUDGMENT – one that requires
the performance of an act OTHER THAN:
1. The payment of money; and
2. The sale of real or personal
property

57
GROUNDS FOR EXECUTION PENDING executory unless otherwise

APPEAL: ordered by the trial court.
1. Insolvency of the judgment
debtor. Section 6. Execution By Motion Or
2. Wastage of asset by judgment Independent Action.
debtor.
MODE OF ENFORCEMENT
Section 3. Stay of Discretionary 1. By motion within 5 years from
Execution. The party against whom an date of its entry
execution is directed may file a 2. By independent action after 5
supersedeas bond to stay discretionary years from entry AND before it is
execution. barred by statute of limitations

SUPERSEDEAS BOND- one filed by a Judgment for support does not become
petitioner and approved by the court dormant, thus it can always be executed
before the judgment becomes final and by motion.
executory and conditioned upon the
performance of the judgment appealed 5-year period may be extended by the
from in case it be affirmed wholly or in conduct of judgment debtor.
part.
A revived judgment is a new judgment
Supersedeas bond guarantees thus another 5/10-year period to
satisfaction of the judgment in case of execute and revive is given the party.
affirmance on appeal, not other things
like damage to property pending the Section 7. Execution In Case Of Death
appeal Of Party.
If the obligor dies AFTER entry but
The court may, in its discretion, order an BEFORE LEVY on his property, execution
execution before the expiration of the will be issued for recovery of real or
time within which to appeal provided: personal property or enforcement of a
1. There is a motion for execution lien thereon. But for a sum of money,
filed by the winning party judgment cannot be enforced by writ
2. There is notice of said motion to but as a claim against his estate/probate
the adverse party; and proceedings.
3. There are good reasons stated in
a special order after due If he dies AFTER a VALID LEVY has been
hearing. made, execution sale proceeds.
Section 8. Issuance, Form and Contents
GENERAL RULE: an order of execution is of a Writ of Execution.
NOT appealable otherwise there would
be no end to the litigation between the Remedies in an order granting or
parties. denying the issuance of a writ of
EXCEPTIONS: execution
1. When the terms of the judgment Appeal is the remedy for an order
are not very clear; denying the issuance of a writ of
2. When the order of execution execution.
varies with the tenor of the
judgment. Section 10. Execution Of Judgments
For Specific Act.
Section 4. Judgments NOT Stayed By If party REFUSES TO VACATE PROPERTY,
Appeal remedy is NOT contempt. The Sheriff
1. INJUNCTION must oust the party. But if demolition is
2. RECEIVERSHIP involved, there must be a special order.
3. ACCOUNTING
4. SUPPORT If party REFUSES TO DELIVER, sheriff will
5. Such other judgments take possession and deliver it to winning
declared to be immediately party.

58
When the party REFUSES TO COMPLY, 1. Summary hearing before the

court can appoint some other person at court which authorized the
the expense of the disobedient party and execution;
the act done shall have the same effect 2. TERCERIA or third party claim
as if the required party performed it, filed with the sheriff;
the disobedient party incurs no liability 3. Action for damages on the bond
for contempt. posted by judgment creditors; or
4. I n d e p e n d e n t re i n vi d i c a t ory
Section 11. Execution of Special action.
Judgments.
When judgment requires the The remedies are cumulative and may be
performance of any act other than for resorted to by third party claimant
money and delivery of property. independently of or separately from the
others.
The writ of execution shall be served
upon the party required to obey the If winning party files a bond, it is only
same and such party may be punished then that the sheriff can take the
for contempt if he disobeys. property in his possession. IF NO BOND,
cannot proceed with the sale.
LEVY - act by which an officer sets apart
or appropriates a part of the whole of SALE ON EXECUTION
the property of the judgment debtor for Notice of sale is required before levied
purposes or the execution sale. The levy property can be sold at public auction
on execution shall create a lien in favor (Sec. 15).
or the judgment creditor over the right,
title and interest of the judgment debtor Remedy against an irregular sale is
in such property at the time of the levy. MOTION TO VACATE OR SET ASIDE THE
SALE to be filed in the court which
The levy on execution creates a lien in issued the writ.
favor of the judgment creditor subject
to prior liens and encumbrances. REDEMPTION (Secs. 27 & 28)
Right of Redemption:
GARNISHMENT - act of appropriation by 1. Personal Property – NONE; sale is
the court when property of debtor is in absolute
the hands of third persons 2. Real Property – there is a right of
redemption
The garnishee or the 3rd person who is in
possession of the property of the WHO may redeem (Sec. 27)
judgment debtor is deemed a forced Only the following:
intervenor.  a. J u d g m e n t o b l i g o r, o r h i s
successor in interest, in whole or
any part of the property; OR
ATTACHMENT GARNISHMENT b. Redemptioner who is a creditor
having a:
Refers to corporeal refers to money, 1) Lien by attachment on
property in the stocks, credits and the property sold
possession of the other incorporeal subsequent to the lien
judgment debtor. property which under which the
belong to judgment property was sold,
debtor but is in the
2) Lien by judgment on the
possession or under
the control of a property sold subsequent
third person to the lien under which
the property was sold;
Section 16. Proceedings Where 3) Lien by mortgage on the
Property Claimed By Third Person. property sold subsequent
to the lien under which
REMEDIES of THIRD PARTY CLAIMANT the property was sold.

59
WHEN CAN REDEMPTION BE MADE? judgment obligor to the property at the

time of levy.
BY THE JUDGMENT OBLIGOR: Within one
(1) year from the date of registration of The deed of conveyance is what
the certificate of sale. operates to transfer to the purchaser
whatever rights the judgment debtor
BY THE REDEMPTIONER: had in the property. The certificate of
1. Within one year from the date of sale after execution sale merely is a
registration of the certificate of memorial of the fact of sale and does
sale; or not operate as a conveyance.
2. Within sixty days from the last
redemption by another The purchaser acquires no better right
redemptioner than what the judgment debtor has in
If the judgment obligor redeems, no the property levied upon. Thus, if the
further redemption is allowed (Sec. judgment debtor had already transferred
29). the property executed prior to the levy
and no longer has an interest in the
The period of redemption is NOT property, the execution purchaser
suspended by an action to annul the acquires no right.
foreclosure sale.
WHEN A THIRD PERSON IS IN POSSESSION,
CAN REDEMPTION BE PAID IN OTHER The procedure is for the court to order a
FORMS THAN CASH? hearing and determine the nature of
YES. The rule is liberality in allowing such adverse possession.
redemption (aid rather than defeat the
right) and it has been allowed in the
case of a cashier’s check, certified bank Section 34. Recovery of price if sale is
checks and even checks. not effective; revival of judgment.
The offer to redeem must be THE PURCHASER MAY RECOVER THE

accompanied with a bona fide tender or PURCHASE PRICE WHEN
delivery of the redemption price. 1. The purchaser or his successor-
in-interest FAILS TO RECOVER
However, a formal offer to redeem with POSSESSION of the property or;
a tender is not necessary where the right 2. Purchaser after having acquired
to redeem is exercised through the filing possession is evicted due to:
of a complaint to redeem in the courts, a. I r r e g u l a r i t i e s i n t h e
within the period to redeem. proceedings concerning the
sale.
RIGHTS OF THE JUDGMENT DEBTOR: b. Reversal or setting aside of
1. Remain in possession of the judgment.
property c. The fact that the property
2. Collect rents and profits was exempt from execution.
3. Cannot be Ejected d. A third person has vindicated
4. Use the property in the same his claim to the property.
manner it was previously used
5. Make necessary repairs REMEDIES OF THE JUDGMENT CREDITOR
IN AID OF EXECUTION
Section 33. Deed and possession to be
given at expiration of redemption 1. If the execution is returned
period; by whom executed or given. unsatisfied, he may cause
examination of the judgment
debtor as to his property and
The PURCHASER is entitled to a income (Section 36)
CONVEYANCE AND POSSESSION of the
property if there is no redemption. He is 2. He may cause examination of
substituted to and acquires all the the debtor of the judgment
rights, title, interest and claims of the debtor as to any debt owed by

60
him or to any property of the Section 47. Effect Of Judgment Or

judgment debtor in his Final Orders.
possession (Section 37) Re f e r s t o j u d g m e n t s w h i c h a r e
considered as conclusive and may be
3. If after examination, the court rebutted directly by means of relief from
finds that there is property of judgment or annulment of judgment or
the judgment debtor either in indirectly by offering them in evidence
his own hands or that of any under the parole evidence rule.
person, the court may order the
property applied to the Par (A) refers to rule ON RES JUDICATA
satisfaction of the judgment in judgments IN REM
(Section 37)
4. If the court finds the earnings JUDGMENT or EFFECT:

of the judgment debtor are FINAL ORDER CONCLUSIVE AS TO
more than sufficient for his
family’s needs, it may order
payment in installments Against a specific Title to the thing
(Section 40) thing
5. The court may appoint a

receiver for the property of the Probate of a will Will or administration
or administration However, ONLY prima
judgment debtor not exempt of the estate of a facie evidence of
from execution or forbid a deceased person the death of the
transfer or disposition or testator or
interference with such property intestate
(Section 41)
6. If the court finds that the In respect to the Condition, status or

judgment debtor has an personal, relationship of the
ascertainable interest in real political, or legal person
condition or
property either as mortgagor, status of a
mortgagee, or otherwise, and particular person
his interest can be ascertained
without controversy, the court
may order the sale of such
interest. (Section 42) Par (B) is referred to as “bar by former
j u d g m e n t ” o r R E S J U D I C ATA i n
7. If the person alleged to have judgments IN PERSONAM
the property of the judgment
debtor or be indebted to him, RES JUDICATA - final judgments on the
claims an adverse interest in merits by a court of competent
the property, or denies the jurisdiction is conclusive as to the rights
debt, the court may authorize of the parties or their privies in all later
the judgment-creditor to suits on points determined in the former
institute an action to recover judgment.
the property, forbid its transfer
and may punish disobedience REQUISITES:
for contempt (Section 43) 1. A FINAL judgment or order
2. JURISDICTION over the subject
Section 46. When Principal Bound By matter and the parties by the
Judgment Against Surety. court rendering it
The principal is bound by the same 3. Judgment UPON THE MERITS
judgment from the time he has notice of 4. Between the two cases:
the action or proceeding and has been IDENTITY OF PARTIES
given an opportunity at the surety’s IDENTITY OF SUBJECT MATTER
request, to join the defense. IDENTITY OF CAUSE OF ACTION

61
THERE IS IDENTITY OF CAUSE OF ACTION CONCLUSIVE upon the TITLE TO

when the two actions are based on the THE THING;
same delict or wrong committed by the 2. IN CASE OF A JUDGMENT AGAINST
defendant even if the remedies are A PERSON, the judgment is
different. PRESUMPTIVE EVIDENCE of a
right as between the parties and
Under the doctrine of res judicata, no their successors-in-interest by a
matter how erroneous a judgment may subsequent title.
be, once it becomes final, it cannot be
corrected. The only grounds are lack of In both instances, the judgment may be
jurisdiction, collusion or fraud. repelled by evidence of want of
jurisdiction, notice, collusion, fraud or
Par. (C) is known as “conclusiveness of clear mistake of law or fact.
judgment” or rule of AUTER ACTION
PENDENT RULE 40
APPEAL FROM MUNICIPAL TRIAL
CONCLUSIVENESS OF JUDGMENT
• has the effect of preclusion only of Appeal decision of MTC by filing notice of
issues. appeal and pay appellate court docket fee in
• parties in both actions may be the the same MTC within 15 days from receipt of
same but the causes of action are
different.
COURTS TO THE REGIONAL TRIAL
15 days from perfection of appeal, MTC

BAR BY CONCLUSIVENESS OF
FORMER JUDGMENT
JUDGMENT COURTS
Notice to parties that an appeal is being

There is identity There is ONLY identity
of parties, of PARTIES AND SUBJECT
subject matter MATTER
and causes of
action Within 15 days from notice of appeal:
● appellant submits memorandum to the
RTC
The first The first judgment is ● appellee files his own memorandum 15
judgment conclusive only as to days from receipt of appellants
constitutes as an matters directly memorandum
ABSOLUTE BAR adjudged and actually
TO ALL MATTERS litigated in the first
directly action. Second action
If uncontested, Any party may
adjudged and can be prosecuted.
judgment is appeal by filing a
those that might
entered in the petition for review
have been
book of entries with the RTC
adjudged.
APPEAL FROM MTC TO RTC

Section 48. Effect Of Foreign Judgment
Or Final Orders: ORDINARY APPEAL - an appeal by notice
of appeal from a judgment or final order
of a lower court on questions of fact and
THE EFFECT OF FOREIGN JUDGMENTS law.
Provided that the foreign tribunal had
jurisdiction:
1. IN CASE OF JUDGMENT AGAINST A

SPECIFIC THING, the judgment is

62
APPEAL TO THE RTC

• Mode of Appeal – Notice of Appeal By Record on appeal:
within fifteen (15) days from receipt 1. for special proceedings such as
of decision. probate; and
• After an appeal to the RTC has been 2. in such other cases where
perfected, the MTC loses its multiple appeals are allowed as
jurisdiction over the case and any in partition and in
motion for the execution of the expropriation.
judgment should be filed with the
RTC. Section 4. Perfection of Appeal; effect
• The Summary Rules no longer apply thereof.
when the cases is on appeal.
Appeal is deemed perfected:
Section 2. When to Appeal. 1. by notice of appeal: as to him,
1. Within 15 days after notice of upon the filing of the notice of
judgment or final order; appeal in due time;
2. Where a record on appeal is 2. by record on appeal: as to him,
required, within 30 days from upon the approval of the record
notice of judgment or final order on appeal filed in due time.
by filing a notice of appeal and a
record on appeal; Effect of a perfected appeal:
3. Period to appeal shall be The court loses jurisdiction upon the
interrupted by a timely motion perfection or approval of appeal and
for new trial or reconsideration. when the period of appeal for other
4. No motion for extension of time parties expire.
to file a motion for new trial or
reconsideration shall be Residual power of the court prior to the
allowed. transmittal of the original record or
record on appeal:
1. t o i s s u e o r d e r s f o r t h e
Section 3. How to Appeal. preservation of the rights of the
By Notice of Appeal: parties which do not involve
1. File a notice of appeal with the matters litigated by appeal;
trial court. 2. to approve compromise prior to
2. The notice of appeal must the transmittal of the record;
indicate: 3. permit appeal by an indigent;
a. parties 4. order execution pending appeal
b. judgment or final order under Rule 39, Sec.2 ( motion
appealed from for execution was filed before
c. material date showing the expiration of the period to
timeliness of appeal appeal;
3. A copy served on the adverse 5. allow withdrawal of the appeal.
party.
4. Payment in full of docket fees
and other lawful fees
ORDINARY PETITION FOR

Section 8. Appeal from orders
APPEAL REVIEW
dismissing case without trial; lack of
Matter of right Discretionary jurisdiction
All the records are No records are If lower court dismissed case without
elevated from the elevated unless the trial on the merits:
court of origin court decrees it RTC may:
1. Affirm, or
Notice of record on Filed with the CA
appeal is filed with 2. Reverse, in which case, it shall
the court of origin remand the case for further
proceedings.

63
or mandamus if there is no performance

If dismissal is due to lack of jurisdiction of duty.
over the subject matter:
RTC may: INTERLOCUTORY ORDER – An order
1. Affirm; if RTC has jurisdiction, which does not dispose of the case but
shall try the case on the merits leave something else to be done by the
as if the case was originally filed trial court on the merits of the case.
with it, or
2. Reverse, in which case, it A judgment based on compromise is not
remand the case for further appealable and is immediately
proceedings. executory.
If the case was tried on the merits by Section 2. Modes of appeal.

the lower court without jurisdiction
over the subject matter: Ordinary Petition for Petition for
RTC shall not dismiss the case if it has appeal review review on
original jurisdiction, but shall decide the (appeal by [Rule 42] certiorari
case, and shall admit amended pleadings writ of error) [Rule 45]
or additional evidence.
 
Case is Case is The case
RULE 41 decided by decided by raises only
the RTC in its the MTC. a question
APPEAL FROM REGIONAL original Appealed to of law
TRIAL COURTS jurisdiction the RTC.
Appealed to Petition for
the CA review with
APPEALABLE CASES the CA
1. Judgments or final orders that
completely disposes of the case.
2. A p a r t i c u l a r m a t t e r i n a
judgment declared by the Rules File a notice File a File a
of appeal or a verified verified
to be appealable. record on petition for petition for
appeal with review with review on
NON APPEALABLE CASES the court of the CA. Pay certiorari
1. Order dismissing an action without origin (RTC) the docket with the SC
prejudice and give a and lawful (R 45) Pay
2. Order of Execution copy to the fees, and P docket and
3. Judgments or final orders for or adverse party. 500 as lawful fees
against one or more of several deposit for and P 500
parties or in separate claims while costs with for costs.
the main case is pending the CA. Submit
4. Orders disallowing or dismissing an Furnish RTC proof of
Appeal and adverse service of a
5. Interlocutory orders party copy copy to the
6. Orders denying: of such (R lower court
a. Petition for relief; 42). and adverse
b. Motion for new trial or party.
reconsideration; and
c. Motion to Set aside a
judgment, by consent,
confession or compromise
on the ground of fraud,
mistake, duress or any
ground vitiating consent.
Remedy in cases where appeal is not

allowed
Special civil action of certiorari or
prohibition if there is lack or excess of
jurisdiction or grave abuse of discretion

64
Within 15 Within 15 Within 15 RULE 42

days from the days from days from PETITION FOR REVIEW FROM THE
notice of the notice of notice of REGIONAL TRIAL COURTS TO THE
judgment for the decision the COURT OF APPEALS
notice of to be judgment or
appeal and reviewed or order or Petition for review is not a matter of
within 30 from the denial of right but discretionary on the CA. It may
days for denial of a the MR or only give due course to the petition if it
records on MR or new new trial.
shows on its face that the lower court
appeal. The trial.
period for has committed an error of fact and/or
filing is law that will warrant a reversal or
interrupted modification of the decision or judgment
by a timely sought to be reviewed; OR dismiss the
motion for petition if it finds that it is patently
reconsidera- without merit, or prosecuted manifestly
tion or new for delay, or the questions raised therein
trial. are too unsubstantial to require
consideration.
Section 7. Approval of record on
appeal. It is merely discretionary on the CA to
order the elevation of the records. This
Procedure if the appeal is through a is because until the petition is given due
record on appeal course, the trial court may still issue a
warrant of execution pending appeal and
1. file record on appeal in some cases such as ejectment and
2. appellee may file an objection those of Summary Procedure, the
within 5 days from his receipt judgments are immediately executory. It
thereof is only when the CA deems it necessary
3. if there is no objection the court that the Clerk of the RTC will be ordered
may: to elevate the records of the case.  
• approve it as presented; OR
• direct its amendment on its
own or upon the motion of RULE 43
the adverse party APPEALS FROM THE COURT OF TAX
4. if an amendment is ordered the APPEALS AND THE QUASI-JUDICIAL
appellant must redraft the AGENCIES TO THE CA
record within the time ordered
or if there is no time, within 10 Judgments and final orders or
days from receipt resolutions of the NLRC are reviewable
5. submit the record for approval by the COURT OF APPEALS in an original
with notice on the adverse party action for certiorari under Rule 65 (St.
Martin Funeral Home vs. NLRC, Sept. 16,
The period to appeal is MANDATORY and 1998).
JURISDICTIONAL. Failure to appeal on A party adversely affected by a decision
time makes the decision final and or ruling of the CTA en banc may file
executory and deprives the appellate with the Supreme Court a verified
court of jurisdiction. petition for review on certiorari pursuant
to Rule 45 (Sec. 12, RA 9282).
However in few instances the court has
allowed due course to such appeals on
strong and compelling reasons of
justice.  

65
RULE 44
ORDINARY APPEALED CASES RULE 45
APPEAL BY CERTIORARI TO THE
SUPREME COURT
Section 9. Appellant’s reply brief.
Failure to file appellant's brief on time is

a ground for dismissal of the appeal. RTC, Sandiganbayan or CA
If a motion to dismiss an appeal has been
filed, it suspends the running of the
period for filing the appellant brief, as
the same would be unnecessary should
Any party files a petition for review on
the motion be granted.
certiorari w/in 15 days from notice of
final judgment or order of lower court or
The failure of the appellant to make notice of denial of motion for
specific assignment of errors in his brief reconsideration or new trial
or page references to the record as
required in this section is a ground for
dismissal of his appeal.
Appellant serves copies of petition on
Section 15. Questions that may be
adverse parties and to the lower court,
raised on appeal.
The appeal can raise only questions of

law or fact that
1. were raised in the court below; SC may dismiss the petition or require the
and
2. are within the issues framed by
the parties thereon.
BRIEF vs. MEMORANDUM If given due course, parties may
BRIEF MEMORANDUM
SC may affirm, reverse, or modify

Ordinary appeals Certiorari, Prohibition,
Mandamus, Quo
Warranto and Habeas
Corpus cases
Filed within 45 within 30 days Section 1. Filing of petition with

days Supreme Court
Appeals to the SC can be taken from a

Contents Shorter, briefer, only judgment or final order or resolution of
specified by Rules one issue involved - no the CA, the Sandiganbayan, the RTC or
subject index or
such other courts as maybe authorized
assignment of errors
just facts and law by law and only by verified petition for
applicable review on certiorari on questions of law
except only in appeals from judgments
of the RTC in criminal cases wherein the
penalty imposed is life imprisonment or
reclusion perpetua which shall be
elevated by ordinary appeal, or wherein
the death penalty is imposed which is
subject to automatic review.

66
QUESTIONS OF QUESTIONS OF
LAW FACT
GENERAL RULE: the findings of fact of
the CA are final and conclusive and doubt or doubt or difference
cannot be reviewed on appeal to the controversy as to arises as to the
SC. what the law is on truth or falsehood
certain facts of facts, or as to
EXCEPTIONS to CONCLUSIVENESS OF probative value of
FACTS: the evidence
presented
1. When the finding is grounded if the appellate the determination
entirely on speculations, surmise court can determine involves evaluation
or conjecture; the issue raised or review of
2. W h e n i n f e r e n c e m a d e i s without reviewing or evidence
manifestly absurd, mistaken or evaluating the
impossible; evidence
3. When the judgment is premised
on a misrepresentation of facts; Can involve query invites the
questions of calibration of the
4. When there is grave abuse of interpretation of whole evidence
discretion in the appreciation of the law with respect considering mainly
facts; to certain set of the credibility of
5. When the findings of fact are facts witnesses, existence
conflicting; and relevancy of
6. When the CA in making its specific surrounding
findings went beyond the issues circumstances and
of the case and the same is relation to each
contrary to both the admissions other and the whole
of appellants and appellees; probabilities of the
situation
7. When the findings of fact of the
CA are at variance with those of
the trial court, the SC has to
review the evidence in order to
arrive at the correct findings Certiorari under Rule 45 vs. certiorari
based on the record; under Rule 64/65 ( special civil action)
8. When the findings of fact are
conclusions without citation of
CERTIORARI CERTIORARI
specific evidence on which they
are based; UNDER RULE 45 UNDER RULE
9. When the facts set forth in the 64/65
petition as well as in the
petitioner’s main and reply
briefs are not disputed by the petition is based on petition raises the
respondents; questions of law issue as to whether
10. The findings of fact of the CA is the lower court
acted without
premised on the supposed jurisdiction or in
evidence and is contradicted by excess of
the evidence on record; jurisdiction or with
11. When certain material facts and grave abuse of
circumstances have been discretion
overlooked by the trial court
which, if taken into account,
would alter the result of the It is a mode of Special civil action
case in that they would entitle appeal
the accused to acquittal.

67
RULE 46
Involves the review Directed against an ORIGINAL CASES
of the judgment interlocutory order
award or final order of the court or Section 2. To what actions applicable.
on the merits where there is no
appeal or any other Under B.P. Blg. 129, the CA has original
plain, speedy or jurisdiction to issue writs of mandamus,
adequate remedy prohibition, certiorari, habeas corpus
and quo warranto, and auxiliary writs or
processes, whether or not they are in aid
Must be made filed not later than of its appellate jurisdiction, and it has
within the 60 days from notice exclusive original jurisdiction over
reglementary period of judgment, order actions for annulment of judgments of
or resolution Regional Trial Courts.
appealed from
Stays the judgment Unless a writ of

or order appealed preliminary Section 4. Jurisdiction over person,
from injunction or how acquired.
temporary JURISDICTION IS ACQUIRED:
restraining order is
issued does not stay 1. Over the PETITIONER - by filing
the challenged of the petition.
proceeding 2. Over the RESPONDENT - by the
service on the latter of the order
or resolution indicating the
The petitioner and The parties are the
the respondent are aggrieved party courts initial action on the
the original parties against the lower petition and NOT by the service
to the action, and court or quasi- on him of the petition or by his
the lower court or judicial agency and voluntary submission.
quasi-judicial the prevailing
agency is not parties Section 5. Action by the court.
impleaded
PROCEDURAL OUTLINE (original cases
in the Court of Appeals)
Motion for Motion for
reconsideration is reconsideration or 1. Filing of the petition
not required for new trial is 2. Order to acquire jurisdiction
required over respondents OR Outright
If a motion for dismissal for failure to comply to
reconsideration or requirements also form and
new trial is filed, payment of docket and other
the period shall not legal fees.
only be interrupted 3. Require respondents to file
but another 60 days COMMENT within 10 days from
shall be given to the
NOTICE
petitioner ( SC
Admin. Matter 4. Court may require the filing of a
002-03 ) REPLY or such other pleadings as
it may deem necessary
5. D e t e r m i n a t i o n o f FA C T U A L
The court is in the Court exercises ISSUES, the court may delegate
exercise of its original jurisdiction the reception of evidence on
appellate such issues to any of its
jurisdiction and
members.  
power of review
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS

68
Annulment of judgment is a remedy in 2. The issuance of summons as in

law independent of the case where the ordinary civil cases and such
judgment sought to be annulled was appropriate proceedings
rendered and may be availed of though thereafter as contemplated in
the judgment has been executed. Sec. 6.
One important condition for the The rule allows the CA to dismiss the
availment of this remedy - the petitioner petition outright as in special civil
failed to move for new trial in, or appeal actions.
from, or file a petition for relief against,
or take other appropriate remedies For the court to acquire jurisdiction over
assailing the questioned judgment or the respondent, the rule requires the
final order or resolution through no fault issuance of summons should prima facie
attributable to him. merit be found in the petition and the
same is given due course.
If he failed to avail of those other RULE 48
remedies without sufficient justification, PRELIMINARY CONFERENCE
he cannot resort to annulment provided
in this Rule, otherwise he would benefit
Section 3. Binding effect of the results
from his own inaction or negligence.
of the conference
Grounds for ANNULMENT OF JUDGMENT
In the CA, this procedural device may be
1. extrinsic fraud or collateral
availed of not only in original actions but
fraud;
also in cases on appeal wherein a new
2. lack of jurisdiction;
trial was granted on the ground of newly
discovered evidence. The CA can act as a
Extrinsic fraud shall not be a valid
trier of facts, hence the preliminary
ground if it was availed of, or could have
conference authorized is a convenient
been availed of, in a motion for new
adjunct to such power and function.
trial or petition for relief.
RULE 49
EXTRINSIC OR COLLATERAL FRAUD is
ORAL ARGUMENT
any fraudulent act of the prevailing
party in the litigation which is
Section 3. No hearing or oral argument
committed outside of the trial of the
for motions
case, whereby the defeated party has
been prevented from exhibiting fully and
Motions in the SC and the CA do not
fairly presenting his side of the case.
contain notices of hearing as no oral
arguments will be heard in support
EXTRINSIC LACK OF thereof; and if the appellate court
FRAUD JURISDICTION desires to hold a hearing thereon, it will
itself set the date with notice to the
parties.
Period of 4 years Before it is
Filing from barred by laches RULE 50
action discovery or estoppel DISMISSAL OF APPEAL
Effect of Trial court Original action Section 1. Grounds for dismissal of

judgment will try the may be refiled appeal
case With the exception of Section 1 (b)
dismissal of an appeal is directory and
not mandatory.
Section. 5. Action by the court.
Two stages: Other grounds for the dismissal of an
1. A preliminary evaluation of the appeal are:
petition for prima facie merit
therein, and

69
1. by agreement of the parties, as for that matter a final resolution. The

where the case was amicably same are not required on minute
settled by them. resolutions since these usually dispose of
2. where the appealed case has the case not on its merits but on
become moot or academic. procedural or technical considerations.
3. where the appeal is frivolous or
dilatory. Although the court may, if it feels
necessary, briefly discuss the matter on
Section 2. Dismissal of improper appeal the merits in an extended resolution.
to the Court of Appeals
No transfer of appeals, erroneously

taken to it or to the Court of Appeals, With respect to petitions for review and
whichever of these tribunals has motions for reconsideration, the
appropriate appellate jurisdiction, will Constitution merely requires a statement
be allowed. Also, elevating such appeal of the legal basis for the denial thereof
by the wrong mode of appeal shall be a or refusal of due course thereto. The
ground for dismissal. court may opt, but it is not required to
A resolution of the Court of Appeals issue an extended resolution thereon.
dismissing the appeal and remanding the
case to the trial court for further
proceedings is merely interlocutory, Section 6. HARMLESS ERROR  
hence a motion for its reconsideration The court, at every stage of the
filed year later may be entertained and proceeding, must disregard any error or
granted defect which does not affect the
substantial rights of the parties such as
Section 3. Withdrawal of Appeal error in admission or exclusion of
evidence or error or defect in the ruling
or order.
Court of Appeals may dismiss the appeal
outright even without motion. The
remedy if dismissed for improper appeal Section 8. Questions that may be
is to refile it in the proper forum but has decided
to be within the prescribed period. Only errors claimed and assigned by a
party will be considered by the court,
RULE 51 except errors affecting its jurisdiction
JUDGMENT over the subject matter. To this
exception has now been added errors
Law of the Case – the opinion delivered affecting the validity of the judgment
on a former appeal. It means that appealed from or the proceedings
whatever is once irrevocably therein.
established, as the controlling legal rule
or decision between the same parties in Even if the error complained of by a
the same case, continues to be the law party is not expressly stated in his
of the case, whether correct on general assignment of errors but the same is
principles or not, so long as the facts on closely related to or dependent on an
which such decision was predicated assigned error and properly argued in his
continue to be the facts before the brief such error may now be considered
court. by the court.
 
But this rule does not apply to RULE 52
resolutions rendered in connection with MOTION FOR RECONSIDERATION
the case wherein no rationale has been
expounded on the merits of that action. The rules now prohibit a second motion
for reconsideration.
Section 5. Form of Decision
The requirement for the statement of Sec. 3 provides a time limit of 90 days
facts and the law refers to a decision or for the resolution of a motion for

70
reconsideration filed with the Court of action which may be resorted to by a

Appeals from the date the same was litigant to preserve and protect certain
submitted for resolution, which is rights and interests therein pending
normally the filing of the last pleading rendition, and for purposes of the
required by the rules of court or the ultimate effects, of a final judgment in
expiration of such period. the case.
Rules now requires the service of the

motion to the adverse party  
The following are the provisional

RULE 53 remedies provided for in the Rules of
NEW TRIAL Court
1. Preliminary Attachment (Rule
Filing of a motion for new trial is at any 57)
time after the perfection of the appeal 2. Preliminary Injunction (Rule 58)
from the decision of the lower court and 3. Receivership (Rule 59)
before the Court of Appeals loses 4. Replevin (Rule 60)
jurisdiction over the case 5. Support Pendente Lite (Rule 61)  
The ground is newly discovered evidence PD 1818 prohibits the issuance of

which could not have been discovered injunctive writs not only against
prior to the trial in the court below by government entities but also against any
the exercise of due diligence and of such person or entity involved in the
character as would probably alter the execution, implementation, and
result.  operation of government infrastructure
projects.  
RULE 56
PROCEDURE IN THE SUPREME COURT RULE 57
PRELIMINARY ATTACHMENT
A. ORIGINAL CASES
Rule specifically states what cases may The proper party may have the property
be originally filed with the Supreme of the adverse party attached at the
Court commencement of the action or at any
1. p e t i t i o n f o r c e r t i o r a r i , time before entry of judgment.
prohibition, mandamus, quo
warranto, habeas corpus; WHEN issued
2. disciplinary proceedings against
members of the judiciary and 1. In actions for recovery of a
attorneys specified sum of money or
3. cases affecting ambassadors, damages, except moral and
other public ministers and exemplary, on a cause of action
consuls arising from law, contract, quasi-
contract, delict or quasi-delict
B. APPEALED CASES Mode of Appeal against a party about to depart
In criminal cases where the penalty from the Phils. with intent to
imposed is death or reclusion perpetua, defraud his creditors;
an appeal made to the Supreme Court is
through a notice of appeal filed with the 2. In actions for recovery of money
RTC in all other cases, an appeal made or property embezzled or
to the supreme court is through a fraudulently converted to his
petition for review on certiorari. own use by a public officer, or an
  officer of a corp., or an
PROVISIONAL REMEDIES attorney, factor, broker, agent or
clerk, in the course of his
Also known as ancillary or auxiliary
employment as such, or by any
remedies, are writs and processes
person in a fiduciary capacity;
available during the pendency of the

71
3. In actions to recover property

unjustly taken or concealed, If great or irreparable injury would
when the property or any of its result to the applicant, the court may
part, has been concealed or issue ex parte a temporary restraining
disposed of to prevent its being order, effective only for 20 days from
found by the applicant or any service on the party sought to be
authorized person; enjoined.
4. In actions against a person guilty If the matter is of extreme urgency and

of fraud in incurring or the applicant will suffer grave injustice
performing an obligation upon and irreparable injury, the judge may
which the action is based; issue a TRO effective only for 72 hours
from issuance. Its effectivity may be
5. In actions against a party who extended after conducting a summary
has removed or disposed of his hearing w/in the 72-hrs period until the
property, or is about to do so, application for preliminary injunction
with intent to defraud his can be heard.
creditors;
The total period of effectivity of the
6. In actions against non-residents TRO shall not exceed 20 days, including
not found in the Phils., or on the 72 hours.
whom summons is served by
publication. If application is denied or not resolved
within said period, the TRO is deemed
automatically vacated.
RULE 58
PRELIMINARY INJUNCTION Effectivity of TRO is not extendible.
There is no need of a judicial declaration
Preliminary Injunction – an order granted to that effect.
at any stage of an action or proceeding
prior to the judgment requiring a party A TRO issued by the CA or any of its
or a court, agency or a person to refrain members is effective for 60 days from
from a particular act or acts. service on the party sought to be
enjoined.
PRELIMINARY MANDATORY Injunction –
an order requiring the performance of a A TRO issued by the SC or a member
particular act or acts. therof is effective until further orders.
Grounds GROUNDS FOR OBJECTION

1. applicant is entitled to the relief 1. insufficiency;
demanded; or 2. i f i n j u n c t i o n w o u l d c a u s e
2. commission, continuance or non- irreparable damage to the
performance of the act person enjoined while the
complained of would work applicant can be fully
injustice to the applicant if not compensated for such damages,
enjoined; or PROVIDED the former files a
3. the acts sought to be enjoined BOND.
probably violates the rights of
the applicant respecting the Distinctions
subject of the action and INJUNCTION PROHIBITION
tending to render the judgment
ineffectual. directed against a Directed against a
party in the action court, tribunal or a
Section 5. person exercising
There must be prior notice to the person judicial powers
sought to be enjoined and a hearing
before preliminary injunction may be
granted.

72
does not involve Based on the ground party may object to the sufficiency of
jurisdiction of the that the court the applicant’s bond or surety or he may
court against whom the file a counter-bond.
writ is sought had
acted without or in After 5 days and the adverse party failed
excess of to object or his counter-bond is
jurisdiction insufficient, the sheriff shall deliver the
property to the applicant.
it may be the main Always the main
action itself or just action
a provisional Distinctions
remedy
RULE 59 REPLEVIN ATTACHMENT

RECEIVERSHIP 
May be sought only Available even if
WHEN MAY BE GRANTED when the principal recovery of
1. applicant has an interest in the action is recovery of property is only
property or fund subject of the personal property. incidental to the
proceeding and such property is relief sought.
in danger of being lost or
materially injured unless a Can be sought only May be resorted to
receiver is appointed; when defendant is in even if the property
2. in foreclosure of mortgage, when actual possession of is in possession of a
the property is in danger of the property. third person.
being wasted or dissipated and
that its value is probably
insufficient to discharge the CANNOT be availed Can be AVAILED of
mortgage debt or that it has of when property is even if property is
been agreed upon by the parties; in custodia legis in CUSTODIA LEGIS.
3. after judgment, to preserve the
property during the pendency of Available before Available from
an appeal or to dispose of it defendant answers commencement but
accdg. to the judgment or to aid before entry of
execution; judgment
4. when appointment of receiver is
the most convenient and feasible
Bond is DOUBLE the Bond is FIXED by the
means of preserving, value of the court
administering or disposing of the property
property in litigation.
A person who refuses or neglects to RULE 61

deliver property within his control and SUPPORT ‘PENDENTE LITE’
which is the subject of the action to the
receiver may be punished for contempt When may be applied for: at the
and liable to the receiver for the money commencement of the action or at any
or the value of the property PLUS time before judgment or final order.
damages.
Failure to comply with an order granting
The receiver shall also file a bond before support pendente lite may warrant the
entering upon his duties separate from issuance of an order of execution against
the bond filed by the applicant. the non-complying party. He may
likewise be liable for contempt.
RULE 60 (See matrix on provisional remedies
REPLEVIN more detailed information.)
The sheriff shall retain the property for
5 days. Within such period, the adverse


CivPro Reviewer

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

CivPro Reviewer

Uploaded by

Copyright:

Available Formats

San Beda College of Law

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Determined by facts determined by B. An answer alleging either of the

the plaintiff availed of directly Section 5. Joinder of causes of action.

Pars. (d) embodies the TOTALITY RULE

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

SPLITTING OF JOINDER OF consent thereto, the reason

Neither a dead person nor his estate may

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

substantive law or procedural rule such

PERMISSIVE JOINDER – the aggregate JOINT DEBTORS – indispensable party

SERIES OF TRANSACTIONS – transactions The non-inclusion of a necessary party

The court may order the inclusion of the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

entailed the dismissal of the complaint

The absence of an indispensable party Service of summons upon a defendant

Section 12. Class suit. Section 15. Entity without juridical

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

3. recovery for an injury to person failure to do so does not warrant the

C. Supervening Incompetence or Indigent – one who has no property or

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

RULE 4 If case involves two properties located

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

venue. An exception is provided in

court may court may

RULES ON SUMMARY PROCEDURE

The filing of a prohibited pleading will

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Although a motion to dismiss is a 2. t h a t n o c o n c i l i a t i o n o r

While a motion to declare the defendant

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

be interrupted upon filing of the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2 kinds of defenses that may be set

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

KATARUNGANG PAMBARANGAY PROCEDURE

W/in the next working At any time during

Issuance of Parties agree to

Execution w/ Repudiation of Award to be

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

DOCTRINE OF ANCILLARY JURISDICTION

Cross Counterclai 3rd-party

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

plaintiff has or may have to the

REPLY - the response of the plaintiff to Leave of court to file a third-party