Professional Documents
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CIVPRO RAMAeNotes Edited As of 8-31-21
CIVPRO RAMAeNotes Edited As of 8-31-21
CIVPRO RAMAeNotes Edited As of 8-31-21
Senga Recitation 3G-3H (2020- NOTE: it is the exclusive jurisdiction of the Supreme Court/ the
2021) Updated by Ae judiciary to come up with the Rules of Court.
What is Remedial law? There are a lot of cases that provides for the suspension of
Remedial law refers to the rules which provide the system for the Rules of Court, does that mean that compliance with
the protection of rights, the prevention and violation of such the Rules of Court is only directory, not mandatory? NO. As
rights and the means of redress for such violations a general rule, compliance with rules of procedure is mandatory.
Exception to this is when there is justifiable reason to warrant
How is remedial law different from Substantive law? the relaxation of the rules of procedure; there should be an effort
Remedial Law Substantive Law on the part of the party invoking liberality to at least explain its
failure to comply with the rules. (Banco Filipino Savings and
Definition
Mortgage Bank v. Court of Appeals, G.R. No. 132703, 23 June
A method of enforcing rights, Creates, defines, and 23, 2000)
preventing the violation of regulates rights and duties
such rights and the means of concerning life, liberty and Jurisprudence provides that the invocation of substantial justice
redress for such violations. property. cannot be used as a magic want to compel the court to suspend
Establishment of Vested Rights procedural laws. Procedural rules are not to be belittled or
No vested rights may attach Makes vested rights dismissed simply because their nonobservance may have
to nor arise therefrom possible. resulted in prejudice to a party such. substantive rights. They
Application are still mandatory for the effective performance of business and
It is prospective in nature It is retroactive in application; the discharge of justice by Courts.
applicable to actions pending
at the time of their passage In the case of Sarmiento v. Zaratan, the Court stated that in
certain cases it may suspend the strict application of the
rules of Court and the Supreme Court gave five exceptions.
Can we apply remedial law retroactively?
What are these exceptions?
YES. Procedural rules are construed to be applicable to actions
1.) The existence of special or compelling circumstances,
pending and undetermined at the time of their passage and are
2.) The merits of the case,
deemed retroactive in that sense and to that extent. As a
3.) A cause not entirely attributable to the fault or negligence of
general rule, the retroactive application of procedural rules
the party favored by the suspension of rules,
cannot be considered a violation of any personal rights because
4.) A lack of any showing that the review sought is merely
no vested right may attach to nor arise therefrom. (In the Matter
frivolous or dilatory,
to Declare
5.) The other party will not be unjustly prejudiced thereby.
in Contempt of Court Hon. Simeon Datumanong)
In Redeña v. Court of Appeals, G.R. No. 146611, February 6,
What is the rule making power of the Supreme Court as
2007, there is an additional exception, to wit:
provided by the Constitution?
Article VIII Section 5(5) of the 1987 Constitution provides “The
6. There is the existence of substantial rights in favor of which,
Supreme Court has the power to “x.x.x. Promulgate rules
the strict application of technical rules must concede.
concerning the protection and enforcement of constitutional
rights, pleading, practice and procedure in all courts, he
admission to the practice of law, the integrated bar, and legal Note: The Sarmiento v. Zaratan case is a 2007 case and we do
assistance to the underprivileged. Such rules shall provide a not use the three-day notice rule anymore because it is no longer
simplified and inexpensive procedure for the speedy disposition found in the Rules of Court as amended.
of cases, shall be uniform foo all courts of the same grade, and
shall not diminish, incase or modify substantive rights. Rules of In the case of Labao v. Flores the Court gave even more
procedure of special courts and quasi-judicial bodies shall exceptions, what are the thirteen exceptions to the strict
remain effective unless disapproved by the Supreme Court”’ application of the Rules of Court?
Can Congress come up with a law that amends the Rules of 1.) Most persuasive and weighty reasons;
Court? 2.) To relieve litigant from an injustice not commensurate with
NO. Rules issued by the Supreme court may not be repealed or his failure to comply with the prescribed procedure;
amended by Congress. (Re: Petition for Recognition of the 3.) Good faith of the defaulting party by immediately paying
Exemption of the GSIS from Payment of Legal Fees, A.M. No. within a reasonable time from the time of the default;
08-2-01-0, February 11, 2010) 4.) The existence of special and compelling circumstance;
5.) The merits of the case;
The Supreme Court has the sole prerogative to amend, repeal, 6.) A cause not entirely attributable to the fault or negligence of
or even establish new rules for a more simplified and the party favored by the suspension of the rules;
inexpensive process, and the speedy disposition of the case. 7.) A lack of any showing that the review sought is merely
The other branches, specifically the Congress, are said to frivolous and dilatory
trespass the rule-making power of the Supreme Court if they 8.) The other party will not be unjustly prejudiced thereby;
enact laws or issues orders that effectively repeal, alter or 9.) Fraud, accident, mistake, or excusable negligence without
modify any of the procedural rules promulgated by the Court. appellant’s fault;
10.) Peculiar legal and equitable circumstances attendant to
each case;
3G (2020-2021)– RAMENotes Contributed by: krykryang & Ranina
Updated by Ae
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11.) In the name of substantial justice and fair play; CONCURRENT-ORIGINAL JURISDICTION
12.) Importance of the issues involved; and Power of the different courts to take cognizance of the same
13.) Exercise of sound discretion by the judge guided by all the subject matter. Where there is concurrent jurisdiction, the court
attendant circumstances. first taking cognizance of the case assumes jurisdiction to the
exclusion of the others.
The failure of counsel to file an appellant’s brief which
brought about the dismissal of the appeal, was invoked as Examples of courts having concurrent jurisdiction over a
negligence of counsel that warranted the relaxation of the case.
Rules. Give exceptions where mistake of counsel is not • The Supreme Court has concurrent original jurisdiction with
binding on client. the RTC in cases affecting ambassadors, other public
(1) where the reckless or gross negligence of counsel deprives ministers, and consuls.
the client of due process of law; • The Supreme Court has concurrent original jurisdiction with
(2) when application of the rule will result in outright deprivation the CA in petitions for certiorari, and mandamus against the
of the client's liberty or property; or RTC
(3) where the interests of justice so require. (Redeña v. Court of • The Supreme Court has concurrent original jurisdiction with
Appeals, G.R. No. 146611, February 6, 2007) the CA and RTC in petitions for certiorari, prohibition and
mandamus against lower courts and bodies and in petitions
for quo warranto and habeas corpus.
Note: If none of the foregoing exist, then there is no basis to
relax the rules; negligence must be gross.
EXCLUSIVE ORIGINAL JURISDICTION
Original jurisdiction means jurisdiction to take cognizance of the
JURISDICTION case at its inception, try and pass judgement upon the laws and
facts. Exclusive Jurisdiction precludes the idea of co-existence
What do you mean by JURISDICTION? and refers fo jurisdiction possessed to the exclusion of others.
Jurisdiction is the power of the court to hear and decide on a case
and to execute the decision in the same. A court may be conferred with both original and exclusive
jurisdiction over a particular subject matter. For example; MTC
Jurisdiction is the authority of the court to hear, try and decide a has original-exclusive jurisdiction over forcible entry and unlawful
case. It also includes the to implement the decision. Because detainer.
once you acquire a decision of the Court, you want to implement
or execute the same decision. The same court has jurisdiction to What do you mean by the principle of HIERARCHY OF
implement it. COURTS?
The principle of the hierarchy of courts is a judicial policy
NOTE: Jurisdiction is determined by the statute in force at the designed to restrain direct resort to the Supreme Court if relief
time of the commencement of the action and that once acquired, can be granted or obtained from the lower courts. (Metropolitan
it continues until the case is finally terminated. (A' Prime Security Waterworks and Sewerage System v. Local Government of
Services, Inc. v. Drilon, G.R. No. 91987, July 17, 1995) Quezon City, G.R. No. 194388, November 7, 2018, J. Leonen)
ORIGINAL JURISDICTION The logic behind this policy is grounded on the need to prevent
The court’s power to hear and decide a matter before any court "inordinate demands upon the Court's time and attention which
can review the matter. The jurisdiction to take cognizance of a are better devoted to those matters within its exclusive
case at its inception. jurisdiction," as well as to prevent the congestion of the Court's
dockets. Hence, for this Court to be able to "satisfactorily perform
APPELLATE JURISDICTION the functions assigned to it by the fundamental charter[,]" it must
The power of a court to review and revise a lower court’s remain as a "court of last resort." This can be achieved by
decision. A court is one with appellate jurisdiction when it has the relieving the Court of the "task of dealing with causes in the first
power to review over the decisions or orders of a lower court. instance.” (Id)
GENERAL JURISDICTION When there are several courts who exercise concurrent-original
The court’s authority to hear a wide range of cases, that arise jurisdiction, you do not directly go the highest court, you start at
within its jurisdiction. the lowest court. So even if the Supreme Court has original
jurisdiction over certiorari, prohibition and mandamus you do not
SPECIAL OR LIMITED JURISDICTION directly go to the SC but you file it first with the lower court.
Jurisdiction confined to a particular type of case that may be
only exercised under statutory limits and prescriptions. What is the reason behind this rule as discussed in the case
of Gio-Samar?
EXCLUSIVE JURISDICTION So that you do not unduly burden the dockets of the Supreme
Power to hear and decide cases to the exclusion of all other Court, you file it first to the lower court that would also have the
courts. competence to hear and decide the case.
CONCURRENT JURISDICTION In the same case, the Court ruled that the hierarchy of Courts
Jurisdiction exercised simultaneously by more than one court is not absolute and is subject to exceptions. What are these
over the same subject matter and within the same territory. exceptions?
As enunciated in the case of Araullo v. Aquino III the Court held Thus, if we apply Rule 65, Sec. 1 you cannot review the decision
that: with respect to the Court, however, the remedies of certiorari of the SOJ because the latter is not performing judicial or
and prohibition are necessarily broader in scope and reach, and quasijudicial functions.
writ of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board BUT, if we use the expanded jurisdiction under the Constitution
or officer exercising judicial, quasi-judicial or ministerial then the Courts can review the decision of the SOJ because
functions. under expanded definition courts can act that are GADALEJ on
the part of ANY instrumentality of the government. As long as it
NOTE: Look at Rule 65 Section 1, it talks about Certiorari and if is GADALEJ of any body or instrumentality, it is susceptible to
you look at the first phrase it says “it is to review acts of any review.
tribunal, body, board that is exercising judicial and quasi-judicial
functions”. We will use Certiorari under a special civil action of COURT OF EQUITY v COURT OF LAW
Rule 65 when there is grave abuse of discretion on the part of Court of Equity Court of Law
one exercising judicial or quasi-judicial function.
For probate or settlement of estate proceedings, how much? Grant of provisional remedies in proper cases. This rule
By virtue of R.A. 11576, in all matters of probate, both testate presupposes that the MTC has jurisdiction over the principal
and intestate, the RTC has jurisdiction where the gross value of action.
the estate exceeds 2,000,000 while the MTC has jurisdiction if
the gross value does not exceed 2,000,000. DELEGATED JURISDICTION OF MTC
• The MTC also exercises delegated jurisdiction in cadastral
What if it is a REAL ACTION? and land registration cases covering lots where there NO
For real actions where the assessed value of the property controversy or opposition or contested lots the value of
involved exceeds P400,000, the RTC has jurisdiction. If the which does not exceed P100,000, as may be delegated by
assessed value of the property does not exceed 400,000, then the Supreme Court (B.P. 129, Section 34)
MTC has jurisdiction.
SPECIAL JURISDICTION
What do we look at? • In the absence of all the RTC judges in a province, or city,
Assessed Value. Assessed value is NOT the same as the fair any MTC, MCTC, MeTC Judge may hear and decide
market value petitions for a writ of habeas corpus or applications for bail
in criminal cases in the province or city where the absent
Fair Market Value is the price at which a property may be sold RTC judge sit. (B.P. 129, Section 35)
by a seller who is not compelled to sell and bought by a buyer
who is not compelled to buy. NOTE: When there are no judges in the RTC the writ of habeas
corpus and the application of bail (the records) will be
Assessed Value is the fair market value of the real property TRANSFERRED from the RTC to the MTC. The reason being
multiplied by the assessment level. It is synonymous with taxable that in the court of calendar habeas corpus has priority in the
value. The value of a property for purposes of payment of real hearing. You want to have a continuous hearing of habeas
property taxes. corpus because of the importance of the case. It is only a special
jurisdiction meaning the law provides that it is only to hear
habeas corpus. File it first to the RTC then it the RTC will transfer
Where can we find the assessed value?
it to the MTC.
In the tax declaration
TOTALITY RULE (Sec. 22 (I), B.P. 129)
Do you need to allege the assessed value in the complaint
Where there are several claims or causes of action between the
the if it is a real action?
same or different parties, embodied in the same complaint, the
If you do not have tax declaration, you have to allege.
amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action
What if you did not allege it but you attached the tax
arose out of the same or different transactions.
declaration which provides for the assessed value. Is that
sufficient for the Court?
YES
KATARUNGANG PAMBARANGAY
What if it’s a real action and you did not allege the assessed
value and you also did not attach the tax declaration can the What is the LUPON TAGAPAMAYAPA?
court assume jurisdiction over your real action? NO, It is the body organized in every barangay that settles disputes
because we do not know which court as jurisdiction over the among barangay members through mediation, conciliation and
case. arbitration.
Can they be from a different barangay? NOTE: This is because jurisdiction is provided by law. For
NO. They should reside in the same barangay. example, you have an ejectment case and you did not resort to
barangay conciliation proceedings, still the law provides that the
How are they chosen? MTC has exclusive-original jurisdiction over ejectment cases.
The barangay captain shall prepare a notice to constitute the
Lupon, which shall include the names of proposed members who Nevertheless, the failure to resort to barangay conciliation
are residing or working in the barangay, not otherwise proceedings as held in Lansangan v. Caisip case is a ground to
disqualified by law and who have expressed their willingness to dismiss the case because of the failure to comply with the
serve. condition precedent. (Lansangan v. Caisip, G.R. No. 212987,
August 6, 2018)
In this case, anyone from the barangay can write their comments
on the prospective members, regardless of this, the choice is still Is there another requirement similar to barangay
left to the barangay captain to appoint who will be part of the proceedings for a condition precedent under the family
Lupon. code?
Jurisprudence provides that the law mentions only those Under the Family Code, Article 151 provides that family members
that do not fall under Katarungang Pambarangay. It does not should exert earnest efforts towards a compromise or amicable
enumerate those included, it only provides for those that are settlement before filing a suit.
excluded. What are these cases excluded from the barangay Let us say you are living in the same barangay with Mico
proceedings? Suarez, Mico borrowed from you P1,000. Mico refuses to
All disputes may be the subject of proceedings for amicable pay, so you went to the Barangay. Can you file an oral
settlement except for the following: complaint to the Barangay?
(a) Where one party is the government, or any subdivision YES. It can be oral and written.
of instrumentality thereof;
(b) Where one party is a public officer or employee, and the It can be an oral complaint, so first the one who will preside
dispute related to the performance of his official over it is the Lupon Chairman. What will the Lupon Chairman
functions; do? Can he rule on the case like a judge? SUMMONS: The
(c) Offenses for which the law prescribes a maximum Lupon Chairman shall receive all written complaints and put in
penalty of imprisonment exceeding one (1) year or a writing all verbal complaints made by individuals personally
fine not exceeding Five Thousand pesos (P5,000); before him against other individuals. He shall not receive
(d) Offenses where there is no private offended party; complaints made by or against corporations, partnerships or
(e) Where the dispute involves real properties located in other juridical entities. Immediately upon such receipt he shall
different citied or municipalities unless the parties notify the complainant of the date of initial hearing and shall,
thereto agree to submit their differences to amicable within the next working day, issue summons to the respondent/s
settlement by an appropriate Lupon; to appear before him not later than five(5) days from date thereof
(f) Disputes involving parties who actually reside in for a mediation of their conflicting interests;
barangays of different cities or municipalities, except
where such barangay units adjoin each other and the When they attend, he will act as what?
parties thereto agree to submit their differences to A mediator. He will just facilitate the discussion.
amicable settlement by an appropriate Lupon; and
(g) Such other classes of disputes which the President may After the lapse of ten (10) days and no amicable settlement
determine in the interest of justice or upon the has been reached. What will happen next?
recommendation of the Secretary of Justice If the parties fail to reach an amicable settlement after the lapse
of 10 days, the Lupon shall constitute the Pangkat
What if the imprisonment is only for two months but the Tagapagsundo
person is already detained, will it still fall under barangay
conciliation proceedings? Where will you get the members of the Pangkat?
NO. Because if they are already detained then there is no need The parties shall choose three (3) members from the Lupon
to resort to barangay. You can go directly go to the courts. Tagapamayapa. We only constitute the pangkat only where there
is a dispute and the parties will agree upon themselves who will
They must first go to barangay conciliation proceedings be the members of the pangkat.
before going directly to court?
Yes Does the pangkat Act as a court and issue a decision?
NO. It is for Meditation.
If it falls directly under barangay conciliation proceedings
but it does not fall under the exception, but they went So the pangkat will act as a mediator, is there an instance
straight to court, does that mean that the Court cannot act where the pangkat can act as a tribunal?
on the case for lack of jurisdiction? Yes. Under the Local Government Code it provides that at any
NO. Barangay conciliation proceedings is not a jurisdictional time the parties may agree to submit the case to arbitration.
requirement. The non-referral of a case for barangay conciliation
when so required under the law is not jurisdictional in nature andThere are two things that can happen before the barangay:
3G (2020-2021)– RAMENotes Contributed by: krykryang & Ranina
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(1) AMICABLE SETTLEMENT: The parties will just be What is your basis? Why is it P1,000 when they already have
facilitated by the pangkat or the Lupon Chairman to come an agreement that Rania will only pay P500?
into an amicable settlement which is voluntary. Article 2041 provides that if one parties fails or refuses, to abide
by compromise, the other party may either enforce the
(2) ARBITRATION: You can also have arbitration in the level of compromise or regard it as rescinded, and insist upon his original
the barangay. Under the LGC, at any time the parties can demand.
submit the case for arbitration. But the agreement must be
in writing. When the parties in writing agree to submit the In this case, the agreement will be treated as rescinded because
case to arbitration in that instance, the Lupon Chairman or there is refusal to comply. In this instance, you can treat the
the Pangkat Tagapagsundo will act now as an arbitral settlement as rescinded and insist on the payment of the original
tribunal. In this instance, when they agree in writing to demand of P1,000 and you can file an original action of sum of
submit the matter in arbitration, they also agree to abide with money.
the arbitral award. There will be a decision rendered by the
Lupon Chairman or the Pangkat Tagapagsundo acting as an However, if he DOES NOT want to treat it as rescinded and
arbitral tribunal. wants to enforce it but seven (7) months have already
lapsed. Does that mean he can no longer enforce such
So let us say that the parties are in the middle of the discussion amicable settlement?
for amicable settlement before the pangkat. They can if they He can enforce it in the MTC for enforcement of amicable
decide, agree to submit it to arbitration because the LGC settlement under Small claims. The coverage of small claims
provides “at anytime agree in writing to submit it to arbitration”. includes the enforcement of barangay conciliation settlements.
Let us say that Rania owes you P1,000. There was an CONCLUSION:
amicable settlement for Rania to pay only P500. So there is WITHIN SIX (6) MONTHS LAPSE OF SIX (6) MONTHS
an amicable settlement in writing submitted to the pangkat • Enforce before Enforce before the MTC for
that Rania will pay you P500. Can you execute that the enforcement of Barangay
settlement before the barangay? barangay conciliation under small
The amicable settlement or arbitration award may be enforced by • Repudiate it within 10 claims
execution by the Lupon within six (6) months from date of the days on the ground of
settlement or date of receipt of the award or from the date the violence, fraud, and
obligation stipulated in the settlement or adjudged in the intimidation
arbitration award becomes due and demandable.
Is summary procedure the same as summary proceeding?
What if at the time that you were entering into an amicable Summary Procedure Summary Proceeding
settlement, there is a knife pointed at you forcing you to
Immediate process issuing Court action in which the
agree to a settlement. Out of fear you signed the settlement.
Can you still repudiate the settlement? and taking effect without formal procedures normally
Any party to the dispute may, within ten (10) days from the date intermediate applications or applicable to matters are
of the settlement, repudiate the same by filing with the Punong delay. dispensed with
Barangay a statement to that effect sworn to before him, where As to CASES COVERED
the consent is vitiated by fraud, violence, or intimidation. Such Cases falling under the MTC Cases falling under the
repudiation shall be sufficient basis for the issuance of the Family Code
certification for filing a complaint in court or any government
office for adjudication. Failure to repudiate the settlement within Example: declaration of
the aforesaid time limit shall be deemed a waiver of the right to presumptive death for
challenge on said grounds. purposes of remarriage
What are the grounds to repudiate? What are the cases falling under Summary Procedure?
• Fraud For Civil Cases
• Violence • All cases of forcible entry and unlawful detainer, irrespective
• Intimidation of the amount of damages or unpaid rentals sought to be
recovered. Where attorney's fees are awarded, the same
Within what period? shall not exceed twenty thousand pesos (P20,000.00).
Within 10 days • All other civil cases, except probate proceedings, where the
total amount of the plaintiff's claim does not exceed one
What if Rania says “kahit patayin mo ako di kita babayaran hundred thousand (P100,000) if outside Metro Manila and
ng P500”, what is your remedy? two hundred thousand (P200,000) if within Metro Manila,
You can file it to the courts. exclusive of interest and costs.
So, for summary procedure the threshold amount is it does Do you agree that all motions to dismiss is prohibited in
not exceed P200,000 if within Metro Manila and does not summary procedure or is there an exception?
exceed P100,000 outside Metro Manila. What about SMALL NO. The exceptions are: (a) Motions to dismiss on the ground of
CLAIMS what is the threshold of the amount? lack of jurisdiction and (b) failure to comply with the condition
• WITHIN Metro Manila: Does not exceed P400,000 precedent of referral to barangay conciliation proceedings
• OUTSIDE Metro Manila: Does not exceed P300,000
DUTY OF THE COURTS AFTER COMPLAINT IS FILED
You are in the City of Manila and the amount of your claim is After the court determines that the case falls under summary
P190,000. Which court has jurisdiction over your collection procedure, it may, from an examination of the allegations therein
of sum of money? and such evidence as may be attached thereto, dismiss the case
The Court that has jurisdiction is MTC because it is less than outright on any grounds apparent therefrom for the dismissal of
P400,000 a civil action. If no ground for dismissal is found it shall forthwith
issue summons which shall state that the summary procedure
What proceedings will you use, summary procedure or small under the Rules of Summary Procedure shall apply.
claims? It depends.
Should it be small claims because it is the later rule, isn’t it
considered to have amended the summary procedure? NO. The court will look if there are grounds to dismiss. If there
Summary Procedure could not have been considered to have are grounds to dismiss can the court dismiss it outright?
amended the rules on small claims. YES, the court can dismiss outright because motions to dismiss
are a prohibited pleading so the parties cannot raise those
What will you file under summary procedure to commence grounds. That is why the court has the duty upon the filing of the
an action? complaint to look at the allegations in the complaint and if there
Under summary procedure the only pleadings that are allowed are grounds to dismiss, the Court may dismiss outright.
• Complaints,
• Compulsory Counterclaims, For instance, if the claim has already prescribed. That is visible
• Cross-claims pleaded in the answer and, in the complaint so the court can dismiss outright.
• Answers thereto
ALL Pleadings must be VERIFIED After the court identifies that there are no grounds to
dismiss, what will happen next?
Should all pleadings in Summary Procedure be verified? The court shall issue two things:
YES (1) Issue summons
(2) An order declaring that the complaint falls under
Are permissive counterclaims allowed in Summary summary procedure.
Procedure?
NO What order should the court issue?
The court will issue an order declaring whether the case falls
How about in SMALL CLAIMS is permissive counter-claims under summary procedure or not.
allowed? Yes
Will it attach the complaints and summons?
What are the other pleadings allowed in Summary YES, it will attach the complaint and summons and then it will be
Procedure? served to the defendant.
Position papers and Affidavits.
How many days does the defendant have to file an answer?
What are the Prohibited Pleadings in Summary Procedure? 10 days. Within ten (10) days from service of summons, the
• Motion to dismiss the complaint or to quash the complaint or defendant shall file his answer to the complaint and serve a
information except on the ground of lack of jurisdiction over copy thereof on the plaintiff. Affirmative and negative defenses
the subject matter, or failure to comply with the preceding not pleaded therein shall be deemed waived, except for lack of
section; jurisdiction over the subject matter. Cross-claims and
• Motion for a bill of particulars; compulsory counterclaims not asserted in the answer shall be
• Motion for new trial, or for reconsideration of a judgement, considered barred. The answer to counterclaims or cross-
or for reopening of trial; claims shall be filed and served within ten days from service of
• Petition for relief from judgement; answer in which they are pleaded.
SMALL CLAIMS What are the instances in small claims where the court can
dismiss the case?
What are the cases covered by Small Claims? • Non-submission of the required affidavits
• For money owed under any of the following o Contract • Falls under the summary procedure
of Lease; o Contract of Loan; o Contract of • When a business of banking, lending, or similar
Services; o Contract of Sale o Contract of activities misrepresents themselves
Mortgage • Failure of the parties to appear
Wherein the amount DOES NOT EXCEED P400,000 in
Metropolitan Trial Courts and DOES NOT EXCEED P300,000 in Can you try to sue as an Indigent and not pay the docket
Municipal Court, Municipal Circuit Trial Court and Municipal fees? Yes.
Courts in Cities
• For liquidated damages arising from contracts What if the court denies your motion to sue as an indigent?
• The enforcement of a barangay amicable settlement or an Should you pay docket fees? Within how many days?
arbitration award involving a money claim covered by the The plaintiff shall be given five (5) days within which to pay the
Rule pursuant to the Local Government Code docket fees, otherwise, the case shall be dismissed without
Can unliquidated damages fall under small claims? prejudice.
NO. It has to be liquidated damages. The reason is that if it is a
liquidated damage it is agreed or stipulated in the contract. There If the defendant does not file a response, what is the effect?
is no need to prove. While if it is for unliquidated damages there Should the defendant fail to file his Response within the required
is a need for trial to prove that amount. period, and likewise fail to appear on the date set of hearing, the
court shall render judgement on the same day, as may be
Should there be lawyers in summary procedure? warranted by the facts alleged in the Statement of Claim/s.
YES
What if the plaintiff does not attend the hearing, what is the
Can there be lawyers on small claims effect?
NO. The rules on small claims provides that “No attorney shall Failure of the plaintiff to appear shall cause for the dismissal of
appear in behalf of or represent a party at the hearing” the Statement of Claim/s without prejudice.
EXCEPTION:
Unless the attorney is the plaintiff or defendant of the small
claims. If the party-litigant is a lawyer Is it with or without prejudice?
WITHOUT prejudice, it can be refiled.
What do you file in small claims to institute the actions? A
small claims action is commenced by filing with the court: What about when the defendant is absent during the
• An accomplished and verified Statement of Claim hearing?
(Form 1-SCC) in duplicate Failure of the defendant to appear shall have the same effect as
• Accompanied by a Certification against Forum failure to file a Response.
Shopping
• Splitting a Single Cause of Action What if the defendant did not file an answer but was present
• Multiplicity of Suits (Form 1-A-SCC) and, during the hearing?
• Two duly certified photocopies of the actionable The defendant who appears in the absence of the plaintiff shall
documents/subject of the claim be entitled to judgement on a permissive counterclaim.
Should there be anything attached to it? If you are engaged in a banking business or lending or
• Affidavits of witnesses similar activities. What is the additional requirement of small
• Other evidence to support the claim. claims?
If the plaintiff is engaged in the business of banking, lending, and
What is the effect if you do not attach the affidavits in a similar activities, must state in the Statement of Claim that he is
statement of claims? engaged in such activities.
It will be DISMISSED.
What if they misrepresent or do not allege that they are
There is a statement of claims, then summons will be served involved in that business, what is the effect?
to the defendant. Then defendant will file what? Response If the plaintiff misrepresent that he/she/it is not engaged in the
within a non-extendible period of ten days from receipt of business of banking, lending or similar activities when in fact they
summons. are engaged, the Statement of Claim/s shall be dismissed with
prejudice and plaintiff shall be meted the appropriate sanctions,
such as direct contempt.
Should it be verified?
Yes.
What if summons cannot be served within 30 days, the court
will direct the plaintiff to serve the summons and still
What should be attached to your response?
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summons cannot be served. What will be its effect on the thousand pesos (P400,000) except actions for forcible entry
small claims case? into and unlawful detainer of lands or buildings
It will be dismissed but without prejudice • All actions in admiralty and maritime jurisdiction where the
demand and claim exceeds Two million pesos
The rules on venue provide that if it is a personal action it is (2,000,000.00);
to be filed in the residence of the plaintiff or defendant. So, • In all matters of probate, both testate and intestate, where
if it is a corporation, it is the place of business. In small the gross value of the estate exceeds Two million pesos
claims if the principal office of BPI, a banking institution, is (2,000,000.00);
in Makati but it has a branch in Manila where the defendant • In all cases not within the exclusive jurisdiction of any court,
resides. Can it still be filed in Manila where the branch is tribunal, persons or body exercising judicial or quasi-judicial
located under small claims? functions;
If the plaintiff is engaged in the business of lending, banking, and • In all other cases in which the demand, exclusive of interest,
similar activities, and has a branch within the municipality or city damages of whatever kind, attorney's fees, litigation
the defendant resides, the Statement of Claim/s shall be filed expenses, and costs or the value of the property in
where the branch is located. controversy exceeds Two million pesos (2,000,000.00).
Do we include the amount of interest and costs in CONCURRENT JURISDICTION OF THE RTC
determining the threshold amount? • Concurrent original jurisdiction with the Supreme Court in
NO, it is exclusive of interest and costs actions affecting ambassadors, other public ministers, and
consuls.
What is the rule for filing fees in small claims, are there • Concurrent original jurisdiction with the Supreme Court and
additional amounts in filing fees in small claims? Court of Appeals in petitions for certiorari, prohibition,
• If more than five (5) small claims are filed by one party mandamus against lower courts and bodies and in petitions
within the calendar year an additional filing fee of P500 for quo warranto and habeas corpus.
shall be paid fo every claim filed after the fifth (5th) claim
• An additional P100, or a total of P600 fo ever claim filed APPELLATE JURISDICTION OF THE RTC
after the tenth (10th) claim Over all cases decided by the MTC, MCTC, MeTC in their
• Another P100 or a total of P700 for every claim filed respective jurisdiction.
after the fifteenth (15th) claim, progressively and
cumulativelty SPECIAL JURISDICTION OF THE RTC
Certain RTCs may be designated by the Supreme Court to
Do we just follow rule 141 on the payment of docket and handle exclusively criminal cases, juvenile and domestic
filing fees? NO. relations cases, agrarian cases, urban and land reform cases
which do not fall under the jurisdiction of quasi-judicial bodies and
agencies, and/or such other special cases the Supreme Court
Do you agree that the prohibited pleadings in summary may determine in the interest of a speedy and efficient
procedure are exactly the same in small claims? NO. administration of justice.
ORIGINAL CASES OF THE SC It will not be dismissed because it was filed in the correct court
• The following may be filed originally with the SC that has jurisdiction.
• Petition for certiorari
• Petition for prohibition Which court has jurisdiction over accion publiciana? It
• Petition for mandamus depends on the assessed value because in accion publiciana it
• Petition for quo warranto involves title, possession of or interest therein.
• Petition for habeas corpus
• Disciplinary proceedings against members of the NOTE: Unlawful detainer and forcible entry would have been a
judiciary and attorneys real action that involves real action to, or title or possession
• Cases affecting ambassadors, other public ministers, therein. However because the law expressly provides that
and consuls unlawful detainer and forcible entry falls within the exclusive
• A petition for writ of amparo original jurisdiction of the MTC, then it is MTC.
• A writ of Habeas Data
NOTE: In criminal procedure we know that it is provided by law Accion Publiciana involves possession of property, therefore the
for the subject matter, but at the same time determined by the determination of jurisdiction depends on the assessed value of
allegations of the complaint or information. Similarly, in civil the property.
cases we have jurisdiction over the subject matter which is
provided in law, nevertheless it is still determined by the REAL ACTION
allegations of the complaint or information. An action affecting title to real property or for the recovery of
possession, or for partition or condemnation of, or foreclosure of
What if the case is denominated as one of specific a mortgage on, real property,
performance which you would think is incapable of
pecuniary estimation but the prayer is for annulment of title PERSONAL ACTION
and reconveyance of land, recovery of ownership and An action seeking the recovery of personal property, the
possession over the land. What is the nature of the action? enforcement of a contract or the recovery of damages.
It depends on the access values because it is a real action and
incapable of pecuniary estimation. Because the issue here is it Is personal action synonymous to action in personam?
claims to be incapable of pecuniary estimation because it is an NO
action for specific performance. But in the allegation of the
complaint, it is recovery of ownership and annulment of title to In action in personam, the decision is binding upon whom?
recover ownership and possession which by definition under BP The parties. An action in personam is an action against a person
129 is one deals with ownership, title, to possession or interest on the basis of his personal liability.
therein in real property. Therefore, it is a real action, and to
determine the jurisdiction of the court you need to know the
Does it follow that all actions in personam are personal
assessed value if it does not exceed P20,000 outside metro
actions?
manila it MTC if it does not exceed within metro manila it is MTC.
NO, a real action may at the same time be an action in personam.
Exceeding those amount RTC.
ACTIONS IN REM
What if in the small claims case there is a claim to be a
Actions against the thing itself. They are binding upon the whole
breach of the lease contract. You are recovering the amount
world.
of unpaid rentals, but also you are claiming for the
defendant to vacate the premises. You filed it with form of
Does it follow actions in rem are always real action? Can you
statement of claims filed for a small claims procedure. Will
think of actions in rem thar does nor involve real property?
the case be dismissed?
When it affects status.
No. Because the court which has jurisdiction over unlawful
detainer cases is MTC. If you file it through small claims the case
is actually filed with the MTC. JURISDICTION OVER THE PERSON
Power of the court to make decisions that are binding on person.
In civil cases it is acquired either by (1) compulsory process, or
It cannot be dismissed because jurisdiction is provided by law
(2) his voluntary appearance
and the law provides that the MTC has exclusive jurisdiction of
the case.
Can you waive lack of jurisdiction over the subject matter?
NO
What do you mean by JURISDICTION OVER THE REMEDY? Parenthetically, "subject matter" in jurisdiction over the subject
In the case of PHILIPPINE LONG DISTANCE TELEPHONE matter can refer to: (a) the cause of action, or the breach of legal
COMPANY (PLDT) v. CITI APPLIANCE M.C. CORPORATION right or legal duty; or (b) the res, or the thing over which the legal
(G.R. No. 214546, October 9, 2019) Respondent is trying to right or duty breached subsists. In forcible entry or unlawful
excavate his property so he can build a parking space detainer actions, the subject matter refers to a breach of the
underground. In the process of doing so, the PLDT lines extend general right to actual possession, which is an attribute of
over their property. So they are asking PLDT to vacate. PLDT ownership and the res which is always real property.”
refused. They filed an action for forcible entry on the ground of
stealth.
ISSUE: Whether the Court has jurisdiction? Jurisdiction over the Jurisdiction over the
SUBJECT MATTER REMEDY
The Court discussed jurisdiction over the subject matter
Pertains to the court’s That which the party filing the
VERSUS jurisdiction over the remedy. competence over the case wants the court to
process declare, and which
JURISDICTION OVER THE SUBJECT MATTER is conferred by
addresses the breach of the
law. It is for the court to know whether they have the competence
right or obligation
to hear and decide a case. As far as jurisdiction over the subject
matter is concerned, BP 129 provides that the MTC has SOURCE of Jurisdiction
jurisdiction over actions for forcible entry. B.P. 129 – it is conferred by Rules of Court – it is a
law. procedural matter which the
You have one year to bring an action for forcible entry. The court may change ad hoc or
issue is whether the action has prescribed? What is the It can be raised even for the clarify the application or
reckoning point to count the one-year period? From the time first time on appeal. interpretation of, in proper
of last demand or from the time of discovery? cases
The SC ruled that in forcible entry cases, there is no need to
make a demand. You only need demand for unlawful detainer What is jurisdiction over the parties?
cases. So, the one-year period is counted from the date of The court’s competence to hear the case when it has acquired
discovery. jurisdiction over the person of the plaintiff and defendant. It is the
power of the court to make decisions that are binding on the
The SC held that jurisdiction over the remedy is the court’s parties.
competence over the process. But you should not confuse
jurisdiction over the remedy with the relief that the party is praying Why does the court have to have jurisdiction over the
for. person of the plaintiff and the defendant? What is the
purpose?
Jurisdiction over the remedy is provided by the Rules of Court. It In order for them to be bound by the proceedings and the ruling
is mainly a procedural matter. The Rules of Court provides that of the court.
you should bring an action for forcible entry within 1 year from
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How does the court acquire jurisdiction over the person of In an action for annulment of marriage where the husband is
the plaintiff? a non-resident who is also not a citizen of the Philippines,
For the court to assume jurisdiction over the person of the but the wife is a Filipino, how does the court acquire
plaintiff, the plaintiff must file a valid complaint or petition and pay jurisdiction over the res in their annulment of marriage? If at
the required filing and docket fees. least one of the parties is domiciled in or a national of the forum.
How does the court acquire jurisdiction over the person of What is a personal action?
the defendant? Action not involving title to, possession, or interest in real property
It is acquired either by his: (damages etc.)
(a) voluntary appearance or
(b) By the service of summons on the defendant. What is a real action?
Action involving title to, possession, or interest in real property
You are A. B owes you money in the amount of Php 1M.
Bwiset na bwiset ka sa kanya bec ayaw niyang magbayad. What is the purpose why we want to distinguish real
However, you also want to leave the country. You talk to property from personal property? To determine jurisdiction.
your best friend, C, asking him to file a case in your behalf. And to determine venue.
You are leaving the country in 3 hours, so you asked him to
file the case immediately. C filed the case in your name and What is the rule on venue (personal action versus real
against B. However, the one who signed the certification action)?
against forum shopping was C. Is that sufficient for the court • REAL ACTION: it is local depends on the location of the
to acquire jurisdiction over your person? No. C has to have real property. The place where the property or any
a proof of authorization, a special power of attorney (SPA). portion thereof is situated.
• PERSONAL ACTION: it is transitory depends on the
What is the effect of filing a case on A’s behalf but without a residence of the plaintiff or defendant
special power of attorney?
It is deemed not filed. What if you have a non-resident defendant in a personal
action?
What is jurisdiction over the issues? Residence of the plaintiff. If involves real property, then where
Competence of the court to rule on an issue. It is the power of the the property is located.
court to try and decide the issues raised in the pleadings of the
parties. What is the purpose why we want to distinguish whether the
action is in personam, in rem, or quasi in rem? To distinguish
How do we know that the court has jurisdiction over the as to whom the judgment shall be enforced. Also to know which
issues? rule on service of summons we will apply.
Look at the pleadings. Jurisdiction over the issues is based on
the issues raised in the pleadings by the parties. What is an action IN PERSONAM?
Action filed against a person to enforce his personal liability.
Is it correct to say that, as a rule, if you did not raise an issue
in the pleading, the court cannot rule on that issue? YES
Is this rule ABSOLUTE? Or is there an exception where the
court can rule on an issue not alleged in the pleading? NO. In an action in personam, does that court need to have
There is an exception. When there is an issue raised during jurisdiction over the person of the defendant? YES. Because
the presentation of evidence and the other party FAILS to it is to enforce his personal liability. To enforce that liability, the
timely object. There will be an amended of the pleading to defendant must be bound.
conform to the evidence.
Is an action in personam automatically a personal action?
Distinguish jurisdiction over the subject matter from NO.
jurisdiction over the issue.
Jurisdiction over the subject matter is conferred by law; Can we have a real action that is in personam? YES.
jurisdiction over the issue can be stipulated by the parties.
How is summons served in an action in personam?
What is jurisdiction over the res? Personal service. Or substituted service of summons.
Jurisdiction of the court over the property subject of litigation. It
refers to the court’s jurisdiction over the thing or the property If the defendant in an action in personam is a non-resident
which is the subject of the action. who cannot be found in the Philippines, can we
automatically use summons by publication?
How does the court acquire jurisdiction over the res? NO. Because the Rules provide that it will only apply to action in
(1) By seizure of property under legal process where it is rem and quasi in rem.
brought to the actual custody of the court (actual custody),
and In an action in personam for sum of money filed against a
(2) as a result of the institution of a legal proceeding where the non-resident defendant not found in the Philippines, we
power of the court is recognized and deemed effective cannot serve summons. And the Rules provide that for
(within the potential power of the court). extra-territorial service of summons (which includes
As a rule, all cases should have a cause of action under In what other instances can you bring an action before
ordinary rules? Yes. waiting for the debt to mature?
YES. Article 1198 of the Civil Code provides that a debtor shall
If there is lack of cause of action, what is the effect? lose his right to make use of a period:
The case will be dismissed. (1) When after the obligation has been contracted, he
becomes INSOLVENT, unless he gives a guaranty or
But are there instances where notwithstanding that there is security for his debt;
no cause of action, the case will still prosper? In what (2) When he DOES NOT FURNISH to the creditor the
instances? guaranties or securities which he has promised;
Action for declaratory relief. (3) When by his own acts he has IMPAIRED SAID
GUARANTIES AND SECURITIES after their
What is an action for declaratory relief? establishment, and when through a fortuitous event
Rule 63, Sec. 1, Rules of Court – File the case before there is a they disappear, unless he immediately gives a new one
breach or violation. Under ordinary rules for cause of action, equally satisfactory;
there is no cause of action. But the case will prosper because (4) When the debtor VIOLATES ANY UNDERTAKING, in
this is a special civil action, governed by ordinary rules unless consideration of which the creditor agreed to the period;
provided for by special rules. (5) When the debtor attempts to ABSCOND
Rule 63, Sec. 6, Rules of Court – If there is a breach during the NOTE: If for instance, your obligation is subject to a period such
pendency of the Rule 63 case, the case will be converted into an that it is payable after one year. If you make a demand to pay
ordinary civil action and the parties will be allowed to file their before that one year and assuming that the doctrine of
pleadings. Why? Because there is now a breach, so the rules on anticipatory breach does not apply, your action is premature.
ordinary civil action apply now.
It needs to be due and demandable and you need to make a
Rule 63 is not only about declaratory relief. There are other demand but despite the demand it was not paid. HOWEVER,
similar remedies. What are these similar remedies? even if it was not due you can bring an action based on;
Other remedies are: • There is anticipatory breach
• Reformation of contracts • You lose the period to demand under ARTICLE 1198
• Quieting of title (demand is still necessary)
• Consolidation of ownership
Mr. Kho entered into a contract to sell with Mr. Suarez. In Note: splitting of action is alleged in the affirmative. The
your contract to sell, you agreed that the purchase price will defendant may move for the dismissal and his right to do so is
be paid by you in 10 annual installments every January of non-waivable.
each year. On January 2020, the first installment was due,
you did not pay. Mr. Kho made a demand for payment on LITIS PENDENTIA
February but Mr. Suarez did not pay anything. However, Mr. Litis pendentia as a ground for the dismissal of a civil action refers
Suarez did not say that he has no intention to pay for the to that situation wherein another action is pending between the
obligation. same parties for the same cause of action, such that the second
action becomes unnecessary and vexatious. The underlying
• Can you bring an action for the first installment? principle of litis pendentia is the theory that a party is not allowed
YES to vex another more than once regarding the same subject matter
and for the same cause of action. This theory is founded on the
• Your only action was for the payment of the purchase public policy that the same subject matter should not be the
price, but you’re only bringing a part of the purchase subject of controversy in courts more than once, in order that
price as an action. Isn’t there a splitting of action? possible conflicting judgments may be avoided for the sake of the
stability of the rights and status of persons.
NOTE: FAILURE TO MAKE A DEMAND
If you fail to make a demand, then your action is premature. REQUISITES OF LITIS PENDENTIA
The only exception is when you make a waiver to the demand. a) the identity of parties, or at least such as representing
There is a waiver to demand when in your contract it provides the same interests in both actions;
that the obligation is due on particular date without need further b) the identity of rights asserted and relief prayed for, the
demand. relief being founded on the same facts; and
c) the identity of the two cases such that judgment in one,
In this instance even without making a demand your cause of regardless of which party is successful, would amount
action will arise because in your contract because the obligation to res judicata in the other.
is due.
RES JUDICATA
What is the test to determine if there is a splitting of action? Res judicata literally means "a matter adjudged; a thing judicially
• Whether the same evidence would support and sustain both acted upon or decided; a thing or matter settled by judgment." It
the first and second causes of action (also known as the also refers to the "rule that a final judgment or decree on the
"same evidence" test), or merits by a court of competent jurisdiction is conclusive of the
• Whether the defenses in one case may be used to rights of the parties or their privies in all later suits on points and
substantiate the complaint in the other. Also fundamental is matters determined in the former suit. It rests on the principle that
the test of determining parties should not to be permitted to litigate the same issue more
• Whether the cause of action in the second case existed at than once; that, when a right or fact has been judicially tried and
the time of the filing of the first complaint determined by a court of competent jurisdiction, or an opportunity
for such trial has been given, the judgment of the court, so long
When there was a breach of installment, and an action was as it remains unreversed, should be conclusive
filed for the first installment. Was the action for the second upon the parties and those in privity with them in law or estate
to tenth installment already existing? REQUISITES OF RES JUDICATA
NO. It was only the first installment that was due and • The former judgment must be final;
demandable. All second to tenth were not yet due. • the court that rendered it had jurisdiction over the
If it was already September of 2021, two installments subject matter and the parties;
(January 2020 and January 2021) are already past due. Can • it is a judgment on the merits; and
you already bring two actions for the collection of the sum • there is — between the first and the second actions —
of money? One for the first installment and another for the an identity of parties, subject matter and cause of
second installment? action
NO. They should be filed together.
LITIS PENDENTIA v. RES JUDICATA
What is the effect if you don’t file it together? There is a LITIS PEDENTIA RES JUDICATA
splitting of action. If for instance all ten installments are already
both cases are pending. But There is already a judgement
due, you’re not going to file 10 actions for the 10 installments.
You are just going to file one case for the purchase price. the test to determine if it is which would bar another
litis pendentia is if you render case.
BUT, if it was divisible on the first time. Where the first one is only judgement in one of the
due and the rest was not yet due, you can bring an action for the cases, whether your
first one. If BOTH are already due then there is a single cause of successful or not, will it
action. You cannot separate it, otherwise there is a splitting of operate as res judicata and
action. bar the second case.
If you bring your action for foreclosure of mortgage, you If Suarez issued postdated checks to pay for his loan. They
already forego your action for collection of money? were dishonored, Andaya gave notice but he still did not
Yes pay. Andaya then filed a case for B.P. 22, can you also file a
separate civil case for the civil aspect arising from the
TEST TO DETERMINE IF JOINING OF CAUSE OF ACTION OR crime?
IF THERE IS JUST ONE CAUSE OF ACTION WITH SEVERAL NO. Under Rule 111, it categorically provides that the civil case
RELIEFS is deemed instituted with the criminal case and reservation is not
The question of the joinder of causes of action involves a allowed.
preliminary inquiry as to whether two or more causes of action
are alleged. In declaring whether more than one cause of action Can you apply this retroactively?
is alleged, the main thrust is whether more than one primary Yes. Because procedural rules are construed to be applicable to
right or subject of controversy is present. Other tests are actions pending and undetermined at the time of their passage
• whether recovery on one ground would bar recovery on and are deemed retroactive in that sense and to that extent.
the other,
• whether the same evidence would support the other TEST TO DETERMINE IDENTITY OF CAUSE OF ACTION
different counts and
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• whether the same evidence would support and sustain
both the first and second causes of action (also known TEST TO DETERMINE OF IDENTITY OF PARTIES
as the "same evidence" test), or "[t]here is identity of parties where the parties in both actions are
• whether the defenses in one case may be used to the same, or there is privity between them, or they are
substantiate the complaint in the other. Also successors-in-interest by title subsequent to the commencement
fundamental is the test of determining of the action, litigating for the same thing and under the same title
• whether the cause of action in the second case exist and in the same capacity. Absolute identity of parties is not
required, shared identity of interest is sufficient to invoke the
The parties, 3 of them entered into a compromise agreement coverage of this principle. Thus, it is enough that there is a
covering a parcel of land and that compromise agreement community of interest between a party in the first case and a party
was submitted to the court for approval. The court rendered in the second case even if the latter was not impleaded in the first
a judgement for compromise, subsequently one of the case.
parties bought an action to recover the land subject to the
agreement. So out of the 5 properties, the action was only In the example, do we need to follow the first requisite? NO.
bought for the 3 properties. Can this be done?
NO. Because there is RES JUDICATA. There is already a So, does that mean since it does not mean the first requisite,
judgement for the compromise agreement and a resolution of the you cannot have a joinder of parties? The first requisite in this
properties. So, if you another action because of that there will a case does not need to be applied because they are the same
splitting of a cause of action. It will be dismissed on the ground parties. It does not involve several parties. We only apply joinder
of res judicata. of parties if you join different parties. In the example given, they
are the only two parties for all the causes of action. There is no
When we say that there should be the identity of parties, need to test it against the first requisite.
should it be exactly the same persons?
NO. It does not necessarily mean identical parties, it can also Ricardo borrowed money from a bank and there is a surety,
include identical interests represented. Rania, who secured the loan. Additionally, he has Isabelle
who is the guarantor of the loan. When the loan became past
JOINDER OF CAUSES OF ACTION due, the bank in pursuing Ricardo also joined Rania and
Joinder of actions (or joinder of causes of action) is the union of Isabelle. Can they be joined?
two or more demands or rights of action in one action. It is the Multiple parties but their involvement arises from the same
union of two or more civil causes of action, each of which could transaction
be made the basis of a separate suit, in the same complaint,
declaration, or petition. What is the nature of these parties?
• What is the nature of the obligation of a surety?
Villena loaned money to Ang in January 2020 in the amount Solidary debtor wherein you can claim the whole amount from
of P20,000. Then Villena loaned another P20,000 on the surety.
February. And then in March another P20,000 again. All the
loans have different maturity dates. By September, all the • What is the nature of the surety as a party?
loans are past due, can Villena file three cases against Ang In this case the bank can claim the whole money from Ricardo. If
separately for those three loans? the action was filed against Rania alone, then she is
YES. Because there are different causes of action. There is a indispensable. But if it is against both of you she is not an
separate right and a separate wrong for each cause of action. indispensable party anymore because the amount may be
But you can join them. collected from her or the bank.
NOTE: there are cases when you have separate contracts but • What is the nature of the guarantor as a party? There
there is only one cause of action because the contracts are cannot be a joinder for the guarantor. In fact you do not have
connected. a cause of action against the guarantor because the
REQUISITES FOR JOINDER OF ACTION guarantor’s obligation arises only after the benefit of
A party may in one pleading assert, in the alternative or excursion has already been exercised. There is no cause of
otherwise, as many causes of action as he may have against an action unless the guarantor waives the right of excursion.
opposing party, subject to the following conditions:
1. The party joining the causes of action shall comply with Mr. X is driving his car and there was a common carrier that
the rules on joinder of parties; collided with it. After the collision, his car was damaged. In
2. The joinder shall not include special civil actions or making the repairs for damages on the car, there was a cost
actions governed by special rules; which amounts to P100,000. Mr. X goes to his insurance
3. Where the causes of action are between the same company. But the insurance company only paid for P20,000.
parties but pertain to different venues or jurisdictions, Can Mr. X bring an action against the common carrier for the
the joinder may be allowed in the Regional Trial Court balance of P80,000? YES.
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and Can the insurance company claim the amount or P20,000 it
4. Where the claims in all the causes of action are paid to Mr. X from the owner of the common carrier? YES.
principally for recovery of money, the aggregate amount The insurance company is surrogated to the rights of the insured
claimed shall be the test of jurisdiction. party?
MISJOINDER OF CAUSE OF ACTION The Court in this case ruled that what Manchester did was a clear
It is the failure to meet all the requisites of joinder of actions. manifestation of fraud or intent to defraud the government
because he is trying to escape the payment of docket fees.
What is your remedy when there is a misjoinder of causes of Accordingly, the Court executed a strict ruling saying that “if you
action? do not pay docket fees upon the filing of the complaint, the
Severe the actions. Rule 17 sec 3. If, for no justifiable cause, the court will not exercise jurisdiction. If you do not allege an
plaintiff fails to appear on the date of the presentation of his or amount in your prayer, the case will be dismissed and
her evidence in chief on the complaint, or to prosecute his or her stricken off the record of the Court.”
action for an unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be SUN LIFE RULE on Docket Fees:
DISMISSED upon motion of the defendant or upon the court's The Court clarified that the Manchester rule will only apply if there
own motion, without prejudice to the right of the defendant to is an intent to defraud. It is not strictly applied to everything.
prosecute his or her counterclaim in the same or in a separate Because the purpose of the strict ruling in Manchester is to curb
action. This dismissal shall have the effect of an adjudication that behavior of avoiding the payment of filing fees by means of
upon the merits, unless otherwise declared by the court. deceit or fraud. If such deceit or fraud is not present you apply
the following guidelines:
Why?
Because there are different causes of action. 1. It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket
Is there a way for the Court to just dismiss it? The Court can fee, that vests a trial court with jurisdiction over the subject
dismiss the case when the parties do not comply with the order matter or the nature of the action. Where the filing of the
of the court severing the misjoinder of causes of action initiatory pleading is not accompanied by payment of docket
fee, the court may allow payment of the fee within a
DOCKET FEES reasonable time but in no case beyond the applicable
You compute the filing fees based on the amount alleged in the prescriptive or reglementary period.
complaint. In real action, it is the zonal value. So, it depends on
what kind of action. So, if the action is for the recovery of amount, If it is not immediately paid, you can pay it still within a reasonable
the percentage of that amount is the basis for computing the filing time. It will not be automatically dismissed as long as you pay full
fees. So, it follows that if you ask for a big amount from the amount of docket fees within a reasonable time and before the
opposite parties, the filing fees that you will pay will also be high. prescriptive period to do so has lapsed.
This is because it depends on the percentage of the amount you
are asking for. BEFORE THE PRESCRIPTIVE PERIOD HAS LAPSED
You filed a complaint, and you know that an action in a
MANCHESTER RULE of Payment of Docket Fees: written contract prescribed within 10 years from the time the
To put a stop to this irregularity, henceforth all complaints, right of action arises. Let us say you only have one day
petitions, answers and other similar pleadings should specify the before the period lapses so you filed the complaint today but
amount of damages being prayed for not only in the body of the you did not yet pay docket fees will it be dismissed?
pleading but also in the prayer, and said damages shall be NO, because you have a reasonable time to do so
considered in the assessment of the filing fees in any case. Any
pleading that fails to comply with this requirement shall not be What if you paid it after 5 days?
accepted nor admitted, or shall otherwise be expunged from the NO, because the action has already prescribed. Another
record. example, if you file an appeal you need to pay for docket fees. If
you do not pay for docket fees, your appeal is not perfected.
The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. An amendment of the Let us say you received the decision today. From today you
complaint or similar pleading will not thereby vest have 15 days in which to file your appeal. You filed tomorrow
jurisdiction in the Court, much less the payment of the but did not pay docket fees. Is this allowed? Yes, but you
docket fee based on the amounts sought in the amended have to pay it within the 15 days period. If you do not pay it within
pleading. the 15 day period, (if you file it on the 20th day) then your appeal
was never perfected because you filed it beyond the period. In
which case, there is nothing left for you to appeal because
In Manchester, in the body of the complaint he was asking for
decision is already final.
P78M. The clerk of court computes the docket fees based on the
prayer. To avoid paying a big amount he did not include the
2. The same rule applies to permissive counterclaims,
amount of P78M in the prayer. What he placed in the prayer is
thirdparty claims and similar pleadings, which shall not be
“in such amount as this court may award”.
considered filed until and unless the filing fee prescribed
therefor is paid. The court may also allow payment of said
Plainly, while the payment of the prescribed docket fees is a If DEFENDANT - may be dismissed on the ground that the
jurisdictional requirement, even its non-payment at the time of pleading states no cause of action or failure to state a cause of
filing does not automatically cause the dismissal of the case, as action
long as the fees is paid within the applicable prescriptive or
reglementary period, more so when the party involved Andaya, Ang and Kho decided that you wanted to sell
demonstrates a willingness to abide by the rules prescribing such facemasks. The three paid Suarez P1M each for the delivery
payment. Thus, when insufficient filing fees were initially of the mask. Andaya, Ang and Kho wanted to make a
paid by the plaintiffs and there was no intention to defraud company named “The Face-Mask”. After that they applied
the government, the Manchester rule does not apply. with the SEC, but there is no registration yet. Suarez failed
to deliver the mask. Now, “The Face-Mask” company is filing
IN RELATION TO CRIMINAL PROCEDURE: a case against Suarez, will it prosper?
Rule 111 of Filing Fees. In so far as the civil aspect arising from NO. There is lack of capacity to sue. Because the application for
the crime, if there is a criminal case there is a civil case deemed incorporation is still pending with the SEC, the corporation has
instituted. You need to pay for docket fees if you are asking for not obtained a juridical personality to sue under the company
moral, nominal, temperate, exemplary damages name.
Everything is included EXCEPT for Actual damages. The rule is CAPACITY TO SUE v. PERSONALITY TO SUE
there is no computation of docket fees in Actual Damages. This LACK OF CAPACITY TO LACK OF PERSONALITY
is not absolute; the only exception is if the case involves B.P. 22. SUE TO SUE
If it is B.P. 22 you need to pay for docket fees based on the refers to a plaintiff’s general the fact that the plaintiff is not
amount of the checks.
disability to sue, such as on the real party- in-interest.
account of minority, insanity,
If you ask for damages without specifying the amount of damages
incompetence, lack of
then the docker fees will constitute as a lien on the judgement.
juridical personality or any
other general
RULE 3 PARTIES TO CIVIL ACTION
disqualifications of a party.
PARTIES OF A CIVIL ACTION
Who has the burden to show legal capacity to sue? Rule 8
Only natural or juridical persons, or entities authorized by law
Sec 4. Facts showing the capacity of a party to sue or be sued
may be parties in a civil action. The term "plaintiff" may refer to
or the authority of a party to sue or be sued in a representative
the claiming party, the counter-claimant, the cross-claimant, or
capacity or the legal existence of an organized association of
the third (fourth, etc.) — party plaintiff. The term "defendant" may
persons that is made a party, must be averred. A party desiring
refer to the original defending party, the defendant in a
to raise an issue as to the legal existence of any party or the
counterclaim, the cross-defendant, or the third (fourth, etc.) —
capacity of any party to sue or be sued in a representative
party defendant.
capacity, shall do so by specific denial, which shall include
such supporting particulars as are peculiarly within the pleader's
JURIDICAL PERSONS UNDER ARTICLE 44 knowledge.
a) The State and its political subdivision
b) Other corporations, institutions, and entities for public What do you mean by interest?
interest or purpose, created by law and The party has interest when benefited
c) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member What is the REMEDY because there is lack of capacity of
sue?
Can an incapacitated person be a party in a case?
Can one of the party file in a representative authority for the What is the rule in KALIKASAN cases?
other parties? There must be a violation of environment rules. The legal
Yes. But the other two parties must file an SPA. standing is where there is an environmental violation and it
involves at least two or more cities or municipalities. It is an
NOTE: Rule 3, Section 15 DOES NOT apply because the rule indispensable requirement. So, in that instant, if it involves two or
refers to defendants. more cities or municipalities or provinces there are numerous
parties involve that is why you can file it in a representative
Rule 8, Section 4 capacity. The strict rules on real party interest and ordinary rules
“Capacity. — Facts showing the capacity of a party to sue or be of civil actions DO NOT apply because in Kalikasan is a special
sued or the authority of a party to sue or be sued in a civil action together with continuous mandamus.
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A Kalikasan cases. Is material damage required?
party desiring to raise an issue as to the legal existence of any No. Strict rule in RPI is not followed. It is a special civil action.
party or the capacity of any party to sue or be sued in a What is indispensable here is “representative capacity”
representative capacity, shall do so by specific denial, which shall
include such supporting particulars as are peculiarly within the TAX PAYER’S SUIT REQUISITES
pleader's knowledge.” • public funds derived from taxation are disbursed by a
political subdivision or instrumentality and in doing so
In capacity, you need to allege your capacity to sue. So if you are • a law is violated or some irregularity is committed; and
filing in a representative capacity you need to establish it as such the petitioner is directly affected by the alleged act
there must be a Special Power of Attorney otherwise it is deemed
as not filed. Locus standi of minors in Opposa v. Factoran
Intergenerational responsibility. Their personality to sue in
Who is a PLAINTIFF? behalf of the succeeding generations can only be based on
Is the claiming party and is the one who files the complaint. It may the concept of intergenerational responsibility insofar as the
also apply to the defendant filing the counter claim, cross right to a balanced and healthful ecology is concerned. Put
claim or third party plaintiff a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of
Can be a defendant also be considered as a PLAINTIFF? The their obligation to ensure the protection of that right for the
term "defendant" may refer to the original defending party, the generations to come
defendant in a counterclaim, the crossdefendant, or the third
(fourth, etc.) — party defendant. CLASS SUIT
When the subject matter of the controversy is one of common or
Panandigan has an issue with Villena before the National general interest to many persons so numerous that it is
Housing Authority, Panandigan bought a case against her impracticable to join all as parties, a number of them which the
with the NHA. The NHA resolved the issue, but Panandigan court finds to be sufficiently numerous and representative as to
appealed it under Rule 43. The NHA wanted to intervene fully protect the interests of all concerned may sue or defend for
because it claims to be a real-party-interest. Should NHA be the benefit of all. Any party in interest shall have the right to
included? intervene to protect his individual interest
NHA is NOT a real party in interest because it is the only one who
rendered the decision. All students of “X” school were informed by the school that
the basis of the grade will be the number of ube cheese
LOCUS STANDI pandesal that they can bake within 24 hours. That is what
Personal and substantial interest in a cases such that the party the school did. So all of the students wanted to sue the
has sustained or will sustain direct injury because of the school. Can you file a class suit?
governmental act. NO. Because the students have separate contract with the
school. Each one of the students have a separate contract and
Versoza v. Fernandez Ruling each one has a separate breach of contract with the school.
In view of the allegations of the complaint, there can be no sort
of doubt as to the right of the plaintiff, as Bishop of the diocese Can you bring an action against a Dead Person? No. A
of Lipa, to maintain his action. As ecclesiastical superior of the deceased person does not have the capacity to be sued
parish priest, the Bishop necessarily has an interest in the and may not be made a defendant in a case.
enforcement of the trust, even apart from the duty imposed upon
his predecessor, the Archbishop of Manila in the closing Can you file a case against the estate or do you file it against
paragraph of the royal cedula, to enforce exact and punctual the executor or administrator?
performance of the trust. You can file it against the executor and administrator because
they are the lawful representatives of the estate. That is why
A Roman Catholic Bishop having the right of supervision and under the rules when someone dies, you need to substitute the
inspection over religious brotherhoods established in his dead person with the legal representatives, who may be the
bishopric may maintain a civil action to compel the persons executor or administrator.
comprising the directorate of such a fund in their custody, it being
3G (2020-2021)– RAMENotes Contributed by: krykryang & Ranina
Updated by Ae
27
What if the spouses have a separation of property regime,
do they need to be sued jointly?
What about the principal, should the principal always be An instance when a spouse need not be joined in a suit involving
joined in the case? the other is when the litigation pertains to an exclusive property
General Rule: The principal should always be impleaded of the spouse.
because it is the real party in interest.
If the property is CPG, do they need to file a case together to
By EXCEPTION, the case can be sued in the name of the agent recover the property in CPG?
when: NO. It does not need to be together because the CPG is
An agent may sue or be sued solely in its own name and without governed by the rules of co-ownership.
joining the principal when the following elements concur:
1) Agent acted in his own name during the transaction; For example if there are 5 co-owners, and the co-owners
2) Agent acted for the benefit of an undisclosed principal; lost the property and they want to recover it. Is it required
and that all 5 co-owners should file the action?
3) Transaction did not involve the property of the principal. NO. You only need one party from a co-ownership to recover a
property. The law provides that in case of recovery of property,
The reason why it is an exception because in these cases it the co-owners do not need to get the consent or require a SPA.
appears that there is no principal. So the agent becomes the real Anyone of them may bring the action for recovery of the property,
party in interest. because it is to the benefit of the co-ownership. The same rules
apply to CPG.
RESIDENT MAMMALS LOCUS STANDI
The Court passed the landmark Rules of Procedure for With regard to actions for partition, Section 1, Rule 69 of the
Environmental Cases, which allow for a "citizen suit," and permit Rules of Court requires that all persons interested in the property
any Filipino citizen to file an action before our courts for violations shall be joined as defendants. Thus, all the co-heirs and persons
of our environmental laws. having an interest in the property are indispensable parties; as
such, an action for partition will not lie without the joinder of the
SEC. 5. Citizen suit. — Any Filipino citizen in representation of said parties.
others, including minors or generations yet unborn, may file an
action to enforce rights or obligations under environmental laws. What if it’s Absolute Community Property Regime?
Upon the filing of a citizen suit, the court shall issue an order
which shall contain a brief description of the cause of action and INDISPENSABLE PARTY v. NECESSARY PARTIES
the reliefs prayed for, requiring all interested parties to manifest INDISPENSABLE PARTY NECESSARY PARTY
their interest to intervene in the case within Fifteen (15) days Parties in interest without A necessary party is one who
from notice thereof. The plaintiff may publish the order once in a whom no final determination is not indispensable but who
newspaper of a general circulation in the Philippines or furnish can be had of an action shall ought to be joined as a party
all affected barangays copies of said order. be joined either as plaintiffs if complete relief is to be
or defendants. accorded as to those already
The need to give the Resident Marine Mammals legal standing parties, or for a complete
has been eliminated by our Rules, which allow any Filipino determination or settlement
citizen, as a steward of nature, to bring a suit to enforce our of the claim subject of the
environmental laws. It is worth noting here that the Stewards are action.
joined as real parties in the Petition and not just in representation
of the named cetacean species. The Stewards, Ramos and
In Criminal Case, the private complainant necessary,
Eisma-Osorio, having shown in their petition that there may be
Indispensable or none-of the above?
possible violations of laws concerning the habitat of the Resident
You don’t need them to get full relief. Private complainants are
Marine Mammals, are therefore declared to possess the legal
deemed witnesses of the case. The real interest party in the case
standing to file this petition.
is the State.
NOTE: In environmental laws, there is an equivalent of a class
PRO-FORMA PARTIES
suit called as “CITIZEN’S SUIT”
a nominal or pro forma party is one who is joined as a plaintiff or
defendant, not because such party has any real interest in the
SPOUSES AS PARTIES subject matter or because any relief is demanded, but merely
Husband and wife shall sue or be sued jointly, except as provided because the technical rules of pleadings require the presence of
by law. such party on the record
The husband obtained the loan from a bank, the marriage is These are those who are required to be joined as co-parties in
celebrated after the family code. He defaulted, but the loan suits as provided by the law and the rules. A pro-forma party can
redounded to the benefit of the Family. Can the case just be either be indispensible, necessary or none of the above.
filed against the husband, or to both spouses?
NO. It shall be filed against both spouses.
In the example of solidary debtors, in that instance, you can
recover the entire amount as against one debtor. So if you sue a
Can the case be filed against the husband alone since he’s case against one debtor he is indispensable party and all the
the only one who obtained the loan? other solidary debtors.
NOTE: When there is someone who dies, there will be settlement Once there is a transfer of interest is it necessary that we
proceedings/ settlement of estate. If there is a will left behind, we substitute the transferee?
call it testate, if there is no will it is called intestate. In BOTH It is NOT mandatory because the rules make use of the word
instances, the court will appoint someone who will represent the “may”. So, it is only discretionary upon the court whether or not
estate and take charge of the administration of the estate of the to make a transfer.
diseased.
INDIGENT PARTY
If there is no person named in the will, you call that person as If it is satisfied that the party is one who has no money or
an administrator/administratrix that will be appointed by the property sufficient and available for food, shelter and basic
court. necessities for himself and his family.
If there is someone named in the will, the person will be called Exempt from payment
an executor/executrix. • Docket Fees
• Other lawful fees
It should be executor or administrator that will be SUBSTITUTED. • Transcript of stenographic notes
However, it is possible that you have already instituted your
settlement of estate case but there is no appointment of When will the SolGen be given notice on cases? (Sec. 22)
representative. In this case the Supreme Court recognized that In any action involving the validity of any treaty, law, ordinance,
if the settlement of estate has already been filed but there is executive order, presidential decree, rules or regulations, the
no administrator/executor named yet, the heirs can he used court, in its discretion, may require the appearance of the
as the representative of the deceased. This is because death Solicitor General who may be heard in person or through a
opens the succession so by virtue of death, they can already be representative duly designated by him.
the representatives.
Is Rule 4 related to venue subject to exceptions?
However, if there is no representative appointed, the Rules • Where a specific rule or law provides otherwise
provide that the opposing party has to be the one to appoint the • Where the parties have validly agreed in writing before
executor or administrator at his costs. It means that if there is no the filing of the action on the exclusive venue thereof.
case filed for the settlement of estate, the creditor has to file the
case. The filing of the case is the only way an executor or Panandigan loaned money to Suarez. Panandigan is from
administrator will be appointed. Quezon City while Suarez is from Manila. In your loan
contract there is a provision that if an action arises from
Is this allowed? the case it will be filed in Makati? What does that mean?
YES, because the creditor has an interest and a legal standing in This does not vest exclusive jurisdiction over the case. For there
the estate. to be exclusive jurisdiction, the parties must use words that
expressly provides for such exclusivity. In this case, the Makati
CONTRACTUAL MONETARY CLAIMS UNDER RULE 3 Court is only an added court that can exercise jurisdiction over
If the opposing party untimely dies, you cannot claim the amount the case. The normal rules apply and the Makati Court can be
in the same case. You need to have a settlement of estate and the venue of the case.
that is where you will bring your claim. The claim of the party must
he against the estate of the deceased. Can a case be dismissed on the ground of improper venue?
YES. Without prejudice.
If you do not know the name of the defendant, can you not
file the case? RULE 6 KINDS OF PLEADINGS
You CAN file a case. Whenever the identity or name of a
defendant is unknown, he may be sued as the unknown owner, What is a PLEADING?
heir, devisee, or by such other designation as the case may
What are the Pleadings allowed under Ordinary Rules? The For example, if I say this is the sale contract between us. That
claims of a party are asserted in a complaint, counterclaim, sale contract is genuine. If you do not specifically deny that, you
cross-claim, third (fourth, etc.)-party complaint, or complaint- admit that it is the sale contract that you entered into. That the
inintervention. agreement between the parties is agreement that is in words and
figures in this actionable document. It is what it purports to be.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him or her. If It purports to be a deed of sale between the plaintiff and
defendant, if you do not specifically deny that under oath. You
An answer may be responded to by a reply only if the defending admit that it is the deed of sale that was entered into by the
party attaches an actionable document to the answer. (Section plaintiff and defendant.
2, Rule 6) DUE EXECUTION:
• The document was signed voluntarily and knowingly by
What is an ACTIONABLE DOCUMENT? the party whose signature appears thereon;
The action or defense is based on a written instrument. • That if signed by somebody else such representative
had authority to do so, • The documents are duly
How are you going to sufficiently ALLEGE an actionable delivered and
document in your pleading? • The formalities were complied with.
Rule 8, Section 7. Whenever an action or defense is based upon The signature appearing thereon is indeed signed by the same
a written instrument or document, the substance of such parties or pursuant to his property.
instrument or document shall be set forth in the pleading, and the
original or a copy thereof shall be attached to the pleading as an NOTE is that we need to specifically deny the actionable
exhibit, which shall be deemed to be a part of the pleading. document. It has to be done so under oath so if the complaint is
based on actionable document your Answer must have specific
Does it have to be an original copy? denials of the actionable document and it is under oath.
It may be either be an Original or a Copy.
What do you call a pleading under oath?
Give an example of an actionable document in which your Verified Pleading
ACTION depends on?
Collection of money based on promissory note The rule is you need to specifically deny the actionable
document under oath otherwise you are deemed to have
Give an example of an actionable document in which your admitted its genuineness and due execution? What is the
DEFENSE depends on? further effect of your failure to specifically deny?
A receipt of Dacion En Pago which showed the original contract The Court can render judgement on the pleadings.
was extinguished by a novation. In that instance your dacion en
pago is your actionable document and you need to allege it in When is JUDGEMENT OF PLEADINGS proper?
your answer and it needs to be attached. Section 1, Rule 34. Where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party's
Actionable documents in Ejectment Case? pleading, the court may, on motion of that party, direct judgment
Contract of Lease on such pleading. However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the material facts
How do you contest an actionable document? alleged in the complaint shall always be proved.
1. By specific denial under oath
2. By setting forth what is claimed to be the facts. It means for example I filed a case against Ms. Ang, my collection
for a sum of money case is based on an actionable document
Is it enough to say “hindi kaya yan totoo yan” under oat? which is a promissory note executed by Ms. Ang. If you want to
NO. Because that is a general denial. Because you did not refute, Ms. Ang must specifically deny it.
specifically deny.
How will she specifically deny it?
What is the effect if you make a GENERAL DENIAL? The It depends on her defense. She can say that the signature is a
effect is you admit the genuineness and due execution of the forgery, or that she doesn’t know the person, or haven’t met her
document. or her defense could that “yes I have a loan, but it was already
paid”. So you attach another actionable document as part of your
Is genuineness the same with due execution? NO. defense to prove that the obligation has been distinguished.
You only need to specifically deny under oath.
GENUINENESS means the document is:
When a judicial admission is made you do not need to go to trial Affirmative defenses have two paragraphs: What are
again. That is why you can have judgement in pleadings. In affirmative defenses on Paragraph 1?
relation to Criminal Procedure: Rule 118 during pre-trial, the An affirmative defense is an allegation of a new matter which,
parties can make stipulations of facts. When they make while hypothetically admitting the material allegations in the
stipulations of facts during the pre-trial they agree on the facts of pleading of the claimant, would nevertheless prevent or bar
the case. It means that once they have undisputed facts, those recovery by him or her. The affirmative defenses include fraud,
are judicial admissions. It will lessen the trial. statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and
For example: they agree that the victim “Ms. X”. If they agree that any other matter by way of confession and avoidance.
the name of the victims is “Ms. X” that is a judicial admission
already by BOTH parties. It means they do not need to produce What is an actionable document? Is a sale invoice an
evidence that the name of the victim is “Ms. X”. If there is NO actionable document?
JUDICIAL ADMISSION they would still have to present a birth Sales document is not an actionable document because it is
certificate to prove her name. merely evidentiary but it does not foreclose the probability of the
other party to be liable. So, the Supreme Court held that the sales
Another example: the case is for Robbery and you want to say invoice is just a little statement of the nature, quantity or costs of
that the amount stolen is P500k. You are not admitting that you the thing sold it is not considered as a billed sale, not a proof of
were the one who stole it, but you want to stipulate is P500k. If the sales that would give rise to the cause of action.
there is a judicial admission you do not need to prove the amount
and shortens the trial. THIRD PARTY COMPLAINT
A third (fourth, etc.)-party complaint is a claim that a defending
What is a COMPLAINT? party may, with leave of court, file against a person not a party to
The complaint is the pleading alleging the plaintiff's or claiming the action, called the third (fourth, etc.)-party defendant for
party's cause or causes of action. contribution, indemnity, subrogation or any other relief, in respect
of his or her opponent's claim.
What should be alleged?
The names and residences of the plaintiff and defendant must be How is it different from an instance where you file a
stated in the complaint. counterclaim and where the exception allows or you to
implead a party through a counter claim?
In a third-party complaint, the pleading itself is against the third
What is an ANSWER?
person however in a counterclaimed pleading is not directed to
An answer is a pleading in which a defending party sets forth his
the third person but directed to the original plaintiff.
or her defenses.
GENUINENESS AND DUE EXECUTION
An answer can be either affirmative or negative. What is a
Genuineness is what it purports to be. The words, figures and the
NEGATIVE DEFENSE?
terms in that document is what agreed upon by the parties.
SPECIFIC DENIAL An exception to this rule is when you do not raise it but you
Specifically, denial each material allegations presented it as evidence and there was no objection to
presentation of such evidence. In this instance you can have an
KINDS OF SPECIFIC DENIAL amendment of the pleading.
1) ABSOLUTE Denial – specifies the material allegations of
fact the truth of which he does not admit, and, whenever NON-WAIVABLE DEFENSES UNDER RULE 9, SEC. 1
practicable, shall set forth the substance of the matters upon “when it appears from the pleadings or the evidence on record
which he relies to support his denial. that the court has no jurisdiction over the subject matter, that
there is another action pending between the same parties for the
2) PARTIAL Denial – where a defendant desires to deny only same cause, or that the action is barred by a prior judgment or
a part of an averment, he shall specify so much of it s true by statute of limitations, the court shall dismiss the claim.”
and material and shall deny the remainder.
EXCEPTIONS
3) Denial by DISAVOWAL OF KNOWDLEDGE – where a • Statute of Limitations
defendant is without knowledge or information sufficient to • Res Judicata
form a belief as to the truth of a material averment made to • Lack of fixation of the subject matter
the complaint, he or she shall so state, and this shall have
the effect of a denial.
As such, everything in the complaint must be specifically
(Section 10, Rule 8)
denied. Otherwise, it will be an admission. Is there an
exception to this rule? When you did not specifically deny
How do you make a denial by disavowal of knowledge? but will not amount to admission?
It must also be denied specifically and under oath. Material averments in a pleading asserting a claim or claims,
other than those as to the amount of unliquidated damages, shall
When the defendant alleges having no knowledge or information be deemed admitted when not specifically denied. (Section
sufficient to form a belief as to the truth of the allegations of the 11, Rule 8)
other party but such matters are plainly and necessarily within
the defendant’s knowledge, a claim of “ignorance of lack of
Unliquidated Damages. When it is an to an unliquidated damages
information” will not be considered as a specific denial.
you need to make a specific denial under oath, if it involves an
actionable document
Do you need to distinguish denial for lack of knowledge and
which one you are specifically denying by negative UNLESS you are NOT A PARTY to that actionable document.
defenses? The reason for this is how can you deny something if you have
YES. You need to let the party know which one you are denying no knowledge of it. Therefore, if you are not a party to you must
for lack of knowledge and which one you are denying by specifically deny it but it does not need to be under oath.
asserting facts in which you relying for the denial. You need to
distinguish so that they know what needs to be refuted during
Another instance is if you requested for the inspection of the
trial.
original but only attached a copy of the actionable document. The
Court then directed them to produce the original but they refuse,
What if you specifically deny some but you do not
in this instance you need to make a specific denial but it does not
specifically deny the rest, are you deemed to have admitted
need to be under oath. The exception is not to both specific
the entire pleading?
denial and oath but only as to the oath. Specific denial must
NO. This would amount to partial denial.
always be present.
NOTE: If you admit it, which is a general admission and What is a NEGATIVE PREGNANT?
specifically denied. The actionable document, the effect is you A denial in the form of a negative pregnant is an ambiguous
are admitting the need to execution. pleading, since it cannot be ascertained whether it is the fact or
only the qualification that is intended to be denied
If there is an admission of the allegations in the pleading,
would there still be an issue? Example of Negative Pregnant?
NO. There are no more issues in case of admission of the Like you told your boyfriend “lumabas ka nanaman kagabi
allegations of the pleading. kasama yung mga babae mo” but he replied “hindi ako umuwing
lasing kagabi”. That is an negative pregnant he did not really
The answer admitted the complaint which is a judicial admission. deny.
So, there is no issue when there is nothing left to be tried and
there is an issue and there is something left to be tried when there I am an owner of a parcel of land. Ms. Andaya is occupying that
is dispute as to the facts. If there is no dispute to the facts, land. I bring an action against her for accion publiciana so I can
meaning you actually admitted, there then there is no need to try recover possession of my land. So I allege that Ms. Andaya is
or no need to present evidence. the court can render judgement. unlawfully possessing my land. But what Ms. Andaya replies “di
CONCEPT OF ACTIONABLE DOCUMENT If you have a reply you want to post the actionable document it
An actionable document is a document that is the basis of your should be under oath specifically denying.
complaint or of your defense.
Example # 1: In a complaint for ejectment on the basis of a
If your action is a contract of lease then your actionable document lease contract. If in the answer what is stated is that “that’s not
is the contract of lease. If you have a tenant and you want him to true because we have agreed on a new lease contract”. The
vacate the premises the actionable document is your lease lease contract will then be the actionable document attached to
contract and your demand to vacate that was received by the answer.
defendant that is your basis of cause of action.
In this case, you need to specifically deny the contract of lease
If in the same instance, the parties executed another contract for in a reply. In the reply, you can say as a specific denial that “it
the extension of the same lease. So in order to refute the cause is not true that there is an extension of the lease because that
of action of the plaintiff, the defendant can attach in his defense signature in the extension of the lease is a forgery. I could not
the subsequent contract of lease which becomes the actionable have signed that because at the time that it was being executed
document of the defendant. was outside the country which can be proven by my passport
and tickets” to cut the date here is my passport tickets showing
ATTACHMENT OF ACTIONABLE DOCUMENT & SPECIFIC i was outside the country. That is your specific denial
DENIAL
At the same time the concept of attaching an actionable Example # 2: What if your actionable document is for a sum of
document in the answer is different from specifically denying it. money in your complaint so you demanded for a complaint for
sum of money and the answers as sasagot siya wala nang
So, in addition to attaching an actionable document you need to complaint for sum of money extinguish na yan kasi meron na
specifically say no it's not true that the lease has expired. tayo new agreement. In the complaint for the sum of money,
the actionable document attached is the original contract,
So, what is the basis of fact of your denial? however in the answer of the defendant he attaches the alleged
The basis of fact of the denial is that a new lease has been new contract between them as an actionable document and
executed between the parties. That is how you make a specific alleges that there was dacion en pago. However, the attached
denial. If you say “that's not true or is not true it's expired” that's contract is not the same as the contract contract attached by
just a general denial. The rules provide that when you make a the plaintiff.
specific denial you need to allege the facts of which to base
your specific denial on. In that instance plaintiff has the claims it's not just a denial. So,
one hand, defendant says attaches as an actionable document
ANSWER & REPLY a contract claiming that there was dacion en pago. On the other
ANSWER REPLY hand, plaintiff denies that there was dacion en pago and states
that the actionable document attached in the reply was for a
An answer is a pleading in A reply is a pleading, the
previous transaction executed many years ago between the
which a defending party set office or function of which is
forth his or her defense to deny, or allege facts in parties. But he also claims that they did execute another dacion
(Section 3, Rule 6) denial or avoidance of a new en pago for the transaction but it was breached so it was
matters alleged in, or relating rescinded.
to, said actionable document.
(Section 10, In this case, to specifically deny the dacion en pago attached
paragraph 2, Rule 6) to the answer there must be a reply filed that specifically denies
the dacion en pago attached to the answer.
NOTE: If you have a complaint the response is an answer then
you do not file any more a reply because the rules provide that So what if you want to specifically deny under oath that that is
the allegations in your answer are deemed controverted. In not the dacion en pago that we entered into for that contract,
other words, we don't need to file reply because it's already because what was presented was that used in a previous
NOTE: the reply and the rejoinder will only be filed only if it is to However, once leave is granted it will be dismissed again if they
answer an actionable document. If there is no actionable cannot acquire jurisdiction over the person of the defendant
document you cannot file a file a reply or rejoinder.
Ricardo sold a parcel of land to Mico with a clean title. Later
CROSS-CLAIM on Mico sold the parcel of land to Krystel. Subsequently,
A cross-claim is any claim by one party against a co-party arising Mico received a summons in a complaint filed by Krystel
out of the transaction or occurrence that is the subject matter for breach of warranty against eviction because what
either of the original action or of a counterclaim therein. Such happened was Krystel had a pending ejectment case filed
crossclaim may cover all or part of the original claim. by Isabelle. In return, Krystel files a complaint against Mico.
Mico wants to refute the claim. What is the proper remedy?
COUNTER CROSS-CLAIM Does Mico file a counterclaim with Krystel to implead
A counterclaim may be asserted against an original Ricardo?
counterclaimant. The general rule is the Mico cannot file a counter claim.
Can it be that you will file a cross claim to a co-plaintiff on However, Section 12 makes an exception that you can bring
the basis of the counterclaim of the defendant? A cross-claim parties in your counterclaim if the court cannot determine
may also be filed against an original crossclaimant. that a counterclaim without bringing in a new party. What
is the Remedy?
What are the requisites for there to be a third-party Mico can file a third-party complaint against Ricardo.
complaint fourth party or fifth party complaint? It must only
be on those grounds wherein we can have a thirdparty complaint. Can Mico compel Krystel to implead Ricardo?
In the absence of which, we cannot have a third-party complaint. NO. You cannot compel the plaintiff. So, you just file a third party
complaint against Ricardo.
Under the rules, when you file a motion for leave you already
need to attach the pleading that you are seeking leave from the In another case, Mico applied with “X” company which is
court. So, like motion for leave to admit the attached third-party engaged in a dealership of cars. Mico applied to be a dealer
complaint. You cannot ask motion of leave without attaching so to apply as a dealer Mico filed an application to the
what you're asking it of. company. X company said that they will process it.
Because it is the company through the officer who told Mico that The allegation of relief need not be specific a general prayer is
he needs to buy a land so he will allege that the company told enough provided it would be warranted by the allegations and
me through your officer for me to buy land. So Mico can file a rules of the complaint
counterclaim mentioning that officer and in that instance the court
can implead on the basis of a counterclaim. You need to allege the prayer the specific relief that you are
seeking that's why if you remember in the Manchester case that
But the Supreme Court also ruled in case that it is denied or when we talked about in the body he was framed from the 78 million
you make a counterclaim but the court does not allow the dapat in the relief he should specify also 78 million that he is
impleading THEN your remedy is a third-party complaint. asking for yung nag circumvent and damages and filing fees
So, you can try to make a counterclaim impleading the So everything that you are asking for must be alleged in your
officer but it is DISCRETIONARY on the Court and if it is prayer then you can add a general denial such that if you did not
DENIED then you file a third-party complaint. ask for something specifically but you can add a general denial
or such other as may the court may be just and equitable
You can also file an answer to the claims so you can have an
answer to a third-party complaint, or an answer to a counterclaim, Are all pleadings supposed to be dated?
answer to a cross claim or a permissive claim and etc. YES. Every pleading shall be dated. (Section 2 (d), Rule 7)
RULE 7 PARTS AND CONTENTS OF A PLEADING What are the details of the lawyer which should be included
in the pleading? The lawyer should include:
CAPTION • Full name
The caption sets forth the name of the court, the title of the action, • Address of the party that is not the post office
and the docket number if assigned. (Section 1, Rule 7) • Address of the lawyer
• Signature of the lawyer
What if there are 100 plaintiff v. 100 defendants in the first • Counsel’s roll number.
time you file your complaint, do you need to name all the • Professional Tax Receipt Number (PTR)
parties? All the 100 plaintiffs and 100 defendants? Yes, you
• Current IBP Official Receipt Number indicating its date
need to by virtue of Section 1. The rules provide that if it's the first
of issues
time you have to enumerate all the names of the parties but for
the next pleadings it will be sufficient to name the first party and • MCLE Certification
use “et al”.
“The title of the action indicates the names of the parties. They Is it mandatory that both the lawyer and the party to sign?
shall all be named in the original complaint or petition; but in NO. Every pleading and other submissions to the court must be
signed by the party or counsel representing him or her. It should
subsequent pleadings, it shall be sufficient if the name of the first
be either the party or the counsel.
party on each side be stated with an appropriate indication when
there are other parties. Their respective participation in the case
shall be indicated.” (Section 1, Rule 7) It shall include the full name, the signature, the address of the
party that is not the post office, the signature of the lawyer, the
How do you call the participations of the parties? Plaintiffs address of the lawyer, he's professional tax receipt number,
and Defendant. roll number, the roll number is the number in the entry of the roll
attorney.
In some instance they refer to it as petitioner or defendant, or
SIGNATURE OF LAWYER v. SIGNATURE OF THE
then there is a third party you place third party-plaintiff or
CERTIFICATION
thirdparty defendant or plaintiff-in-intervention and etc.
The signature of the lawyer as distinguished to a signature that
is the certification. The signature details of the lawyer is what
BODY would show that the one signing is a lawyer in good standing.
The body of the pleading sets forth its designation, the allegations
of the party's claims or defenses, the relief prayed
The pleading requires the full name so that the name should be
for, and the date of the pleading. (Section 2, Rule 7)
the same data that would appear in the roll of attorneys. In the
What if there are three plaintiffs should all three plaintiffs FORUM SHOPPING
sign and execute the verification? Forum shopping is the act by a party of repetitively availing of
NO. The rule is if it is a verification it does not to be all of them several judicial remedies in different courts simultaneously or
to sign the verification. This is because the purpose of the successively, all substantially founded on the same transactions
verification is merely just to secure an assurance that the and the same essential facts or circumstances, and all raising
allegations in the pleading are true and correct and not the substantially the same issues either pending or already resolved
product of imagination or speculation so you need to have at adversely by some other court.
least one of them say that yes, it is true or correct based on our
personal knowledge or authentic records and it as evidence REQUISITES FOR FORUM SHOPPING
basis. There is forum shopping when:
• Identity of the parties, or at least such parties as represent
The certification of non-forum shopping of the three the same interests in both actions;
plaintiffs should all of them execute their certification of • Identity of rights asserted and relief prayed for, the relief
non-forum shopping? being founded on the same facts and;
Yes. Because the purpose of certification of non-forum
• The identity of the two preceding particulars is such that any
shopping is to avoid the malpractice of degrading the
judgement rendered in the pending case, regardless of
administration of justice and also to avoid clogging of the topics
which party is successful, would amount to res judicata in
of the courts.
the other case.
Without prejudice to those others mentioned earlier (cause of This is because the new rules of court provide for the period.
action etc) It should be the name of the witnesses, and if it asserts
a claim or defense you already need to allege the name of your That you can already submit as early as attaching it to your
witnesses, the summary of their testimony then you need to pleadings seeking a claim or defense. It means you do not need
attach their judicial affidavits and then you have to also attached to file it before the pre-trial. It is deemed amended because of the
already all your documentary and object evidence in support of inconsistency. Also, the last part of the revised rules of court that
the pleading you have to allege it already then you it is deemed to a meant those circulars that are inconsistent
also included it therewith so obviously the period of filing in your JA rule is
inconsistent with the period of filing in the revised rules.
If you fail to allege it, what is the effect?
It will not be any more admitted. So, the rule is if you file a complaint you should already attach
the judicial affidavits to your complaint and if you file an answer
Is this rule absolute? you should already attach the judicial affidavit in your answer.
NO. When you have meritorious reasons. (Evidentiary support That is the reason why the 15-day period to file an answer in the
through modes of discovery) previous rules of court was amended to 30 days because you
need to attach the judicial affidavits to your pleading.
EFFICIENT PAPER RULE
ALLEGATIONS IN A JUDICIAL AFFIDAVIT
A judicial affidavit shall be prepared in the language known to the
Size of the Paper: 8.5 by 13
witness and, if not in English or Filipino, accompanied by a
Font size: is 14 translation in English or Filipino, and shall contain the following:
Spacing: single space paragraph and 1.5 spacing between (A) The name, age, residence or business address and
paragraphs occupation of the witness;
(B) The name and address of the lawyer who conducts or
Margins: supervises the examination of the witness and the place
Left margin. 1.5 inch where the examination is being held;
Top margin 1.2 inch (C) A statement that the witness is answering the questions
Right margin: 1 inch asked for him, fully conscious that he does not so under
Bottom margin 1 inch oath, and that he may face criminal liability for false
testimony or perjury
how many copies do we file in the supreme court? five (D) Questions asked of the witness and his corresponding
copies one originally marked and 4 copies answers consecutively numbered, that:
a. Show the circumstances which the witness
En Banc: Five copies acquired the facts upon which he testifies
b. Elicit from him those facts which are relevant to the
issues that the case presents and
Court of Appeals: Three copies c. Identify the attached documentary object and
evidence and establish their authenticity in
Regional Trial Court: One copy only but in real life 2 copies accordance with the Rules of Court
(E) The signature of the witness over his printed name and
EFFECT OF FAILURE TO COMPLY WITH REQUIREMENTS cannot include “ñ” and “ñg”.
• A party who fails to submit the required judicial affidavits
and exhibits on time shall be deemed to have waived their What is the REMEDY if you make a mistake?
submission. The court may, however, allow only once the You need to pay for a fine.
late submission of the same provided, the delay is for a
valid reason, would not unduly prejudice the opposing How many times can you to correct it?
party, and the defaulting party pays a fine of not less than Once only with fine for damages
P1,000.00 nor more than P5,000.00, at the discretion of the
court. Will there not be a violation of due process if you need to
submit judicial affidavit in advance?
• The court shall not consider the affidavit of any witness who It is just only submission for orderly procedure but it is not yet
fails to appear at the scheduled hearing of the case as offered for evidence because the rules provide that there will be
required. Counsel who fails to appear without valid cause no evidence will be considered by the court until it is formally
despite notice shall be deemed to have waived his client's offered. There is a properly procedure to properly offer the
right to confront by cross-examination the witnesses there evidence and if you only submit it in compliance of attaching it to
present. the document that is that the formal offer contemplated by the
court.
• The court shall not admit as evidence judicial affidavits that
do not conform to the content requirements of Section 3 In the rules, before the JA rule, we were able to object each
and the attestation requirement of Section 4 above. The question propounded on direct but now it is oral so
court may, however, allow only once the subsequent everything is on paper and so does that mean that we cannot
submission of the compliant replacement affidavits before object to the questions anymore?
the hearing or trial provided the delay is for a valid reason NO, you may still object. Before you start with trial you need to
and would not unduly prejudice the opposing party and manifest your objections to the question before you start with trial
provided further, that public or private counsel responsible or you file it in writing prior to your trial objecting to each question
for their preparation and submission pays a fine of not less so that you can strike out each question that is in
than P1,000.00 nor more than P5,000.00, at the discretion violation of the rules
of the court.
COURT’S OBLIGATION IN JA RULE
If you did not warrant what is the effect or the violation any The court shall take an active part in examining the witness. The
of the requirements? court is not just passive in receiving evidence, it is mandated
It would be deemed waived so you cannot use that you just shall to take an active part in examine the witness in determining
make your own statement it's not a question-and-answer his credibility.
format. the statement of the witness in the questions asked him
questions propounded he should also warrant that he executed
The court will also ask us questions to witness isn't this
the affidavit knowing that he may be liable for faultless
unlawful lawyering for the party since the court will ask
information or perjury.
questions?
NO, because the rules require it. Because before direct
LAWYERS ATTESTATION IN JUDICIAL AFFIDAVIT examination is made orally. Now it is made on paper, so the court
Sworn Attestation of the Lawyer: to be able to test the credibility and for it to be able to rule on the
case it should take an active part.
a.) The judicial affidavit shall contain a sworn attestation at the
end, executed by the lawyer who conducted or supervised In the cases we give a lot of credence to the lower courts finding
the examination of the witness, to that effect that because they were able to observe the witnesses. For instance,
a. He faithfully recorded or caused to be recorded the you ask “do you owe X money” when the witness answers, the
questions he asked and the corresponding trial court will be able to observe the difference in the behavior
answers that the witness gave; and but if it is on the transcript of the stenographic notes you will only
b. Neither he nor any other person then present or be able to see the answer “NO”. So the notes will not be able to
assisting him coached the witness regarding the observe that kind of expression but the court wil, so for the court
latter’s answers
What if at the time you are going to file your answer and you
“If the government employee or official, or the requested witness,
are claiming that if you alleged those two cohesive actions
who is neither the witness of the adverse party nor a hostile
it would be inconsistent with each other is that correct is?
witness, unjustifiably declines to execute a judicial affidavit or
refuses without just cause to make the relevant books, In alternative you are just hypothetically admitting it’s not a fact
documents, or other things under his control available for but you are basing it on a claim or defense that alternatively or
copying, authentication, and eventual production in court, the hypothetically. It does not have to be actual it can be
requesting party may avail himself of the issuance of a subpoena hypothetical.
ad testificandum or duces tecum under Rule 21 of the Rules of
Court. The rules governing the issuance of a subpoena to the If you have available alternative defense is that you did not
witness in this case shall be the same as when taking his raise at the time, he could have raised it what is the effect?
deposition except that the taking of a judicial affidavit shall be It is deemed waived.
understood to be ex parte.”
CONDITION PRECEDENT
Is there an exception? In any pleading, a general averment of the performance or
If you have an unwilling or hostile witness. occurrence of all condition’s precedent shall be sufficient.
NOTE: As a rule, everyone should be issued an subpoena, Condition precedent are those matters which must be complied
anyone who cannot be a witness you get a subpoena such as with before a cause of action arises. The compliance of the same
government officials. The exception under Section 5 is when you must be alleged in the complaint or petition.
have an adverse witness or hostile witness.
Examples of Condition Precedent
• Exhaustion of Administrative Remedies
How are you going to make objection to the offer? Oral or in
writing? • Barangay Conciliation
Oral • Arbitration
Can you EXTEND this period within which to file an Answer? What kind of fraud?
YES. A defendant may, for meritorious reasons, be granted an Extrinsic
additional period of not more than thirty (30) calendar days to file
an answer. A defendant is only allowed to file one (1) motion for Example of an Extrinsic Fraud?
extension of time to file an answer. (Rule 11, Section 11) The plaintiff pretended that he is the defendant. The plaintiff
Stayed outside the house of the defendant, and the plaintiff
How many times can you file a Motion for Extension of acting as the defendant received the summons so that the 30day
Time? period will run. The defendant does not know that there is a
Only ONCE. summons already, there is extrinsic fraud because the defendant
could not file on time because the plaintiff defrauded the
The answer was not filed on time, it was filed on the 40th day defendant making it appear that he is the defendant.
and there was no motion to for extension. But the plaintiff
did not move to declare the defendant in default, the REMEDY AFTER JUDGEMENT AND BEFORE JUDGEMENT
defendant filed in on the 40th day and the court admitted it. BECOMES FINAL AND EXECUTORY
The plaintiff objected on the ground that the court should If the judgement has already been rendered when the defendant
not have admitted the answer, because it was filed out of discovered the default but before the same has become final and
time. Was the Court incorrect in admitting the Answer filed executory, he may file a motion for new trial under Rule 37. He
out of time? NO. may also file an appeal from the judgement as being contrary to
evidence or law.
Can a court declare a party in default motu proprio?
NO. It has to be upon motion. REMEDY AFTER JUDGEMENT BECOMES FINAL AND
EXECUTORY
RULE 9 EFFECT OF FAILURE TO PLEAD The defendant may file a petition for relief from judgement
under Rule 38.
In BOTH cases, Certiorari may be filed when said party was
What is the EFFECT of an ORDER OF DEFAULT?
improperly declared in default because this would tantamount to
There will be a judgment on default. From the order of default,
a grave abuse of discretion amounting to lack of jurisdiction.
the court can render a judgment which is based on what the
pleadings may warrant.
Appeal instead of a motion for new trial?
You may file a motion for new trial and then file an appeal.
For example: in summary procedure, if the plaintiff asks for
P50,000. The Court cannot award more than P50,000.
Grounds of striking out a pleading if it is a sham?
Another act of the court is that rather than rendering judgement Upon motion made by a party before responding to a pleading or,
right away, it can require reception of evidence first before it if no responsive pleading is permitted by these Rules, upon
renders a judgement. motion made by a party within twenty (20) calendar days after
the service of the pleading upon him or her, or upon the court's
own initiative at any time, the court may order any pleading to be
“A party in default shall be entitled to notices of subsequent
stricken out or that any sham or false, redundant,
proceedings but shall not take part in the trial.”
(Section 3 (a), Rule 9)
Three joint debtors but only one filed an answer, will the two
parties who did not file an answer be declared in default
Can the reception of evidence be delegated on the Clerk of
upon motion of the plaintiff?
Court?
• Can they not benefit from the answer of the one who
YES. The reception of evidence may be delegated to the Clerk of
answered?
Court under Section 3, Rule 9.
In relation to Credit Transaction (Warehouse Receipts): when When can the leave of court be refused?
there are conflicting claimants against the warehouseman, the A Leave of court shall be refused if it appears to the court that the
warehouseman can file an action for interpleader. motion was made with intent to delay or confer jurisdiction on the
court, or the pleading stated no cause of action from the
Interpleader is what you file when you are not claiming anything beginning which could be amended.
against the subject matter. In the case of the warehouseman, he
does not have anything to do with the object of the warehouse It shall be refused if it was made with:
receipt. He just doesn’t know where to deliver because there are • Intent to delay
two conflicting claimants. • Confer jurisdiction on the court
• Pleading stated no cause of action from the beginning
The remedy should’ve been that the two claimants filed an action
against each other. But they are not filing a complaint against FORMAL AMENDMENT
each other but claiming it against the warehouse man. A defect in the designation of the parties and other clearly clerical
or typographical errors may be summarily corrected by the court
LEASE: It is similar to a lessee who lease the premises, and he at any stage of the action, at its initiative or on motion, provided
does not know where payment should be made. When there are no prejudice is caused thereby to the adverse party.
two people who claims to be the owner of the leased property. (Section 4, Rule 10)
In such instance, the one that they are claiming against who has Jurisdiction over the issues is based on the pleadings, if it
no interest in the subject matter, can file an action of an is not in the pleading the court does not acquire jurisdiction
interpleader for the conflicting claimants to interplead. over the issues, the exception is when it is heard in trial and
there is no objection during trial. So, it will be an additional
In that case, they are both defendants. But if one of them does issue that the court will rule upon. Do you need to amend
not answer, the other one will not benefit even if it is the same the pleading when that happens?
subject matter that they are claiming. This is because they have When issues not raised by the pleadings are tried with the
conflicting claim that is why you cannot apply the rules on partial express or implied consent of the parties, they shall be treated in
default that one is benefited by the answer of another. all respects as if they had been raised in the pleadings. No
amendment of such pleadings deemed amended is necessary to
Cases when there are NO DEFAULT cause them to conform to the evidence.
If the defending party in an action for annulment or declaration of (Section 5, Rule 10)
nullity of marriage or for legal separation fails to answer, the court
shall order the Solicitor General or his or her deputized public SUPPLEMENTAL PLEADING
prosecutor, to investigate whether or not a collusion between the Upon motion of a party, the court may, upon reasonable notice
parties exists, and if there is no collusion, to intervene for the and upon such terms as are just, permit him or her to serve a
State in order to see to it that the evidence submitted is not supplemental pleading setting forth transactions, occurrences or
fabricated. events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead thereto
within ten (10) calendar days from notice of the order
RULE 10 AMENDED AND SUPPLEMENTAL PLEADING admitting the supplemental pleading. (Section 6, Rule 10)
AMENDMENT OF A PLEADING Mico Filed for a collection for sum of money against Cardo
Pleadings may be amended by adding or striking out an and Mico did not attach an actionable document. Before
allegation or the name of any party, or by correcting a mistake in Cardo was able to file an answer, Mico found in his drawer
3G (2020-2021)– RAMENotes Contributed by: krykryang & Ranina
Updated by Ae
46
the contract of loan. But Mico only found it after he filed the RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS
complaint, if Mico want to include the contract of loan what
is your remedy a supplemental complaint or amended ANSWER TO A COMPLAINT
complaint? Amended Complaint The defendant shall file his or her answer to the complaint within
thirty (30) calendar days after service of summons, unless a
Remedy to implead an indispensable party not impleaded in different period is fixed by the court.(Section 1, Rule 10)
your original complaint?
It is a formal amendment. Period to file an Answer of a Foreign Private Juridical Entity.
Where the defendant is a foreign private juridical entity and
Can you file a third-party complaint? service of summons is made on the government official
NO. It must be a formal amendment impleading the designated by law to receive the same, the answer shall be filed
indispensable party. This is because your failure to implead the within sixty (60) calendar days after receipt of summons by
indispensable party would render the proceedings void. such entity. (Section 2, Rule 10)
NOTE: Proof of service that is by registered mail and accredited What if the court did not make a ruling but the parties
courier service is essentially the same as filing. Affidavit and agreed. Can you have service by email?
either the registry receipt or the official receipt with the tracking Either the parties agree or the court directs.
number.
if there is no court directive and no agreement, can you
PROOF OF SERVICE OF ELECTRONIC MAIL, FACSIMILE, automatically serve by email?
OR OTHER ELECTRONIC MEANS You need indicate the official email where you can mail it. If the
Proof shall be made by an affidavit of service executed by the court does not direct it and there is no agreement. The party can
person who sent the e-mail, facsimile, or other electronic still file electronic mail but CANNOT SERVE electronic mail.
transmission, together with a printed proof of transmittal.
PRESUMPTIVE SERVICE
Filing through registered mail or accredited courier is There shall be presumptive notice to a party of a court setting if
deemed filed on the date of mailing, what about if it is such notice appears on the records to have been mailed at least
SERVICE? When is it completed? twenty (20) calendar days prior to the scheduled date of hearing
Service by registered mail is complete upon actual receipt by and if the addressee is from within the same judicial region of the
the addressee, or after five (5) calendar days from the date he or court where the case is pending, or at least thirty (30) calendar
she received the first notice of the postmaster, whichever date is days if the addressee is from outside the judicial region. (Section
earlier. 10, Rule 13)
Service by accredited courier is complete upon actual receipt If it has been mailed at least 20 calendar days prior to the
by the addressee, or after at least two (2) attempts to deliver by scheduled date of hearing and if the addressee is within the same
the courier service, or upon the expiration of five (5) calendar judicial region. If it is not the same judicial region within 30
days after the first attempt to deliver, whichever is earlier. calendar days.
NOTE: Even if the rules only mention ordinary mail, you apply Is this presumption disputable or conclusive?
also the registered mail. So, it is upon actual receipt or at least DISPUTABLE.
three attempts
The reason is that, for example, if you serve by registered mail,
The usual case is they don’t deliver it to your house. What they the proof of actual date of receipt that they have notice is the
will do is send you a notice that you have a mail in the post office return. So, if you mail, there will be a return to you. It will show
and that you should claim it. So even if you haven’t claimed it but the date you received it. If there is no return, there is no proof that
you have notice that you have mail. From the lapse of the 5day the party received notice.
period from the day that you have notice, you are deemed to
have received it. In those cases, for interest of justice the court will reset the
hearing. This delays the case, this is why they have the
PROOF OF SERVICE OF COURIER SERVICE presumptive service, such that after the lapse of the period it is
Proof shall be made by an affidavit of service executed by the presumed that they received notice. But since it is disputable it is
person who brought the pleading or paper to the service provider, subject to the contrary.
together with the courier's official receipt or document tracking
number. SUBSTITUTED SERVICE
If service of pleadings, motions, notices, resolutions, orders and
PROOF OF SERVICE OF ELECTRONIC SERVICE other papers cannot be made under the two preceding sections,
Electronic mail, facsimile, or Other Authorized electronic means the office and place of residence of the party or his or her counsel
of transmission. — Proof shall be made by an affidavit of service being unknown, service may be made by delivering the copy to
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the clerk of court, with proof of failure of both personal service It shall be issued within Five (5) calendar days from receipt of
and service by mail. The service is complete at the time of such the initiatory pleading AND proof of payment of the requisite
delivery. (Section 8, Rule 13) - Show proof that all the others have legal fees.
failed and the place and residence is unknown. CONTENTS OF A SUMMONS
The summons shall be directed to the defendant, signed by the
What if it is unknown because the lawyer changed his clerk of court under seal, and contain:
address, can you make substituted service? a) The name of the court and the names of the parties to
YES, because it is the address in the court records that is binding. the action;
So, if you change your address, you need to give notice to the b) When authorized by the court upon ex parte motion, an
court and the parties. authorization for the plaintiff to serve summons to the
defendant;
If you did not give notice to the court and to the parties, what will c) A direction that the defendant answer within the time
be used is the address you have given. fixed by these Rules; and
d) A notice that unless the defendant so answers, plaintiff
NOTICE OF LIS PENDENS will take judgment by default and may be granted the
In an action affecting the title or the right of possession of real relief applied for.
property, the plaintiff and the defendant, when affirmative relief is A copy of the complaint and order for appointment of guardian ad
claimed in his or her answer, may record in the office of the litem, if any, shall be attached to the original and each copy
registry of deeds of the province in which the property is situated of the summons
a notice of the pendency of the action. Said notice shall contain
the names of the parties and the object of the action or defense, What should accompany the summons if the plaintiff is
and a description of the property in that province affected incompetent?
thereby. Only from the time of filing such notice for record shall a Appointment of guardian ad litem attached to it is the complaint.
purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the WHO SERVES THE SUMMON?
action, and only of its pendency against the parties designated The sheriff, his or her deputy, or other proper court officers.
by their real names.
Can the plaintiff do it on his own?
TWO-FOLD PURPOSE NO. It has to be with the sheriff if it is within the judicial region.
1. The property is within the jurisdiction of the court such that
the judgement will not be defeated by subsequent alienation Outside the judicial region, it is allowed that the plaintiff alone.
of property during the pendency of the case
2. To give notice to bona fide purchasers of the property so that HOW CAN A CORPORATION SERVE SUMMONS AS
they will be bound by the judgement of the case. Then they PLAINTIFF?
cannot claim that they are mere innocent purchaser for value If the plaintiff is a juridical entity, it shall notify the court, in writing,
without knowledge, you will apprise them of the status. and name its authorized representative therein, attaching a
board resolution or secretary's certificate thereto, as the case
GROUNDS TO CANCEL A NOTICE OF LIS PENDENS may be, stating that such representative is duly authorized to
The notice of lis pendens hereinabove mentioned may be serve the summons on behalf of the plaintiff.
cancelled only upon order of the court, after proper showing that (Section 3, par. 2, Rule 14)
the notice is for the purpose of molesting the adverse party, or
that it is not necessary to protect the rights of the party who Can the plaintiff automatically serve summons? Should the
caused it to be recorded. court allow?
Court should authorize the plaintiff.
RULE 14 SUMMONS
How will the plaintiff ask permission to serve summons? Ex-
SUMMONS parte Motion. It is an ex-parte because it is without notice to the
Unless the complaint is on its face dismissible under Section 1, other defendant.
Rule 9, the court shall, within five (5) calendar days from receipt
of the initiatory pleading and proof of payment of the requisite As a rule, motion should be made with notice to the other party,
legal fees, direct the clerk of court to issue the corresponding but in this instance, it is ex-parte, wherein you do not need to
summons to the defendants. furnish the motion to the other party. This is because there is no
jurisdiction over the person of the defendant. The summons is
Is the purpose of the summons only to give information? Its the mode for you to acquire jurisdiction over the person of the
purpose is two-fold: (a) to acquire jurisdiction over the person of defendant.
the defendant and (b) to notify the defendant that an action has
been commenced so that he may be given opportunity to be Since summons have not yet been served, there is no jurisdiction
heard on the claim against him over the person of the defendant as such there is no need to
furnish the copy to the other party.
TO WHOM SHOULD THE COURT DIRECT THE SUMMONS?
It shall be directed to the clerk of court who shall issue the
You are the plaintiff, you attempted to serve the summons
corresponding summons to the defendant. but you were not really able to serve the summons. But you
reported to the Court that you were able to serve summons,
PERIOD OF ISSUANCE OF SUMMONS so the case proceeded. The defendant was not able to file
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an answer, because he did not know that there was a case What if you did it 10x in one day, can you already do service
filed against him because no summons was served. of summons?
NO. It must be done at two (2) different dates and atleast three
You moved to declare the defendant in default. The Court (3) different attempts.
issued an order of default and the Court rendered judgement
on Default. Subsequently, the Court learned that you HOW DO WE EFFECT SUBSTITUTED SERVICE OF
misrepresented that you served summons to the defendant. SUMMONS?
What is the effect? If, for justifiable causes, the defendant cannot be served
Dismissed with prejudice. personally after at least three (3) attempts on two (2) different
dates, service may be effected:
The sheriff or his deputy or the other officer of the court a.) By leaving copies of the summons at the defendant's
attempted to serve summons. They were unable to serve residence to a person at least eighteen (18) years of
summons. Will the case be dismissed? age and of sufficient discretion residing therein;
NO. The Court will order the plaintiff to cause the service of b.) By leaving copies of the summons at the defendant's
summons in accordance with the other rules of service of office or regular place of business with some competent
summons. person in charge thereof. A competent person includes,
but is not limited to, one who customarily receives
PERIOD OF VALIDITY OF SUMMONS correspondences for the defendant;
Summons shall remain valid until duly served, unless it is recalled c.) By leaving copies of the summons, if refused entry upon
by the court. In case of loss or destruction of summons, the court making his or her authority and purpose known, with
may, upon motion, issue an alias summons. any of the officers of the homeowners' association or
condominium corporation, or its chief security officer in
NOTE: In the past, if you are unable to serve summons, you need charge of the community or the building where the
to ask for summons again in the form of an alias summons. But defendant may be found; and
NOW, even if it remains to be unserved, it remains to be valid d.) By sending an electronic mail to the defendant's
until it is served just like a warrant of arrest. electronic mail address, if allowed by the court
The process server was hungry so he ate the summons. The son of the defendant is 25 years of age and is insane.
What is the remedy of the plaintiff? Can you leave the summons to him?
File a motion for the issuance of an alias summons. NO. He cannot be considered as someone with sufficient
discretion.
When is an Alias Summons issued?
When the summons is lost or destroyed. What do you mean by competent person?
It includes but is not limited to, one who customarily receives
What is the proper mode of service? correspondences for the defendant.
As a rule, summons must be served must be done personally.
If for instance the office is in a unit in a building. He is leasing
Just like with service, you need to get an acknowledgement of one unit. There is a guard assigned for the building. Can you
the person being served. So, they will acknowledge receipt, write leave it at the guard assigned in the building? YES. So long
their name, the time and date of the service. as the guard customarily receives correspondence of the
defendant.
What if they refuse to sign or acknowledge receipt? Does
this mean we cannot serve summons? What if he does not customarily receive, can he be
Whenever practicable, the summons shall be served by handing considered as a person-in-charge?
a copy thereof to the defendant in person and informing the NO. Because he is only assigned as the officer-in-charge of the
defendant that he or she is being served, or, if he or she refuses building and not the office.
to receive and sign for it, by leaving the summons within the view
and in the presence of the defendant. Is it automatic that we can avail for E-MAIL after three
(Section 5, Rule 14) attempts on two different dates?
NO. The Court must allow it.
Tender of summons. You leave it in his presence and within his
view because he refuses to receive it and sign it. NOTE: You need to announce the purpose.
If there are spouses on the case, is it enough to serve on In case the domestic juridical entity is under receivership or
only one of them? liquidation, service of summons shall be made on the receiver or
When spouses are sued jointly, service of summons should be liquidator, as the case may be.
made to each spouse individually. (Section 11, Rule 11)
Should there be a refusal on the part of the persons
Service of summons upon prisoners? abovementioned to receive summons despite at least three (3)
When the defendant is a prisoner confined in a jail or institution, attempts on two (2) different dates, service may be made
service shall be effected upon him or her by the officer having the electronically, if allowed by the court, as provided under Section
management of such jail or institution who is deemed as a special 6 of this Rule. (Section 12, Rule 14)
sheriff for said purpose. The jail warden shall file a return within
five (5) calendar days from service of summons to the defendant. Is this an exclusive list limited to the given officers?
(Section 8, Rule 14) YES
Who is the person-in-charge? Do they have to be in the office or in the principal place of
The Warden business to serve summons on them?
NO. The rules make it clear that it may be served wherever they
Who makes the return? may be found.
The Warden within 5 calendar days from the service of summons.
Remedy if they are not available in the office?
SERVICE OF SUMMONS TO AN ENTITY WITHOUT Serve the summons upon the secretaries of such officers.
JURIDICAL PERSONALITY
When persons associated in an entity without juridical personality If the officers or secretaries are unavailable does that mean
are sued under the name by which they are generally or we cannot serve summons?
commonly known, service may be effected upon all the NO. It may be made under substituted service.
defendants by serving upon any one of them, or upon the person
in charge of the office or place of business maintained in such If it is under liquidation or receivership, to whom should we
name. But such service shall not bind individually any person serve?
whose connection with the entity has, upon due notice, been Service of summons shall be made on the receiver or liquidator,
severed before the action was filed. (Section 7, Rule 14) as the case may be.
When should he have severed his ties? If all of these persons are not available what is your remedy?
Before the action was filed and upon due notice. Electronic Mail
If “X” is an incompetent, can you serve summons personally What if the counsel of the defendant makes a special
to “X”? appearance to the court to assail the validity of the service
YES. You need to serve summons personally to “X” as well as summons, what will the court do?
serve summons to the guardian. The Court will ask counsel to serve.
For minors, who would be the legal guardians? “Where the summons is improperly served and a lawyer makes
When the defendant is a minor, insane or otherwise an a special appearance on behalf of the defendant to, among
incompetent person, service of summons shall be made upon others, question the validity of service of summons, the counsel
him or her personally and on his or her legal guardian if he or she shall be deputized by the court to serve summons on his or her
has one, or if none, upon his or her guardian ad litem whose client.” (Section 13, Rule 14)
appointment shall be applied for by the plaintiff. In the case of a
minor, service shall be made on his or her parent or guardian. Note: a lot of delay because of raising lack of jurisdiction over the
person of the defendant. That is why it is not anymore a among
What if they don’t have a legal guardian? the grounds for a motion to dismiss, it is only an affirmative
It shall be served on the guardian ad litem whose appointment defense.
shall be filed by the plaintiff
So, if the court deems it sufficient only publication without FORWARDING AUTHORITY IN THE PHILIPPINES
registered mail, it is valid falling under the last mode. All Justices and Clerk of Court of collegiate courts, and Judges
of lower courts.
FILING OF RETURN OUTBOUND SERVICE
In thirty (30) calendar days from issuance of summons by the From the Philippines to Other State Parties
clerk of court and receipt thereof, the sheriff or process server, or
person authorized by the court, shall complete its service. Within INBOUND SERVICE
five (5) calendar days from service of summons, the server shall
From other State Parties to the Philippines
file with the court and serve a copy of the return to the plaintiff's
counsel, personally, by registered mail, or by electronic means
authorized by the Rules. OUTBOUND REQUEST FOR SERVICE
PROOF OF SERVICE Apply with the court by motion for leave for extra-territorial
The proof of service of a summons shall be made in writing by service, and the court shall consider whether it is necessary,
the server and shall set forth the manner, place, and date of what should accompany your motion for leave?
service; shall specify any papers which have been served with • A copy of the Model Form, including the Request,
the process and the name of the person who received the same; Certificate, Summary of Documents to be Served, and
and shall be sworn to when made by a person other than a sheriff Warning
or his or her deputy. • The original documents to be served or certified true copies
thereof, including all annexes
If summons was served by electronic mail, a printout of said • Certified translations of the Model Form and all
email, with a copy of the summons as served, and the affidavit of accompanying documents, where necessary;
the person mailing, shall constitute as proof of service. • An undertaking to pay in full in any fees associated with the
(Section 21, Rule 14) service of the documents; and
• Any other requirements of the Requested State, taking into
PROOF OF SERVICE OF PUBLICATION account its reservations, declarations and notifications,
The service has been made by publication, service may be which may be found in the HCCH website.
proved by the affidavit of the publisher, editor, business or
advertising manager, to which affidavit a copy of the publication Once the court finds extraterritorial service under the Hague
shall be attached and by an affidavit showing the deposit of a convention is proper and warranted the court will issue an
copy of the summons and order for publication in the post office, order. What directive should be included in the order?
postage prepaid, directed to the defendant by registered mail to The Order shall include a directive to the requesting party to
his or her last known address. (Section 22, Rule 14) procure and submit a prepaid courier pouch which shall be used
for the transmission of documents from the court to the Central
VOLUNTARY APPEARANCE Authority of the Requested State.
Documents are transmitted to the Central Authority of the How do you transmit the request to the OCA? The request
Requested State, what will you do next? shall be transmitted, together with the documents, including proof
The Central Authority of the Requested State shall then process of payment to the OCA through any of the following modes:
the request and attempt service in accordance with its domestic • Electronic transmission via email:
laws. It shall thereafter provide formal confirmation whether the PHCA-
service was successful or unsuccessful, using the Certificate Service@judiciary.gov.ph
annexed to the Hague Service Convention. The completed • Physical transmission via registered mail or courier
Certificate shall thereafter be transmitted back to the requesting services to: Office of the Court Administrator , Supreme
court, and shall form part of the records of the case. Court of the Philippines, Third Floor, Old Supreme Court
Building, Padre Fauna Street, Ermita,
What rules of service do we follow? Manila 1000
Domestic Laws of Service of the foreign country.
How is physical transmission made?
Then they will make a certificate to be transmitted to the Registered mail or courier service.
requesting party.
If there is failure to comply can our OCA inform the
IN BOUND REQUEST FOR SERVICE requesting state and inform them of the deficiency to give
them time to comply?
Referred to what entity in the Philippines? Should the request, upon evaluation of the OCA, :
OCA • fails to comply with any of the above-mentioned
requirements, or
Requirements for the Request for service of documents • there are objections for the execution of the request, the
from other State Party? OCA shall inform the Forwarding Authority specifying the
• The document sought to be served are judicial; objection/s thereto.
• The Request conforms with the Model Form;
• The document sought to be served is attached to the If the objections are resolved, the processing of the request shall
Request; proceed. Otherwise, the request shall be denied and all
• The request and its attachment documents relating thereto shall be returned to the Forwarding
are accomplished/translated in English or Filipino; Authority, along with a notice of objection or denial, stating the
• The Request and its attachment/s are filed in duplicate; and reasons therefor.
• The address of the intended recipient is indicated with
If the request is sufficient in form what will happen next?
sufficient specificity. As much as practicable, it shall include
When the request should be sufficient in form, the OCA shall
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forward the request to the court having jurisdiction over the area
where the intended recipient resides. UNSUCCESSFUL SERVICE: if the document was not delivered
successfully, the return shall state the reasons which prevented
Requests sent via email shall be transmitted to the official e-mail the successful service. The officer assigned shall deliver the
accounts of the court concerned. unserved document to the court, so that it may later be returned
to the Forwarding authority.
How will we make the service in accordance with foreign law
or in accordance with our Rules of Court? CERTIFICATE
In accordance with our Rules of Court. As soon as the return on the service is submitted, whether the
service is successful or not, the judge shall immediately
DUTY OF EXECUTIVE/PRESIDING JUDGE accomplish and sign the Certificate, following the Model Form
The Executive Jude in Muliitple-sala courts, or the Presiding annexed to the Hague Service Convention.
Judge in single-sala courts, shall immediately assign a sheriff,
process server, or any other competent personnel to serve the In cases of unsuccessful service, the documents sought to be
document in accordance with the Rules of Court. served shall be attached to the Certificate.
Requests transmitted via email shall be printed by the court TRANSMISSION TO THE REQUESTING STATE
concerned. The judge shall ensure that service is done in Within thirty (30) calendar days from receipt of the request, the
accordance with these Guidelines and the Rules of Court. judge shall transmit the duly-accomplished Certificate and
Return of Service to the Forwarding Authority of the Requesting
Once service is completed or not completed, how will you State.
do the report?
RETURN ON THE SERVICE. The officer assigned to serve the These shall be accompanied by a copy of the documents served,
document shall execute a return on the service in accordance in case of successful service. The judge shall furnish the OCA
with the Rules of Court and submit the same to the judge of the with the copy of all documents transmitted. The judge shall
court who directed the service of the document within five (5) furnish the OCA with a copy of all the documents transmitted, for
days from service. monitoring purposes. Should compliance exceed thirty (30)
calendar days, the judge shall also submit an explanation to the
CONTENTS OF THE SERVICE. The return shall state that the OCA for the delay.
document and attachment/s have been served, and shall include
the method, the place and the date of service and the person to
whom the document was delivered.
COST OF SERVICE
EXCEEDS OCA
will send an updated
Statement of Cost to
the FA of the
Requesting State
WARRANTED:
Execute an Order to that effect. The
order shall include a directive to the TRANSMISSION OF FAILS TO COMPLY
requesting party to procure and REQUEST WITH
submit a prepaid courier pouch The Forwarding Authority of the REQUIREMENT OR
Requesting State from which THERE ARE
the originated shall transmit the OBJECTIONS
request to the OCA
Forwarding Authorities
Judges, in lower courts, or Justice and
Clerk of Court of collegiate courts OCA shall inform the
ACCOMPLISH and SIGN the SUFFICIENT IN FORM FA of the objections
REQUEST using the Model Form thereto.
TRANSMISSTION TO
REQUESTING STATE WITHIN 30 DAYS
RULE 15 MOTIONS Motions which the court may act upon without
prejudicing the rights of
MOTION the adverse
A motion is an FORWARDING TO EXECUTIVE
Payment of Fees application for relief JUDGE/PRESIDING JUDGE RESOLVED DENIED
other than by a OCA shall forward the request to
the court having jurisdiction over
pleading. the area where the intended
recipient resides
Should all motions be in writing? parties.
All motions shall be in writing except those made in open court
or in the course of a hearing or trial. EXAMPLE OF LITIGIOUS MOTION
a) Motion for the issuance of an alias summons;
If a motion is made orally in open court, what should the b) Motion for extension to file answer;
court do? c) Motion for postponement;
A motion made in open court or in the course of a hearing or trial d) Motion for the issuance of a writ of execution;
should immediately be resolved in open court, after the adverse e) Motion for the issuance of an alias writ of execution;
party is given the opportunity to argue his or her opposition f) Motion for the issuance of a writ of possession;
thereto. g) Motion for the issuance of an order directing the sheriff
to execute the final certificate of sale; and
When a motion is based on facts not appearing on record, the h) Other similar motions.
court may hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that the matter Is the list EXCLUSIVE?
be heard wholly or partly on oral testimony or depositions. NO. The last paragraph provides that it includes other similar
motions.
CONTENTS OF A MOTION
A motion shall state the relief sought to be obtained and the Should we set Non-litigious for hearing?
grounds upon which it is based, and if required by these Rules Non-litigious motions shall not be set for hearing and shall be
or necessary to prove facts alleged therein, shall be resolved within five (5) calendar days from receipt thereof.
accompanied by supporting affidavits and other papers.
LITIGIOUS MOTIONS
What should accompany your motion? 1) Motion for bill of particulars;
Supporting affidavits 2) Motion to dismiss;
3) Motion for new trial;
NON-LITIGIOUS MOTIONS 4) Motion for reconsideration;
5) Motion for execution pending appeal;
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6) Motion to amend after a responsive pleading has been e. Motion for extension of time to file pleadings, affidavits or
filed; any other papers, except a motion for extension to file an
7) Motion to cancel statutory lien; answer as provided by Section 11, Rule 11; and
8) Motion for an order to break in or for a writ of f. Motion for postponement intended for delay, except if it is
demolition; based on acts of God, force majeure or physical inability of
9) Motion for intervention; the witness to appear and testify. If the motion is granted
10) Motion for judgment on the pleadings; based on such exceptions, the moving party shall be warned
11) Motion for summary judgment; that the presentation of its evidence must still be terminated
12) Demurrer to evidence; on the dates previously agreed upon.
13) Motion to declare defendant in default; and 14) Other
similar motions. A motion for postponement, whether written or oral, shall, at all
times, be accompanied by the original official receipt from the
Is it mandatory that all motions that are litigious motions office of the clerk of court evidencing payment of the
should be set for hearing? postponement fee under Section 21 (b), Rule 141, to be
Discretionary of the court submitted either at the time of the filing of said motion or not later
than the next hearing date. The clerk of court shall not accept the
What will happen when you file a litigious motion? motion unless accompanied by the original receipt.
The opposing party shall file his or her opposition to a litigious (Section 12, Rule 15)
motion within five (5) calendar days from receipt thereof. No
other submissions shall be considered by the court in the DIFFERENCE ON THE ACTION OF DEFENSE
resolution of the motion. If the affirmative defense is granted, can you file a motion
for reconsideration on the ruling of the court? If your
The motion shall be resolved by the court within fifteen (15) affirmative defenses are granted it will result to a dismissal of the
calendar days from its receipt of the opposition thereto, or upon case.
expiration of the period to file such opposition.
Can the dismissal be the subject of an MR?
Period to resolve? YES. The dismissal is already a judgement on the merits.
Fifteen (15) Calendar days from receipt of the opposition or upon
the expiration of the period to file such opposition If you have an action on affirmative defense and the court
DENIES the affirmative defense, is it a judgement?
EFFECT OF FAILURE TO SERVE LITIGIOUS MOTION TO NO. It is an interlocutory order. An interlocutory order leaves
THE OTHER PARTY something else to be done in a proceeding. If it is a judgement,
The Court will not act on your motion if you do not serve motion it leaves nothing else it to be done in the proceedings.
to the other party.
If you have an order than denies your affirmative defense, that is
OMNIBUS MOTION RULE an interlocutory order which is NEVER subject to an Appeal.
Subject to the provisions of Section 1 of Rule 9, a motion Generally, you can assail an interlocutory order by filing an MR
attacking a pleading, order, judgment, or proceeding shall or a certiorari, after your MR is denied if there is GADALEJ.
include all objections then available, and all objections not so
included shall be deemed waived. (Section 9, Rule 15) However, under this rule, specifically if it is an affirmative defense
you cannot file an MR. Neither can you file a prohibition,
MOTION DAY mandamus, certiorari. The remedy is to proceed to trial, and only
Except for motions requiring immediate action, where the court after judgement has been rendered can you appeal it, then you
decides to conduct hearing on a litigious motion, the same shall raise your affirmative defenses as grounds for error in the
be set on a Friday. (Section 8, Rule 15) judgement in your appeal.
PRE-TRIAL They will also set the pre-trial dates already. So, there is already
A pre-trial is conducted after the last responsive pleading has a schedule on when the parties will present their evidence.
been served and filed, the branch clerk of court shall issue, within Advisability of preliminary reference to a commissioner.
five (5) calendar days from filing, a notice of pre-trial which shall
be set not later than sixty (60) calendar days from the filing of the Propriety of rendering judgement on the pleading or summary
last responsive pleading. judgement thereto or dismissing the action if there is ground.
PURPOSE OF PRE-TRIAL NOTE: Pre-Trial does NOT include affidavits. This is because
The pre-trial is mandatory and should be terminated promptly. Judicial affidavits are already attached in the pleading the
The court shall consider: asserts the claim and defense.
a. The possibility of an amicable settlement or of a submission We do not follow the JA rule that you submit it during trial but
to alternative modes of dispute resolution; rather when you already file a pleading asserting a claim or
b. The simplification of the issues; defense such as your complaint, answer, counterclaim. That is
c. The possibility of obtaining stipulations or admissions of where you attach the judicial affidavits.
facts and of documents to avoid unnecessary proof;
d. The limitation of the number and identification of witnesses REQUIREMENTS OF THE PARTIES AS TO EVIDENCE
and the setting of trial dates; First, Mark it if it is not marked in the judicial affidavit then you
e. The advisability of a preliminary reference of issues to a examine and compare.
commissioner;
f. The propriety of rendering judgment on the pleadings, or It means that if there is a photocopy, you bring your original and
summary judgment, or of dismissing the action should a photocopy to the other party. So that they can compare if the
valid ground therefor be found to exist; photocopy is a faithful reproduction of the original and they will
g. The requirement for the parties to: stipulate that it is genuine and faithful reproduction of the original.
a. Mark their respective evidence if not yet marked in
the judicial affidavits of their witnesses; If they do not stipulate, the party needs to prove it in court that it
b. Examine and make comparisons of the adverse is genuine and a faithful reproduction.
parties' evidence vis-a-vis the copies to be marked;
c. Manifest for the record stipulations regarding the NOTE: Under Section 6, Rule 6 attached to the pleading
faithfulness of the reproductions and the asserting a claim or defense should be the judicial affidavits and
genuineness and due execution of the adverse if you do not do so, you cannot present them later on subject to
parties' evidence; meritorious exceptions. So, under pre-trial, it allows you to make
d. Reserve evidence not available at the pre-trial, but a reservation to present witnesses and exhibits later on that is
only in the following manner: not mentioned in the pre-trial.
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follow that you will win the case because the court will still
How do you make a RESERVATION? determine whether you were able to establish by preponderance
of evidence.
You do not just say “Mr. X”. You have to say “Mr. X testifying to
prove the existence of the loan.” Does the same rule with respect to failure to file and serve
your PRE-TRIAL brief?
You need to state the purpose. YES. It has the same effect as failure to appear.
In the past, you present 10 witnesses who testifies the same FAILURE TO FILE A PRE-TRIAL BRIEF
thing. The court needs to know what is the purpose of the Failure to file the pre-trial brief shall have the same effect as
testimony so that they can limit it. Rather than having 10 failure to appear at the pre-trial.
corroborating witnesses, the court can say “no we will only allow
just one because they are presenting the same thing” What about in the court annex mediation in the JDR when
applicable, attendance is required. Is the consequence of
RESERVATION ON DOCUMENTARY EVIDENCE failure to attend the same as the failure to appear in the
You need to specify it. If you fail to make a specification, then no pretrial?
reservation will be allowed YES
PLAINTIFF FAILURE TO ATTEND In this case, there is no actual receipt or notice of the from the
When duly notified, the failure of the plaintiff and counsel to post-master. Therefore, there is failure to comply with the service
appear without valid cause when so required, pursuant to the of the pre-trial brief.
next preceding Section, shall cause the dismissal of the action.
The dismissal shall be with prejudice, unless otherwise ordered SERVICE BY REGISTERED MAIL
by the court. (Section 5, Rule 18) In service by registered mail, it is not the date of mailing that is
the date of service but it is when it COMPLETELY DELIVERED
Plaintiff – with prejudice unless otherwise ruled upon by the court which is the date of actual receipt or in the case of registered
without prejudice to the counter-claims. mail after the lapse of 5 days from the notice of the
postmaster.
DEFENDANT FAILURE TO ATTEND
A similar failure on the part of the defendant and counsel shall CONTENTS OF A PRE-TRIAL BRIEF
be cause to allow the plaintiff to present his or her evidence ex The Contents of a pre-trial brief shall be the following:
parte within ten (10) calendar days from termination of the a. A concise statement of the case and the reliefs prayed
pretrial, and the court to render judgment on the basis of the for;
evidence offered. (Section 5, Rule 18) b. A summary of admitted facts and proposed stipulation
of facts;
If you will present evidence ex-parte that is no longer a judgment c. The main factual and legal issues to be tried or
on the pleadings because there is trial you are presenting resolved;
evidence. d. The propriety of referral of factual issues to
commissioners;
The Court will render judgement after presenting evidence e. The documents or other object evidence to be marked,
exparte. “Ex-parte” means without the participation of the other stating the purpose thereof;
party. So the other party will be entitled to the notice of the f. The names of the witnesses, and the summary of their
proceedings but he cannot present evidence. But it does not respective testimonies; and
Judicial Dispute Resolution mandatory at all times? Is it a matter of right to intervene? What is required? NO. It
NO. It is only discretionary on the court. is subject to judicial discretion. You must file a motion for leave
to intervene
When will the court order JDR?
Only when the court is convinced that settlement is still possible The court shall consider the following:
• Whether or not the intervention will unduly delay or prejudice
Who shall preside over the JDR, a different JDR judge or a adjudication of the right of the original parties
judge whom the case is raffled? • Whether or not the intervenor’s right may be fully protected
It can be to the judge whom the case is raffled and it may be in a separate proceeding
referred to another court.
When you file a motion for leave to intervene, do you already
PERIOD FOR JUDICIAL DISPUTE RESOLUTION attach your complaint or answer in intervention? YES. A
15 Calendar Days. Not extendible. copy of the pleading-in-intervention shall be attached to the
The court will only order JDR if the court where the case is raffled motion and served on the original parties.
is convinced that settlement may be possible.
RATIONALE: mediation in JDR was started with the purpose of NOTE: the complaint will be called a complaint-in-intervention,
ending litigation. There are two stages of possibilities wherein and the answer will be an answer-in-intervention.
the parties will agree on a settlement.
What should the court consider in deciding on whether or
JUDGMENT AFTER PRE-TRIAL not the intervention will be granted leave? YES, Whether or
Should there be no more controverted facts, or no more genuine not the rights can be fully protected in a separate proceedings.
issue as to any material fact, or an absence of any issue, or In other words, file a separate case because your rights will be
should the answer fail to tender an issue, the court shall, without protected in a separate action and if you are allowed to intervene
prejudice to a party moving for judgment on the pleadings under in this case, it will only unduly delay the case.
Rule 34 or summary judgment under Rule 35, motu proprio
include in the pre-trial order that the case be submitted for When can you make an intervention?
summary judgment or judgment on the pleadings, without need The motion to intervene may be filed at any time before rendition
of position papers or memoranda. In such cases, judgment shall of judgment by the trial court. A copy of the pleading-
be rendered within ninety (90) calendar days from termination of inintervention shall be attached to the motion and served on the
the pre-trial. original
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d. Any Justice of the Supreme Court or the Court of
Can you make an intervention for the first time on appeal? Appeals in any case or investigation pending within the
NO. It must be made before the judgement of the trial court. Philippines
Intervention is not a matter of right, but is left to the trial court's If you are going to ask for a subpoena to a prisoner what is
sound discretion. The trial court must not only determine if the the duty of the court?
requisite legal interest is present, but also take into consideration When an application for a subpoena to a prisoner is made, the
the delay and the consequent prejudice to the original parties judge or officer shall examine and study carefully such
that the intervention will cause. Both requirements must concur, application to determine whether the same is made for a valid
as the first requirement on legal interest is not more important purpose.
than the second requirement that no delay and prejudice should
result. To help ensure that delay does not result from the granting If the prisoner is sentenced to reclusion perpetua, life
of a motion to intervene, the Rules also explicitly say that imprisonment and death, can he be released? NO. Unless
intervention may be allowed only before rendition of judgment by there is an order from the Supreme Court.
the trial court.
“No prisoner sentenced to death, reclusion perpetua or life
If you have an indispensable party who seeks to intervene imprisonment and who is confined in any penal institution shall
on appeal, will this be allowed for the first time on appeal be brought outside the penal institution for appearance or
even after rendering judgement by the trial court? You attendance in any court unless authorized by the Supreme
cannot have a valid judgement without impleading the Court.”
indispensable parties.
CONTENTS OF A SUBPOENA
The rule that you cannot allow intervention after judgement is A subpoena shall state the name of the court and the title of the
rendered is subject to the exceptions. The EXCEPTIONS are: action or investigation, shall be directed to the person whose
• When it is an indispensable party attendance is required, and in the case of a subpoena duces
• When it is the State that is intervening and there are tecum, it shall also contain a reasonable description of the books,
transcendental reasons or exceptional circumstances as documents or things demanded which must appear to the court
justice may require provided that there is no previous prima facie relevant.
waiver to intervene. Such that if they already had notice of
the proceedings ahead of time, like the State already knew GROUNDS OF QUASHING A SUBPOENA DUCES TECUM
of it but they did not intervene before judgement, it is a The court may quash a subpoena duces tecum upon motion
waiver. Such as when they receive notices of the pending promptly made and, in any event, at or before the time specified
case. But in the absence of that they can intervene in therein:
exceptional circumstances, transcendental importance on • if it is unreasonable and oppressive, or
the first time of appeal. • the relevancy of the books, documents or things does
not appear, or
RULE 21 SUBPOENA • if the person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the production
SUBPOENA thereof.
Subpoena is a process directed to a person requiring him or her
to attend and to testify at the hearing or the trial of an action, or EFFECT SERVICE OF SUBPOENA
at any investigation conducted by competent authority, or for the Service of a subpoena shall be made in the same manner as
taking of his or her deposition. It may also require him or her to personal or substituted service of summons. The original shall
bring with him or her any books, documents, or other things be exhibited and a copy thereof delivered to the person on whom
under his or her control, in which case it is called a subpoena it is served. The service must be made so as to allow the witness
duces tecum. (RULE 21, Section 1) a reasonable time for preparation and travel to the place of
attendance.
Example of a competent authority issuing a subpoena
Prosecutor issuing a subpoena requiring the respondent to file a How do you effect service? Is it in accordance with Rule 13
counter-affidavit in preliminary investigation. or Rule 14?
Rule 14
If you are seeking for a deposition of a witness can you RULE 23 DEPOSITION ON PENDING CASES
apply for the subpoena before obtaining notice or request
for deposition? DEPOSITION
NO. Secure first the deposition before the subpoena. Deposition is taking, out of court, of the testimony of any person,
whether a party or not, but at the instance of a party to the action.
What do you mean by kilometrege fees?
The kilometrege fees are those fees charged when the witness In deposition on pending case, who is the one that can be
is found beyond 100 kilometers. taken deposition of? Is it limited to the adverse party To Any
person, whether a party or not.
If it exceeds 100 kilometers, is the witness required to attend
the distance? DEPOSITION IN A PENDING CASE
NO Upon ex parte motion of a party, the testimony of any person,
whether a party or not, may be taken by deposition upon oral
Witness fees, does that mean that you are paying someone examination or written interrogatories. The attendance of
to be a witness? Isn’t that unlawful? witnesses may be compelled by the use of a subpoena as
Expense that they will incur such as for missing work that day. provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a person
If the witness does not reside within 100km, he received the confined in prison may be taken only by leave of court on such
subpoena but he did not attend? terms as the court prescribes.
The Court can order for the arrest of the witness, which is called
a Bench Warrant. When the attendance is required, and they did How do you apply?
not attend, the court can issue a bench warrant and then they Ex-Parte Motion
can arrest the witness.
After the court allows you to take deposition, you still need
Other consequences of failure to attend? to secure the attendance of the witness by subpoena. Is it
In case of failure of a witness to attend, the court or judge issuing automatic that once deposition is granted the court will
the subpoena, upon proof of the service thereof and of the failure forthwith, as a matter of course, issue a subpoena or do you
of the witness, may issue a warrant to the sheriff of the province, need to apply?
or his or her deputy, to arrest the witness and bring him or her You still need to apply for a subpoena.
before the court or officer where his or her attendance is
required, and the cost of such warrant and seizure of such SCOPE OF EXAMINATION
witness shall be paid by the witness if the court issuing it shall Unless otherwise ordered by the court as provided by Section 16
determine that his or her failure to answer the subpoena was or 18 of this Rule, the deponent may be examined regarding any
willful and without just excuse. matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any
CONTEMPT other party, including the existence, description, nature, custody,
Failure by any person without adequate cause to obey a condition, and location of any books, documents, or other
subpoena served upon him or her shall be deemed a contempt tangible things and the identity and location of persons having
of the court from which the subpoena is issued. If the subpoena knowledge of relevant facts.
was not issued by a court, the disobedience thereto shall be
punished in accordance with the applicable law or Rule. NOTE: In deposition, we apply the rules in evidence that it is
subject to a direct examination, cross-examination, redirect and
EXCEPTIONS re-cross.
The provisions of Sections 8 and 9 of this Rule shall not apply to
a witness who resides more than one hundred (100) kilometers AVAILMENT OF DEPOSITION
from his or her residence to the place where he or she is to testify
by the ordinary course of travel, or to a detention prisoner if no When will you take the deposition of the person? The
permission of the court in which his or her case is pending was deposition of a witness, whether or not a party, may be used by
obtained. any party for any purpose if the court finds:
1. That the witness is dead; or
RULE 22 COMPUTATION OF TIME 2. That the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or
COMPUTATION OF TIME hearing, or is out of the Philippines, unless it appears
In computing any period of time prescribed or allowed by these that his or her absence was procured by the party
Rules, or by order of the court, or by any applicable statute, the offering the deposition; or
day of the act or event from which the designated period of time 3. That the witness is unable to attend or testify because
begins to run is to be excluded and the date of performance of age, sickness, infirmity, or imprisonment; or
included. If the last day of the period, as thus computed, falls on
What if you learned that the deposition officer is the first Can we take a deposition of a party or a person even before
cousin of the other party but they tried their best to conceal there is a pending case in court?
it to you. You learned about it after the deposition was YES. A person who desires to perpetuate his or her own
already taken, is this a waiver on you part? testimony or that of another person regarding any matter that
NO. Objection to taking a deposition because of disqualification may be cognizable in any court of the Philippines, may file a
of the officer before whom it is to be taken is waived unless made verified petition in the court of the place of the residence of any
before the taking of the deposition begins or as soon thereafter expected adverse party.
as the disqualification becomes known or could be discovered
with reasonable diligence.
We can’t just take the deposition of the person?
NO. You need to go to court and file a verified petition.
ERROR OR IRREGULARITY AS TO COMPETENCY OR
RELEVANCY OF EVIDENCE
What should you allege in the verified petition? The petition
shall be entitled in the name of the petitioner and shall show:
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a. that the petitioner expects to be a party to an action in
a court of the Philippines but is presently unable to bring RULE 25 INTERROGATORIES TO PARTIES
it or cause it to be brought;
b. the subject matter of the expected action and his or her WRITTEN INTERROGATORIES
interest therein; Upon ex parte motion, any party desiring to elicit material and
c. the facts which he or she desires to establish by the relevant facts from any adverse parties shall file and serve upon
proposed testimony and his or her reasons for desiring the latter written interrogatories to be answered by the party
to perpetuate it; served or, if the party served is a public or private corporation or
d. the names or a description of the persons he or she a partnership or association, by any officer thereof competent to
expects will be adverse parties and their addresses so testify in its behalf.
far as known; and
e. the names and addresses of the persons to be Who can be served written interrogatories?
examined and the substance of the testimony which he Only the Adverse Party
or she expects to elicit from each, and shall ask for an
order authorizing the petitioner to take the depositions ANSWER TO INTERROGATORIES
of the persons to be examined named in the petition for The interrogatories shall be answered fully in writing and shall be
the purpose of perpetuating their testimony. signed and sworn to by the person making them.
Who should be given of notice of the deposition before the Within what period should the ANSWER be filed?
filing of the case? The party upon whom the interrogatories have been served shall
Any person name that is expected to be an adverse party of the file and serve a copy of the answers on the party submitting the
action. interrogatories within fifteen (15) calendar days after service
thereof, unless the court, on motion and for good cause shown,
“The petitioner shall serve a notice upon each person named in extends or shortens the time.
the petition as an expected adverse party, together with a copy
of the.petition, stating that the petitioner will apply to the court, Can you object on the written interrogatories served upon
at a time and place named therein, for the order described in the you?
petition.” (Section 3, Rule 24) YES. Within 10 calendar days. Objections to any interrogatories
may be presented to the court within ten (10) calendar days after
PERIOD OF ISSUANCE OF NOTICE service thereof, with notice as in case of a motion; and answers
At least twenty (20) calendar days before the date of the hearing, shall be deferred until the objections are resolved, which shall be
the court shall cause notice thereof to be served on the parties at as early a time as is practicable.
and prospective deponents in the manner provided for service of
summons.
DEPOSITION PENDING APPEAL Does it mean that you need to file your answer on the written
If an appeal has been taken from a judgment of a court, including interrogatories during the pendency of the ruling of the
the Court of Appeals in proper cases, or before the taking of an court on your opposition? Should you answer or otherwise
appeal if the time therefor has not expired, the court in which the it will be deemed waived?
judgment was rendered may allow the taking of depositions of The effect of the opposition is that it will defer the period to
witnesses to perpetuate their testimony for use in the event of Answer. So, you need to wait for the ruling of the court for your
further proceedings in the said court. In such case the party who opposition.
desires to perpetuate the testimony may make a motion in the
said court for leave to take the depositions, upon the same notice
If you are served written interrogatories but you did not
and service thereof as if the action was pending therein. The
answer does that mean that the adverse party cannot be
motion shall state (a) the names and addresses of the persons
presented as an adverse witness?
to be examined and the substance of the testimony which he or
NO. It does not prevent the party from presenting the adverse
she expects to elicit from each; and (b) the reason for
party as witness. This is because it was already served to the
perpetuating their testimony. If the court finds that the
adverse party. The rules only mention service without requiring
perpetuation of the testimony is proper to avoid a failure or delay
that it should be answered. Otherwise, it would be dependent on
of justice, it may make an order allowing the depositions to be
the adverse party on whether or not it will be an adverse witness,
taken, and thereupon the depositions may be taken and used in
it can be called upon.
the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending
The adverse can just defeat it by not answering. Accordingly, it
actions.
is sufficient that there is service of the written interrogatories.
Within what period and to which court do you apply for the
In written interrogatories do you need to apply for it in court
deposition?
or do you just serve it on the other party and file it in court?
The Court where the case is pending or the court of origin
It should be filed and served to the adverse parties.
What should you file? Should it also be a verified petition?
NO. File a motion.
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What if the other party is a corporation to whom to do you allow on motion, the party to whom the request is directed files
serve the written interrogatories? and serves upon the party requesting the admission a sworn
If the adverse party is a corporation, it may be served to any statement either denying specifically the matters of which an
officer thereof competent to testify in its behalf. admission is requested or setting forth in detail the reasons why
he or she cannot truthfully either admit or deny those matters.
How many sets of written interrogatories can you serve to Objections to any request for admission shall be submitted to the
the other party? court by the party requested within the period for and prior to the
One (1) Set. No party may, without leave of court, serve more filing of his or her sworn statement as contemplated in the
than one set of interrogatories to be answered by the same party. preceding paragraph and his or her compliance therewith shall
be deferred until such objections are resolved, which resolution
When can it be more than one (1) set? shall be made as early as practicable.
When allowed by the Court.
EFFECT OF FAILURE TO RESPOND OR SERVE FOR
SCOPE AND USE REQUEST OF ADMISSION
Interrogatories may relate to any matters that can be inquired Unless otherwise allowed by the court for good cause shown and
into under Section 2 of Rule 23, and the answers may be used to prevent a failure of justice, a party who fails to file and serve a
for the same purposes provided in Section 4 of the same Rule. request for admission on the adverse party of material and
relevant facts at issue which are, or ought to be, within the
Section 2, Rule 23 the deponent may be examined regarding any personal knowledge of the latter, shall not be permitted to
matter, not privileged, which is relevant to the subject of the present evidence on such facts.
pending action, whether relating to the claim or defense of any
other party, including the existence, description, nature, custody, EFFECT OF ADMISSION
condition, and location of any books, documents, or other Any admission made by a party pursuant to such request is for
tangible things and the identity and location of persons having the purpose of the pending action only and shall not constitute
knowledge of relevant facts. an admission by him or her for any other purpose nor may the
same be used against him or her in any other proceeding.
Section 4: Refers to the uses of depositions.
The Rules of Court is suppletory in criminal cases, can we
NOTE: Before you can present an adverse witness, you have to use this in Criminal Cases?
get the written interrogatories of that party. In other words, you NO. The right of the accused not to be compelled to be a witness
want to produce the adverse party as your witness. against himself is violated. Because if you will use it against an
accused it will be deemed an implied admission, therefore it
Serve them with written interrogatories first before you serve cannot be allowed because you are compelling him to be a
them as a witness. But if they do not answer the written witness against himself.
interrogatories, it will not prevent you from presenting them as a
witness as long as you serve them the written interrogates. WITHDRAWAL
RULE 26 ADMISSION BY ADVERSE PARTIES Unless otherwise allowed by the court for good cause shown and
to prevent a failure of justice, a party who fails to file and serve a
request for admission on the adverse party of material and
What can be the subject of the request of Admission?
relevant facts at issue which are, or ought to be, within the
• Genuineness of any material and relevant document
personal knowledge of the latter, shall not be permitted to
described in and exhibited with the request
present evidence on such facts.
• The truth of any material and relevant matter of fact set forth
in the request
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS
“At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission
by the latter of the genuineness of any material and relevant What can you produce and inspect?
document described in and exhibited with the request or of the Upon motion of any party showing good cause therefor, the court
truth of any material and relevant matter of fact set forth in the in which an action is pending may (a) order any party to produce
request. Copies of the documents shall be delivered with the and permit the inspection and copying or photographing, by or
request unless copies have already been furnished.” (Section 1, on behalf of the moving party, of any designated documents,
Rule 26) papers, books, accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain
Is it only limited to documents? evidence material to any matter involved in the action and which
NO. It can include not just documents but for requesting of proof are in his or her possession, custody or control; or (b) order any
of relevant facts. party to permit entry upon designated land or other property in
his or her possession or control for the purpose of inspecting,
measuring, surveying, or photographing the property or any
IMPLIED ADMISSION
designated relevant object or operation thereon. The order shall
Each of the matters of which an admission is requested shall be
specify the time, place and manner of making the inspection and
deemed admitted unless, within a period designated in the
taking copies and photographs, and may prescribe such terms
request, which shall not be less than fifteen (15) calendar days
and conditions as are just.
after service thereof, or within such further time as the court may
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For instance, your action is to determine which property belongs RULE 29 REFUSAL TO COMPLY WITH MODES OF
to you. So, you want it to be measured by an engineer but you DISCOVERY
cannot enter the premises because it is a private property. You
cannot compel him to allow you entry so you need to avail of EFFECT OF REFUSAL TO ANSWER A DEPOSITION
Rule 27 so that you can enter into the premises. If a party or other deponent refuses to answer any question upon
oral examination, the examination may be completed on other
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF matters or adjourned as the proponent of the question may
PERSONS prefer. The proponent may thereafter apply to the proper court
of the place where the deposition is being taken, for an order to
When can we use physical and mental examination? compel an answer. The same procedure may be availed of when
In an action in which the mental or physical condition of a party a party or a witness refuses to answer any interrogatory
is in controversy, the court in which the action is pending may in submitted under Rules 23 or 25.
its discretion order him or her to submit to a physical or mental
examination by a physician. (Section 1, Rule 28) If the application is granted, the court shall require the refusing
party or deponent to answer the question or interrogatory and if
Example where a physical or mental examination is it also finds that the refusal to answer was without substantial
required, where that condition is relevant to the case. In justification, it may require the refusing party or deponent or the
probate proceedings to determine the capacity or mental counsel advising the refusal, or both of them, to pay the
capacity such as when you are going to have a probate during proponent the amount of the reasonable expenses incurred in
the lifetime of a party. obtaining the order, including attorney's fees.
As a rule, there is a privilege between a lawyer and client, or If the application is denied and the court finds that it was filed
in patient-doctor. Won’t Rule 28 violate the privilege without substantial justification, the court may require the
communication between patient and doctor? proponent or the counsel advising the filing of the application, or
By requesting and obtaining a report of the examination so both of them, to pay to the refusing party or deponent the amount
ordered or by taking the deposition of the examiner, the party of the reasonable expenses incurred in opposing the application,
examined waives any privilege he or she may have in that action including attorney's fees.
or any other involving the same controversy, regarding the
testimony of every other person who has examined or may What is the effect of the deponent’s refusal to answer the
thereafter examine him or her in respect of the same mental or questions propounded upon the deponent?
physical examination. (Section 4) If a party or other deponent refuses to answer any question
upon oral examination, the examination may be completed on
If you ask for the report it is deemed a waiver, but the one who other matters or adjourned as the proponent of the question
asks the report should be the patient. Because the one who has may prefer.
the right to waive that privilege is the patient.
In addition to holding that liable for expenses, what else can
How do you apply for it in Court? he be held liable?
The Order for examination may be made only on motion good Contempt of Court. If a party or other witness refuses to be sworn
cause shown and upon notice to the party to be examined and or refuses to answer any question after being directed to do so
to all other parties, and shall specify the time, place, manner, by the court of the place in which the deposition is being taken,
conditions and scope of the examination and the person or the refusal may be considered a contempt of that court
persons by whom it is to be made.
Other consequences of refusal to answer the deposition or
What should be contained in the report and to whom shall it refusal to produce under Rule 27 or allow inspection, or
be delivered? refusal to allow an examination under Rule 28 that is not
If requested by the party examined, the party causing the covered the privilege?
examination to be made shall deliver to him or her a copy of a The court may make such orders in regard to the refusal are just,
detailed written report of the examining physician setting out his and among others the following:
or her findings and conclusions. After such request and delivery, • An order that the matters regarding which the questions
the party causing the examination to be made shall be entitled were asked, or the character or description of the thing or
upon request to receive from the party examined a like report of land, or the contents of the paper, or the physical or mental
any examination, previously or thereafter made, of the same condition of the party, or any other designated facts shall be
mental or physical condition. taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
What if the one who made the examination refuses to make • An order refusing to allow the disobedient party to support
a report? or oppose designated claims or defenses or prohibiting him
If the party examined refuses to deliver such report, the court on or her from introducing in evidence designated documents
motion and notice may make an order requiring delivery on such or things or items of testimony, or from introducing evidence
terms as are just, and if a physician fails or refuses to make such of physical or mental condition;
a report, the court may exclude his or her testimony if offered at • An order striking out pleadings or parts thereof, or staying
the trial. further proceedings until the order is obeyed, or dismissing
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the action or proceeding or any part thereof, or rendering a RULE 30 TRIAL
judgement by default against the disobedient party; and
• In lieu of any of the foregoing orders or in addition thereto, What is a TRIAL?
an order directing the arrest of any party or agent of a party A trial is a judicial examination and determination of the issues
for disobeying any of such orders except an order to submit between the parties to the action.
to a physical or mental examination.
What is the SCHEDULE OF HEARING?
Will all pleadings be stricken out? The parties shall strictly observe the scheduled hearings as
NO. The pleadings that pertain to the matters that is sought for agreed upon and set forth in the pre-trial order.
discovery.
a. The schedule of the trial dates, for both plaintiff and
Is it automatic that as long as you refuse to comply the court defendant, shall be continuous and within the following
will dismiss? NO. periods:
i. The initial presentation of plaintiff’s evidence shall
STRIKING OUT OF PLEADINGS be set not later than thirty calendar days after the
If you strike out portions of the pleadings. Let us say that the termination of the pre-trial conference. Plaintiff
defendant seeks a mode of discovery against the plaintiff and the shall be allowed to present its evidence within
plaintiff does not comply. When you strike out such relevant three (3) months or ninety (90) calendar days
matters of the pleading, and if so much of it is already stricken which shall include the date of the judicial dispute
out such that there nothing is left and there is no more cause of resolution if necessary;
action then that can result into a dismissal. ii. The initial presentation of defendant’s evidence
shall be set not later than thirty (30) calendar days
If you strike out part of the answers that are portions that have after the court’s ruling, on the formal offer of
denials and what would only remain is the admission then there evidence. The defendant shall be allowed to
is no more issues, the court can then render judgement on the present its evidence within a period of three (3)
pleadings. months or ninety (90) calendar days;
iii. The period for the presentation of evidence on the
In what instances can a party be liable for expenses and third (fourth, etc.)-party claim, counterclaim or
attorney’s fees in cases of refusal? cross-claim shall be determined by the court, the
• Refusal to Answer total of which shall in no case exceed ninety (90)
• Refusal to Admit calendar days; and
• Failure to Attend or Serve Answers iv. if deemed necessary , the court shall set the
presentation of the parties' respective rebuttal
REFUSAL TO ADMIT evidence, which shall be completed within a period
If a party after being served with a request under Rule 26 to admit of thirty (30) calendar days.
the genuineness of any document or the truth of any matter of
fact, serves a sworn denial thereof and if the party requesting the b. The trial dates may be shortened depending on the number
admissions thereafter proves the genuineness of such document of witnesses to be presented, provided that the presentation
or the truth of any such matter of fact, he or she may apply to the of evidence of all parties shall be terminated within a period
court for an order requiring the other party to pay him or her the of ten (10) months or three hundred (300) calendar days. If
reasonable expenses incurred in making such proof, including there are no third (fourth, etc.)-party claim, counterclaim or
reasonable attorney's fees. Unless the court finds that there were cross-claim, the presentation of evidence shall be
good reasons for the denial or that admissions sought were of terminated within a period of six (6) months or one hundred
no substantial importance, such order shall be issued. eighty (180) calendar days.
FAILURE TO ATTEND OR SERVE ANSWERS c. The court shall decide and serve copies of its decision to the
If a party or an officer or managing agent of a party wilfully fails parties within a period not exceeding ninety (90) calendar
to appear before the officer who is to take his or her deposition, days from the submission of the case for resolution, with or
after being served with a proper notice, or fails to serve answers without memoranda. (n)
to interrogatories submitted under Rule 25 after proper service (SECTION 1, RULE 30)
of such interrogatories, the court on motion and notice, may
strike out all or any part of any pleading of that party, or dismiss When can POSTPONEMENT OF A TRIAL be granted?
the action or proceeding or any part thereof, or enter a judgment A motion to postpone trial on the ground of illness of a party
by default against that party, and in its discretion, order him or or counsel upon affidavit or sworn certification that the presence
her to pay reasonable expenses incurred by the other, including of such party or counsel at the trial is such that the presence of
attorney's fees. such party or counsel at the trial is indispensable and that the
character of his or her illness is such as to render his or her non-
What if it was the Republic of the Philippines who violated attendance excusable.
the rules on deposition, will they be liable for expenses?
Expenses and attorney's fees are not to be imposed upon the What is the Order of Trial?
Republic of the Philippines Subject to the provisions of Section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be
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limited to the issues stated in the pre-trial order and shall proceed Any claim, cross-claim, counterclaim or third-part complaint or of
as follows: any separate issue or of any number of claims, crossclaims,
a) The plaintiff shall adduce evidence in support of his or counterclaims, third-party complaints or issues.
her complaint
b) The defendant shall then adduce evidence in support When can there be CONSOLIDATION of cases?
of his or her defense, counterclaim, cross claim and When actions involving a common question of law or fact are
third-party complaint; pending before the court, it may order a joint hearing or trial of
c) The third-party defendant, if any, shall adduce evidence any or all the matters in issue in the actions; it may order all the
of his or her defense, counterclaim, crossclaim and actions consolidated; and it may make such orders concerning
fourth party complaint proceedings therein as may tend to avoid unnecessary costs or
delay. (SECTION 1, RULE 31)
d) The fourth-party, and so forth, if any shall adduce
evidence of the material facts pleaded by them
Let us say there are two related cases in Makati RTC. One is
e) The parties against whom any counterclaim or raffled in Branch 1 the other is in Branch 2.
crossclaim has been pleaded shall adduce evidence in
support of their defense, in the order to be prescribed
Branch 1: Civil Case 11
by the court
Branch 2: Civil Case 12
f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and You moved for consolidation of cases, is the Court
in the furtherance of justice, permits them to adduce mandated to grant the consolidation?
evidence upon their original case NO. It is within the discretion of the Court.
g) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court direct If it is granted, in which court will it be consolidated in?
the parties to argue or to submit their respective Branch 1. The Court where the lower docket number is filed
memoranda or any further pleadings.
RULE 32
What if there are several defendants?
TRIAL BY COMMISSIONER
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court
What if the reception of evidence was delegated to a
shall determine the relative order of the presentation of evidence.
commissioner, can the commissioner rule on the
objections?
Is rebuttal evidence allowed?
YES. The commissioner may rule upon the objections unless
Yes. The rules of provide if deemed necessary rebuttal evidence
otherwise stated in the order of reference.
is allowed. Accordingly, it is discretionary upon the court.
When can a case be referred to a commissioner?
So, the court receives the evidence of the case and the court
By written consent of the parties, the court may order any or all
rules on the objections to the admissibility of evidence. We
of the issue in the case to be referred to a commissioner to be
learned, for instance, after a defendant is declared in
agreed upon by the parties or to be appointed by the court. As
default, the court does not render judgement on default, the
used in these Rules, the word “commissioner” includes a referee,
court may receive evidence to be delegated to the clerk of
an auditor, an examiner.
court. Can the clerk of Court not be a member of the Bar?
NO. According to Section 9, Rule 30, the court may delegate the
What are the GROUNDS to refer a case to a commissioner?
reception of evidence to its clerk of court who must be a member
By written consent of both parties
of the bar.
Does the Clerk of Court rule on objections? When the parties DO NOT CONSENT the court may, upon the
application of either or of its own motion, direct a reference to a
NO. The Clerk of Court shall have no power to rule on objections
commissioner in the following cases:
to any question, or to the admission of exhibits. The objection
• When the trial of an issue of fact requires the examination
shall be resolved by the court.
of a long account on either side, in which case, the
commissioner may be directed to hear and report upon the
What would the Clerk of Court do if there are objections?
whole issue or any specific question involved therein;
The clerk of court shall submit his or her report and the
• When the taking of an account is necessary for the
transcripts within 10 calendar days from the termination of the
information of the court before judgement, or for carrying a
hearing. After which, the Court will rule upon it.
judgement or order into effect;
RULE 31 CONSOLIDATION OF CASES
• When a question of fact, other than upon the pleadings,
arises upon motion or otherwise, in any stage of a case, or
When can there be SEPARATE TRIAL? for carrying a judgement or order into effect.
The Court, in furtherance of convenience or to avoid prejudice
may order a separate trial.
Is the commissioner entitled compensation?
What will be separated?
Can the commissioner issue subpoenas? Let us say you want to present an expert witness. Before
YES. you can present an expert witness, you need to establish
the expertise of the witness (this includes school graduated
The party has notice of the hearing but does not attend, what from, number of years in practice.) Rather than presenting
are the consequences? this in evidence, Can the parties stipulate that he is an
If a party fails to appear at the time and place appointed, the expert witness?
commissioner may proceed ex parte or, in his or her discretion, YES. Because the Rules of Court allows it. Under the pre-trial,
adjourn the proceedings to a future day, giving notice to the the ROC allows the parties to stipulate facts. Rather than
absent party or his or her counsel of the adjournment. presenting evidence of a fact, the parties can stipulate instead.
Is the adjournment of hearing the same as suspension of In trial, it is expressly provided that there can be an agreement
the case? for the stipulation of facts. Which means you do not need to
NO. Adjournment refers to the postponement of a trial date. present evidence on that matter anymore.
While suspension refers to the trial being temporarily stopped
PNB v. GOTESCO
You assail an interlocutory order, because you take the
position that there was GADALEJ, so you filed a petitioner JUDDICIAL AFFIDAVIT RULE (JA RULE) A.M. No. 12-8-8-8-
for certiorari for that interlocutory order. is the filing a SC
certiorari to assai an interlocutory order, a ground to
suspend the proceedings? What courts do we apply the JA rule?
YES. Provided that there is a temporary restraining order (TRO) ALL COURTS except for MTC for small claims.
granted. If there is an injunction or restraining order, it can be
allowed. What are the contents of a Judicial Affidavit?
A judicial affidavit shall be prepared in the language known to the
Once there is a reception of evidence before the witness and, if not in English or Filipino, accompanied by a
commissioner, what happens next? translation in English or Filipino and shall contain the following:
The commissioner shall proceed with all reasonable diligence.
Upon the completion of the trial or hearing or proceeding before
the commissioner, he or she shall file with the court his or her a) The name, age, residence, or business address, and
report in writing upon the matters submitted to him or her by the occupation of the witness;
order of reference. When his or her powers are not specified or b) The name and address of the lawyer who conducts or
limited, he or she shall set forth his or her findings of facts and supervises the examination of the witness and the
conclusions of law in his or her report. He or she shall attach place where the examination is being held;
thereto all exhibits, affidavits, depositions, papers and the c) A statement that the witness is answering the questions
transcript, if any, of the testimonial evidence presented before asked of him, fully conscious that he does so under
him or her. oath, and that he may face criminal liability for false
testimony or perjury
After notice to the parties, what happens next?
Upon the filing of the report, the parties shall be notified by the d) Questions asked of the witness and his corresponding
clerk, and they shall be allowed 10 calendar days within which to answers, consecutively numbered, that
signify grounds of objections to the findings of the report, if they (a) Shows the circumstances under which the
so desire. Objections to the report based upon grounds which witness acquired the facts upon which he
are available to the parties during the proceedings before the testifies
commissioner, other than objections to the findings and
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(b) Elicit from him those facts which are relevant
to the issues that the case presents; and THREE KINDS OF EVIDENCE
(c) Identify the attached documentary and object 1. Testimonial
evidence and establish their authenticity in 2. Documentary
accordance with the rules of court 3. Object
e) The signature of the witness over his printed name
f) A jurat with the signature of the notary public who If there is a contract of loan. You cannot just submit it as evidence
administers the oath or an officer who is authorized by to the court. You need to authenticate that contract of loan. There
law to administer the same. must genuineness and due execution.
What else should be included in a Judicial Affidavit? So, someone needs to say that this is the loan that we entered
The Judicial Affidavit must contain the sworn attestation of the into. And someone needs to say that the signatures appearing in
lawyer. It shall be placed at the end, executed by the lawyer who the contract are the signatures of the debtor and creditor. It is not
conducted and supervised the examination of the witness, to the self-authenticating; someone needs to testify on it.
effect that
(1) He faithfully recorded or caused to be recorded the TESTIMONIAL EVIDENCE
questions he asked and the corresponding answers In testimonial evidence – the time to make an offer is when you
that the witnesses gave are going to present that witness. Before you present the
(2) Neither he nor any other person then present or witness: you need to make your formal offer the witness, so you
assisting him coached the witness regarding the latter’s will tell the court the purpose for which the testimony is being
answers. offered.
A false attestation shall subject the lawyer mentioned to a For instance; the first witness will testify to the existence of the
disciplinary action including disbarment. loan to prove the existence between complainant and defendant.
In CRIMINAL CASES when do you use Judicial Affidavits? Generally, what you want to prove are pieces of evidence that
A judicial affidavit is used to all criminal actions: would establish your cause of action. So, in case of doubt, you
(1) Where the maximum of the imposable penalty does not look at your cause of action, check the elements and check what
exceed six years; you need to prove by means of evidence.
(2) Where the accused agrees to the use of judicial
affidavits irrespective of the penalty involved; or So, if it is testimonial evidence, you make an offer before the
(3) With respect to the civil aspects of the actions, witness will talk. Right after the plaintiff or whoever is presenting
whatever penalties involved are. the witness, that is the time you will object.
If the penalty EXCEEDS six years, can you not use the So, if they are offering Mr. X as an expert witness for example he
Judicial Affidavit? is offered as a Doctor but he is only a med student, that is the
NO. A judicial affidavit may still be used in criminal cases where time you object to the offer because of the incompetence of the
the imposable penalty exceeds six years when the accused witness. At the same you can already object to the questions in
agrees to the use of the judicial affidavit. the judicial affidavit. For example, you will object to number 1 of
the Judicial affidavit for being leading, number 2 for misleading,
If your witness is a government official declines to execute compound question etc. So the time you make an objection to
a judicial affidavit, what do you do? the evidence is the time when it is formally offered.
The requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the DOCUMENTARY AND OBJECT EVIDENCE
Rules of Court. Even if a witness will testify on that during his testimony, the time
for you to object the evidence is when it is being offered.
If it is an adverse party, you just need to subpoena, but
before you can subpoena, what is the requirement before Documentary and object evidence will be formally offered after
you can present an adverse party as a witness? They must the last witness.
be served a written interrogatory. If it is an adverse witness, you
need to serve written interrogatories, they do not need to reply. SIMULATION OF DIRECT EXAMINATION WITH JUDICIAL
Otherwise, if you fail to serve it you cannot present him as a AFFIDAVIT
witness.
In direct examination you can only ask question that are NOT
leading, or NOT misleading.
The Judicial affidavit is in lieu of your direct examination
and you should attach all of your exhibits in your judicial LEADING QUESTION
affidavits. When is the time to object to the questions in the
A question is generally leading when the question can be
judicial affidavit? Or are you already prevented from
answered by YES or NO. Unless it is used as a basis of a
objecting from the same because the questions are already
subsequent question.
answered in the judicial affidavit?
After the offer of the testimony.
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MISLEADING QUESTION Luciano: I extended a loan to Ms. Panandigan but despite
It assumes facts. Meaning it assumes something that the witness demands, she did not pay.
has not testified on. KHO: Strike out the portion that stated that she demanded for
the payment of loan. Strike it out for being misleading to the
SUAREZ – COUNSEL FOR PLAINTIFF question.
LUCIANO – WITNESS
KHO – COUNSEL FOR THE DEFENDANT So if that statement is stricken out the only remaining part is “I
extended the loan”
The case is a contract of Loan, Luciano is the creditor.
Luciano loaned P5,000 to Panandigan on January 1, 2019. It Suarez: Ms. Luciano can you tell us to whom did you extend the
is payable January 30, 2020. The proof the loan is the loan, if any?
contract of loan which they both signed. Luciano: To Ms. Pananadigan
After January 30, Luciano sent a demand letter to NOTE: you need to let the witness say that the “Panandigan” she
Panandigan but despite the notice and demand letter mentioned is the same Panandigan in the case. The question
Panandigan did not pay the loan. A collection for the sum of should be asked in a way that it will point to the defendant.
money.
Suarez: Is the Ms. Panandigan you are referring to the same Ms.
PROCEDURE Panandigan who is the defendant of the case?
1. CALL THE WITNESS – when the court tells you to call on Kho: Objection on the ground that the question is misleading.
the witness you will just say “may we call on the witness.”
NOTE: the question to be asked must be answerable by yes or
“May we call on Ms. Reina Luciano to the witness stand” no, so it has to be leading.
After she goes there, they will ask her name, her personal PROPER QUESTION: “Can you point to her if she is in the
circumstances, address, occupation, and then they will swore court” or “What is the relation of the Ms. Panandigan you
him as a witness. mentioned to the defendant of this case, if any?”
2. OFFER OF THE WITNESS – what will the witness prove Then the witness will answer that “she is the same person” or
“she is the defendant in this case”
Suarez: I am offering the testimony of Ms. Luciano to prove that
Ms. Luciano and Ms. Panandigan entered into a contract of loan
(3) THIRD SCENARIO
extending a loan of P5,000. The loan was due and demandable
and despite demand Ms. Panandigan did not pay and that Ms.
Luciano is entitled to the damages. AMOUNT OF THE LOAN
Suarez: Ms. Luciano How much did you extend to Ms.
3. EXAMINATION (QUESTIONS) – you need to prove your Panandigan?
cause of action. In this case (1) that there is a loan (2) the
amount of the loan (3) the due date (4) and that there was Luciano: P5,000
demand and payment was not made. You must be able to
let the witness to identify the documents i.e contract of loan ESTABLISHING THE DEFAULT
and demand letter. Suarez: Ms. Luciano can you tell us what are the stipulations in
the contract that you agreed upon, if any?
(1) FIRST SCENARIO
Suarez: Ms. Luciano can you tell us what happened in January Luciano: That the loan should be payable on January 30, 2019.
1, 2019.
Suarez: On January 30, 2019, can you tell us what happened, if
Kho: Objection. MISLEADING any?
WHY? The question was misleading because it assumes that Luciano: Ms. Panandigan did not pay the loan.
something happened in January 1, 2019.
Suarez: what did you do, if any?
PROPER QUESTION: What happened in January 1, 2019 if
any? Luciano: I made a demand
(2) SECOND SCENARIO
Suarez: Ms. Luciano can you tell us what happened in January (4) FOURTH SCENARIO
1, 2019, if any?
Suarez: what is your proof that you enter into a contract of loan, Suarez: What is the relation of the Ms. Panandigan you
if any? mentioned to the defendant of this case, if any?
NOTE: You cannot ask the question “is this the contract of loan” Luciano: Ms. Panandigan did not pay the loan.
because that question is leading.
Suarez: what did you do, if any?
Luciano: This is the contract of loan that we entered into
Luciano: I made a demand
That is how you prove the genuineness of the contract
Suarez: what is your proof that you enter into a contract of loan,
SIGNATURE OF THE PARTIES if any?
Suarez: Whose signature is this appearing? Luciano: We executed a contract of loan/deed of loan.
NOTE: you have to ask it one by one. Suarez: If shown a copy of this contract, will you be able to
identify it?
After you identify it then the judicial affidavit the contract of loan
is attached with A-1 signature of Luciano and A-2 signature of Luciano: Yes
Panandigan.
Suarez: I have a copy of a contract of loan, can you go over this
SUMMARY OF PROPER QUESTIONING and tell us if you know what is the relation of this document with
the contract of loan you mentioned earlier.
“May we call on Ms. Reina Luciano to the witness stand”
Luciano: This is the contract of loan that we entered into
Suarez: I am offering the testimony of Ms. Luciano to prove that
Ms. Luciano and Ms. Panandigan entered into a contract of loan FINAL NOTES
extending a loan of P5,000. The loan was due and demandable To cut the proceedings short, they are already in judicial affidavit
and despite demand Ms. Panandigan did not pay and that Ms. form, if you look at it Kho was able to object to the questions of
Luciano is entitled to the damages. the counsel before the witness can answer.
Second, then you ask the witness “do you recall executing a So, if 26 evidence was offered, the other party can object. And
judicial affidavit in relation to this case, if any?” the court will rule on the admissibility and if the court will say that
out of the 26 only one is admissible that is the only time that you
can say if the evidence is sufficient or insufficient. After the court
Third, will you be able to identify the Judicial Affidavit? Fourth, rules on its admissibility or after the objections of the formal
I’m showing you a document denominated judicial affidavit of Ms. evidence.
Luciano, can you go over this and tell us what is the relation of
this document to the judicial affidavit that you mentioned? So when you say after the plaintiff rests its case it means that the
formal offer is already done and the court has ruled on the formal
Fifth, there appears to be a signature above the name Ms. Reina offer taking into account the objections, if any.
Luciano can you go over it and tell us whose signature this is?
When a demurrer is denied, the order denying the demurrer
The Direct Examination ends there and then you will proceed is it an interlocutory order or a judgement?
with cross-examination. Interlocutory Order.
The time that the court will consider the testimony of a Generally, an interlocutory order can be a subject of
witness only after you formally offered. And the time to certiorari if there is GADALEJ. Under the rules, can a
object the admissibility is only AFTER IT IS FORMALLY demurrer be subject of an appeal or petition for certiorari,
OFFERED. prohibition or mandumus?
NO. It is prohibited. The order denying the demurrer to evidence
RULE 33 DEMURRER OF EVIDENCE shall NOT be subject of certiorari, prohibition or mandamus.
Is it right after the last witness is presented? If on appeal the Court Appeals reverses the RTC, what is the
NO. It is after the court rules on the formal offer of evidence. effect?
The defendant is deemed to have waived the right to present
Before the formal offer of documentary evidence? NO. After evidence.
the court rules on the formal offer of documentary evidence.
Because if you are asking for a demurrer you are saying that the If the demurrer evidence under Civil Procedure the same as
evidence is insufficient. So, for you to know what is the evidence, the demurrer to evidence in a Criminal Procedure?
you need to know what forms part of the evidence of the plaintiff. NO. It is different.
OFFERING OF EVIDENCE
In a CRIMINAL CASE the filing of a demurrer to evidence results
When you make a formal offer and the other party objects. The
in the waiver of the accused to adduce evidence if the filing was
Court will rule on the admissibility of the evidence.
without leave and the same is denied, while in CIVIL CASE the
filing of a demurrer to evidence does not need leave of court and
Let us say, after the last witness, you need to make a formal offer. its denial will not result in a waiver of the defendant to present
The formal offer must be orally made after the last witness. evidence.
The objections must be made orally also then the court rule will
rule on the admissibility.
In CRIMINAL CASE the grant of demurrer to evidence results in
the acquittal of the accused and hence the dismissal cannot be
If the plaintiff’s exhibit consists of 26 exhibits (A-Z) at the time the appealed while in a CIVIL CASE, the grant of the demurrer to
last witness, the documentary evidence has not been offered. evidence may be appealed and if on appeal the dismissal of the
But in order for it to be admissible it must be offered. So, after case is reversed, the defendant is deemed to have waived the
the last witness testifies you still need to formally offer the presentation of evidence.
documentary evidence.
DEMURRER TO EVIDENCE
So, for example: The contract of loan exhibit A that the loan was
CRIMINAL CASE CIVIL CASE
extended and that it was due and demandable on January 1,
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The filing of a demurrer to The filing of a demurrer to NO. In actions of declaration of nullity or annulment of marriage
evidence results in the evidence DOES NOT NEED or for legal separation, the material facts alleged in the complaint
waiver of the accused to LEAVE OF COURT and its shall always be proved.
adduce evidence if the DENIAL WILL NOT
filing was WITHOUT RESULT IN A WAIVER of EXAMPLE: Even if your husband says “oo may psychological
LEAVE OF COURT and the defendant to present incapacity” it is not considered as a judicial admission; you would
same was DENIED evidence. still need to prove it as a fact because of the peculiar
WHEN GRANTED circumstance of these cases. They are special proceedings in
Acquittal of the accused. Dismissal of the case such that the State is interested in preserving the sancity of
marriage.
APPEAL
Dismissal CANNOT be The dismissal may be
NOTE: If there is already an admission, then there is no more
appealed appealed but if on appeal the
disputed facts. If the adverse party admits it, then there is no
dismissal of the case is need for trial and what is left is only a question of law, the Court
reversed, the defendant is can already render judgement on the pleadings.
deemed to have waived the
right to presentation of IMPORTANT NOTE:
evidence.
“Any action of the court on a motion for judgement on the
pleadings shall not be subject of an appeal or petition for
REPUBLIC v. DE BORJA certiorari, prohibition or mandamus.”
COMGLASCO CORP v. SANTOS CAR CHECK CENTER NOTE: In case of a motion for summary judgement, the ruling of
the court on the motion is an interlocutory order. Because the
CORP
ruling of the court, whether the court grants or denies the motion.
The summary judgement itself is different. As such, it is not
RULE 35 SUMMARY JUDGEMENTS subject to an appeal, petition for certiorari, prohibition and
mandamus.
What is SUMMARY JUDGEMENT?
A summary judgement, also known as an accelerated What should accompany a motion for summary judgement?
judgement, is proper where, upon motion filed after the issues Affidavits and supporting Papers.
had been joined and on the basis of the pleadings and the papers
filed, the court finds that there is no genuine issue as to any Is this motion a litigious motion?
material fact except as to the amount of damages. YES
When the CLAIMANT file for summary judgement? After a motion is filed, what will the other party file?
A party seeking to recover upon a claim, counterclaim, An Opposition or a Comment
crossclaim or to obtain a declaratory relief may, at any time after
the pleading in answer thereto has been served, moved with
What should be attached in your comment?
supporting affidavits, depositions or admissions for a summary
Opposing affidavits and deposition.
judgement in his or her favor or upon all or any party thereto.
When can the DEFENDING PARTY file for summary How many days?
judgement? Within 5 days from receipt of the motion.
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time, move Is it mandatory for the court to have a hearing on a motion
with supporting affidavits, depositions or admissions for for summary judgement?
summary judgement in his or her favor as to all or any part NO. The code provides that “unless the court orders the conduct
thereof. of a hearing?
There are some instances under the ROC where there are Which judge should render the judgement?
interlocutory orders that you cannot assail by certiorari because The judge of the court wherein the case was filed.
it is expressly prohibited.
The RTC Makati Judge is the one who heard the case, he
NOTE: A petition for review under Rule 45 is the proper mode of was transferred to RTC Pasig. While in RTC Pasig can he
redress to question only final judgements. render judgement on the case he heard in RTC Makati? NO.
Why can you not appeal an interlocutory order? When a judge is transferred to another court of equal
Permitting appeals of interlocutory order may result in jurisdiction, he loses jurisdiction over all the cases of the Court.
multiplicity of appeals in a single action, thus prolonging the
action. That is why as a general rule an interlocutory order If the Makati Judge was not transferred but instead, he
cannot be appealed. RETIRED, and he was doing nothing. Can he render
judgement on cases he heard before his retirement, can he
EXAMPLES OF INTERLOCUTORY ORDERS CANNOT BE do that during retirement?
ASSAILED BY CERTIORARI NO. A decision penned by a judge after his retirement cannot be
When the rules or the law expressly prohibits the interlocutory validly promulgated and cannot acquire a binding effect. When a
order to be assailed in a petition for certiorari such as: (a) A judge retires, all his authority to decide any case ceases.
motion for judgement on the pleadings (b) A motion for
summary procedure. Branch 1: Judge Ang; Branch 2: Judge Andaya
It is the order of the court of the motion. If you file a motion for Judge Andaya took a leave of absence so there was no
a judgement on the pleadings or summary judgement, the judge in Branch 2. Judge Ang was appointed as acting
ruling of the court on that motion is the interlocutory order which judge of branch 2 RTC Makati. So, Judge Ang has two
separate and distinct from the judgement on the pleadings and courts. Subsequently, before rendering a judgement, Judge
the summary judgement. Valdez returned to branch 2. While Judge Ang went back to
Branch. While in RTC Makati Branch 1, can Judge Ang
When you file a motion to the court asking to render a render a decision for a case she heard in Branch 2 Makati?
judgement on the pleadings and the court grants the motion to
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YES. Because Judge Ang continues to be an RTC Makati Judge. The conclusion of the court. It constitutes the judgement of the
Whether the judge in Branch 1 or Branch 2, she is still a regional court.
trial court Makati Judge and there is only one court in the regional
trial court of Makati. The branches are only there for In case of conflict between the two which shall prevail?
administrative purposes. Whether she is in branch 1 or branch Dispositive Portion/ fallo
2, she remains to be a court of jurisdiction in Makati.
The part of the judgement that is subject to execution is the
• In case of a default of the defendant the defendant, after dispositive portion which constitutes the judgement of the court.
being declared in default, there can be a judgement on
default based on the allegations of the complaint, or the What is the reason?
court can require the reception of evidence to be delegated It rests on the theory that the fallo is the final order while the
to the clerk of court opinion in the body is merely a statement ordering nothing.
• Under Rule 18 if the plaintiff is absent or did not file a pretrial
brief the case can be dismissed which is another judgement Is there an exception where the ratio dicidendi prevail over
• If the defendant is absent, the case can be presented the dispositive judgement?
exparte If there are clerical errors. Where the inevitable conclusion from
• Under Rule 17, If there is a violation of the rules of court, or the body of the decision is so clear that there was a mere mistake
refusal to comply with the court order there can be in the dispositive portion, the decision will prevail
judgement of dismissal
AMENDED JUDGEMENT
In all of these instances, there is a judgement? An amended judgement is an entirely new decision which
supersedes or takes the place of the original decision.
JUDGEMENT ON A COMPROMISE
A judgement on the merits. In this case the parties will enter into REMEDIES TO AVAIL AN AMENDED JUDGEMENT
a compromise agreement and they will submit it to the court and • Appeal
the court will approve. After which, the ruling of the court will • Motion for reconsideration
contain the compromise agreement. Such that, the compromise • Motion for new trial
agreement will be the judgement of the court. • Petition from relief of judgement
• Petition for annulment of judgement
A judgement on a compromise is one rendered by the court on
the basis of a compromise of agreement entered into between Is an amendment judgement the same as a supplemental
the parties to the action. judgement?
NO. An amended judgement is an entirely new judgement
What is the nature of a judgement on a compromise? Is it replacing the original judgement. In a supplemental judgement
immediately executory? the original judgement is there but the Court only adds to the
It is final and immediately executory unless set aside because of original decision.
falsity or vices of consent.
CLARIFICATORY JUDGEMENT
What is your remedy? When the judgement is difficult to execute because of ambiguity
Since a judgement on compromise agreement is effectively a in the terms, a clarificatory judgement must be availed of for the
judgement on the case, the proper remedies against ordinary removal of the ambiguity in the judgement.
judgement may be used against judgements on a compromise
agreement. Accordingly: Does a clarificatory judgement alter the judgement? NO. The
(a) Motion for reconsideration court will only clarify the ambiguous terms in the judgement and
(b) Motion for new trial will not dwell on the merits of the case
(c) Appeal
(d) Petition for relief from judgment DOCTRINE OF IMMUTABILITY OF FINAL JUDGEMENT An
(e) Petition for certiorari immutability of judgement is the principle that once a judgement
(f) Petition for annulment of judgement. has become final and executory, the judgement may no longer
be modified in any respect, even if the modification is meant to
REMEDY FOR NON-COMPLIANCE: What if the other party correct what is perceived to be an erroneous conclusion of fact
refuses to comply with the terms of the judgement on the or law.
compromise, what is your remedy?
In the non-compliance of some of the parties with the terms of
the compromise agreement, the party may file a MOTION FOR
EXECUTION OF JUDGDEMENT. What is the reason behind the doctrine?
It is founded on considerations of public policy and sound
BODY OF THE JUDGEMENT/ RATIO DICIDENDI practice, that at risk of occasional errors, judgements shall
Explains how the court was able to reach the conclusion of their become final at some point in time so that litigation comes to an
decision. end.
You are the plaintiff and receive the decision on January 1, How about judgement on default?
when your last day to file an appeal or motion for YES
reconsideration?
January 16 EXCEPTIONS TO THE IMMUTABILITY OF FINAL
JUDGEMENTS
The defendant received the decision on January 2, what is (1) Correction of clerical errors
the last day for the defendant to file an appeal or motion for (2) Nunc Pro Tunc entries in which case there is no prejudice
reconsideration? to any party
January 17 (3) Void Judgements
(4) Whenever circumstances transpire after the finality of the
On January 16 the plaintiff can still file an appeal or an MR? decision rendering its execution unjust and inequitable.
YES
What is nunc pro tunc judgement?
On January 17, can the plaintiff still file an appeal or an MR? A nunc pro tunc order is made to enter into the record an act
NO. previously done by the court, which had been omitted either
through inadvertence or mistake.
On January 17, can the defendant still file an appeal or an
MR? A nunc pro tunc judgement does not prejudice the parties
YES why?
It does not create any rights of the parties that is different from
NOTE: You count the 15 days from the date of receipt. The date what is ruled upon. It only puts on record what has already been
of receipt is not always the same. In so far as the PLAINTIFF is done.
concerned, on January 17 the plaintiff can no longer file an
appeal or a motion for reconsideration. However, it does not DOCTRINE OF RES JUDICATA
mean that the decision is already final because on January 17 Res Judicata means that once a matter has been decided with
the decision can still be potentially changed if the defendant files finality by a court, the matter is conclusive as between the parties
an appeal or a motion for reconsideration. to the case and can no longer be relitigated.
It will only be final and executory if no one can file an appeal or The doctrine embraces two concepts:
a motion for reconsideration. (1) Bar by Prior Judgement
(2) Conclusiveness of judgement
So therefore, when does it become final and executory?
January 18. This is also the date of the entry of judgement. BAR BY PRIOR JUDGEMENT
The judgement or final order is with respect to the matter directly
So even if it is the defendant who won the case on January 17 it adjudged or as to any other matter that could have been raised
is still not final and executory because the defendant, even if he in relation thereto, conclusive between the parties and their
won, he can still appeal such as when he is not satisfied with the successors-in-interest by title subsequent to the commencement
decision. For example, if the defendant won and he was awarded of the action or special proceeding, litigating for the same thing
P500,000 but he is not satisfied, he can file an appeal. and under the same title, and in the same capacity (SECTION
47(b), RULE 39)
A MOTION FOR NEW TRIAL (MNT) must follow the following RULE 38 RELIEF FROM JUDGEMENTS, ORDERS, OR
conditions: OTHER PROCEEDINGS
• MOTION IS FRAUD, ACCIDENT, MISTAKE OR
EXECUSABLE NEGLIGENCE: It shall be supported by PETITION FOR RELIEF OF JUDGEMENT
affidavits of merits which may be rebutted by It is a remedy provided by law to any person against whom a
counteraffidavits decision or order is entered through fraud, accident, mistake or
• NEWLY DISCOVERED EVIDENCE: it shall be supported excusable negligence.
by affidavits of the witnesses by whom such evidence is
expected to be given, or by duly authenticated documents Where do you file a petition for relief of judgement? In the
which are proposed to be introduced in evidence. same court and in the same case where the judgement was
rendered.
In a MOTION FOR RECONSIDERATION the motion shall point
out specifically the findings or conclusions of the judgement or What is the period to file a petition for relief of a judgement?
final order which are not supported by evidence or which are It must filed within 60 days after the petitioner learns of the
contrary to law, making express reference to the testimonial or judgement, final order, or other proceeding to be set aside, and
documentary evidence or the provisions of law alleged to be not more than 6 months after such judgement or final order was
contrary to such findings or conclusions. entered, or such proceeding was taken.
You filed a motion for reconsideration, it was denied. Can What are the grounds for petition for relief from judgement?
you file second motion for reconsideration? NO. A second When a judgement or final order is entered, or any other
motion for reconsideration is prohibited. proceedings is thereafter taken against a party in any court
through fraud, accident, mistake or excusable negligence.
If a motion for new trial is denied, can you assail it by
certiorari? What kind of fraud?
NO. An order denying a motion for new trial or reconsideration is EXTRINSIC FRAUD
not appealable, the remedy being an appeal from judgement or
final order. Can you give me an example of an extrinsic fraud? When
one of the parties gave to the clerk the old address of the
What will you appeal? defendant knowing that he is no longer a resident of the place.
The decision itself that you are appealing.
Is a petition for relief from judgement an original action that
Is it indispensable to file a Motion for reconsideration (MR) requires a certification of forum shopping?
when you file an appeal? NO
NO. You can file either an MR or go straight to an appeal.
Should a petition from relief of judgement be verified?
Unlike in CERTIORARI, A motion for reconsideration (MR) as a YES, it must be verified.
general rule is indispensable because in certiorari you can avail
of it when there is no speedy, plain, adequate remedy under the
During the period to file an appeal or MR, can you file a
ordinary course of law.
petition of relief from judgement?
NO. Because in petition for relief there must be an entry of
If a motion for new trial is granted what is the effect? judgement or final
If a new trial is granted, the original judgement or final order shall
be vacated, and the action shall stand for trial de novo.
From the time a petition for relief from judgement, what
Accordingly, there will be a new trial.
happens next?
Order to file an Answer. If a petition is sufficient in forma and
Does that mean that all evidence previously presented will substance to justify relief, the court in which it is filed, shall issue
be dispensed with? an order requesting the adverse party to answer the same within
The recorded evidence taken upon the former trial, in so far as 15 days from receipt thereof.
the same is material and competent to establish the issues, shall
be used at the new trial without retaking the same.
• If after such hearing it finds that the allegations are NOT What is your remedy?
TRUE, the petition shall be DISMISSED. Preliminary Injunction. The court in which the petition is filed, may
• If it finds the allegations to be TRUE: it shall set aside the grant such preliminary injunction as may be necessary for the
judgement or final order or other proceeding complained of preservation of the rights of the parties.
upon such terms as may be just. Thereafter the case shall
stand as if such judgement, final order or other proceeding What must be filed?
have been rendered issued or taken. A preliminary injunction may be granted upon the filing by the
The court shall then proceed to hear and determine the case as petitioner of a bond in favor to the adverse party, conditioned that
if a timely motion for new trial or reconsideration had been if the petition is dismissed or the petitioner fails on trial of the
granted by it. case upon its merits, he will pay the adverse party all damages
and costs that may be awarded to him by reason of the issuance
NOTE: this is not always the case. Look at Section 2 of Rule 38, of such injunction or other proceedings following the petition.
it talks about one who is prevented from taking an appeal.
Is the filing of the application sufficient to suspend the
SCENARIO 1: For instance, Rania is the plaintiff and she won execution?
the case. The Defendant is Clarice. Rania when to the house of NO. The injunction must be issued. The remedy is to file it but
Clarice and pretends to be Clarice. Rania waits for the decision, you must obtain the injunctive relief. In the absence of the
so that she can pretend to be Clarice. So it is as if Clarice has no injunction the execution will continue.
notice of the decision such that she does not know that she lost
the case. Rania did this so that Clarice cannot file an appeal. Your remedy is to obtain an injunction to restrain the court from
This is an extrinsic fraud. executing the decision.
RULE 47 ANNULMENT OF JUDGEMENT OR FINAL
So, in this case, once Clarice learns of the decision provided that ORDERS AND RESOLUTIONS
it is within 6 months from the finality of the decision and 60 days
from the day she discovers, a petition for relief can be filed. She PETITION FOR ANNULMENT OF JUDGEMENT
will allege extrinsic fraud. It is a remedy granted only under exceptional circumstances
provided that petitioner has failed to avail himself of the ordinary
If the court finds after the answer, Clarice will be allowed to file or other appropriate remedies provided by law without fault on
an appeal. his part.
SCENARIO 2: if Rania issued fake decisions making it look like It is an original action, which is separate and distinct and
that the case is being reset so Clarice was not able to attend the independent of the case where the judgement is sought to be
hearing and she could not present evidence. Clarice was annulled is rendered.
deemed to have been waived. This is again an extrinsic fraud.
COVERAGE
In a petition for relief, Clarice can be allowed to adduce evidence Annulment by the Court of Appeals of judgement or final orders
in his behalf as if there is a motion for new trial. and resolutions in civil actions of the Regional Trial Courts (RTC)
for which ordinary remedies of new trial, appeal, petition for relief
SCENARIO 3: Clarice did not learn of the decision because or other appropriate remedies are no longer available through no
Rania prevented her from learning it. The period to file an fault of the petitioner.
appeal has lapsed. In this example, the period lapsed and
Clarice still filed a petition for relief alleging that she filed out of NOTE: this is only filed as a last resort when you do not have any
time because of extrinsic fraud. The appeal is denied for being other remedies that are available.
filed out of time.
GROUNDS FOR PETITION FOR
In SECTION 7, the appeal will be set aside and then the ANNULMENT OF JUDGEMENT
appeal will be allowed. The annulment may be based only on the grounds of extrinsic
fraud and lack of jurisdiction.
A decision becomes final and executory after the lapse of
the period to file an appeal such as 15 days or 30 days as Extrinsic fraud shall not be a valid ground if it was availed of, or
the case may be. If you file a petition for relief, it could have been availed of, in a motion for new trial or petition
presupposes that the decision is already final and for relief.
executory?
Can a court dismiss a petition for annulment of judgement However, where the judgement or final order or resolution is set
outright? aside on the ground of extrinsic fraud, the court may on motion
YES. If the court finds no substantial merit in the petition. When order the trial court to try the case as if a timely motion for new
it finds no reason or merits on the petition. trial has been granted therein.
If the court finds prima facie merit petition? RULE 39 EXECUTION, SATISFACTION, AND EFFECT OF
Give due course and serve summons. JUDGEMENTS
EXECUTION AS A MATTER RIGHT Examples of decision which are not final but are
Execution becomes a matter of right immediately executory.
1. On motion, upon a judgement or order that disposes of the • Judgements in actions for injunction, receivership,
action or proceeding upon the expiration of the period to accounting and support.
appeal therefrom if no appeal has been duly perfected • In cases of Unlawful Detainer
2. If the appeal has been duly perfected and finally resolved, • In cases of Forcibly Entry
the execution may forthwith be applied for in the court of
origin, on motion of the judgement oblige, submitting If it is immediately executory, do you still need to file a
therewith certified true copies of the judgement or motion for execution? Or it will already execute as a matter
judgements or final order or orders sought to be enforced of procedure?
and of the entry thereof, with notice to the adverse party. NO. It is still necessary to file a motion for a writ of execution.
The appellate court may, on motion in the same case, when
the interest so requires, direct the court of origin to issue a As a general rule, the appeal will stay the execution unless
writ of execution. (SECTION 1, RULE 39) it is immediately executory or you have an execution
pending an appeal. You need to revive a judgement when
When does a judgement become final? the period to execute which is five years from entry has
After the lapse of the reglementary period. lapsed, from the time that there is already an action for that
revival of judgement and it becomes final and executory.
Is it correct to say that execution can only happen when a Should we move to execute that revived judgement?
decision is final, executory and unappealable? Can we only YES
have an execution when the judgement is immutable? NO.
An execution can be made when the judgement or final order is Within what period?
pending on appeal known as discretionary execution. Within 5 years from the entry of the judgement.
How do you obtain execution what should you file? By motion but by independent action. The prevailing party should
By a motion file an action for revival of the judgement after 5 years but within
10 years from the date of its entry. When the judgement has
Within what period? been has been revived, the prevailing party can then enforce it
The parties should file a motion within 5 years from the entry of by motion within 6 years from the date of entry of
the judgement. the revived judgement. (SECTION 6)
If you fail to do so, what will happen? You failed again to execute, another 5 year period lapses
and you did not execute. Can you revive the revived
Where do you file your REVIVAL OF JUDGEMENT? judgement?
The RTC has original and exclusive jurisdiction. A revival of Yes. The revived judgement mat also be enforced by motion
judgement is an action incapable of pecuniary estimation. within 5 years from the date of entry and thereafter by action
before it is barred by the statute of limitations.
DISCRETIONARY EXECUTION
The execution, ordered by the court in its discretion, of a There is an appeal that is filed. So, there is an execution
judgement or final order during the pendency of an appeal. pending an appeal. You are the losing party, what is your
REQUIREMENTS remedy to stop the execution pending on appeal?
• Motion of the prevailing party with notice to the adverse Discretionary execution may be stayed upon the filing of a
party SUPERSEDEAS BOND that is conditioned upon the
• Upon good reasons to be stated in the special order after performance of the judgement or order allowed to be executed
due hearing. in case it shall be finally sustained in whole or in part.
REMEDY SPECIFIC TO FORCIBLE ENTRY OR UNLAWFUL
When does it take place? DETAINER
Pending appeal
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If the judgement is one for forcibly entry or unlawful detainer, it is In wills and successions, no properties will pass unless the will
immediately executory even if you appeal it. So your remedy is has been admitted for probate. That means you cannot move to
to file supersedeas bond after you perfect the appeal but execute in your case because it will affect the property of the
additionally you need to pay monthly deposit of the amount deceased. The court that has jurisdiction over the property of the
adjudged. deceased is the court where the settlement is pending. Either by
(1) testate or (2) intestate.
Let us say that it is an unlawful detainer and you are liable to pay
unpaid rentals. The amount is in the contract. But if the amount In settlement, the properties will be distributed to the heirs after
is not in the contract, the court adjudges an amount for collation. But before that happens you need to pay for the
reasonable use and enjoyment of the premises. obligations of the estate. So, what you need to do is that:
Whether the death happens before or after the decision the point
So, in addition to the supersedeas bond, the amount in the order here is you can only enforce it by bringing the judgement and file
or judgement must be deposited to the court. it to the settlement court to claim the amount of the estate and
then the preference of credit will apply
IF YOU FAIL TO DEPOSIT, the other party can already move for
execution. Is there an instance, after the death of the judgement debtor
you can still execute in the case?
Is there a judgement that becomes final and executory that As long as there is already a levy on the property and there is a
cannot be executed? death, it will continue to the auction of sale.
• When subsequent facts occur which render execution
impossible, unjust or inequitable The reckoning point whether or not you will file it with the
• Where the judgement has been novated by the parties settlement case or proceed in execution in the original case, is
• Where the judgement obligor has complied with the whether or not it has been levied upon.
judgement
• Where a temporary restraining order or preliminary So, if you are the creditor, you must immediately make a levy on
injunction is issued by the proper court in a petition for relief the property.
or annulment of judgement
• When there is a compromise agreement The decision is appealed to the Court of Appeals and from
the CA to the Supreme Court. The SC affirmed the decision,
Rule 63 of the ROC. In action for declatory relief, in a declaratory where will the execution happen? The SC? CA? or in the
relief the court only declares the rights of the parties. The Court Court of Origin?
in an instrument interprets the rights of the parties. The The Court of Origin. The Supreme Court should forward the case
judgement there is only a declaration of rights. in the Court of origin.
You use it for vagueness in a contract or reformation of a A writ of execution is issued what should the sheriff do? If
contract. You will not execute anything because the judgement it is a money claim?
declares the rights. There is nothing to execute in that. MONEY CLAIM – immediate payment on demand from the
judgement obligor of the full amount in the writ of execution and
The judgement was executed pending appeal. On appeal the all lawful fees. The judgement obligor shall pay in cash, certified
judgement was reversed, what will happen? bank checks payable to the judgement obligee or any amount of
Where the executed judgement is reversed totally or partially or the judgement acceptable to the latter, the amount of the
annulled, on appeal or otherwise, the trial court may, on motion, judgement debt under the proper receipt directly to the
issue orders of restitution or reparation of damages as equity judgement oblige or his authorized representative if present at
and justice may warrant under the circumstances. the time of the payment.
Within what period should you bring an action for revival of The debtor gives money to the sheriff, should the sheriff
judgement? deliver it already to the judgement creditor?
Within 10 years from the entry of judgement. The lawful feels shall be handed to the sheriff who in turn shall
hand over the said amount within the same day to the clerk of
NOTE: Within 5 years from the entry is for the execution. After 5 court that issued the writ.
years, the revival of the judgement. So, it has to be within 10
years. If the same is not practicable, the sheriff shall deposit the said
amounts to a fiduciary account in the nearest government
What happens if you won the case against X, who is a depository bank of the RTC of the locality.
debtor, the decision said you need to pay the defendant
P500,000. At the day he received it, the debtor died. Because The Clerk of Court shall then arrange for the remittance of the
he died, no body appealed. The decision become final and deposit to the account of the court that issued the writ whose
executory. Can you file it against a dead defendant? What is clerk of court shall deliver said payment of the judgement obligee
your remedy? in satisfaction of the judgement.
NO. You cannot file against a dead defendant. You file your
claims on the settlement of estate.
If payment is already made then in which case the court will What about bank deposits?
deduct from the amount the legal fees before it is transmitted to Yes. When you deposit with a bank, it is a mutuum or a contract
the judgement obligor. of loan. You as the depositor are the creditor because you are
How do you make a levy? delivering money to the bank, and the bank has the obligation
Levy shall be made by serving notice upon the person owing to return the money upon your demand such as when you
such debts or having in his possession or control such credits withdraw the money. The bank you deposited is the same
to which the judgement obligor is entitled. amount that they will return.
What may be levied on? Do you need to serve summons to bind that third person?
Both real and personal properties. The officer shall levy upon So that the court can have jurisdiction over the garnishee?
the properties of the judgement obligor of every kind and nature NO. Because by issuance of the order of garnishment, the
whatsoever which may be disposed of for value and not garnishee is already bound by the court and needs to comply.
otherwise exempt from execution.
Let us say that Mr. Kho is the debtor of the debtor, the
Can you levy all at once? amount that is payable to the judgement debtor or the
Levy only the amount sufficient to cover the amount stated in the amount you owe is deemed garnished. The Court ordered
judgement. you to keep it safe and not for it to be released. However,
Ms. Andaya, your creditor, is already demanding for the
Can the debtor choose which property to levy on? The payment but Mr. Kho refused because he wants to follow
judgement obligor is given the option to immediately choose the order of the Court. Can he be held liable to Ms. Andaya
which property or part thereof may be levied upon, sufficient to for your refusal to pay?
satisfy the judgement. NO
If he does not choose, which one will be levied on first? If If the judgement involves a conveyance of property. Let us
the judgement obligor does not exercise the option, the officer say the title should be transferred in the name of Ms.
shall first levy on the personal properties, if any, and then on Panandigan. So, there should be a deed of conveyance to
the real properties if the personal properties are insufficient to effect the transfer of her name. But the judgement debtor
answer the judgement. despite the issuance of the writ of execution refuses to
comply, what can be the remedy?
When there is levy, the property is attached. Is the levy the The court in lieu of directing a conveyance thereof may by an
same as a garnishment? order divest the title of any party and vest it in others, which shall
NO. A levy creates a lien over the property to secure the have the force and effect of a conveyance executed in due form
satisfaction of the debt. of law.
In garnishment a third person having possession or control of The Court will issue an order divesting one of the properties and
the credits is asked whether the judgement obligor has vesting it to the one entitled to it and it shall have an effect as if
sufficient funds to satisfy the judgement. The credits that the there is a conveyance.
third person has control over shall be used for the satisfaction
of judgement. There is an action for forcible entry. The Court ruled that the
one in possession has no right to possess it and must
What can be the subject of garnishment? vacate the premises. He refuses to vacate. Contempt cannot
• Bank deposits lie because the writ is directed against the sheriff. What is
• Financial interest the remedy?
• Royalties He may avail the assistance of the police officer. The sheriff shall
• Commissions oust all such persons therefrom with the assistance, if necessary,
• Other personal property not capable of manual delivery in of appropriate peace officers and employing such means as may
the possession or control of third parties be reasonably necessary to retake possession, and place the
judgement oblige in possession of such property.
Ms. Villena is judgement debtor and last year Mr. Suarez (SECTION 10, (c))
borrowed in the amount of P1 million. The loan is already
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There are structures on that property and the order says that This is because you want to have a lot of bidders because it will
you must vacate the premises free of structures, can you increase the price.
already demolish the property?
NO. the officer shall not destroy, demolish or remove said In Sales, even if the bid is not that high it is not a void sale. This
improvements except upon special order of the court, issued is because it is in favor of the judgement debtor. If the price is
upon motion of the judgement oblige after due hearing and after not that high, so if the value for example the property is worth P5
the former has failed to remove the same within a reasonable million but it is only sold for P500,000, it is for the benefit of the
time fixed by law. judgement debtor. Because the price he needs to pay for
redemption is only P500,000.
What will the court issues?
A Writ of Demolition What is your remedy so you will not lose your property in an
auction sale? You may pay the amount.
The property has been levied upon; the next step is to sell.
Is it a private or public sale? Can all property be subject of an execution?
Public Sale NO. Except as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:
Before you can have valid sale, what is required? Before the
sale of property on execution, notice thereof must be given as (a) The judgement obligor’s family home as provided by law, or
follows: the homestead in which he resides and land necessarily
• PERISHABLE PROPERTY – posting a notice of the time used in connection therewith – note in Urban Area to the
and place of the sale in 3 public places, preferably in extent of P300,000 and in Rural Area to the extend to
conspicuous areas of municipal or city hall, post office and P200,000
public market in the municipality or city where the sale is to (b) Ordinary tools and implements personally used by him in his
take place, for such time as may be reasonable, considering trade, employment, or livelihood;
the character and condition of the property. (c) Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgement obligor may select
• PERSONAL PROPERTY – by posting a similar notice in the necessarily used by him in his ordinary occupation
three public places above mentioned for not less than 5 (d) His necessary clothing and articles for personal use,
days excluding jewelry;
(e) Household furniture and utensils necessary for
• REAL PROPERTY – by posting for 20 days in 3 public housekeeping, and used for the purpose by the judgement
places a similar notice particularly describing the property obligor and his family, such as the judgement obligor may
and stating where the property is to be sold, and if the select of a value not exceeding one hundred thousand
assessed value of the property EXCEED P50,000 by persons;
publishing a copy of the notice once a week for two (f) Provisions for individual or family use sufficient for four
consecutive weeks in one newspaper selected by raffle, months;
whether in English or Filipino, or any major regional (g) The professional libraries and equipment’s of judges,
language published, edited and circulated or, in the absence lawyers, physicians, pharmacists, dentists, engineers,
thereof, having general circulation in the province or city. surveyors, clergymen, teachers and other professions, not
exceeding three hundred thousand pesos in value
How do you effect the notice? (h) One fishing boat and accessories not exceeding the total
Posting and publication if the assessed value is more than value of one hundred thousand pesos owned by a fisherman
P50,000 for real property and by the lawful use of which he earns his livelihood
(i) So much of the salaries, wages, or earnings of the
For movable property, by posting. judgement obligor for his personal services within the four
months preceding the levy as are necessary for the support
The notice shall specify the following the place, Date, Exact time of his family;
of the sale which shall not be earlier than 9 o’clock in the morning (j) Lettered gravestones;
and not later 2 o’clock in the afternoon. The place of the sale (k) Monies, benefits, privileges, or annuities accruing or in any
may be agreed upon by manner growing out of any life insurance
(l) The right to receive legal support, or money or property
Can the creditor participate in the auction? obtained as such support, or any pension or gratuity from
YES the Government
(m) Properties specially exempted by law.
Is there an instance when the creditor cannot participate in
the auction? But no article or species of property mentioned shall be exempt
from execution issued upon a judgement recovered for its price
What is the purpose of the posting or publication of the or upon judgement of foreclosure of a mortgage thereon.
notice, as the case may be, of the auction sale? So that third
persons or others persons that have an interest over the If there is no notice of the sale of the execution, what is the
properties may be informed of the auction sale. effect?
If there is notice of the sale the sale is void.
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What is the remedy of the movant, the one who won the
In courts there is a bulletin board which provides for the sale of case, so that execution shall proceed? How will he fight the
the properties. People just go to court to check what properties tercira? He should post a bond.
they can buy.
When is the period to redeem a property sold in an action?
The property was sold in the auction. However, the highest It must be within 1 year from the time of the judgement.
bidder did not pay, what will happen?
If the purchaser refuses to pay, the officer may again sell the Is there an exception?
property to the highest bidder. Yes. When the property so redeemed is redeemed again. It must
be redeemed within 60 days after the last redemption upon
So, every time that the highest bidder will not pay, another payment of the sum paid on the last redemption.
auction will be made.
Who may redeem the property?
REFUSAL OF PURCHASER TO PAY • Judgement obligor or his successor in interest in the whole
If a purchaser refuses to pay the amount bid by him for property or any part of the property
struck off to him at a sale under execution, the officer may again • A creditor having a lien by virtue of an attachment
sell the property to the highest bidder and shall not be judgement or mortgage on the property sold, or on some
responsible for any loss occasioned thereby; but the court may part thereof, subsequent to the lien under which the property
order the refusing purchaser to pay the court the amount of such was sold. (SECTION 27)
loss, with costs, and may punish him for contempt if he disobeys
the order. The amount of such payment shall be for the benefit These are what we called junior encumbrancers.
entitled to the proceeds of the execution unless the execution
has been fully satisfied, in which even such proceeds shall be for If the junior encumbrancer will redeem the property, what
the benefit of the judgement obligor. The officer may thereafter should be paid?
reject any subsequent bid of such purchaser who refuses to pay. The purchase price or the amount of his purchase with 1% per
(SECTION 20) month interest thereon and the other costs incurred for the
redemption.
CONTENTS OF CERTIFICATE OF SALE After the redemption of a junior encumbrancers, can
Upon the sale of real property, the officer must give to the another creditor redeem it?
purchaser a certificate of sale containing: YES. Provided that it is done within the period 60 days from the
• A particular description of the real property sold; last redemption.
• The price paid for each distinct lot or parcel
• The whole price paid by him What should the subsequent redemptioner pay?
• A statement that the right of redemption expires one (1) The sum paid on the last redemption plus the costs and interest.
year from the date of the registration of the certificate of
sale What if the first redemptioner is the judgement debtor, can
Such certificate must be registered in the registry of deeds of the a junior encumbrancer redeem after the judgement debtor
place where the property is located. redeems?
NO. once the judgement debtor redeems the property, no other
If there is a third-party claimant it should also mention that there redemptions may be made.
is a third party claimant claiming.
During the period of redemption, will the title already be
The third person is claiming to be the owner of the property transferred in the name of the highest bidder? NO. The
subject of the execution. What is the remedy of a third highest bidder must wait for the period of redemption to lapse
person? before it can be transferred in his name.
When a third person makes an affidavit of his title thereto or right
to possession thereof, stating the grounds of such right or title The fruits that grew during the period of redemption, to
and serves the same upon the officer making the levy and a copy whom will it pertain? Highest bidder or the judgement
thereof upon the judgement oblige, the officer shall be bound to debtor who redeems the property?
keep the property, unless such judgement obligee, on demand The judgement debtor, because he does not lose his right over
of the officer the property.
• Files a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of Why is it other creditors or junior encumbrancers may
the property levied on. redeem the property?
• In case of disagreement on the value, the same shall Because they have an interest in such property.
be determined by the court issuing the writ of execution.
In order to effect a redemption what should be presented? A
No claim for damages for the taking or keeping of the property redemptioner must produce to the officer, or person from whom
may be enforced against the bond unless the action thereof is he seeks to redeem, and serve with his notice to the officer a
filed within 120 days from the date of the filing of the bond. copy of the judgement or final order under which he claims the
right of redeem certified by the clerk of court wherein the
judgement or final order was entered.
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If he redeems upon a MORTGAGE OR OTHER LIEN, a EFFECT OF FOREIGN JUDGEMENT
memorandum of the record thereof, certified by the registrar of The effect of a judgement or final order of a tribunal of a foreign
deeds; or an original or certified copy of any assignment country, having jurisdiction to render the judgement or final order
necessary to establish his claim, and in the affidavit executed by is as follows
him or his agent, showing the amount then actually due on the
lien. • SPECIFIC THING the judgement or final order is conclusive
upon the title of the thing
The judgement creditor learned that the judgement debtor • AGAINST A PERSON, the judgement or final order is
was already trying to come up with the funds needed to presumptive evidence of a right as between the parties and
redeem the property. So the judgement creditor, started their successors in interest by a subsequent title.
burning the trees and plants on that property. What is your
remedy? How do you repel a foreign judgement? On what grounds?
Until the expiration of the time allowed for redemption, the court • Evidence of want of jurisdiction
may, as in other proper cases, restrain the commission of waste • Want of notice of the party
on the property by injunction, on the application of the purchaser • Collusion
or the judgement oblige, with or without notice, but is not waste • Fraud
for a person in possession of the property at the time of the sale, • Clear mistake of law or fact
or entitled to possession afterwards, during the period allowed •
for redemption, to continue to use it in the same manner in which
CASE:
it was previously used; or to use it in the ordinary course of
Can the right of redemption be a subject of garnishment or
husbandry; or to make the necessary repairs to the buildings
attachment?
thereon while he occupies the property.
You cannot because if you garnish a right of redemption then you
will deprive the debtor a right to redeem. If there is a garnish on
What writ will they obtain? the right of redemption he can no longer exercise the right. It will
Writ of Injunction. automatically go to the creditor.
When should a sheriff make a return? If there is a property claimed by a terciria and he filed an
Immediately after the judgement has been satisfied in part or in affidavit but the winner of the case filed a bond so it was
full. If the judgement cannot be satisfied in ful within 30 days after sold in auction. What is your remedy?
receipt of the writ, the officer shall report to the court and state
the reason therefor. Such writ shall continue in effect during the
What constitutes the factors of the redemption price?
period within which judgement may be enforced by motion.
Interest counted until when?
The officer shall make a report to the court every 30 days on the
proceedings taken thereon until judgement is satisfied in full, or
Let us say that you are getting married. Both of you applied
effectively expires. The returns or periodic reports shall set forth
for a marriage license, there was posting in accordance with
the whole of the proceedings taken, and shall be filed with the
law. After the period of posting, the marriage license should
court and copies thereon promptly furnished the parties.
already been issued. However, the local civil registrar
appears to be the ex-girlfriend, she refuses to issue that
Where should the return be filed?
marriage license. What is the nature of the issuance of the
To the Court issuing it.
marriage license when all the requirements are present
already?
What if the property was sold in an auction where the It is ministerial on the part of the ex-girlfriend. She cannot
creditor is the highest bidder. Should the creditor pay the exercise discretion.
amount to the sheriff?
YES
Because it is ministerial, to compel her to issue that
marriage license, you brought an action for petition for
There is partial execution. The obligation dues is P1M. But mandamus and judgement was rendered against her. You
one of the real property valued at P2M was levied and sold move for execution, but she still refuses to execute the
in an auction for P200,000. What will happen next since the license. What is the effect of her refusal. What kind of
judgement is not satisfied? Should you file a new case? You judgement is this in so far as the subject of execution? What
want to continue with the execution in so far as levying other is the nature of the judgement?
properties. Because the rules provide that you will levy as much Special Judgement. In this instance, the remedy is contempt
as needed in order to cover for the obligation. because it does not fall under any of the classes of judgement
under Rule 39.
The examination will only take place if you do not know whether
there are properties. So, the court may call on third persons or What is a remedy of a third-party claimant in order for him
judgement debtors. to recover title over a property which he claims to be his but
which has been subject of execution?
What is the effect if they do not appear?
Contempt
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File a separate action for the determination of the rights of the DO NOT CONFUSE EXECUTION WITH APPEAL
parties. There can be execution even during the pendency of an appeal.
Under MTC jurisdiction, there are also cases that fall under
ordinary procedure. Summary procedure and ordinary
procedure under MTC may be subject of an appeal,
APPEALS
regardless of whether the decision is immediately executory
What is an appeal?
or not.
An appeal is a proceeding by which a party seeks from a higher
• A ruling on the merits can be a dismissal or a grant of the
court the review of a judgment or final order of a lower court on
complaint.
the ground that the judgment or final order is against the
• A judgment is one that finally disposes of a case. Even if
evidence or the law.
your complaint is dismissed, that is still a judgment.
• There are some dismissals that are with prejudice or without
RULE 40 ORDINARY APPEAL FROM MTC TO RTC prejudice. o WITH PREJUDICE: you cannot refile it
anymore.
Rule 40 is the appeal for the first time in the RTC from MTC o WITHOUT PREJUDICE: you can refile it.
judgments rendered in its original jurisdiction. However, • REGARDLESS OF WHETHER DISMISSAL IS WITH
remember that NOT ALL judgments from the MTC may be PREJUDICE OR NOT, THAT IS STILL A JUDGMENT OR
subject of an appeal. A FINAL RULING. IT IS STILL A DISMISSAL. Meaning,
refiling is a remedy against your dismissal WITHOUT
MTC – SMALL CLAIMS prejudice.
Decisions are immediately final and executory. It is o The fact that you can refile it does not make it an
UNAPPEALABLE. interlocutory order.
MOTION FOR RECONSIDERATION What are the two (2) ways to perfect an appeal from the MTC
MR IS A PROHIBITED MOTION. You do not need to file MR. to the RTC? (Rule 40, Sec. 2)
This is an exception to the rule that an MR is indispensable 1) File notice of appeal with the court of origin (MTC); or 2)
before you file a petition for certiorari. File notice of appeal with record on appeal.
REMEDY TO DECISIONS OF MTC IN SMALL CASE RIGHT When is there a record on appeal?
REMEDY: PETITION FOR CERTIORARI (RULE 65)
In special proceedings.
PROVIDED THERE IS GADALEJ.
What are special proceedings?
When you avail of Rule 65, two requirements are:
Settlement of estate, etc.
(1) When there is GADALEJ, and that
(2) there is no appeal, or any plain, speedy,
To perfect your appeal, is it limited to timely filing your
adequate remedy. Therefore, if an appeal is an available
notice of appeal?
remedy, even if the decision was rendered with GADALEJ, you
NO. Aside from filing your notice of appeal (or notice with record
cannot avail of certiorari.
on appeal), you also have to pay appeal and docket fees, and
PERIOD OF APPEAL LAPSED
costs.
If your period for appeal has lapsed, you cannot resort to
certiorari because you negligently failed to appeal on time. It was
Is the period within which to file an appeal extendible?
because of your own fault.
NO. It is inextendible. Rules 40 and 41 appeals are inextendible.
• CERTIORARI IS NOT A REMEDY FOR LOST
Why? Because it is NOT a matter of right. It is merely a statutory
APPEAL.
right. It means you have to comply with the rules that allow for
• Motion for Reconsideration is an example of a plain,
appeals. If you do not file within the prescribed period to appeal,
speedy, adequate remedy.
the decision becomes final and executory. Because a decision
• As opposed to an appeal, an MR or motion for new trial
becomes final after the lapse of the period within which to
(MNT) is not indispensible before you appeal a case.
appeal. The doctrine of immutability of judgment then attaches.
Meaning, you cannot alter the decision anymore. You cannot
NOTE: You can either file an MR or an MNT. Or instead of filing appeal anymore, or if you did, it will be dismissed.
both motions, you can go straight to filing an appeal.
NOTE: Rules 42 to 45 appeals are extendible.
MTC SUMMARY PROCEDURE
Whether immediately executory or not and ordinary procedure. When is an appeal perfected?
Forcible entry and unlawful detainer cases are immediately
Timely filing of Notice of Appeal
executory.
MATERIAL DATE RULE
Even if some cases in summary procedure are immediately
The material date should be alleged. It is applicable not only in
executory, the rules do not provide that they are NOT
Rule 40, but also in Rules 41, 42, 43, 45. This allows the court to
appealable. Meaning, they can be appealed.
NOTE: SUNLIFE DOCTRINE: Even if not paid at the time of filing NOTE: In special proceedings we have multiple appeals so that
of Notice of Appeal, you are given reasonable time to pay, every issue that is appealable, you can assail the subject matter
provided that it is paid within the period to perfect appeal. of that specific issue and the rest of the issues in the case will
Otherwise, the decision becomes final and executory. proceed.
TIME FOR FILING IS INEXTENDIBLE because appeal is only NOTE: The record on appeal is subject to the court’s approval.
statutory. The other party can object to your filing of a notice of appeal with
• FILING OF NOTICE OF APPEAL CANNOT BE record on appeal within 5 days. If they do not object, the court
EXTENDED. can approve it as presented on the appeal. But if the adverse
• FILING OF PETITIONS CAN BE EXTENDED. (See Rule party objects to the record on appeal, the court, on that motion
45) or upon its own motion, may order you to amend your record on
appeal.
EFFECT OF FAILURE TO COMPLY
Denial of appeal What is the period?
Period depends on the court’s order. If there is no period in the
order, within ten (10) days.
WHEN IS THE PERIOD INTERRUPTED?
By the timely filing of an MR or MNT
Can the period be subject to an extension?
YES, if the court allows for it.
Neypes doctrine: If you filed MR from 14th day from receipt of
decision, if MR is denied, you have a fresh period of 15 days (or
30 days as the case may be) to file appeal. Also applicable in NOTE: Once you perfect an appeal, the court of origin loses
criminal cases. jurisdiction over the subject matter. But with regard to notice of
appeal with record on appeal: The court loses jurisdiction only
over the subject matter thereof. This is because in record of
What is the period for perfecting an appeal?
appeal, it is not the whole case that is subject of an appeal; only
It depends on whether it is under ordinary procedure or special
an aspect of a case is being appealed.
proceedings. If it is ordinary procedure, within 15 days from
notice of the decision. If record on appeal is required (in special
proceedings), then within 30 days from notice of the decision. RESIDUAL JURISDICTION OF THE COURT (Rule 41, Sec. 9,
After the lapse of 15 days or 30 days within you perfecting your last par.)
appeal, the decision becomes final and executory. What is the residual jurisdiction of the court?
“Once the appeal is perfected, the court of origin loses
PARTIES jurisdiction.” But that is not entirely accurate. There is a residual
Who are the parties to an appeal? jurisdiction of the court (of origin). This takes place after the
appeal is perfected, but before the records are transmitted to the
The appellant and the appellee.
appellate court. The records are still with the court of origin.
If the original case is A (plaintiff) v. B (defendant), and B appeals,
What do you need the residual jurisdiction for? Say, if after
the only thing that will happen is that the designation will be
you perfect the appeal, you want to file a motion for the
changed: A will be your plaintiff-appellee, B is
defendantappellant. It will still be A v. B. court to execute pending appeal, where will you file your
motion?
It depends. If the records are still with the court of origin, you file
What is a record on appeal?
it with the court of origin because the court of origin still has
We have special proceedings where we can have multiple
residual jurisdiction, notwithstanding the perfection of the appeal.
appeals. In the record of appeal, you will provide the record.
But if after perfection of the appeal and the records are
Because the record in special proceedings will remain with the
transferred to the appellate court, then you file it with the
court where the case is pending.
appellate court because the court of origin loses all of its
jurisdiction, including the residual jurisdiction.
Example:
There is a will executed by the testator. He died. The first thing
NOTE: This also happens in criminal cases.
to do is to submit the will to probate in order to transfer the
What should you allege in your appellant’s memorandum? RULE 41 APPEAL FROM RTC (ORIGINAL JURISDICTION)
You should assign all the errors that you impute in the lower TO CA
court.
What cases cannot be appealed?
NOTE: Appellate court will not rule on matters that you will not Rule 4, Sec. 1 provides which cases cannot be appealed:
assail in the memorandum. Only the matters assailed as an error a) An order denying a motion for new trial or
will be subject of review. reconsideration;
Criminal case: it opens the b) An order denying a petition for relief or any similar
entire case for review. motion seeking relief from judgment;
Civil case: only the assigned errors are subject of c) An interlocutory order;
review. d) An order disallowing or dismissing an appeal;
e) An order denying a motion to set aside a judgment by
NOTE: You cannot raise matters for the first time on appeal. But consent, confession or compromise on the ground of
this rule is subject to exceptions: fraud, mistake or duress, or any other ground vitiating
When there are already admissions of facts or consent;
stipulations of facts; f) An order of execution;
When there is already judicial admission or judicial g) A judgment or final order for or against one or mor of
notice. These matters do not require the reception of several parties or in separate claims, counterclaims,
evidence. cross-claims and third-party complaints, while the main
case is pending, unless the court allows an appeal
What happens if the appellant fails to file a memorandum? therefrom; and
The appeal will be dismissed. This is considered a waiver of the h) An order dismissing an action without prejudice.
appeal on the part of the appellant. This only applies to the
appellant. In subsection (e), if there is a judgement in a compromise, it is
IMMEDIATELY EXECUTORY. Based on Rule 41, you cannot
NOTE: You can liken this rule to Rule 17, where the case will be appeal it.
dismissed if the plaintiff does not comply with the rules.
What are your remedies against a judgment on a
APPELLEE’S MEMORANDUM compromise?
What happens after the filing of appellant’s memorandum? NOTE: If there is refusal to comply with the terms of the judgment
The appellee should file a memorandum within 15 days from on a compromise, DO NOT INVOKE THE CIVIL CODE. In the
receipt of the appellant’s memorandum. Civil Code provisions on the Katarangang
Barangay, the rule that you will consider it rescinded only applies
if it is a plain compromise agreement that was not submitted to
the court for its approval. But what we are talking about here is a
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compromise agreement that has already been approved by the papers) shall be written in single space with a 1.5 space between
court. It is not a mere contract. It is in the nature of a decision of paragraphs, using an easily readable font style of the party’s
the court, and in fact the doctrine of immutability of judgment choice, of 14-size font, and on a 13-inch by 8.5-inch white bond
applies. THE RIGHT REMEDY IS NOT TO CONSIDER IT paper.
RESCINDED.
You have three (3) remedies: AS TO MARGINS AND PRINTS:
1) If there is refusal to comply with the terms of the The parties shall maintain the following margins on all
judgment on a compromise, MOVE FOR EXECUTION. courtbound papers: Left-hand margin: 1.5 inch
2) If you entered into the compromise on the ground of Upper margin: 1.2 inch
fraud, mistake, duress, or any way that your consent Right-hand margin: 1.0 inch
was vitiated, you MOVE TO SET ASIDE. But a denial Lower margin: 1.0 inch
of a motion to set aside (a motion denying it) cannot be
a subject of an appeal. AS TO COPIES TO BE FILED
3) For a motion denying your motion to set aside, your Unless otherwise directed by the court, the number of
remedy is CERTIORARI UNDER RULE 65, courtbound papers that a party is required or desires to file shall
PROVIDED THERE IS GADALEJ. be as follows:
1) In the SC — 1 original (properly marked) + 4 copies,
NOTE: If it was just a mere error on your part (i.e. you did not unless the case is referred to the SC En Banc, whereby
want to enter into a compromise agreement), there is no more the parties shall file 10 additional copies.
remedy. a. For En Banc, the parties need to submit only
2 sets of annexes: 1 attached to the original, 1
What is the test to know if one is an interlocutory order? extra copy.
Whether or not it leaves something to be done. If it finally b. For the Division, the parties need to submit
disposes of a case, then it is not an interlocutory order. also 2 sets of annexes: 1 attached to the
original, 1 extra copy.
NOTE: PERFECTION OF APPEAL: Rules in Rule 40 applies 2) In the CA and SB — 1 original (properly marked) + 2
here. copies with annexes.
Residual jurisdiction is the same. The fresh period rule also 3) In the CTA — 1 original (properly marked) + 2 copies
applies. with annexes.
a. On appeal to CTA En Banc, 1 original
After you perfect your appeal, the records will be submitted. (properly marked) + 8 copies with annexes.
If it is incomplete, what should the clerk of court do? If it is 4) In other courts — 1 original (properly marked) with the
incomplete, the clerk of court must make known in the transmittal stated annexes attached to it.
that it is not complete. Does it really happen? Yes, because
sometimes the transcript of stenographic notes (records of the As a rule, the records should be complete. What can be done
proceeding) are not completed on time. Sometimes they get if they are not complete?
destroyed. You have to allege when the records are not The clerk of court will make a recommendation to the court to
complete. complete the records.
If the record on appeal is not transmitted within 30 days from How will the court complete the records?
perfection, what should be done? It depends. If what is missing are the transcripts, the court will
Either party may, upon motion and notice to the other party, ask direct it from the court of origin. If there is lack of copy of certain
(the trial court) that the record on appeal be transmitted. Once it exhibits, the court can require any of the parties to produce the
is transmitted, the CA will now have jurisdiction. certified true copies.
Once the records are received, what happens? NOTE: On a record on appeal and then you are required to
From receipt of the records, there will be a docketing of the case. amend. And after you transmit it, you make unauthorized
(CA-GR. No. xxxxxx) changes: that is a ground for dismissal.
NOTE: From Rule 41 in relation to Rule 44, Rules 43, 45, 42, Is it possible that the CA dispense with the requirement of
apply Efficient Use of Paper Rule for the appellant’s and complete records?
appellee’s briefs. For example: CA division — 3 copies: 1 YES. The CA can, on motion or motu proprio, dispense with the
originally marked + 2 duplicate copies; SC division — 5 copies: requirement of complete records.
1 originally marked + 4 duplicate copies.
EFFICIENT USE OF PAPER RULE In what instances?
If the completion cannot be accomplished within a sufficient
What are the relevant provisions of the Efficient Use of period due to extreme, insuperable or difficult cases.
Paper Rule?
NOTE: In RULE 40, what you will file is a MEMORANDUM OF
AS TO FORMAT AND STYLE: APPEAL.
All pleadings, motions, and similar papers intended for the court In RULE 41, what you will file is an APPELLANT’S BRIEF.
and quasi-judicial body’s consideration and action (court-bound
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What should be alleged in the memorandum of appeal?
All the assigned errors. What is your remedy if your appeal from the RTC contains
only pure question of law?
APPELLANT’S BRIEF Disregard the hierarchy of courts. Go to the SC with petition for
What should be alleged in your appellant’s brief? (Rule 44, review under Rule 45. The jurisdiction of the SC under Rule 45
Section 13) The appellant’s brief shall contain, in the order is to review cases that have pure questions of law.
herein indicated, the following:
a) A subject index of the matter in the brief with a digest of NOTE: Before you file your appellee’s brief, please take note of
the arguments and page references, and a table of the summary of the rules on dismissal in relation to the
cases alphabetically arranged, textbooks and statutes appellant’s brief. The following are grounds for dismissal of
cited with references to the pages where they are cited; appeal:
b) An assignment of errors intended to be urged, which Failure to serve 2 copies of appellant’s brief to the
errors shall be separately, distinctly and concisely adverse party
stated without repetition and numbered consecutively; Failure to comply with stating of assigned errors and
c) Under the heading “Statement of the Case,” a clear and reference to the records
concise statement of the nature of the action, a Failure to file appellant’s brief
summary of the proceedings, the appealed rulings and
orders of the court, the nature of the judgment and any In assailing an MTC small claims judgment, your remedy is
other matters necessary to an understanding of the a petition for certiorari. You file it with the RTC. Once you
nature of the controversy, with page references to the file it with the RTC, that is an original action. What is your
record; remedy when the RTC renders judgment on your petition for
d) Under the heading “Statement of Facts,” a clear and certiorari?
concise statement in a narrative form of the facts Rule 41. Since certiorari is an original action filed with the RTC
admitted by both parties and of those in controversy, and the RTC rendered judgment in its original jurisdiction (in that
together with the substance of the proof relating thereto certiorari case), the proper remedy is by filing a notice of appeal
in sufficient detail to make it clearly intelligible, with under Rule 41.
page references to the record;
e) A clear and concise statement of the issues of fact or NOTE: But take note that under Rule 44, IF WHAT IS
law to be submitted to the court for its judgments; APPEALED IS A DECISION IN CERTIORARI, PROHIBITON,
f) Under the heading “Argument,” the appellant’s MANDAMUS, QUO WARRANTO, OR HABEAS CORPUS:
arguments on each assignment of error with page Instead of filing an appellant’s brief, you should file a
references to the record. The authorities relied upon memorandum. And the period of thirty (30 days) is
sall be cited by the page of the report at which the case INEXTENDIBLE.
begins and the page of the report on which the citation
is found; *Appellant’s brief: 45 days (extendible)
g) Under the heading “Relief,” a specification of the order Memorandum: 30 days (inextendible)
or judgment which the appellant seeks; and
h) In cases not brought up by record on appeal, the GENERAL RULE: Not allowed to extend the period.
appellant’s brief shall contain, as an appendix, a copy EXCEPTION: For good and sufficient cause, and only if the
of the judgment or final order appealed from. motion for extension is filed before the expiration of the period.
NOTE: Apply Efficient Use of Paper Rule! NOT 7 COPIES, but APPELLEE’S BRIEF
rather: 3 copies to the CA division and 2 copies to the opposing What should be alleged in the appellee’s brief? (Rule 44,
parties. Sec. 14) The appellee’s brief shall contain, in the order herein
indicated, the following:
NOTE: Subject index is like a table of contents. a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
Page reference to the records must be contained in the brief. alphabetically arranged, textbooks, and statutes cited with
What is the page reference to the records? Records of the references to the pages where they are cited; b) Under the
court contain all the records of the proceeding — from the filing heading “Statement of Facts,” the appellee shall state that
of the complaint, service of summons, decisions, orders, he accepts the statement of facts in the appellant’s brief, or
transcripts. Manually, page numbers are to be put. One page under the heading “Counter-
number per page. In your brief, you must allege: “Records, page Statement of Facts,” he shall point out such
__.” Failure to comply with that rule is a ground for dismissal. insufficiences or inaccuracies as he believes exist in
the appellant’s statement of facts with references to the
NOTE: You can photocopy page references to the record. But pages of the record in support thereof, but without
can you take a picture? NO. repetition of matters in the appellant’s statement of
facts; and
NOTE: Issues of fact AND law are to be alleged because the c) Under the heading “Argument,” the appellee shall set
rules provide that if it is only an issue of law, it will be dismissed. forth his arguments in the case on each assignment of
In appeals under Rules 40 and 41, you should allege issues of error with page references to the record. The authorities
facts and law (or just issues of facts, but never just of law). relied on shall be cited by page of the report at which
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the case begins and the page of the report on which the jurisdiction of the court, or those within its appellate
citation is found. jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
REPLY BRIEF d) To take up such other matters which may aid the court
What is a reply brief? in the prompt disposition of the case.
After the appellee’s brief is filed, the appellant has twenty (20)
days from notice of the appellee’s brief within which to file a reply NOTE: There are some cases that cannot be subject of a
brief. compromise.
The court then resolves the case based on the records of the What are some of the cases that cannot be the subject of a
case. It may, but it is not mandated to, ask the parties to file their compromise?
memorandum. This is not to be confused with memorandum filed Annulment of marriage
in lieu of appellant’s brief that is filed in petitions for certiorari, Ground for nullity of marriage
prohibition, mandamus, quo warranto, or habeas corpus. Legal separation
NOTE: In the Saint Martins Funeral Homes case: From the NOTE: The court is not required, but may set the case for oral
NLRC decision, you can file MR. If the MR is denied (assuming arguments or require parties to submit memoranda.
there is no GADALEJ), you have no more appeal. Your remedy
is to file petition for certiorari with the CA. If it is an immediately When can there be oral arguments? (Rule 49, Sec. 1)
executory NLRC decision, the filing of certiorari will not stop the At its own instance or upon motion of a party, the court may hear
execution of the NLRC decision. So you have to file for injunctive the parties in oral argument on the merits of a case, or on any
relief. But the mere filing of injunction will not suspend the material incident in connection therewith.
execution of the NLRC decision. It has to be granted.
NOTE: But the court will limit the matters subject of the oral
In the Ombudsman cases: The summary is that if it is an arguments. It is the same in the SC.
Ombudsman administrative case and the Ombudsman makes a
ruling: How many counsel is allowed to argue for a party? (Rule
If administrative case, does not involve a light penalty, 49, Sec. 2)
and does not absolve respondent of the charge — Unless authorized by the court, only one counsel may argue for
remedy is appeal under Rule 43 a party. The duration allowed for each party, the sequence of the
If administrative case, includes a penalty that is light, or argumentation, and all other related matters shall be as directed
involves a ruling absolving respondent of the charge — by the court.
immediately executory; unappealable; remedy is Rule
65 (assuming there is GADALEJ) and file it at the CA Is there hearing on a motion? (Rule 49, Sec. 3)
Motions shall not be set for hearing and, unless the court
In the latter case, since appeal is not allowed, is it otherwise directs, no hearing or oral argument shall be allowed
indispensable that you file first an MR before you file a in support thereof.
certiorari?
NO, you do not need to file an MR. This is an example when an What is the period to file objections to the motion in the CA?
MR is not an adequate remedy. Why? Because the decision is (Rule 49, Sec. 3)
immediately executory. The adverse party may file objections to the motion within five (5)
days from service, upon the expiration of which such motion shall
NOTE: If OMBUDSMAN in preliminary investigation (criminal be deemed submitted for resolution.
cases) — file MR then petition for certiorari to SC under Rule 65.
Are the COMELEC and COA covered by Rule 43? NOTE: The period to file an objection in the lower court is ten
NO. COMELEC and COA are not covered. Remedy is Rule 64. (10) days from the service.
Is the CSC covered by Rule 43? In certiorari, it does not stay the award. This also applies to
YES. CSC is covered by Rule 43. Rule 43. What is the relevance of this?
As a general rule, when you avail of ordinary appeal (Rules 4041)
GROUNDS FOR OUTRIGHT DISMISSAL or pending Rule 42 appeals, the enforcement or execution of the
What are the grounds for outright dismissal under this decision that you are appealing shall be stayed. Rules 40, 41,
Rule? and 42 appeals would normally stay the enforcement or
execution of the decision.
Is that rule absolute?
NO, it is subject to exception, such as when the decision is
immediately executory, or the court allows execution pending
appeal. But as a general rule, the appeal would stay the
execution.
Failure to comply with requirements (Rule 43, Sec. 7)
Not filed on time (Rule 43, Sec. 7 in relation to Sec. 6) In Rule 43, if you file a petition to assail the decision of a
No payment of appeal/docket fee (Rule 43, Sec. 7) quasi-judicial body, such filing will not stay the execution of
Patently without merit (Rule 43, Sec. 8) the decision assailed. So what is the remedy? The CA may
Prosecuted manifestly for delay (Rule 43, Sec. 8) make orders it may deem just, or the party may apply for
injunctive relief to restrain the quasi-judicial body from enforcing
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the decision. If you do not apply for an injunction or restraining 7. CA fails to notice certain relevant facts which, if properly
order, then nothing can stop the quasi-judicial body from considered, will justify a different conclusion;
enforcing a decision that is already final and executory or 8. Findings of fact are themselves conflicting;
immediately executory. 9. There are conclusions of fact that have no basis in
evidence;
Under petition for relief from judgment (Rule 38), the period 10. When the findings of fact of the CA are premised on the
within which to file this petition is sixty (60) days from notice of absence of evidence but such findings are contradicted
the decision but not more than six (6) months from finality or by the evidence on record;
entry of said judgment. When we say from finality and entry, it 11. Amparo;
presupposes that the decision is already final and executory. 12. Habeas data;
Thus, there is nothing left to do but to execute the decision as a 13. Kalikasan;
matter of right. Accordingly, the remedy is to file an injunction to 14. Continuing mandamus.
restrain the enforcement of the decision. But the mere
application is not enough; it must be granted by the court. NOTE: The verified petition shall be filed within fifteen (15) days
from notice of the judgment, or of denial of the petitioner’s MNT
RULE 45 or MR filed in due time after notice of judgment. Allowed
PETITION FOR REVIEW ON CERTIORARI extension: 30 days.
GENERAL RULE: The SC will only review questions of law. It will NOTE: Your pleading must be authorized by the SC.
not review questions of facts.
EXCEPTIONS: HARMLESS ERROR RULE
1. If the findings of fact of the RTC and the CA are What is the harmless error rule? (Rule 51, Sec. 6)
different; In any stage of the proceedings, the court shall disregard any
2. When the findings are grounded entirely on error or defect that does not affect the substantial rights of the
speculation, surmises, or conjecture; parties.
3. If the inference made by the CA on its findings are
manifestly mistaken, absurd, or impossible; GROUNDS FOR DISMISSAL OF APPEAL BY THE SC
4. Grave abuse of discretion in the appreciation of the • Not filed on time
facts; • No docket fees
5. Goes beyond the issues of the case, and such findings
• No proof of service
are contrary to the admissions of both appellant and
appellee; • Failure to comply with contents/attachments
6. Contrary to the admissions of the parties; • Failure to comply with circular, directive of SC without
justifiable cause
NOTE: The rules provide that what is applicable to criminal and NOTE: Because if it is a capital punishment/offense, the
civil cases are also applicable in Rule 45. Constitution provides that there must be an automatic review by
the SC. In the Mateo case, go to CA first before the SC. From
IN CRIMINAL PROCEDURE: If the case is originally filed in the CA to SC, the mode of review is notice of appeal filed with the
Sandiganbayan (Sandiganbayan exercises original jurisdiction) CA before it is elevated to the SC
and you will appeal it, the mode of appeal is not Rule 45! The Why should it be with notice of appeal when it was already
proper appeal is with the SC, but not Rule 45. You must file a appealed in the CA?
notice of appeal with SB first. (2018 RULES OF PROCEDURE Rule 45 is an appeal that is discretionary, wherein the court has
ISSUED BY THE SC FOR THE SANDIGANBAYAN) the discretion not to review the case. And this should not be
applied in cases of capital offense because it is a Constitutional
SB decision in its appellate jurisdiction (criminal case) — remedy: mandate that review is automatic. Thus, the better mode of
appeal to SC by Rule 45. appeal is notice of appeal. Because in this instance, the
appellate court has no choice. The records will be transmitted to
CA decision in its appellate jurisdiction (criminal case) — said court. Also, if notice of an appeal is perfected, the appeal
remedy: appeal to SC by Rule 45. will proceed; the court will review the record of the case but in
Rule 45, the discretion is still with the SC whether to give due
course to the appeal
CA decision in its appellate jurisdiction, but it involves automatic
review for cases with capital offense (punishable by reclusion
RULE 40
APPEAL FROM MTC TO RTC
WHAT IS BEING First time appeal of MTC Judgements in its ORIGINAL JURISDICTION.
APPEALED:
WHERE DO YOU FILE RTC
CASES COVERED BY All cases where the MTC exercises original jurisdiction
THE APPEAL EXCEPT:
1. SMALL CLAIMS
2. SUMMARY PROCEDURE
WAYS FOR PERFECTING OF AN APPEAL
NOTICE OF APPEAL RECORD ON APPEAL
CONTENTS
WHO Pay the clerk of court of the court which rendered the judgement or final order appealed
WHAT The full amount of the appellate:
• Docket fees
• Other lawful fees
WITHIN 15 DAYS from receipt of the appellant’s memorandum, APPELLEE’S MEMORANDUM must be filed in answer to the appellan’ts memo
FAILURE TO FILE APPELEE’S MEMORANDUM: the period to file an appeal will lapse and the case will be submitted for decision
Upon receipt of the The Clerk of Court of the Within 15 days from such notice, appellant
record or record on RTC shall notify the must submit memorandum discussing the
appeal parties errors imputed to the lower court and furnish
the same to the adverse party
FAILURE
TO FILE
FILING OR
EXPIRATION
OF THE
PERIOD
WHEN DISMISSED
WITHOUT TRIAL
If an appeal is taken from an order of the lower court DISMISSING the case without trial on the merits, WITHOUT JURISDICTION O
the RTC may affirm or reverse it as the case may be.
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURT
WHAT IS BEING First time appeal of RTC Judgements in its ORIGINAL JURISDICTION
APPEALED:
WHERE DO YOU FILE Court of Appeals
CASES COVERED BY All cases which the RTC has original jurisdiction
THE APPEAL
HOWEVER, SECTION 1 PROVIDES FOR CASES THAT CANNOT BE APPEALED
• An order denying a motion for new trial or reconsideration
• An order denying a petition for relief or any similar motion seeking relief from judgement • An
interlocutory order
• An order denying a motion to set aside a judgement by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other ground vitiating consent
• An order of execution
• A judgement or final order for or against one or more several parties or in separate claims,
counterclaims, cross claims, and third party complaints, while the main case is pending, unless the
court allows an appeal therefrom.
• An order dismissing an action without prejudice
MODES OF APPEAL
ORDINARY APPEAL PETITION FOR REVIEW APPEAL BY CERTIORARI
WHERE: Court of Appeals WHERE: Court of Appeals WHERE: Supreme Court
WHAT: Cases decided by the WHAT: Cases decided by the RTC in the WHAT: In all cases where only question
exercise of its original jurisdiction exercise of its appellate jurisdiction shall of law are raised or involved, the appeal
RTC in the be filed in accordance with RULE 42 shall be to the Supreme Court by petition
HOW: By filing a noticeof appeal for review in accordance with RULE 45.
court which rendered the judge
final order aooealed from and serviwith the
thereof to the adverse rty. ment or
pa ng copy
cept in
RECORD ON APPEAL:
ases of mu
NOT REQUIRED ex
proceedings and other cthe law o h special
separate appeals wherecases reltiple or
rules so require. In sucnd served r these
appeal shall be filed a cod on
same manner in the
PERIOD TO FILE
Within 15 days from notice of jud gement WITHIN 30 days file a notice of appeal and WITHIN 48 HOURS from notice of the
or final order appealed from a record on appeal from notice of the judgement or final order appealed from.
judgement or final order
WHEN INTERRUPTED
Timely motion for new trial or reconsideration.
(No motion for extension of time to file a motion for new trial or reconsideration shall be allowed)
PAYMENT OF DOCKET AND LAWFUL FEES
WHEN Within the period of taking an appeal
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WHO Pay the clerk of court of the court which rendered the judgement or final order appealed from
WHAT The full amount of the appellate court:
• Docket fees
• Other lawful fees
WHAT IS • Proof of the payment of the fees shall be transmitted to the APPELLATE COURT
TRANSMITTED • Original record or record on appeal, as the case may be
CONTENTS
NOTICE OF APPEAL RECORD ON APPEAL
Filing a notice of appeal with the court that rendered the judgement • Full of names of the parties shall be stated in the caption
or final order appealed from. • Judgement or final order from which appeal is to be taken
PERFECTION OF AN APPEAL
Upon the filing of the notice of an appeal in due time It is deemed perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal in due time.
EFFECT OF AN APPEAL
The court loses jurisdiction over the case upon the perfection The court loses jurisdiction over the subject matter thereof
of the appeals filed in due time and expiration of the time appeal upon the approval of the records on appeal filed in due time
of the other parties and expiration of the time appeal of the other parties.
In either case, prior to the transmittal of the original record or the record on appeal, the court may issue:
• Orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal
• Approve compromises
• Permit appeals of indigent litigents
• Order execution pending appeal in accordance with Section 2 of Rule 39 • Allow withdrawal of the appeal
FILING OF APPROVAL
a. To verify the correctness of the original record or the record on appeal, as the case may be, and to make a certification of
the correctness
b. To verify the completeness of the records that will be transmitted to the appellate court
c. If found to be incomplete to take such measures as may be required to complete the records, availing of the authority that he
or the court may exercise for his purpose
d. Transmit the records to the appellate court
IF THE EFFORTS TO COMPLETE THE RECORDS FAIL, he shall indicate in his letter of transmittal
• the exhibits or trancripts not induced in the records being transmitted to the appellate court, • the
reasons for their non-transmittal,
• the steps taken or that could be taken to have them available
The Clerk of Court shall furnish the parties with the copies of his letter o transmittal of records to the appellate court.
TRANSCRIPT
WHEN Upon the perfection of the appeal
HOW The Clerk of Court shall immediately direct the stenographers concerned to attach the record of the case
five copies of the transcripts of the testimonial evidence referred to in the record of the appeal.
WHAT IS The stenographers shall transcribe such testimonial evidence and shall prepare and affix their transcripts
TRNASCRIBED in an index containing:
• Names of the witnesses
• Pages wherein the testimonies of the witnesses are found
• List of exhibits and the pages wherein each of them appears to have been offered and admitted
or rejected by the trial court
WHERE IT IS The transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same
TRANSMITTED in the order in which the witness testified at the trial, and shall cause the pages to be numbered
consecutively
TRANSMITTAL
TO WHOM The appellate court
WHAT the approved record on appeal
WHEN WITHIN 30 DAYS FROM PERFECTION OF THE APPEAL
Copies of the transcripts and certified true copy of the documentary evidence shall remain with the
lower court for the examination of the parties
PROCEDURE AFTER TRANSMITTAL
INCOMPLETE If it is incomplete, the clerk of court must make known in the transmittal that it is not complete. Does it
RECORDS really happen? Yes, because sometimes the transcript of stenographic notes (records of the proceeding)
TRANSMITTED are not completed on time. Sometimes they get destroyed. You have to allege when the records are not
complete
REMEDY: The clerk of court will make a recommendation to the court to complete the records.
NOTE: On a record on appeal and then you are required to amend. And after you transmit it, you make
unauthorized changes: that is a ground for dismissal.
NOT TRANSMITTED Either party may, upon motion and notice to the other party, ask (the trial court) that the record on appeal
be transmitted. Once it is transmitted, the CA will now have jurisdiction.
RECORDS The CA can, on motion or motu proprio, dispense with the requirement of complete records. If the completion
DISPENSED WITH cannot be accomplished within a sufficient period due to extreme, insuperable or difficult cases.
APPELLANT APPELLEE
WHAT SHOULD BE Appellant’s Brief Appellee’s Brief
FILED
PERIOD TO FILE Within 45 days from receipt of notice from the clerk Withing 45 days from receipt of Appellants brief
that all the evidence, oral and documentary, are
attached to the record
EXTENDIBLE NO NO
CONTENTS The appellant’s brief shall contain, in the order herein The appellee’s brief shall contain, in the order herein
indicated, the following: indicated, the following:
DISMISSAL
PRIOR TO THE TRANSMITTAL OF THE ORIGINAL RECORD OR RECORD ON APPEAL
The trial court may motu prorio or on motion DISMISS THE APPEAL for having been taken out of time or for non-payment of
the docket fees and other lawful fees within the reglementary period
RULE 42
PETITION FOR REVIEW FROM THE RTC TO THE CA, MTC TO RTC TO CA
TOTAL: the maximum is an extension of 30 days (15 days for addition, then if there is compelling reason
another 15 days)
PAYMENT OF FEES • The docket and other lawful fees
• Deposit the amount of P500 for costs
FURNISHED TO WHOM The RTC and the adverse party must be furnished with a copy of the petition
HOW MANY COPIES Follow Efficient Paper Rule: 1 original (properly marked) + 2 copies with annexes.
CONTENTS • State the full names of the parties to the case, without impleading the lower courts or judges thereof
either as petitioners or respondents;
• Indicate the specific material dates showing that it was filed on time
• Set forth concisely a statement of the matters involved, the issues raised, the specification of errors of
fact or law, or both allegedly committed by the RTC
• Reasons or arguments relied upon for the allowance of the appeal
• Clearly legible duplicate originals or true copies of the judgements or final orders of both lower courts,
certified by the cler
• A certification of Forum shopping
FAILURE TO COMPLY Ground for dismissal
WITH REQUIREMENTS
PERFECTION OF APPEAL
WHEN PERFECTED Timely filing of the petition for review and payment of docket and other lawful fees.
EFFECT OF PERFECTION The Regional Trial Court loses jurisdiction over the case
HOWEVER, before the Court of Appeals gives due course to the petition, the RTC may issue orders for the
protection and preservation of the rights of the parties, which do not involve any matter litigated by the
appeal approve compromises, permit appeals of indigent litigants, order execution pending appeal in
accordance with Section 2, Rule 39 and allow withdrawal of the appeal
STAY THE JUDGEMENT Except in civil cases under Summary Procedure, the appeal SHALL STAY the judgement or final order
unless the CA, the law, or the Rules provide otherwise.
ACTION ON THE PETITION
WHAT IS FILED A comment
WHEN FILED Within 10 days from notice or dismiss
Furnish copy with the RTC and the adverse party of the
petition.
PATENTLY
WITHOUT
PERFECTION OF THE APPEAL MERIT, ETC
FILING OF LAST
PLEADING OR
MEMORANDA
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GROUNDS FOR DISMISSAL
• If you do not comply with the formal requirement (Rule 42, Sec. 3)
• If you do not pay filing and docket fees on time (Rule 42, Sec. 3)
• Patently without merit (Rule 42, Sec. 4)
• Prosecuted manifestly for delay (Rule 42, Sec. 4)
• Questions raised are too unsubstantial to require consideration (Rule 42, Sec. 4)
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI JUDICIAL AGENCITES TO THE COURT OF APPEALS
WHAT IS BEING Judgements or final orders of the CTA
APPEALED: Awards, judgements, final orders or resolution or authorized by quasi-judicial agency in the exercise of its
quasi-judicial functions.
AGENCIES INCLUDED • Civil Service Commission
• Central Board of Assessment Appeals
• Securities and Exchange Commission
• Office of the President
• Land Registration Authority
• Social Security Commission
• Civil Aeronautics Board
• Bureau of Patents
• Trademarks and Technology Transfer
• National Electrification and Administration
• Energy Regulatory Board
• National Telecommunications Commission
• Department of Agrarian Reform under RA 6657
• Government Service Insurance System
• Employees Compensation Commission
• Agricultural Inventions Board
• Insurance Commission
• Philippine Atomic Energy Commission
• Board of Investments
• Construction Industry Arbitration Commission
• Voluntary arbitrators authorized by law
WHERE DO YOU FILE Court of Appeals
WHAT MUST BE FILED VERIFIED PETITION
WHEN Within 15 days from notice of award, judgement, final order or resolution, or from the date of its last
publication, if publication is required by law for its effectivity, or the denial of the MNT or MR filed in
accordance with the governing law of the court or agency.
MOTION FOR Only 1 motion for reconsideration may be filed.
RECONSIDERATION
EXTENDIBLE YES an additional 15 days may be given
TOTAL: the maximum is an extension of 30 days (15 days for addition, then if there is compelling reason
another 15 days)
PAYMENT OF FEES • The docket and other lawful fees
• Deposit the amount of P500 for costs
EXEMPTION FROM FEES: upon verified motion setting forth valid grounds thereof.
PROCEDURE IN RULE 43
RULE 45
PETITION FOR REVIEW ON CERTIORARI
WHAT IS BEING From a judgement of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts
APPEALED: authorized by law
NATURE OF THE Only reviews QUESTION OF LAW
APPEAL
EXCEPTIONS:
15. If the findings of fact of the RTC and the CA are different;
16. When the findings are grounded entirely on speculation, surmises, or conjecture;
17. If the inference made by the CA on its findings are manifestly mistaken, absurd, or impossible;
18. Grave abuse of discretion in the appreciation of the facts;
19. Goes beyond the issues of the case, and such findings are contrary to the admissions of both
appellant and appellee;
20. Contrary to the admissions of the parties;
21. CA fails to notice certain relevant facts which, if properly considered, will justify a different
conclusion;
22. Findings of fact are themselves conflicting;
23. There are conclusions of fact that have no basis in evidence;
24. When the findings of fact of the CA are premised on the absence of evidence but such findings
are contradicted by the evidence on record;
25. Amparo;
26. Habeas data;
27. Kalikasan;
28. Continuing mandamus.
• Be accompanied by a clearly legible duplicate original, or a certified true copy of the judgement or
final order or resolution certified by the clerk of court a quo and the requisite number of plain copies
thereof, and such material portions of the record as would support the petition
• Contain a sworn certification against forum shopping
FAILURE TO COMPLY WITH Ground for dismissal
REQUIREMENTS
WHEN PERFECTED Timely filing of the petition for review and payment of docket and other lawful fees.
GROUNDS FOR OUTRIGHT • Not filed on time
DISMISSAL No docket fees
•
• No proof of service
CONSIDERATIONS FOR • When the court a quo has decided a question of substance, not theretofore determined by the Supreme
REVIEW Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the
Supreme Court
• When the court a quo has so far departed from the accepted and usual course of judicial proceedings,
or so far sanctioned such departure by a lower court, as to call for an exercise of the power of
supervision
PROCEDURE IN RULE 45
OWN INITIATIVE
GIVEN DUE
COURSE
NOTE: this is the fastest way to have it discharged you either You need to be careful that just because it is fraud the court will
make a cash deposit or file a counter bond. not rule upon the dissolution. IT DEPENDS ON THE MAIN
ACTION.
What is the purpose of the case deposit and the counter
bond? You need to look at whether that is exactly the main case. If a
The cash deposit or counter bond shall secure the payment of ruling on the attachment would also amount to a ruling on the
any judgement that the attaching party may recover in the action. main case that will be a prejudgment which is not allowed.
NOTE: In all of the rules, the bond has the same rules. RULE 58 PRELIMINARY INJUNCTION
The bond of the applicant for the damage of the adverse party.
The counter- bond of the adverse party is for the damage of the PRELIMINARY INJUNCTION
applicant. It is an order requiring a party or a court, agency or a person to
refrain from a particular act or acts.
In all provisional remedies, you should apply for your damage
before the judgement becomes final and executory against the PRELIMINARY MANDATORY INJUNCTION
bond. It is an order that requires the performance of a particular act or
acts.
OTHER GROUNDS TO DISCHARGE
• File a motion for an order to set aside or discharge the NOTE: A preliminary injunction can also be a main action. You
attachment on the ground that the same was IMPROPERLY can have an action for injunction with a prayer for a provisional
or IRREGULARLY ISSUED OR ENFORCED, or that the remedy of a preliminary mandatory injunction.
bond is INSUFFICIENT. If the attachment is EXCESSIVE, it
shall be limited to the excess. All the provisional remedies must be construed strictly against
the applicant. Because in provisional remedies you are seeking
• Properties EXEMPT FROM ATTACHMENT to affect the rights of the defendant even before there is a final
determination of the case.
• Judgement is rendered against the plaintiff
For example, in attachment of a property, you are attaching the
You filed for a counter-bond so that your property will not property even before the court makes a judgement to the case
be attached. Afterwards, you also moved for the dissolution so it affects the rights of a person. It humiliates and it annoys. So
of the writ of attachment on the ground that it was because of these reasons the grounds for issuance of
improperly issued because it is alleged that you are provisional remedies must be strictly construed, it is limited to
engaged in fraudulent acts. Your ground is that you are not the grounds provided for in the rules. You cannot have
fraudulent. Is this allowed? grounds other than those under the Rules.
The bond was already discharged. When you file the Particularly in Injunction, it is an extraordinary event. It is a strong
counterbond the writ of attachment was already discharged. So arm of equity or a transcendental remedy. So it should be
you do not need to file another ground for dissolving your writ of exercised with utmost case and deliberation.
attachment because it was already dissolved. Once it is already
dissolved, there is nothing left to be dissolved so you do cannot GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
raise any other ground. (a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the
When does the discharge take effect when it is respect to commission or continuance of the act or acts complained of,
the counter-bond? or in requiring performance of an act or acts, either for a
After due notice and hearing conducted by the court. limited period or perpetually;
In the case of BPI v. Hontanosas, Jr., G.R. No. 157163 provides The 72 hour has a summary hearing for the purpose of
for the following exceptions: determining whether or not the 72 hours will be extended to a
1. When the injunction is necessary to afford adequate 20-day TRO.
protection constitutional rights of the accused;
2. When it is necessary for the ordinary administration of The TRO can be denied without a hearing?
justice or to avoid oppression or multiplicity of actions; YES
3. When there is a prejudicial question that is sub judice;
4. When the acts of the officer are without or in excess of How long is the validity of the TRO if it is issued by the
authority Supreme Court?
5. When the prosecution is under an invalid law, ordinance or It shall be effective until further orders of the Supreme Court
regulation How long is the validity of a TRO if it is issued by the
6. When double jeopardy is clearly apparent;
If the action sought to be restrained is already committed, the Before the receiver enters into the performance of his
injunction is useless. In that 20 period the hearing and issuance function what should he do in addition to the bond? Before
should be finished. entering upon his duties, the receiver shall be sworn to perform
them faithfully, and shall file a bond, executed to such person
Once the injunction is granted, you need to post for your bond as and in such sum as the court may direct, to the effect that he will
well. faithfully discharge his duties in the action or proceeding and
obey the orders of the court.
What is your remedy against a writ of injunction? Can you
just file a counter-bond? Is it correct to say that a bond will not be required if there is
You must file an affidavit against the injunction issued on the a sufficient ground for the appointment of the receiver?
ground that it is insufficient, or that the damage to the person Meaning they can do away with the bond? For example
enjoined is greater, or it was improperly issued such as when there is a wastage, can the court do away with the bond?
there is no urgency. NO. Section 2, Rule 59 is clear.
RULE 59 RECEIVERSHIP “Before issuing the order appointing a receiver the court shall
require the applicant to file a bond”
RECEIVERSHIP
It is a provisional or ancillary remedy whrein the court appoints a The use of the word “shall” denote the mandatory nature. Even
receiver to receive and preserve the property or fund in litigation if the other person consents that there is no need for a bond,
pendente lite, when it does not seem reasonable to the court that there should still be a bond because of the mandatory nature of
either party should hold it. the provision.
Where can you apply your receivership? GROUNDS FOR DENIAL OF THE APPLICATION OR TO
• Court where the action is pending DISCHARGE THE RECEIVER
• Court of Appeals • When the adverse party FILE A BOND executed to the
• Supreme Court applicant, in an amount to be fixed by the court, to the effect
that such party will pay the applicant all damages he may
The application needs to be verified? suffer by reason of the acts, omissions or other matters
YES specified in the application as a ground or appointment.
• If it is shown that his appointment was obtained WITHOUT
As a rule, can a party to a case be appointed as a receiver? SUFFICIENT CAUSE
YES. As long as there is consent between the parties. Without • When the bond or counterbond filed is INSUFFICIENT
this consent the court cannot appoint a party as a receiver.
If the bond of the adverse party is found to be insufficient,
Is the receiver a representative of the party who asked for can they just give another bond to make it sufficient?
the appointment of the receivership? NO
NO. He is considered as an officer of the court.
GENERAL POWERS OF THE RECEIVER
WHY? Subject to the control of the court the receiver shall have the
following powers:
REPLEVIN What if there is a third party claiming for such right over the
A provisional remedy wherein a party praying for the recovery of replevin subject to the replevin?
possession of personal property may apply for an order for the The third person should make an AFFIDAVIT of his title
delivery to him of such property wrongfully detained by the therefore, or right to the possession thereof, stating the
adverse party. grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy thereof
upon the applicant.
3G (2020-2021)– RAMENotes Contributed by: krykryang & Ranina
Updated by Ae
128
It is available even if the It is available only where the
Do you need to file a separate case if you want to finally recovery of personal principal relief sought in
resolve the issue on who has the real right over the property property is only an incidental action is the recovery of
if it is a third-party claimant? relief sought in the action. possession of personal
YES property.
COVERAGE
Can the third party intervene in the action?
BOTH Personal Personal Property
YES. The same principle applies to the attachment when there
Property and Real
is a third party complainant.
Property. EXCEPTION: Chattel
Mortgage
When a property being subject to a replevin is seized,
should it also be destroyed? Presupposes that the It may be availed of to
NO property has been recover personal property
concealed, removed, or even if it is being concealed,
DUTY OF THE SHERIFF disposed of to prevent its removed or disposed of
Upon receiving such order, the sheriff must serve a copy thereof being found or taken by the
on the adverse party, together with a copy of the application, applicant.
affidavit and bond, and must forthwith take the property, if it be DELIVERY
in the possession of the adverse party, or his agent and retain in Personal property is not Delivered to the applicant
his custody. delivered to the applicant
but merely attached
If the property or any part thereof be concealed in a building or WHEN TO AVAIL
enclosure, the sheriff must demand its delivery, and if it be not
• At the commencement • At the commencement
delivered, he must cause the building or enclosure to be broken
open and take the property into his possession. of the action of the action
• At any time before entry • At any time before
After the sheriff has taken possession of the property as herein of judgement answer
provided, he must keep it in a secure place and shall be
responsible for its delivery to the party entitled thereto upon RULE 61
receiving his fees and necessary expenses for taking and SUPPORT PENDENTE LITE
keeping the same.
SUPPORT PENDENTE LITE
What is your remedy if the writ of replevin is improperly It is support provided a party during the pendency of the litigation.
served?
Motion to Quash the writ of replevin What is the basis of support?
Obligation of the parties
If you are serving the replevin, how are we going to execute
the writ of replevin? How do we know how much of the support will be given?
The necessity and the capacity of the person who will give
Once the sheriff gets the property subject to the writ of support.
replevin, should he immediately deliver it to the applicant?
NO. the sheriff must keep it in a secure place and shall be Cooling-off period in Legal Separation
responsible for the delivery to the party entitled thereto upon The parties are given a chance at reconciliation within a period
receiving his fees and necessary expenses for taking and of 6 months.
keeping the same
Will the case have a hearing during that period? NO. The rule
Should he keep it forever? is during the cool-off period the trial will not proceed on the case
If within 5 days after the taking the property by the sheriff the so that they will give the parties a chance to reconcile.
property shall be delivered to the applicant.
Since trial will not proceed, does that mean that during the
It has 5 days to give the opposing party a right to avail of same period the court cannot rule on the support pendente
remedies. lite of the parties?
NO. Because what is only prohibited on the cooling-off period is
REMEDY AGAINST WRIT OF REPLEVIN on the grounds of legal separation but it does not prohibit
• File a Delivery Bond to terminate the writ of replevin incidents such as your right to support.
• The party against whom the writ is issued can assail the
insufficiency In order to apply for support pendente lite should your
application be verified?
WRIT OF ATTACHMENT v. REPLEVIN YES
WRIT OF ATTACHMENT REPLEVIN
You filed for application for support pendente lite after you The payment should it be divided equally according to their
filed an application for nullity against your spouse. A resources?
petition for nullity of marriage was filed but at the same time NO. It should be in proportion to their income.
you asked for support. Are you still entitled to support?
What is your right? Why are you asking for support? If the person obliged to give support pendente lite refuses
Because at that point in time you are still married and by law you to give support, what is the remedy of the person entitled to
are still entitled to support as a spouse in the absolute community support?
or conjugal partnership of gains as the case may be. When the person ordered to give support pendente lite refuses
or fails to do so, any third person who furnished the support to
the applicant may, after due notice and hearing in the same
case, obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide such
support.
As a general rule if the writ is directed to the sheriff, you cannot be held
in contempt. This is an instance when there is payment of money but
there can still be contempt. In criminal cases you can have
support provided that the civil case is deemed instituted with the criminal
case.
What are the criminal cases that can have support? Rape,
VAWC. But in these cases, you can only claim support in the
civil cases provided that the civil case is deemed instituted with
your criminal case.