REMEDIAL LAW

CIVIL PROCEDURE

1. How shall the Rules of Court be construed?

Answer: The Rules of Court shall be liberally construed in order to promote their objective of securing
a just, speedy, and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1 of the ROC).

2. Concept of Remedial Law. Distinguish substantive law and remedial law.

Answer: Remedial Law is branch of public law which prescribes the procedural rules to be observed
in litigations, whether civil, criminal, or administrative, and in special proceedings as well as
proceedings the remedies or reliefs.

Substantive law is that part of the law which creates, defines, and regulates rights and obligations, the
violation of which gives rise to a cause of action. On the other hand, remedial law prescribes the method of
enforcing rights or obtaining redress for their invasion. (Bustos v. Lucero 1948).

3. How are remedial law implemented in our system of government?

Answer: It is implemented through the judicial system, including the prosecutorial service, our courts, and
quasi-judicial agencies.

4. Civil Action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong. It may either be an ordinary or special. Both are governed by
the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.
Criminal Action is one by which the State prosecutes a person for an acts or omission punishable
by law.
Special Proceedings is a remedy by which a party seeks to establish a status, a right, or a
particular fact.

5. Every Ordinary Civil Action must be based on a Cause of Action.

Cause of Action is the act or omission by which a party violates a right of another.

6. A party may not institute more than one suit for a single cause of action.
If two or more suits are instituted on the basis of the same cause of action, the filing of one
or judgment upon the merits in any one is available as a ground for the dismissal of the
others.

7. Who may be the parties to Civil Actions?

Answer: Only natural or juridical persons or entities authorized by law may be parties in a
civil action.
8. What is Real Party in Interest?
Answer: Real Party in Interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit.

9. Husband and wife shall sue or be sued jointly, except as provided by law.

10. A minor or incompetent person may sue or be sued with the assistance of his or her father,
mother, guardian, or if he or she has none, a guardian ad litem.

11. Failure to implead a necessary party may constitute a waiver of claim. The pleader shall
state the reason why he or she is omitted, the court may order to include a necessary party
in claim if it finds omission unmeritorious.

Failure to comply with the order for his inclusion, without justifiable cause, shall be deemed
a waiver of the claim against party.

12. Misjoinder and non-joinder of parties is not a ground for dismissal of the action.

13. Class Suit is when the subject matter of controversy is one or common or general interest
to many persons so numerous that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and representative as to full protect the
interest of all concerned may sue or defend for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual interest.

14. Entity without juridical personality as defendant. When two or more persons not organized
as an entity with juridical personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.

15. The legal counsel must inform the court within 30 days after the death of his or her client,
and give the name and address of his or her legal heirs or representatives. Otherwise, he or
she is subject to a disciplinary action.

No appointment of an executor or administrator is necessary if there is substituted heirs for

deceased because it is allowed by the Rules of Court. The Court may appoint guardian ad litem
for minor heirs.

If no legal representative named by the counsel for the deceased party or failed to appear
within the specified period, the Court may order the opposing party to procure the
appointment of an executor or administrator for the estate of the deceased, and the latter
shall immediately appear for and on behalf of the deceased.

16. If a party becomes incompetent or incapacitated, the Court, upon motion with notice, may
allow the action to be continued by or against the incompetent or incapacitated provided
that he or she is assisted by his or her legal guardian or guardian ad litem.

17. If the defendant dies before the entry of final judgment in court, the plaintiff may still recover
the money claims provided that the action for money claims arises from the contract,
express or implied. It shall not dismiss by the Court, but it shall instead be allowed to
continue until entry of final judgment.
18. Venue of Actions: Venue of Real Actions, Venue of Personal Actions, and Venue of actions
against nonresidents.

Venue of Real Actions-an actions affecting title to or possession of real property, or

interest therein, shall be commenced and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or a portion thereof, is situated.

Venue of Personal Actions-all other actions may be commenced and tried where the
plaintiff/defendant or any of the principal plaintiffs/defendant resides.

In case of a non-resident defendant where he or she may be found, at the election of the
plaintiff.

Venue of actions against nonresidents- if any of the defendants does not reside and is not
found in the Philippines, and the action affects the personal status of the plaintiff, or any
property of said defendant located in the Philippines, the action may be commenced and
tried in the court of the place where the plaintiff resides, where the property or any portion
thereof, is situated or found.

19. Pleadings are the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.

Kinds of Pleadings
a. Complaint
b. Answer
c. Defenses
1. A negative defense is the specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his or her cause/s of action.
2. An affirmative defense is an allegation of a new matter which, while hypothetically
admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him or her. It includes fraud, statute of
limitations, release, payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession and avoidance.
It also includes grounds for the dismissal of a complaint, specifically, that the Court
has no jurisdiction over the subject matter, res judicata, litis pendentia, and the
action is barred by a prior judgment.
d. Counterclaim
e. Compulsory Counterclaim
f. Cross-claim-is any claim by one party against a co-party arising out of the transaction
or occurrence.
g. Counter-counterclaims and counter-cross-claim
h. Reply
i. Third, (fourth, etc.)-party complaint and Answer to third (fourth, etc.) party complaint.

PARTS OF THE PLEADINGS

1. Caption
2. The Body
3. Headings
4. Relief
5. Date
6.
7. Signature and Address
 8. Verification
9. Certification against forum shopping; and
10. Contents.

20. A defendant must specify each material allegation of fact the truth of which he or she does
not admit. He or she may also deny only part of an averment, and shall specify so much of
it as is true and material and shall deny only the remainder.

An allegations not specifically denied shall be deemed admitted.

21. If the defending party failed to answer within the time allowed therefor, the Court shall, upon
motion of the claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default.

The defending party in default shall be entitled to notices of subsequent proceedings, but
shall not take part in the trial.

The defending party in default may, at any time after notice thereof or before judgment, file
a motion to set aside the order of default upon proper showing that his or her failure to
answer was due to fraud, accident, mistake, or excusable negligence (FAME), and that he
or she has a meritorious defense.

If the defending party failed to answer, no order of default is allowed, if the action for
annulment or declaration of nullity of marriage or for legal separation is involved or filed by
the party. The Court shall order the SOLGEN or his or her deputies to investigate, whether
or not a collusion between the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is not fabricated.

22. How is the pleading amended?

a. By adding or striking out an allegation or any name of any party; and
b. By correcting a mistake in the name of a party or mistaken or inadequate allegation or
description in any other respect.

GR: Pleading may amend only once as a matter of right at any time before the responsive
pleadings is served or, in the case of a reply, at any time within 10 days after it is served.
XPN: Substantial amendments may be made only upon leave of court. But such leave
shall be refused if it appears to the court that the motion was made with intent to delay
or confer jurisdiction on the court, or the pleading stated no cause of action from the
beginning which could be amended.

23. What is Filing? It is the act of submitting the pleading, or other paper to the court.
What is Service? It is the act of providing a party with a copy of the pleading or any other
court submission.

Modes of Service:
a. By personal service-it is made by personal delivery of a copy to the party, party’s
counsel, or to their authorized representative named in the appropriate pleading or
motion, or by leaving it in his or her office with his or her clerk, or with a person having
charge thereof ;
b. By registered mail-it is made by depositing the copy in the post office;
c. By accredited courier
d. By electronic mail-it is made by sending an email to the party’s email.
 e. By facsimile transmission-it is made by sending a facsimile copy to the party’s given
facsimile number.
f. By substituted service-it is made if it failed to deliver a copy by personal service and
service by mail.
g. By other electronic means – it is made by either email or through other electronic means
of transmission.

24. What is the doctrine of hierarchy of courts?

Answer: It provides that where there is a concurrence of jurisdiction by courts over an action of proceedings,
there is an ordained sequence of recourse to such courts beginning from the lowest to the highest. A direct
invocation of the Supreme Court’s original jurisdiction should be allowed only when there are special and
important reasons therefor. (Montes v. Court of Appeals, G.R. No. 143797, 4 May 2006)

Under the principle of hierarchy of courts, direct recourse to this Court is improper because the Supreme
Court is a court of last resort and must remain to be so in order for it to satisfactorily perform its
constitutional functions, thereby allowing it to devote its time and attention to matters within its
exclusive jurisdiction and preventing the overcrowding of its docket.

Although the Supreme Court has concurrent jurisdiction with the CA in petitions for certiorari, a direct
resort is allowed only when there are special or compelling reasons that justify the same, to wit:

1) When dictated by the public welfare and the advancement of public policy;

2) When demanded by the broader interest of justice;

3) When the challenged orders were patent nullities; or

4) When analogous exceptional and compelling circumstances called for and justified the immediate and
direct handling of the case.

For res judicata to bar a subsequent action, the following elements must be present:

1) The judgment sought to bar the new action must be final;

2) The decision must have been rendered by a court having jurisdiction over the subject matter and the
parties;

3) The disposition of the case must be a judgment on the merits; and

4) There must be as between the first and second action, identity of parties, subject matter, and causes
of action.

A compromise agreement must contain the same elements of a valid contract:

1) Consent of the parties;

2) Object certain that is the subject matter of the compromise; and

3) Cause of the obligation established.

 25. What is the Harmless Error Rule in relation to appeals?

Answer: The harmless error rule in relation to appeals provides that the appellate court should not
reverse a judgment as a result of any error or defect which does not affect the substantial rights of
the parties. (Sec. 6, Rule 51 of the ROC, Bersamin Appeals & Review in the Philippines 362)

26. Distinguish Questions of Law from Questions of Fact.

Answer: A question of law exists when the doubt or difference arises as what the law is on a certain set
of facts, while a question of fact is when the doubt or difference arises as to the truth or falsehood of the
alleges facts. (Ramos v. Pepsi-Cola Bottling Co. of the Phil., G.R. No. L-22533, Feb. 9, 1967)

27. The Court of Appeals may review administrative cases decided by the Ombudsman under
Rule 43 of the ROC by filing a petition for review, raising the issue of questions of law, of fact, or
mixed question of law and fact.
28. The Supreme Court has exclusive appellate jurisdiction over the criminal cases decided by
the Ombudsman. (Lanting v. Ombudsman May 05, 2005)
29. The decision of the CTA division must be filed with the CTA en banc because the latter has
the same rank as the Court of Appeals and is no longer considered as a quasi-judicial
agency.
30. Rule Making Power of the Supreme Court (Sec. 5(5) Article 8 of the 1987 Constitution. The
Supreme Court shall have the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission
to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.
31. Principle of Judicial Hierarchy. Where court have concurrent jurisdiction over the subject matter,
such concurrence of jurisdiction does not grant the party seeking relief the absolute freedom to file
the petition in any court of his choice.

General Rule: The case must be filed first before the lowest court possible having the appropriate
jurisdiction.

Exception: If one can advance a special reason which would allow a party a direct resort to a higher
court.

32. Under the Principle of hierarchy of courts, direct recourse to this court is improper because the
Supreme Court is the last resort and must remain to be so in order for it satisfactorily
perform its constitutional functions, thereby allowing it to devote its time and attention to
matters within its exclusive jurisdiction and preventing the overcrowding of its docket.
33. Jurisdiction is determined by the ALLEGATIONS OF THE COMPLAINT
34. Jurisdiction over the subject matter is CONFERRED BY LAW which may be either the
Constitution or Statute.
35. Jurisdiction cannot be:

a. Granted by the agreement of the parties;

b. Acquired, waived, enlarged, or diminished by any act or omission of the parties; or
c. Conferred by the acquiescence of the courts.

36. The Amount awarded does not determine jurisdiction.

37. The defense and the evidence do not determine jurisdiction.
38. General Rule: Jurisdiction over the subject matter may be raised at any stage of the proceedings
even for the first time on appeal.
Exception: Effect of estoppel on objections to jurisdiction.
39. Jurisdiction over the plaintiff is acquired by his or her filing of the complaint or petition (and
payment of required docket fees), and submit himself or herself to the jurisdiction of the court.
40. Jurisdiction over the person of the defendant in civil cases is acquired either through (1) service
of summon or (2) voluntary appearance in court and submission to its court.

“Jurisdiction over the person of the defendant in civil cases is acquired by service of summons.
However, "even without valid service of summons, a court may still acquire jurisdiction over
the person of the defendant if the latter voluntarily appears before it." "If the defendant
knowingly does an act inconsistent with the right to object to the lack of personal jurisdiction
as to [them], like voluntarily appearing in the action, [they are] deemed to have submitted
[themselves] to the jurisdiction of the court."

41. Jurisdiction of the Court over the Personal Property

If it does not exceed 2M-MTC
If it exceeds 2M-RTC

Jurisdiction of the Court over the Real Property (real action, Accion Publiciana and
Accion Reivindicatoria)
If it does not exceed 400k-MTC
If it exceeds 400k RTC

If the subject matter of the litigation is Incapable of Pecuniary Estimation-RTC

42. Allowable Grounds for Motion to Dismiss

a. Lack of Jurisdiction
b. Litis Pendentia
c. Res Judicata
d. Prescription

43. Action in personam is an action against a person on the basis of his personal liability.
44. Action in Rem is an action against the thing itself instead of against the person.
45. An Action quasi in Rem is one wherein an individual is named as defendant and the purpose of
the proceedings is to subject his interest therein to the obligation or lien burdening the property.
46. Jurisdiction over the issue is the power of the court to try and decide issues raised in the
pleadings of the parties.
47. Jurisdiction over the issue is conferred and determined by the pleadings of the parties, by
stipulation of the parties, and by waiver or failure to object to the presentation of evidence
on a matter nit raised in the pleadings.
48. Jurisdiction over the res or the property in Litigation may be acquired by the court by
placing the property or thing under its custody (custodia legis) or constructive seizure.
49. Jurisdiction vs. Exercise of Jurisdiction. Jurisdiction is the authority to try and decide cases,
while Exercise of Jurisdiction, an act of court is a decision of all other questions arising in the
case is but an exercise of that jurisdiction.

“Jurisdiction is not the same as the exercise of jurisdiction. As distinguished from the exercise
of jurisdiction, jurisdiction is the authority to decide a cause, and not the decision rendered
therein. Where there is jurisdiction over the person and the subject matter, the decision on all
other questions arising in the case is but an exercise of the jurisdiction. And the errors which
the court may commit in the exercise of jurisdiction are merely errors of judgment which are
 the proper subject of an appeal. Section 12, in relation to Section 15, of Republic Act No. 26, the
governing law for judicial reconstitution, instructs when reconstitution of a title should be
allowed.”

50. Error of Jurisdiction vs. Error of Judgment. Error of Jurisdiction occur when the court
exercises a jurisdiction not conferred it by law. It may also occur when the court or tribunal although
with jurisdiction, acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack
of excess of its jurisdiction, while Error of Judgment is not a void judgment, a judgment tainted
with an error of jurisdiction either because of a total absence of jurisdiction to take cognizance of
an action or because of a grave abuse of discretion. Nullity.

Errors of Jurisdiction are correctible only by the extraordinary writ of certiorari, while Errors
of Judgment are correctible by appeal.

51. Special Civil Action of Certiorari under Rule 65 is designed to correct errors of jurisdiction and
not errors in judgment.
52. Jurisdiction vs. Venue. Venue is the place where the case is to be heard or tried, procedural,
establishes a relation between plaintiff and defendant, or petitioner and respondent, and may be
changed by written agreement of the parties or waived expressly or impliedly, while Jurisdiction
is the authority to hear and determine a case, substantive, establishes a relation between the court
and subject matter, fixed by law, and cannot be conferred by the agreement of the parties.
53. TWO DISMISSAL RULE applies when the plaintiff has a twice dismissed actions based on or
including the same claim in a court of competent jurisdiction.
54. The second notice of dismissal will bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits. When a complaint is dismissed a second time, the
plaintiff is now barred from seeking a relief on the same claim. (Ching vs. Cheng)
55. DISMISSAL BY FILING A MOTION TO DISMISS under Rule 17, Section 2 is no longer a matter
of right on the part of the plaintiff but a matter of judicial discretion. It is a failure to prosecute
without prejudice unless the order of dismissal specifies that it is with prejudice.
56. DISMISSAL DUE TO THE FAULT OF THE PLAINTIFF because the latter failed, without justifiable
reasons, to appear on the date of the presentation of evidence in chief, the Court may dismiss the
case on the ground that the prosecution failed to prosecute the defendant or respondent, the
plaintiff failed to comply with the ROC, and the plaintiff failed to comply with any order of the court.
THE DISMISSAL MAY BE DONE BY THE SOUND DISCRETION OF THE COURT OR UPON
MOTION FILED BY THE DEFENDANT.
57. EFFECT OF FAILURE, without valid cause, TO APPEAR BY THE PLAINTIFF AND LEGAL
COUNSEL DURING PRE-TRIAL shall result in a waiver of any objection to the faithfulness of
the reproduction marked, or their genuineness and due execution, and cause the dismissal
of the action.
58. If the order of dismissal of the action is with prejudice, the remedy is to file an appeal
because an order of dismissal is appealable.
59. INTERVENTION is a remedy by which a third party, not originally impleaded in the proceedings,
becomes a litigant therein to enable him, her or it to protect or preserve a right or interest
which may be affected by such proceedings.
60. Intervention is improper for lack of legal interest in the matter in litigation because legal
interest must be actual, substantial, material, direct, and immediate, not simply contingent or
expectant.
61. Two kinds of subpoena.
a. Subpoena Duces Tecum- a process directed a person requiring him to bring with him books,
documents, or other things under his or her control.
 b. Subpoena Ad Testificandum- a process directed to a person requiring him to attend and
testify at the hearing or a trial of an action, or any investigation conducted by the competent
authority or for the taking of his deposition.
62. DEPOSITION is the taking, by oral examinations in an open court or written interrogatories, of the
testimony of any person, whether he be a party or not, but at the instance of a party to the action.
63. No deposition shall be taken before the a person who is a relative within the sixth degree of
consanguinity or affinity, or employee of such counsel of any of the parties; or who is a relative
within the same degree, or employee of such counsel; or who is financially interested in action.
64. BILL OF PARTICULARS is directed to a pleading and is designed to seek for a more definite
statement of particulars of any matter not averred with sufficient definiteness in a pleading.
65. A deponent may be liable for contempt if he or she refused to answer any questions upon
order of the court, order the deponent, party, counsel, or both of them to pay proponent the
reasonable expenses incurred in obtaining the order including the attorney’s fees.
66. The Court may issue an order striking out pleadings or any part thereof; an order dismissing the
action or proceedings or any part thereof; an order staying further proceedings until the order is
obeyed; or an order rendering a judgment by default against disobedient party. (Rule 29, Section
3(c) of the ROC)
67. The trial may, from day to day, be adjourned by the court. The court has no power to adjourn a
trial for a period longer than one month from each adjournment, nor more than three (3) months in
all, except when authorized in writing by the court administrator.
68. The trial may be postponed by the court on the ground of illness of either party or counsel by
complying the following: a motion for postponement must be filed, and supported by the affidavit or
sworn certification.
69. Consolidation is a procedural device, granted to the court as an aid in declining how causes in its
docket are to be tried, so the business of the court may be dispatched expeditious while providing
justice to the parties.
70. Kinds of Consolidation: 1.Quais-consolidation, 2. Actual Consolidation, and 3. Consolidation for
Trial.
71. Demurrer to Evidence may only be apply by the defendant after the plaintiff has completed the
presentation of his or her evidence on the ground of insufficient of evidence. The defendant may
move for dismissal upon the facts and the law, the plaintiff has no right to relief.
72. Distinguish demurrer to evidence in a civil case from a demurrer to evidence in a criminal
case.

In civil case, leave of court is not required before filing a demurrer; if granted, the order of dismissal
is appealable; if denied, the defendant may proceed to present his or her evidence.

In criminal case, a demurrer may be filed with or without leave of court; if granted, the order of
dismissal is not appealable because of the constitutional policy against double jeopardy; if denied,
the defendant may adduce his or her evidence only if the demurrer is filed with leave of court. He
or she cannot present his or her evidence if the demurrer was filed without leave of court.
73. Judgment on the pleadings may be applied when an answer to a claim failed to tender issue,
or otherwise admits the material allegations of the adverse party’s pleading. The court may,
on motion, render judgment on the pleadings if it is apparent that the answer fails to tender an issue
or otherwise admits the material allegations of the adverse party’s pleadings.
74. Material allegations of the complaint not specifically denied by the pleader are admitted.
75. A Summary Judgment, also called Accelerated Judgment, may be proper if the court finds no
genuine issues as to any material facts after the issues had been joined and on the basis of the
pleadings and papers except as to the amount of damages.
76. A genuine issue is an issue of fact which requires the presentation of evidence as distinguished
from a sham, fictitious, contrived or false claim.
77. Distinguish Judgment on the pleadings from Summary Judgment.
 In Judgment on the pleadings, there is an absence of a factual issue in the case because the
answer tenders no issue at all; may be filed by the claiming party like a plaintiff or a counterclaimant;
and it is based on the pleadings alone.

In Summary Judgment, it involves an issue, but the issue is not genuine, the issue is only as to
the amount of damages, but not as to any material fact; it may be filed by either the claiming or the
defending party; and it is based on the pleadings, affidavits, depositions, and admissions.

78. Post-Judgment Remedies

1. Motion for Reconsideration and Motion for New Trial
a. Motion for Reconsideration under R37 of the ROC.
1. It is directed against the judgment or final order;
2. It is a prohibited motion in a case that falls under summary procedure and small claims
cases;
3. It is prohibited in the Court’s action on the affirmative defenses.
4. It must be filed within 15 days period for appeal;
5. No motion for extension of time to file MR shall be allowed.
b. Motion for New Trial under R37 of the ROC.
1. It must be filed within 15 days for appeal;
2. The effect of filing of the MNT is interrupted the period of appeal;
3. It must be filed on the grounds of fraud, accident, mistake, or excusable negligence
(FAME), and newly discovered evidence. The discovery of evidence must be done after
trial.
4. If granted, the original judgment or final order shall be vacated, and the action shall stand
for a trial de novo.
5. If denied, it is not appealable. The remedy is to file a petition for certiorari under Rule 65 of
the ROC.
2. Appeals
a. Nature of Right to Appeal.
1. It is not only mandatory, but also a jurisdictional;
2. It is a mere statutory right;
3. Failure to file an appeal will render the judgment final and executory and deprives the
appellate court of jurisdiction to alter the final judgment, much less to entertain the
appeal;
4. The payment of full amount of docket fees is mandatory.

Note: The timely filing of MR by one party does not interrupt the other or another party’s
period of appeal. (Bernardo vs. Soriano, June 19, 2019).

b. Judgment and Final orders subject to appeal

1. It is taken only from the final judgment or order that completely disposed the cases; or
2. A particular matter therein when declared by the ROC to be appealable.
c. Appeals not available; Available Remedies
1. Interlocutory Order is not appealable, the remedy is to file a petition for certiorari under
R65 of the ROC because there is no appeal available on the part of the losing party or
there is grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of court, tribunal, board or officer exercising judicial or quasi-judicial functions;
2. An order denying a petition for relief or any similar motion seeking relief from judgment;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, accident, mistake or duress or any other ground
vitiating consent;
 5. An order of execution;
6. An order dismissing an action without prejudice; and
7. A judgment or final order or against one or more of several parties or in separate
claims, counterclaims, cross claims, and third party complaints while the issue is
pending, unless the courts allows an appeal therefrom.
d. Doctrine of Finality/Immutability of Judgment. Under the doctrine of conclusiveness of
immutability of judgments, a judgment that has attained finality can no longer be disturbed.
A decision that has attained finality can no longer be modified even if the modification
is meant to correct erroneous conclusions of fact or law and regardless of whether the
modification is attempted to be made by the court rendering it or by the highest court of the
land.

Once a judgment becomes final, it is no longer subject to change, revision, amendment,

or reversal, except only for correction of clerical errors, or making of nunc pro tunc entries
which cause no prejudice to any party, or where the judgment is void.

Void judgment does not attain finality.

e. Modes of Appeal

1. From MTC to RTC under R40, if the MTC exercising its exclusive and original
jurisdiction, the losing party may file an appeal by filing a notice of appeal with the court
that rendered the judgment or final order appealed from, and by serving a copy of the
notice to the adverse party. The clerk of court shall transmit the original record or record
on appeal together with transcript to the RTC because the latter exercising its appellate
jurisdiction over the cases decided by the MTC.

General Rule: A dismissal with prejudice is appealable.

Exception: A dismissal without prejudice is not appealable.

Note: According to the law, if the lower court dismissed the case without
jurisdiction over the subject matter, the appellate Court may admit amended
pleadings and additional evidence in the interest of justice if it has original
jurisdiction over the subject matter.

2. From RTC to CA under R41.

a. If the RTC exercising its appellate jurisdiction, and affirmed or reversed the
judgment or final order of the lower court, the losing party may file a petition
for review under R42 because the CA has appellate jurisdiction over the
cases decided by the RTC.
b. If the RTC exercising its exclusive and original jurisdiction, and rendered
judgment or final order, the losing party may file a petition by notice of
appeal with the court that has rendered judgment or final order appealed
from, and serving a copy upon the adverse party, raising questions of law,
questions of fact, or Mixed Question of Law and Fact. The clerk of court shall
transmit the original record or record on appeal together with transcript to the CA
because the latter exercising its appellate jurisdiction over the cases decided by
the RTC.
c. The losing party shall appeal to the Supreme Court by filing a petition for
review on certiorari under R45 if it raises or involves Questions of Law in all
cases.
 The purpose of a reconstitution action is merely to reproduce a
certificate of title, after proper proceedings, in the same form it was
when it was lost or destroyed. Hence, in such action, a trial court
cannot order the cancellation of the original title nor direct the
issuance of a new TCT in favor of another.

3. From CTA and Quasi-Judicial Agencies to the CA under R43.

If the CTA rendered judgment or final order, and from awards, resolutions,
judgments or final orders or authorized by any Quasi-Judicial agencies in the
exercise of its quasi-judicial functions, the losing party shall appeal by filing a
petition for review with the CA (Sec. 5, Rule 43), involving questions of law, of fact,
or mixed questions of law and fact (Sec. 3, Rule 43), because the CA exercising
its appellate jurisdiction over the cases decided by the CTA and other Quasi-
Judicial Agencies in the exercise of its quasi-judicial functions.

Note: Rule 43 does not apply to the judgments or final order covered by the
Labor Code of the Philippines.

Note: If the Tax cases decided or awarded by the lower courts, board, tribunal,
or officer was brought to the CTA Division, the losing party may file an appeal
by filing a petition for review before the CTA en Banc because the latter has
exclusive and appellate jurisdiction over the cases decided by the CTA
Divisions, and has the same rank as the CA.

4. From RTC, Sandiganbayan, CA, CTA en Banc, Writ of Habeas Corpus, Writ of
Kalikasan, writ of habeas data, and Writ of Amparo to SC under R45

a. If the RTC exercises its original jurisdiction over the subject matter, the
losing party may directly file a petition for review on certiorari under R45
before the Supreme Court if the losing party raising only the issue of purely
questions of law because the RTC exercising its original jurisdiction over the
subject matter.

b. If the RTC exercising its appellate jurisdiction over the subject matter, the
losing party may not file a petition for review on certiorari under R45 before
the Supreme Court, even if it raises the issue of purely question of law,
because the RTC has not exercised its original jurisdiction over the subject
matter.

c. If the CTA en banc exercising its appellate jurisdiction over the cases
decided by the CTA Division, the losing party may file a petition for review
on certiorari under R45 before the Supreme Court, raising a purely questions
of law, because the CTA en Banc exercises its appellate jurisdiction over the
cased decided by the CTA Divisions.

d. If the CA rendered judgment or final order, or affirmed or reversed the

decision of the lower courts, the losing party may appeal to the Supreme
Court under R45 by filing a petition for review on certiorari, raising only
purely Questions of law only.
 e. If the Sandiganbayan rendered judgment, final order, or resolution, the losing
party may file a petition for review on certiorari under R45 before the Supreme
Court by raising the issue of pure questions of law.

f. If the petition for writ of amparo or a petition for writ of habeas data is
granted or denied by the RTC, Sandiganbayan or CA, the losing party or
aggrieved party may elevate or bring the petition to the Supreme Court under R45
by raising the issue not only the questions of law but also questions of fact
or of both law and fact because the Highest Court has concurrent jurisdiction
over the petition for writ of amparo decided by the RTC, CA, and
Sandiganbayan.

g. If the petition for writ of kalikasan is granted or denied by the lower court,
the losing party or aggrieved party may elevate or bring the petition to the
Supreme Court under R45 by raising the issue of questions of fact because
the SC has concurrent jurisdiction over the petition of writ of kalikasan
decided by the lower court.

Note:

GR: R45 applies only when it raises an issue of pure questions of law
because the Supreme Court is not a trier of facts.
EXP: The SC may review the questions of facts when:
1. The conclusion is finding grounded entirely on speculation, surmises, or
conjectures;
2. There is grave abuse of discretion;
3. The inference made is manifestly mistaken, absurd, or impossible;
4. The findings of fact are conflicting;
5. The findings of fact are conclusions without citation of specific are
evidence on which they are based;
6. The facts and reply briefs are not disputed by the respondents;
7. The findings of fact is contradicted by the evidence of record;
8. The judgment is based on the misapprehension of facts;
9. The lower court went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; and
10. The findings of facts by the CA are contrary to those of the trial court.

Note: Certiorari under R45 is not the certiorari under R65 because the former is a
mode of appeal against the judgment or final order of the lower courts, while the
latter is a special civil action that is an original action over the cases decided by the
lower courts, or board, tribunal, bodies, or officer exercising of its quasi-judicial
functions provided that there is grave abuse of discretion amounting to lack or
excess of jurisdiction, or that there is no appeal, or any plain, speedy, or remedies
available to the losing party or aggrieved party.

79. The RTC has concurrent and original jurisdiction with the SC in actions affecting ambassadors,
other public ministers, and consuls.
80. The RTC has also concurrent and original jurisdiction with the SC and CA in petitions for certiorari,
prohibition, and mandamus against lower courts, and bodies and petitions for quo warranto and
habeas corpus.
81. The RTC has also concurrent and original jurisdiction with the SC, CA, and Sandiganbayan in
petitions for a writ of habeas data and writ of amparo.
82. The petitioner may apply for the writ of preliminary injunction before the Supreme Court
under R45 or other provisional remedies. The petitioner may also seek the same provisional
remedies by verified motion filed in the same action or proceeding at any time during its
pendency.
83. The review on certiorari is not a matter of right, but a sound judicial discretion, and will be
granted only when there are special and important considerations by reason of substance.
84. R64 is a mode of review.

a. If the COA or COMELEC rendered judgment and final order or resolutions, the losing
party or aggrieved party may, within 30 days from notice of judgment and final order, or
resolutions, be brought to the SC by filing a verified petition for review on certiorari
under R65, because the SC has appellate jurisdiction over the cases decided by the COA
and COMELEC in the exercise of its quasi-judicial functions.
b. If the SC finds the petition sufficient in form and substance, it shall order the
respondents to file their comments on the petition within 10 days from notice thereof;
otherwise, the Court may dismiss the petition outright.
c. The SC may also dismiss the petition if it was filed manifestly for delay, or the questions
raised are too unsubstantial to warrant further proceedings.
85. Petition for Review on Certiorari and Special Civil Action for Certiorari under R65 applies
only when the lower courts exercising of its judicial functions or any tribunal, board, or
officer exercising of its quasi-judicial functions, provided that (1)it has acted without or in
excess of its or his or her jurisdiction, or (2) with grave abuse of discretion amounting to
lack or excess of jurisdiction, and (3) there is no appeal, or any plain, speedy, and adequate
remedy available to the losing or aggrieved party.
86. Petition for Relief from Judgment under R38

a. Petition for relief applies only when the decision or order is entered through Fraud,
Accident, Mistake, or Excusable Negligence (FAME), and the petitioner has been
prevented from taking an appeal by fraud, accident, mistake, or excusable negligence
(FAME). It allows only in exceptional cases where there is no other available or adequate
remedies provided by the law or the rules.
b. Petition for Relief applies not only against a judgment or final order, but also to a
proceedings taken after the entry of judgment or final order such as an order of
execution. It also refers not only to judgment, but also to orders or any other
proceedings.
c. Petition for relief from judgment is not an available remedy in the SC or CA.
87. An action for Annulment of Judgment is not a mode of appeal, but an independent civil
action under R47. Its purpose is to have the final and executory judgment set aside so that
there will be a renewal of litigation.

Prescription: If it is based on extrinsic fraud, it must be filed within 4 years from the time of
discovery, if it is based on lack of jurisdiction, it must be filed before it is barred by laches
or estoppel

An action for Annulment of Judgment is available only when the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies are no longer available through
no fault of the petitioner.

If the petitioner availed himself of the remedy of the petition for relief from judgment under
R38, raising the issue of extrinsic fraud with the trial court, he or she is effectively barred from
raising the same issue on his petition for annulment of judgment.
 An Action for Annulment of Judgment may only be prosper and filed within 60 days period
after the petitioner learned of the judgment, final order, or proceedings, and not more than
6 months after such judgment or final order was entered, or such proceedings was taken
when there is a ground of extrinsic fraud, lack of jurisdiction, lack of due process, or
collateral attack on judgments.

a. Fraud is regarded as extrinsic where it prevents a party from having a trial or from
proceedings his or her entire case to the court, or it pertains not to the judgment itself
but to the manner in which it is procured. The fraud must be extrinsic or actual. It is
intrinsic when the fraudulent acts pertain to an issue involved in the original action or
where the acts constituting the fraud were or could have been litigated.

Note: The use of forged signature is not an extrinsic fraud (Castro vs. Gregorio 2014)

b. Lack of Jurisdiction as a ground for Annulment of Judgment refers to the Lack of

Jurisdiction over the person of the defending party or Jurisdiction over the subject
matter of the claim. It must be proven or shown by the losing parties that there is an
absolute lack of authority to hear and decide the case. There is also a failure to implead
the indispensable parties.

The indispensable parties are the parties who has an interest in the case or proceeding
must be joined either as plaintiff or defendants, and they must be impleaded as
indispensable parties for an action for annulment of judgment.

c. Lack of Due Process may be violated on the ground of the defect in jurisdiction.

d. Collateral Attack may be proper only when the judgment, on its face, is null and void, as
where it is patent that the court which rendered said judgment has no jurisdiction.

A void judgment can be the subject of a collateral attack because it is not a final
judgment. Any writ of execution based on the void judgment is void.

If the petitioner filed a petition for annulment of judgment on the ground of its excess of
jurisdiction, the petition should be denied because this ground is not one of the grounds
of an action for annulment of judgment.

88. A motion for execution is a remedy afforded for the satisfaction of a judgment by the
winning party.
89. No appeal may be taken from an order of execution. The remedy of a losing party is to file
a special civil action under R65 because an order of execution is not appealable.
90. A writ of execution is enforceable within five (5) years from the entry of judgment.

GR: A writ of execution is no longer be contested and prevented and no appeal will lie
therefrom.
XPN: It may be quashed on the ground of that it varies judgment, there has been changed
in the situation between the parties making execution inequitable or unjust, if the property
subject to execution is exempted by law,, a term of the judgment are not clear enough, it
appears improvident of the issuance of writ and defective in substance, or it issued
against the wrong party.
91. A revived judgment is deemed a new judgment separate and distinct from the original
judgment. It commences to run from the date of the finality of the revived judgment, not
from the date of finality of the old, original judgment.
92. All disputes between parties actually residing in the same city or municipality are subject to
barangay conciliation. A prior recourse thereto is a pre-condition before filing a complaint in
court or any government office. Non-compliance with the said condition precedent could affect
the sufficiency of the plaintiff's cause of action and make his complaint vulnerable to dismissal
on ground of lack of cause of action or prematurity; but the same would not prevent a court of
competent jurisdiction from exercising its power of adjudication over the case before it, where
the defendants failed to object to such exercise of jurisdiction.
93. KINDS OF PROVISIONAL REMEDIES: PA, PI, Receivership, Replevin, and Support Pendente Lite.

1. Preliminary Attachment (R57)- a remedy by which the property of an adverse party is taken
by into legal custody, either at the commencement of an action or any time thereafter, as
a security for the satisfaction of any judgment that can be recovered by the plaintiff or any
property. It is resorted only to before the finality of the judgment to secure the property of
the adverse party and to prevent its dissipation. It is granted only upon the judicial
discretion.
Kinds of Attachments
1. Preliminary Attachment
2. Garnishment
3. Levy on execution to satisfy a final judgment

Grounds:

a. Recovery of a Specified amount of Money or Damages

b. Action for Money or Property Embezzled
c. Recovery of Property unjustly or fraudulently taken
d. Fraud in contracting or performing an Obligation
e. Removal of Property with intent to defraud
f. Action against non-resident or on whom summons may be served by publication

GR: The property attached cannot be sold during the pendency of an action

XPN: an attached property may be sold after levy on attachment and before entry of
judgment whenever it shall be made appear to the court in which the action is pending, upon
hearing with notice to both parties, that the attached property is perishable or that the
interests of all parties to the action will be sub served by the sale of the attached property.

REMEDY OF A THIRD PARTY, NOT PARTY TO THE ACTION to be filed if his or her property
is attached:

a. Third Party Claim

b. Summary Hearing
c. Motion for leave to intervene
d. Separate action to nullify the levy
 2. Preliminary Injunction (R58)-is an order granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a party or a court, agency, or a person to
refrain from a particular act or acts.
Purpose: To protect the rights of the plaintiff during the pendency of the suit.
Two kinds of PI: Preliminary Prohibitory Injunction-commands one to refrain from
performing a particular act or acts and Preliminary Mandatory Injunction-commands the
performance of some positive act to correct a wrong made in the past.

REQUISITES FOR THE ISSUANCE OF PI (BAR TOPIC)

a. There exists a clear and unmistakable right to be protected;
b. The right is directly threatened by an act sought to be enjoined;
c. The invasion of the right is material and substantial; and
d. There is an urgent and paramount necessity for the writ to prevent serious and
irreparable damage.
3. Receivership (59)-a remedy which a person (receiver) appointed by the court on behalf
of all the parties to the action for the purpose of preserving and conserving the property
in litigation and preventing its possible destruction or dissipation if it were left in the
possession of any of the parties.
4. Replevin (60)-is an action for recovery of personal property.
5. Support Pendente Lite (61)-a remedy seeking an application for support by any parties
stating the grounds for the claim and the financial conditions of both parties.
94. Interpleader (62)-a remedy whereby a person who has property whether personal or real, in
his possession, or an obligation to render wholly or partially, without claiming any right in
both, or claims an interest which in whole or in part is not disputed by the conflicting
claimants, comes to court and asks that the persons who claim the said property or who
consider themselves entitled to demand compliance with the obligation, be required to
litigate among themselves, in order to determine finally who is entitled to one or the other
thing.

REQUISITES OF INTERPLEADER:
a. There must be 2 or more claimants with adverse or conflicting interest;
b. The conflicting claimants involves the same subject matter;
c. The conflicting claims are made against the same person;
d. The plaintiff has no claim upon disputed by the claimants.

95. Declaratory Relief and Similar Remedies (R63)

Declaratory Relief-an action instituted by a person interested in a deed, will, contract or other written
instrument, executive order or resolution, to determine any question of construction or validity
arising from the instrument, executive order, or regulation, or statute, and for a declaration of his
rights and duties thereunder.

Two types of Actions

a. Petition for Relief; and
b. Similar Remedies
1. Action for Reformation
2. Action to quiet title or remove clouds therefrom; and
3. Action to consolidate ownership under Art.1607, NCC.

96. REVIEW ON JUDGMENTS AND FINAL ORDER OR RESOLUTIONS OF THE COA AND
COMELEC (R64) may be brought to the Supreme Court on Certiorari under R65.
97. CERTIORARI, PROHIBITION, AND MANDAMUS

a. Petition for Review on Certiorari under R65 applies only when any tribunal, board, or
officers exercising judicial or quasi-judicial functions has (1) acted without or in excess its or
his jurisdiction, or (2) grave abuse of discretion amounting to lack or excess of jurisdiction, and
(3) there is no appeal, or any other plain, speedy, and adequate remedy in the ordinary course
of law.
b. Petition for Writ of Prohibition under R65 is an extraordinary writ directed against tribunal,
board, corporation, officers, person, whether exercising judicial or quasi-judicial or ministerial
functions, ordering said entity or person, to desist from further proceedings, when said
proceedings (1) acted without or in excess its or his jurisdiction, or (2) accompanied
with grave abuse of discretion amounting to lack or excess of jurisdiction, and (3)
there is no appeal, or any other plain, speedy, and adequate remedy in the ordinary
course of law.
c. Petition for Writ of Mandamus
Requisites:
1. The plaintiff has a clear legal right to the act demanded’
2. It must be the duty of the defendant to perform an act because the same is mandated
by the law;
3. The defendant unlawfully neglects the performance of the duty enjoined by the law;
4. The act performed is ministerial, nit discretionary; and
5. There is no appeal or any other plain, speedy, and adequate remedy in the ordinary
course of law.

98. QUO WARRANTO PROCEEDINGS (R66)-is a proper legal remedy to determine a person’s
right or title to a public office and to oust the holder from its enjoyment.

99. Expropriation Proceedings (R67) may be either determined by the authority of the plaintiff
(National Government and Local Government) to exercise the power of eminent domain and
propriety of its exercise or determined by the Court of the just compensation.

100. Foreclosure of Real Estate Mortgage (68)-applies only when the obligor/mortgagor
fails to comply with obligation to pay obligee/mortgagee or a remedy of the
oblige/mortgagee when the obligor/mortgagor failed to comply with the payment of the
mortgage indebtedness by ways of judicial or extrajudicial foreclosure of the REM, raising
the issue of non-payment of the mortgage loan.

It became null and void if the mortgagee failed to issue a Personal Notice of Extrajudicial
Foreclosure of REM to the mortgagor or it amended the first Notice of Extrajudicial
Foreclosure of REM issued to the Mortgagor without informing him of the intention of
amendment.

Pactum Commissorium: If the debt is not paid and the debtor defaults, the creditor cannot
ipso facto appropriate the mortgage property despite a stipulation to that effect because the
policy against pactum commissionarium.

Motion for Writ of Possession may be filed by the purchaser at the Auction Sale upon the
expiration of period (1 year) of redemption or upon the finality of the Order of Confirmation
of Sale unless third party is actually holding the same adversely to the judgment. Obligor.

The order of confirmation of sale is appealable.

101. Partition (R69)-is the separation, division, and assignment of a thing held in common
among those to whom it may belong. Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be partition.

It may either be done by partition by agreement of the parties or partition by commissioners

in the Court.

Under Article 494-495 and 1084 of the NCC:

a. Partition is not allowed when there is an agreement among the co-owners to keep the
property undivided for a certain period of time not exceeding 10 years, the term may be
extended by a new agreement;
b. Partition is not allowed when it is prohibited by the donor or testator for a period of not
exceeding 20 years, or prohibited by law;
c. Partition is not allowed when the property is not subject to physical division and to do
so would render it unserviceable for the use for which it is intended; and
d. Partition is not allowed when the condition imposed upon voluntary heirs before they
can demand partition has not yet been fulfilled.

102. Forcible Entry and Unlawful Entry under R70 (Accion Interdictal) -is an action for
Ejectment case, seeking a recovery of physical possession only. Only MTC has jurisdiction
over the ejectment cases.

a. Forcible Entry-is the act of depriving a person of the material or actual possession of a land
or building or taking possession thereof by force, intimidation, stealth, threat, or strategy
(FISTS), against the will or without the consent of the possessor.

In Forcible Entry, the possession of the intruder is illegal or unlawful from the beginning
by reason of FISTS, and against the will or without the consent of the possessor.

The one (1) year prescriptive period starts from the date of the actual entry on the land.
If the forcible entry is done through stealth, the one year prescriptive period is counted
from the time the plaintiff discovered the entry.

b. Unlawful Detainer-is the act of unlawfully withholding the possession of a land or building
against or from a landlord, vendor, vendee, or other persons, after the expiration or
termination of the detainer’s right to hold possession by virtue of contract, express or
implied.

In Unlawful Detainer, the possession is previously lawful or legal, but it became unlawful
by reason of the violations, termination or expiration of the contract, express or implied.

The one (1) year prescriptive period is counted from the last demand to vacate the
premises.

103. Contempt (R71)- is defined as willful disobedience or disregard of a public authority.

Two-Fold Aspects:
1. The proper punishment of the guilty party for his disrespect to the court or its order;
2. To compel his performance of some act or duty required of him by the court which he
or she refuses to perform.
 Two Classes of Contempt:

1. Criminal Contempt- directed against the authority and dignity of a court or of a judge
acting judicially; and
2. Civil Contempt-failure to do something ordered to do by a court or judge in a civil case
for a benefit of the opposing party therein.

This is my last minute. I hope it helps a lot. This is incomplete details, but I believe that these pieces
of paper can help us to pass the bar exam 2023.

Dominador Sunico Torio