CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
CIVIL PROCEDURE NOTES
INTRODUCTION
Remedial law
- Legislation providing means and methods where causes
of action may be effectuated, wrongs redressed, and
relief obtained. These statutes pertain to or affect a
remedy as distinguished from legislation which affect or
modify a substantive right or duty.
Principal sources of Remedial law
1. Constitution
2. Laws creating the judiciary
3. Laws allocating jurisdiction—bp 129, RA
4. Rules promulgated by the SC
5. SC circulars, admin orders and internal rules
6. Provisions in the rules of court as amended by SC
circulars
7. Jurisprudence
Meaning of Court
- It is body of the government to which public
administration of justice is delegated.
- It is an entity or body vested with a PORTION of judicial
power. “portion” only because the Consti provides that
“judicial power shall be vested in 1 SC and in such other
lower courts as may be established by law”.
- Reason: So that the court may not be burdened with so
many cases. Judicial power not vested to only one court
but is exercised by SEVERAL courts. Each court has its
own jurisdiction and may only try cases within its
jurisdiction. No court has all the power of the judiciary
but only a portion of it.
Judge
- Public officer lawfully appointed to preside over the court
for the purpose of administering the law.
- Note: jurisdiction is vested in the court and NOT the
judge.
Classification of courts
1. Superior
2. Inferior
3. Original
4. Appellate
5. Constitutional
6. Statutory
7. Specific courts—probate court, land registration court,
tribal courts,etc.
Function of court
- Administration of justice by 2 things: the ascertainment
of relevant facts relating to a controversy and application
of the law based on those facts in order to resolve the
controversy.
Judicial Power
- Right to determine controversy between adverse
litigants. Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse
of discretion amounting to lack of jurisdiction on the part
of any branch or instrumentality of the government.
Inherent powers of the court
- Basis: Section 5 Rule 135 of the Rules of
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Court:
Section 5. Inherent powers of court. — Every court shall
have power:
(a) To preserve and enforce order in its immediate
presence;
(b) To enforce order in proceedings before it, or before a
person or persons empowered to conduct a judicial
investigation under its authority;
(c) To compel obedience to its judgments, orders and
processes, and to the lawful orders of a judge out of
court, in a case pending therein;
(d) To control, in furtherance of justice, the conduct of its
ministerial officers, and of all other persons in any
manner connected with a case before it, in every manner
appertaining thereto;
(e) To compel the attendance of persons to testify in a
case pending therein;
(f) To administer or cause to be administered oaths in a
case pending therein, and in all other cases where it may
be necessary in the exercise of its powers;
(g) To amend and control its process and orders so as to
make them conformable to law and justice;
(h) To authorize a copy of a lost or destroyed pleading or
other paper to be filed and used instead of the original,
and to restore, and supply deficiencies in its records and
proceedings.
Q: suppose the law does not provided for any manner to enforce a
decision, the order is still enforceable. Basis: section 6. (see
below).
Section 6. Means to carry jurisdiction into effect. — When by law
jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect
may be employed by such court or officer; and if the procedure to
be followed in the exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable process or mode
of proceeding may be adopted which appears comfortable to the
spirit of the said law or rules.
Enforceability of court writs and processes
- Not under civil procedure coz it is under special
proceedings
- Basis: general interim rules of BP 129, section
3
Section3:
a. Writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injuction
issued by a regional trial court may be
enforced in any part of the region.
b. All other processes whether issued by a
regional trial court or metropolitan trial
court, municipal trial cout or municipal
circuit trial court may be served
ANYWHERE in the Philippines and in the
last 3 cases, without a certification by the
judge of the RTc.
Doctrine of Non-interference
- Courts will not interfere with the internal affairs
of an incorporated association as to settle
dispute within the members in terms of policy,
discipline or internal government. So long as
the government or society is fairly administered
in conformity with the laws of the land and no
property or liberty rights are involved.
- Associated with right to association, freedom of
religion and intra-mural dispute
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Doctrine of judicial stability
- No court has any right to interfere by injunction
by a judgment of another court of coordinate
jurisdiction.
- E.g. RtC v. rtc, but of course, CA can issue a
TRO v. RTC
Doctrine of Primary jurisdiction
- Courts will not determine a controversy
involving a question within the jurisdiction of the
administrative tribunal where the question
demands sound administrative discretion,
providing specialized expertise and knowledge
of such administrative tribunal to determine
equity and matters of fact.
- Example: matter of homeowners association—
HLRURB, others: NLRC, bureau of legal affairs
Distinguish between Hearing and Trial
- Trial refers to reception of evidence and other
processes , embraces the period between
production of evidence between both parties.
- Hearing is not limited to trial but embraces
several stages of litigation including pre-trial. It
does not necessarily imply presentation of
evidence in open court but the parties are given
opportunities to be heard.
- Motions are heard.
Court as distinguished from a judge
1. Court is the entity or body vested with a portion of the
judicial power, while the JUDGE is the person or officer who
presides over a court.
2. JUDGES are human beings , they die, resign, retire or may
be removed. The COURT continues to exist even after the
judge presiding over it ceases to be so.
3. The two concepts may EXIST INDEPENDENTLY OF EACH
OTHER. Courts may exist without a judge. There may be a
judge without a court.
Example: justices of the present SC are not the same
justices who presided in the early part of the century. In
some decisions, they said: “as early as 1905, “WE have
already ruled..”…”WE”—talks about the court; not talking
about themselves. Court is continuous.
Classification of courts
Generally, courts may be classified as:
1. SUPERIOR courts v. INFERIOR courts
2. ORIGINIAL v. APPELLATE
3. CIVIL V. CRIMINAL
4. COURTS OF LAW V. COURTS OF EQUITY
5. CONSTITUTIONAL V. STATUTORY
SUPERIOR V. INFERIOR COURTS
SUPERIOR COURTS
- courts of GENERAL jurisdiction
- takes cognizance of all kinds of cases, whether civil or
criminal and possess SUPERVISORY authority over
lower courts
INFERIOR COURTS (FIRST-LEVEL COURTS)
- courts of SPECIAL or LIMITED jurisdiction; takes
cognizance of certain specified cases only.
- Twist: RTC could be superior and first level court but it is
a court of general jurisdiction
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
What courts are superior or inferior? DEPENDS
1. in the constitution—only one superior court, SUPREME
COURT
2. CA—inferior to SC but superior to RTC; can be a first
level court.
3. RTC—inferior to sC and CA but has power of supervision
over MTC
CONCLUSION:
1. SUPERIOR COURTS—SC, CA, RTC
2. INFERIOR COURT—MTC
ORIGINAL V. APPELATE COURT
ORIGINAL courts are those where case is COMMENCED while
APPELATE courts are those where case is reviewed
Illustrations:
1. SC—BOTH an original and appellate court.
2. CA—both
3. RTC—both
4. Sandiganbayan—both
5. MTC—100% ORIGINAL COURT. There are no cases
appealed to it.
NOTE: lupong tagapamayapa is not a court. Even if you go to
barangay conciliation then you later on file to MTC, filing in the
MtC is still filing in a court of original jurisdiction.
CIVIL V. CRIMINAL COURTS
CIVIL courts are those which take cognizance of civil cases only,
while CIRMINAL courts are those which take cognizance of
criminal cases only.
NOTE: all courts in the PI are both civil and criminal courts.
EXAMPLE: Dangerous drugs court—only court trying criminal
cases—drug-related crimes.
COURTS OF LAW V. COURTS OF EQUITY
COURTS OF LAW are tribunals only administering the law of the
land whereas COURTS OF EQUITY are tribunals which rule
according to the precepts of equity or justice and are sometimes
called as “courts of conscience”.
COURTS OF LAW—disposes cases according to what the law
says.
COURTS OF EQUITY—adjudicates cases based on principles of
equity. The latter term means principles of justice, fairness, fair
play. i.e. estoppel and solution indebiti.
In the PI, our courts are BOTH COURTS OF LAW AND OF
EQUITY. Although, in substantive, there is a thin line between both
because both principles especially principle of equity are also
written in the law.
Example: ESTOPPEL, LACHES, SOLUTION INDEBITI—found in
the CC; if there is no applicable law, court decide according to
customs and general principle.
ALONZO V. IAC, SC said “we apply the law with justice because
that is our mission and purpose in the scheme of our Republic”.
CONSTITUTIONAL COURTS V. STATUTORY COURTS
CONSTITUTIONAL courts are created directly by the Constitution
itself while STATUTORY COURTS are created by law or by the
legislature.
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Illustration:
1. CONSTITUTIONAL—only the SUPREME COURT.
2. STATUTORY COURTS:
- SANDIGANBAYAN—PD 1486 (1973 Consti directed
congress to create SN)
- CA, RTC, MTC—created by congress 1. General
jurisdiction – competent to decide their own jurisdiction
and take cognizance of all causes, civil or criminal, of a
particular nature;
JURISDICITON IN GENERAL
JURISDICTION: derived from 2 latin words: (1) JURIS—law (2)
DICO- to speak or to say. Literally translated, it means “speak by
the law”. Speaking with authority or power.
JURISDICTION simply means the power of the court to hear, try
and decide a case. In its complete aspect, jurisdiction includes not
only the powers to hear and decide a case, but also the power to
enforce the judgement.
Effect if there is no jurisdiction: judgment and trial is NULL and
VOID.
Distinguish jurisdiction from venue
1. Jurisdiction is the authority to hear and determine
a case; venue is the place where case is to be
heard o tried
2. Jurisdiction is matter of substantive law; venue of
procedural law
3. Jurisdiction establishes a relation between the
court and the subject matter; venue, a relation
between plaintiff and defendant, or petitioner or
respondent;
4. Jurisdiction is fixed by law and cannot be
conferred by the parties; venue may be conferred
by the act or agreement of the parties.
VENUE
- Relates to trial and not to jurisdiction. It is a
procedural, not a jurisdictional matter. It relates to
the palce of trial or geographical location in which
an action or proceeding should be brought and
not to the jurisdiction of the court. It is meant to
provide convenience to the parties, rather than
restrict their access to courts as it relates to the
place of trial.
Jurisdiction versus exercise of jurisdiction
- Jurisdiction is the power or authority of the court. The
exercise of this power or authority is the exercise of
jurisdiction.
- The authority to decide a case, not the decision rendered
is what makes up jurisdiction. It does not depend upon
the regularity of the exercise of that power or upon the
rightfulness of the decision made. Where there is
jurisdiction over the person and subject matter, the
resolution of all other questions arising in the case is but
an exercise of jurisdiction.
Error of jurisdiction vs. error of judgment
1. An error of jurisdiction is one where the act complained
of was issued by the court without or in excess of
jurisdiction. It occurs when the court exercises a
jurisdiction not conferred upon it by law, or when the
court or tribunal although with jurisdiction, acts in excess
of its jurisdiction or with grave abuse of discretion
amounting to lack or jurisdiction.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
2. An error of judgment is one which the court may commit
in the exercise of its jurisdiction. As long as the court acts
within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than
mere errors of judgment. Errors of judgment include
errors of procedure or mistakes in the court’s findings.
3. Errors of judgment are correctible by appeal; errors of
jurisdiction are correctible only by the extraordinary writ
of certiorari. Any judgment rendered without jurisdiction is
a total nullity and may be struck down at any time, even
on appeal; the only exception is when the party raising
the issue is barred by estoppel.
4. When a court, tribunal, or officer has jurisdiction over the
person and the subject matter of the dispute, the decision
on all other questions arising in the case is an exercise of
that jurisdiction. Consequently, all errors committed in the
exercise of said jurisdiction are merely errors of
judgment. Under prevailing procedural rules and
jurisprudence, errors of judgment are not proper subjects
of a special civil action for certiorari.
Classes of jurisdiction:
1. General and special/limited jurisdiction
2. Original and appellate jurisdiction
3. Exclusive and concurrent/coordinate jurisdiction
Courts of General and Special Jurisdiction
1. Courts of general jurisdiction are those with competence
to decide on their own jurisdiction and to take cognizance
of all cases, civil and criminal, of a particular nature.
Courts of special (limited) jurisdiction are those which
have only a special jurisdiction for a particular purpose or
are clothed with special powers for the performance of
specified duties beyond which they have no authority of
any kind.
2. A court may also be considered ‘general’ if it has the
competence to exercise jurisdiction over cases not falling
within the jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial functions. It is in
the context that the RTC is considered a court of general
jurisdiction.
Courts of Original and Appellate Jurisdiction
1. A court is one with original jurisdiction when actions or
proceedings are originally filed with it. A court is one with
appellate jurisdiction when it has the power of review
over the decisions or orders of a lower court
2. MeTCs, MCTCs and MTCs are courts of original
jurisdiction without appellate jurisdiction. RTC is likewise
a court of original jurisdiction with respect to cases
originally filed with it; and appellate court with respect to
cases decided by MTCs within its territorial jurisdiction.
(Sec. 22, BP 129)
3. CA is primarily a court of appellate jurisdiction with
competence to review judgments of the RTCs and
specified quasi-judicial agencies (Sec. 9[3], BP 129). It is
also a court of original jurisdiction with respect to cases
filed before it involving issuance of writs of certiorari,
mandamus, quo warranto, habeas corpus, and
prohibition. CA is a court of original and exclusive
jurisdiction over actions for annulment of judgments of
RTCs (Sec. 9 [1],[2], BP 129).
4. The SC is fundamentally a court of appellate jurisdiction
but it may also be a court of original jurisdiction over
cases affecting ambassadors, public ministers and
consuls, and in cases involving petitions for certiorari,
prohibition and mandamus (Sec. 5[1], Art. VIII,
Constitution). The Supreme Court en banc is not an
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appellate court to which decisions or resolutions of a
division of the Supreme Court may be appealed.
Courts of Exclusive and Concurrent or Coordinate
Jurisdiction
1. Exclusive jurisdiction is that possessed by a court to the
exclusion of all others. Concurrent jurisdiction is that
possessed by the court together with another or other
courts over the same subject matter, the court obtaining
jurisdiction first retaining it to the exclusion of the others,
but the choice of court is lodged in those person duly
authorized to file the action.
2. Exclusive: collection of sum of money below 200K—MTC
3. Concurrent: SC,CA and RTC has concurrent jurisdiction
over petitions for habeas corupus.
ELEMENTS OF JURISDICTION IN CIVIL CASES
1. Jurisdiction over the SUBJECT MATTER
2. Jurisdiction over the PERSON OF THE PARTIES TO
THE CASE
3. ..OVER THE RES
4. ..OVER THE ISSUES
JURISDICITON OVER THE SUBJECT MATTER
- Power of the corut to hear and determine cases of the
general class to which the proceedings in question
belong
- It is the jurisdiction over the NATURE OF THE ACTION
(e.e. actions for nullity of marriage, accion publiciana,
accion reinvindicatoria,etc.)
- Effect of lack of it: case will be dismissed.
How acquired or conferred:
- Conferred by LAW and is NEVER acquired by: Consent,
Submission of the parties or By their laches. This is a
matter of legislative enactment which only legislature
can change.
Cannot be acquired by:
1. An agreement between the parties
2. Through waiver
3. Through failure to object
ONLY EXCEPTION: ESTOPPEL BY LACHES (tijam v.
sibonghanoy)
GR: objection to jurisdiction can be raised at any stage
of the proceeding even for the first time on appeal. Even
if the parties would not raise ti, the court may motu
proprio has the authority to dismiss it.
Exception: Tijam v. sibonghanoy.
How determined:
- By the allegations of the COMPLAINT. Not on the pleas
or defenses of the defendant in an answer or MTD.
JURISDICTION OVER THE PERSON of the PARTIES
This is the power to render a personal judgment though
SERVICE OF PROCESS or by VOLUNTARY APPEARANCE OF
A PARTY during the progress of a cause which will bind the
parties to the case.
Effect of lack of jurisdiction over A PARTY: such party is NOT
BOUND by the JUDGMENT of the court.
Jurisdiction over the PLAINTIFF:
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
- Acquired from the moment he files his complaint.
Jurisdiction over the DEFENDANT:
a. Upon service on him of coercive process in the
manner provided by law or
- If he was never served with summons, judgment cannot
be enforced coz court did not acquire jurisdiction over
his person
- But even if there was improper service of summons or
there were defective summons and you did not
question—court acquires jurisdiction!
- It can be acquired by:
a. Waiver
b. Consent
c. Lack of objection by the defendant
- Unlike jurisdiction over subject matter, the 3 instances
mentioned can cure the lack of jurisdiction over the
parties.
b. By his voluntary submission to the jurisdiction
of the court.
- Jurisdiction over the person of the defendant is required
only in an action in personam; it is not a prerequisite in
an action in rem and quasi in rem. In an action in
personam, jurisdiction over the person is necessary for
the court to validly try and decide the case, while in a
proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer
jurisdiction on the court, provided the latter has
jurisdiction over the res.
(1) By voluntary appearance of the defendant, without
service of summons or despite a defective service of
summons. The defendant’s voluntary appearance in the
action shall be equivalent to service of summons.
(2) Instances when appearance of defendant is not
tantamount to voluntary submission to the jurisdiction of
the court:
(a) when defendant files the necessary
pleading;
(b) when defendant files motion for
reconsideration of the judgment by default;
(c) when defendant files a petition to set aside
the judgment of default;
(d) when the parties jointly submit a
compromise agreement for approval of the
court;
(e) when defendant files an answer to the
contempt charge;
(f) when defendant files a petition for certiorari
without questioning the court’s jurisdiction over
his person.
JURISDICITON OVER THE RES
Jurisdiction over the res refers to the court’s jurisdiction over the
thing or the property which is the subject of the action. Jurisdiction
over the res may be acquired by the court by placing the property
of thing under its custody (custodia legis). Example: attachment of
property.
It may also be acquired by the court through statutory authority
conferring upon it the power to deal with the property or thing
within the court’s territorial jurisdiction. Example: suits involving the
status of the parties or suits involving the property in the
Philippines of non-resident defendants.
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ATTY MELISSA ROMANA SUAREZ

c. With CA, RTC and Sandiganbayan for

Jurisdiction over the res is acquired by the seizure of the thing petitions for writs of amparo and habeas data
under legal process whereby it is brought into actual custody of d. with the RTC in cases affecting ambassadors,
law, or it may result from the institution of a legal proceeding public ministers and consuls.
wherein the power of the court over the thing is recognized and
made effective (Banco Español Filipino vs. Palanca, 37 Phil. 291). 3. EXCLUSIVE APPELLATE jurisdiction (RTC SC agad!
Wala ng CA! ) – review, revise, reverse, modify or affirm
Reason for its importance: it is a SUBSTITUTE FOR on appeal or certiorari, as the law or the Rules of court
JURISDICITON OVER THE PERSON. In instances where there may provide, judgments and orders of lower courts in:
is an extra-territorial service of summons, it is not for acquiring a. in cases involving the constitutionality or validity
jurisdiction over the person of defendant but merely to comoply of a law or treaty, international or executive
with the due process clause. agreement, law, presidential decree,
proclamation, order, instruction, ordinance or
JURISDICTION OVER THE ISSUES regulation is in question
b. legality of a tax, impost, assessment, toll or
1. It is the power of the court to try and decide issues raised penalty imposed in relation thereto
in the pleadings of the parties. c. all cases in which jurisdiction of a lower court is
2. An issue is a disputed point or question to which parties in issue
to an action have narrowed down their several d. all cases in which only an error or question of
allegations and upon which they are desirous of law is involved ;
obtaining a decision. Where there is no disputed point, e. and CTA in its decisions rendered en banc.
there is no issue.
3. Generally, jurisdiction over the issues is conferred and QUESTION OF LAW—where issues are purely
determined by the pleadings of the parties. The legal; QUESTIONS OF FACT—answering the
pleadings present the issues to be tried and determine question “who is telling the truth”
whether or not the issues are of fact or law.
4. Jurisdiction over the issues may also be determined and 4. APPELLATE JURISDICTION
conferred by stipulation of the parties as when in the pre-
trial, the parties enter into stipulations of facts and a. Appeal by Notice of Appeal
documents or enter into agreement simplifying the issues  From the RTC or Sandiganbayan in
of the case. all criminal cases involving offenses
5. It may also be conferred by waiver or failure to object to for which the penalty imposed is
the presentation of evidence on a matter not raised in the Reclusion Perpetua or Life
pleadings. Here the parties try with their express or imprisonment, and those other
implied consent issues not raised by the pleadings. The offenses, although not so punished,
issues tried shall be treated in all respects as if they had arose out of the same occurrence or
been raised in the pleadings. were committed by the accused on
the same occasion, as that giving rise
Jurisdiction over the SM from jurisdiction over the issues. to the more serious offense,
regardless of whether the accused
1. In SM—power to hear and try a particular case; are charged principals, accomplices
ISSUES—power of the court to resolve legal questions or accessories, or whether they have
involved in the case; been tried jointly or separately.
2. SM—acquired upon filing of the COMPLAINT; (By virtue of PP. v. mateo—such
ISSUES—upon filing of the ANSWER which joins the cases shall be filed with CA first)
issues involved in the case.
b. Automatic Review in criminal cases where
death penalty is imposed by the RTC or
Sandiganbayan, WON the accused files an
appeal (NO LONGER APPLICABLE)
JURISDICTION OF THE SUPREME COURT
c. Appeal by Petition for Review on Certiorari
1. EXCLUSIVE ORIGINAL jurisdiction over cases affecting (Rule 45)
ambassadors, other public ministers and consuls and i. Appeals from the CA
over petitions for certiorari, prohibition and mandamus, ii. Appeals from the Sandiganbayan on
quo warranto, habeas corpus and writ of amparo. PURE questions of law EXCEPT
where the penalty imposed is RP, life
2. CONCURRENT ORIGINAL jurisdiction imprisonment, or death.
a. With Court of Appeals in petitions for certiorari, iii. Appeals from the RTC exercising
prohibition and mandamus against the RTC, original jurisdiction in the ff cases
CSC, Central Board of Assessment Appeals, where NO question of fact is involved:
Quasi-judicial agencies, and writ of kalikasan, 1. Constitutionality or validity of any treaty, agreement, law,
all subject to the doctrine of hierarchy of courts. PD, proclamation, order, instruction, ordinance, or
b. With the CA and RTC in petitions for certiorari, regulation is in question
prohibition and mandamus against lower courts 2. Legality of any Tax, impost, assessment, or toll, or any
and bodies and in petitions for quo warranto, penalty imposed in relation thereto
and writs of habeas corpus, all subject to the 3. Jurisdiction of lower court is in question
doctrine of hierarchy of courts. Note: If in addition to constitutional, tax or jurisdictional
questions, questions of fact or mixed questions of fact & law

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law |5

CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
are involved, the aggrieved party shall appeal to the CA; and
the final judgment of the latter may be reviewed, revised,
reversed, modified or affirmed by the SC on writ of certiorari.
4. Cases in which only errors or question of law are involved
5. Judgment rendered upon an award under the Arbitration
law (RA 876)
6. Appeal on pure qustions of law in cases of appeal to the
RTC from inferior courts. So from MTC RTC ordinary
appeal; from RTC pure questions of law SC (appeal by
certiorari)
d. Special Civil Action of Certiorari within 30
DAYS:
i. Against the COMELEC and COA
ii. From other courts or administrative
agencies i.e. Sandiganbayan, central
board of assessment appeal or from
the obmbudsman.
JURISDICTION OF THE COURT OF APPEALS
BRIEF HISTORY
- Present law: BP 129 (judiciary reorganization act of
1980) which was passed in 1983 by the former BP w/c
practically abolished all the regular courts at that time
including some special courts EXCEPT the Supreme
court and Court of Tax appeals.
- BP 129 was challenged as violative of the security of
tenure of judges but its constitutionality ws sustained in
the case of dela llana v. alba
- Before 1983: court of appeals
- 1983-1986: Intermediate appellate court
- 1986: back to Court of appeals (E.O. 33)
E.O 33 created an entirely new court. The present CA is
a NEW ENTITY, different and distinct from the CA or
the IAC prior to EO 33. It was created in the wake of
massive reorganization launched by the revolutionary
government of cory Aquino, in the aftermath of the
people power (edsa) revolution of 1986.
- Section 9, BP 129 amended TWICE (first by EO 33,
then by RA 7902 or the Act expanding the jurisdiction of
the CA on February 1995)
JURISDICTION PROPER
1. EXCLUSIVE ORIGINAL jurisdiction in actions for the
annulment of the judgments of the RTC.
 This is not similar with an appeal to
the CA coz there you invoke the
appellate jurisdiction of the CA. ito,
ORIGINAL.
 Governed by RULE 47.
2. CONCURRENT ORIGINAL jurisdiction
a. With SC to issue writs of certiorari, prohibition and
mandamus against the RTC, CSC, CBAA, other
quasi-judicial agencies mentioned in Rule 43, and
the NLRC, and writ of kalikasan.
b. With the SC and RTC to issue writs of certiorari,
prohibition and mandamus against lower courts
and bodies and writs of quo warranto, habeas
corpus, whether or not in aid of its appellate
jurisdiction, and writ of continuing mandamus on
environmental cases.
c. With SC, RTC and Sandiganbayan for petitions
for writs of amparo and habeas data
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Effect of filing multiple petitions in CA or SC
having concurrent jurisdiction:
Section 17 of the Interim Rules provide:
17. Petitions for writs of certiorari, etc. — No
petition for certiorari, mandamus,
prohibition, habeas corpus or quo warranto may be
filed in the Intermediate Appellate Court if another
similar position has been filed or is still pending in
the Supreme Court. Nor may such petition be filed
in the Supreme Court if a similar petition has been
filed or is still pending in the Intermediate Appellate
Court, unless it be to review the action taken by the
Intermediate Appellate Court on the petition filed
with it. A violation of this rule shall constitute
contempt of court and shall be a cause for the
summary dismissal of both petitions, without
prejudice to the taking of appropriate action
against the counsel or party concerned.
3. EXCLUSIVE APPELLATE jurisdiction
a. over all final judgments, resolutions, orders or
awards of Regional Trial Courts and quasi-
judicial agencies, instrumentalities, boards or
commission, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission and the Civil Service Commission,
Except those falling within:
1. the appellate jurisdiction of the Supreme
Court in accordance with the Constitution
(constitutionality of the law,etc. )
2. the Labor Code of the Philippines under
Presidential Decree No. 442, as amended,
(no longer applicable: at present, ALL
REFERENCES IN THE AMENDED
SECTION 9 OF BP 129 to supposed
appeals from the NLRC to the SC are
interepreted and eclared to mean and refer
to petitions for certiorari under rule 65.
Consequently, ALL SUCH PETITIONS
SHOULD HENCEFORTH BE INITIALLY
FILED IN THE COURT OF APPEALS IN
STRICT OBSERVANCE OF THE
DOCTRINE OF THE HIERARCHY OF
COURTS AS THE APPROPRIATE
FORUM FOR THE RELIEF DESIRED)
3. the provisions of this Act, and of
subparagraph (1) of the third paragraph of
section 17 of judiciary act of 1948]
(only applies to criminal cases: if
sentenced with RP and some of them with
RT or PM all of them sa SC na mag-
appeal)
4. subparagraph 4 of the fourth paragraph od
Section 17 of the Judiciary Act of 1948.
(when by appeal from the RTC is on pure
LEGAL QUESTION)
b. The court of Appeals shall have the power to
try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues raised in
cases falling within its original and appellate
jurisdiction, including the power to grant and
conduct new trials or Appeals must be
continuous and must be completed within three
(3) months, unless extended by the Chief
Justice. (as amended by R.A. No. 7902.)
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 Power of the CA to receive evidence Branch 02 Tagum City ADVENTURADO, Justino G.

refers only to INCIDENTALFACTS Branch 30 Tagum City RALLOS, Lucilo C.
which were not 100% touched upon, Branch 31 Tagum City BELO, Danilo C.
or matters which were simply Branch 04 Panabo GRAGEDA, Jesus L.
OVERLOOKED by the trial court. You Branch 34 Panabo TAJON, Clemente A.
cannot opt NOT to present evidence
before the RTC coz you just want to REGIONAL TRIAL COURT - COMPOSTELA VALLEY
present evidence in the CA—
ERRONEOUS! Branch 03 Nabunturan CLAPIS, Hilarion P.

a. by way of ordinary appeal from the REGIONAL TRIAL COURTS - DAVAO ORIENTAL
RTC and the Family Courts.
b. by way of petition for review from the Branch 05 Mati YAMAS, Diosdado A.
RTC rendered by the RTC in the Branch 06 Mati BATINGAMA, Niño A.
exercise of its appellate jurisdiction. Branch 07 Baganga LOPEZ, Jose B.
c. by way of petition for review from the Branch 32 Lupon PAGUICAN, Pelagio S.
decisions, resolutions, orders or
awards of the CSC, CBAA and other REGIONAL TRIAL COURTS - DAVAO DEL SUR
bodies mentioned in Rule 43 and of
the Office of the Ombudsman in Branch 08 Davao City IBARRETA, JR., Salvador M.
administrative disciplinary cases. Branch 09 Davao City
d. over decisions of MTCs in cadastral or Branch 10 Davao City
land registration cases pursuant to its Branch 11 Davao City EUROPA, Virginia H.
delegated jurisdiction; this is because Branch 12 Davao City
decisions of MTCs in these cases are Branch 13 Davao City ROBILLO, JR., Isaac C.
appealable in the same manner as Branch 14 Davao City LAYAGUE, William M.
decisions of RTCs. Branch 15 Davao City QUITAIN, Jesus V.
Branch 16 Davao City CARPIO. Emmanuel C.
Branch 17 Davao City FUENTES, Renato A.
JURISDICTION OF THE REGIONAL TRIAL COURT Branch 33 Davao City IBABAO, Wenceslao E.
Branch 18 Digos DARAY, Marivic Trabajo
Section 13. Creation of Regional Trial Courts. – There are hereby Branch 19 Digos DAVIN, Carmelita S.
created thirteen (13) Regional Trial Courts, one for each of the Branch 20 Digos AXALAN, Albert S.
following judicial regions: Branch 21 Bansalan POSADAS-KAHULUGAN, Loida S.

The Eleventh Judicial Region, consistingnof the provinces of REGIONAL TRIAL COURTS - SOUTH COTABATO
Davao del Norte, Davao Oriental, Davao del Sur, South Cotabato,
and Surigao del Sur, and the cities of Davao, and General Santos; Branch 22 General Santos City LUBAO, Antonio C.
and Branch 23 General Santos City QUITAIN, Jaime V.
(l) Twenty-nine Regional Trial Judges shall be Branch 35 General Santos City NOEL, JR., Oscar P.
commissioned for the Eleventh Judicial Region. There Branch 36 General Santos City MORAN, Isaac Alvero V.
shall be Branch 37 General Santos City DIZON, JR., Teodoro A.
Four branches (Branches I to IV) for the Branch 24 Koronadal City DINOPOL, Oscar E. RTCJ-695
province of Davao del Norte, Branches I and II Branch 25 Koronadal City ALZATE, Laureano Timbreza
with seats at Tagum, Branch III at Nabunturan, Branch 26 Surallah AYCO, Roberto L.
and Branch IV at Panabo; Branch 39 Polomolok ROJAS, Eddie R.
Three branches (Branches V to VII) for the
province of Davao Oriental, Branches V and VI REGIONAL TRIAL COURT - SARANGANI
with seats at Mati and Branch VII at Banganga;
Fourteen branches (Branches VIII to XXI) for Branch 38 Alabel INFANTE, Jaime I.
the province of Davao del Sur and the city of
Davao, Branches VIII to XVII with seats at REGIONAL TRIAL COURTS - SURIGAO DEL SUR
Davao City, Branches XVIII and XIX at Digos,
Branch XX at Malinta, and Branch XXI a Branch 27 Tandag ANDAL, Ermelindo G.
Bansalan; Branch 40 Tandag LUNA, JR., Vicente M.
Five Branches (Branches XXII to XXVI) for the Branch 28 Lianga JALAD, Alfredo P.
province of South Cotabato and the city of Branch 29 Bislig City CAÑEDO, Merlyn Pacaro
General Santos, Branches XXII and XXIII with Branch 41 Cantilan BUENAFLOR, Romeo C.
seats at General Santos City, Branches XXIV
and XXV at Koronadal, and Branch XXVI at At present—41 judges shall be commissioned for the 11th judicial
Surallah; and region.
Three branches (Branches XXVII to XXIX) for
the province of Surigao del Sur, Branch XXVII NOTE: Just because these RTCs are scattered everywhere, you
with seat at Tandag, Branch XXVIII at Lianga, can’t just file anywhere also:
and Branch XXIX at Bislig.
BASIS: Section 18. Authority to define territory appurtenant to
REGIONAL TRIAL COURTS - DAVAO DEL NORTE each branch. – The Supreme Court shall define the territory over
which a branch of the Regional Trial Court shall exercise its
Branch 01 Tagum City TIROL, Oscar G. authority. The territory thus defined shall be deemed to be the

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law |7

CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
territorial area of the branch concerned for purposes of
determining the venue of all suits, proceedings or actions,
whether civil or criminal, as well as determining the Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts over the said branch may exercise appellate jurisdiction.
The power herein granted shall be exercised with a view to
making the courts readily accessible to the people of the different
parts of the region and making the attendance of litigants and
witnesses as inexpensive as possible.
Correlate with:
Section 2. Territorial jurisdiction of courts. —
(a) Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts shall exercise their jurisdiction
in the city, municipality or circuit for which the judge thereof
is appointed or designated.
(b) A regional trial court shall exercise its jurisdiction within
the area defined by the Supreme Court as the territory over
which the particular branch concerned shall exercise its
authority, in accordance with Section 18 of B.P. Blg. 129.
JURISDICTION PROPER
1. EXCLUSIVE ORIGINAL jurisdiction (section 19)
a. matters incapable of pecuniary estimation,
such as rescission of contract, action for
annulment, action for specific performance,
declaratory relief, permanent injunction,
foreclosure of mortgage, action questioning
validity of mortgage, annulment of sale,
conveyance,etc.
b. all civil actions which involve title to, possession
of, or interest in, real property with assessed
value exceeding P20,000 (outside Metro Manila),
or exceeds P50,000 in Metro Manila
(i.e. accion publiciana, accion reinvindicatoria,
quieting of title, provided the value of the REAL
property exceeds 20K based on ASSESSED
VALUE value written in the tax declaration; this
is different from the market or zonal value)
c. probate proceedings where the gross value of
the estate exceeds P300,000 outside MM or
exceeds P400,000 in MM
d. admiralty or maritime cases where the
demand or claim exceeds P300,000 outside
MM or exceeds P400,000 in MM
e. Other cases in which the demand, exclusive of
interest, damages of whatever kind, attorney’s
fees, litigation expenses, and costs or the value
of the property(personal) in controversy
exceeds P300,000, or in Metro Manila, exceeds
P400,000
What do you mean by “damages of whatever kind”?
 This covers all kinds of damages.
 You don’t include these damages when they are merely
incidental to the cause of action.
 But if the main cause of action is the claim for damages, then
it’ll be the basis on whether you’ll file it in the RTC or MTC.
(SC Circular No 09-94: extending the jurisdiction of the MTC).
An example of this is a claim for actual damages or
independent civil actions seeking damages.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 In the circular, SC said “ the exclusive damages of whatever
kind” in determining jurisdiction under section 19(8) applies to
cases where the damages are merely incidental to or
consequence only of the main cause of action. If the claim for
damages is the MAIn cause of action, the amount of such
claim should be considered in determining jurisdiction)
What about interests, what’s the deal with that?
 The interest which is to be excluded in computing the amount
for the basis of jurisdiction is the accessory interest.
 Example: The case is in Pampanga. The promissory note is
for P298,000 with interest of 10% per annum, where do you
file the collection suit for this?
o In the RTC of Pampanga. The cause of action
revolves around the entire promissory note.
ORTIGAS V. HERRERA
F: A entered into an agreement with B where A deposited the sum
of 50K. tapos wala giuli ang money. A’s complaint was
denominated as collection of sum of money and she is only asking
for the return of 50K, A filed it in the MTC. Correct?
SC: NO. IT SHOULD BE FILED WITH THE RTC. IT IS A CASE
OF SPECIFIC PERFORMANCE. It is not an action to collect a
loan. You are compelling the other person to comply with the
agreement—to return the money after certain conditions are
complied with.
When a party to a contract has agreed to refund to the other party
a sum of money upon compliance by the latter of certain conditions
and only upon compliance therewith may what is legally due him
under the written contract be demanded, the action is not capable
of pecuniary estimation. You are trying to enforce your agreement.
Therefore, the action is one for specific performance cognizable by
the RTC.
The factual allegaitons in the complaint seeking for the
performance of an obliagaiton of a written contract w/c is a matter
clearly incapable of pecuniary estimation prevail over the
designation of the complaint as one for the collection of sum of
money and damages.
2. ORIGINAL EXCLUSIVE jurisdiction over cases not
falling within the jurisdiction of any court, tribunal, person
or body exercising judicial or quasi-judicial functions
(i.e. action for annulment of judgment of the MTC)
3. ORIGINAL AND EXCLUSIVE jurisdiction to hear and
decide intra-corporate controversies:
a. Cases involving devises or schemes employed by
or any acts, of the board of directors, business
associates, its officers or partnership, amounting to
fraud and misrepresentation which may be
detrimental to the interest of the public and/or of
the stockholders, partners, members of
associations or organizations registered with the
SEC
b. Controversies arising out of intra-corporate or
partnership relations, between and among
stockholders, members or associates; between any
or all of them and the corporation, partnership or
association of which they are stockholders,
members or associates, respectively; and between
such corporation , partnership or association and
the state insofar as it concerns their individual
franchise or right to exist as such entity
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ATTY MELISSA ROMANA SUAREZ
c. Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations
d. Petitions of corporations, partnerships or
associations to be declared in the state of
suspension of payments in cases where the
corporation, partnership of association possesses
sufficient property to cover all its debts but
foresees the impossibility of meeting them when
they respectively fall due or in cases where the
corporation, partnership of association has no
sufficient assets to cover its liabilities, but is under
the management of a Rehabilitation Receiver or
Management Committee.
4. CONCURRENT AND ORIGINAL jurisdiction
a. with the Supreme Court in actions affecting
ambassadors, other public ministers and consuls
b. with the SC and CA in petitions for certiorari,
prohibition and mandamus against lower courts
and bodies in petitions for quo warranto, habeas
corpus, and writ of continuing mandamus on
environmental cases
c. with the SC, CA and Sandigabayan in petitions
for writs of habeas data and amparo
NOTE: ONLY DIFFERENCE: Writs issued by RTC can
only be enforced in the same region where the RTC
belongs, unlike writs issued by the SC and CA they
can be enforced ANYWHERE in the Philippines.
5. APPELLATE jurisdiction over cases decided by lower
courts in their respective territorial jurisdictions
Section 22. Appellate jurisdiction. – Regional
Trial Courts shall exercise appellate jurisdiction
over all cases decided by Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts in their respective territorial
jurisdictions. Such cases shall be decided on
the basis of the entire record of the
proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted
by the parties or required by the Regional Trial
Courts. The decision of the Regional Trial
Courts in such cases shall be appealable by
petition for review to the
Court of Appeals which may give it due course
only when the petition shows prima facie that
the lower court has committed an error of fact
or law that will warrant a reversal or
modification of the decision or judgment sought
to be reviewed.
o It shall be decided on the basis of the entire
record of the proceedings had in the court of
origin such as memoranda and/or briefs may
be submitted. Witnesses may not be made to
appear again on appeal. It’s only a matter of
reviewing the testimony, steno notes, evidence,
memo and briefs.
ILLUSTRATION:
Pursuant to ORIGINAL jurisdiction of RTC:
RTCCA=ordinary appeal, governed by Rule 41; this is
a matter of course; for as long as your appeal is on time
and properly made, the CA will entertain it.
Pursuant to the APELLATE jurisdiction of the RTC:
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
MTCrule 40 RTC rule 42 CA= even if appeal is
made on time and properly made, there is no assurance
that CA will entertain it. CA may give it due course only
when your PETITION FOR REVIEW shows prima facie
evidence that the lower court has committed as error of
fact or law that will warrant reversal or modification of the
decision or judgment sought to be reviewed.
6. SPECIAL JURISDICTION over JDRC, agrarian and
urban land reform cases not within the exclusive
jurisdiction of quasi-judicial agencies when so designated
by the SC.
Due to the enactment of CARL or RA 6657, June 15, 1988, all
agrarian disputes between landlord and tenant, lessor and
lessee were transferred to DARAB.
EXCEPT in the following 2 cases:
1. Cases where there the issue is PAYMENT OF JUST
COMPENSATION for the property which has been
taken under the CARP Law (i.e. aggrieved ka sa
compensation from the government. You go to RTC
and ask for a higher compensation)
2. Prosecution of criminal offenses for violation of the
CARL.
JURISDICITON OF THE FAMILY COURTS (RA 8369)
Under RA 8369, shall have exclusive original jurisdiction over the
following cases:
1. Petitions for guardianship, custody of children and
habeas corpus involving children
2. Petitions for adoption of children and the revocation
thereof
3. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and
property relations of husband and wife or those living
together under different status and agreements, and
petitions for dissolution of conjugal partnership of gains
4. Petitions for support and/or acknowledgment
5. Summary judicial proceedings brought under the
provisions of EO 209 (Family Code)
6. Petitions for declaration of status of children as
abandoned, dependent or neglected children, petitions
for voluntary or involuntary commitment of children, the
suspension, termination or restoration of parental
authority and other cases cognizable under PD 603, EO
56 (1986) and other related laws
7. Petitions for the constitution of the family home
8. In areas where there are no Family Courts, the above-
enumerated cases shall be adjudicated by the RTC (RA
8369)
JURISDICITON OF THE MUNICIPAL TRIAL COURTS
SUMMARY:
1. Original—section 33
2. Delegated—section 34
3. Special—section 35
(a) EXCLUSIVE ORIGINAL jurisdiction
1. civil actions and probate proceedings, testate
and intestate, including the grant of provisional
remedies in proper cases, where the value of the
personal property, estate, or amount the
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CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
demand does not exceed P300,000 outside MM
or does not exceed P400,000 in MM, exclusive
of interest, damages of whatever kind, attorney’s
fees, litigation expenses, and costs.
Totality Rule
o Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount of
the demand shall be the totality of the claims in
all the claims of action, irrespective of whether
the causes of action arose out of the same or
different transactions (Sec. 33[1], BP 129).
Illustration of the Totality rule:
 for example, you are suing for 4
PNs which have already become
due but were not paid and each
is worth 100K. if you consider
only 1 PN, the jurisdiction must
be with the MTC but if i-total mo
lahat, rTC. Where should you
file?
 RTC. The total amount will
prevail. So it should be filed in
the RTC. That is the totality rule.
 This applies if you are suing in a
case where there is 1 PLAINTIFF
1 DEFENDANT.
Illustration # 2:
 In joinder of causes of action and
joinder of parties, what will be the
basis of jurisdiction?kk the claim
of every plaintiff or the total
claims of 4 plaintiffs?
 ANSWER: THE TOTAL CLAIMS.
You apply the totality rule
because the law says, “where
there are several claims or
causes of action between the
same or different parties”. So
whether the parties are the same
or the parties are different
emoidied in the same complaint,
the amount of the demand shall
be the totality of the claims. The
totality rule applies in both
situations.
2. Summary proceedings of forcible entry and
unlawful detainer, violation of rental law
o This is regardless of the amount of unpaid
rentals or whatsoever. WHAT
DETERMINES JURISDICTION IS THE
NATURE OF THE ACTION, AND NOT
THE AMOUNT OF RECOVERABLE
RENTALS.
o Can the party in FE or UD present
evidence of ownership?
ANSWER: GR: NO, because MTC cannot
adjudicate ownership. However, if
evidence of ownership is presented in the
FE or UD case, it is not only incidental and
it is only resolved to determine the issue of
possession. The declaration of ownership
is nto final—tha tis only PRIMA FACIE.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
The question of ownership must be
litigated ina separate action in the RTC.
3. Civil actions which involve title to, or
possession of, real property, or any interest
therein where the assessed value of the property
or interest therein does not exceed P20,000
outside MM or does not exceed P50,000 in MM
provided that in cases of land not declared for tax
purposes, the value of such property shall be
determined by the assessed value of the
ADJACENT LOTS.
4. Admiralty and maritime cases where the
demand does not exceed P300,000, or in Metro
Manila, does not exceed P400,000. Where there
are several claims or causes of action between the
same or different parties, embodied in the same
complaint, the amount of the demand shall be the
totality of the claims in all the causes of action
irrespective of whether the causes of action arose
out of same or different transactions.
5. Civil actions for ACCION PUBLICIANA AND
ACCION REINVINDICATORIA where the
ASSESSED VALUE of the land should be 20,000
or less, in MM, it is 50,000 or less.
(B) SPECIAL JURISDICTION over petition for WRIT OF HABEAS
CORPUs and APPLICATION FOR BAIL if the RTC Judge in area
is not available
(C) DELEGATED JURISDICTION to hear and decide cadastral
and land registration cases where there is no controversy or
contested lands provided the value of the lad to be ascertained by
the claimant does not exceed P100,000, such value to be
ascertained by the affidavit of the claimant or by agreement of the
respective claimants if there are more than one, or from the
corresponding tax declarations of the real property. Their decisions
in these cases shall be appelable to the CA.
Refers only to:
1. Cadastral cases
2. Land registration cases for titling under the Torrens
system
Conditions:
1. There is no controversy over the land or nobody is
contesting your petition; OR
2. Even if the petition is contested, the value of the land to
be titled DOES NOT EXCEED 100,000.
Note: such decision is appealable to the ca.
CIVIL PROCEDURE PROPER
Distinguish REMEDIAL from SUBSTANTIVE LAW
1. SUBSTANTIVE LAW is that branch of law which
creates, defines, and regulates rights. (i.e. civil code)
2. REMEDIAL LAW is that branch of law which prescribes
the methods of enforcing rights or obtaining redress for
their invasion. (i.e. rules of court)
2 aspects of REMEDIAL LAW
1. PUBLIC ASPECT—one which affords a remedy in favor
of the state against he individual (i.e. criminal
procedure) or in favor of the individual against the State
(i.e. habeas corpus)
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2. PRIVATE ASPECT—one which affords a remedy in suspend procedural rules. (Cu-Unjieng v. CA, 479
favor of an individual against another individual (i.e. SCRA 594)
rules of civil procedure) (3) Where substantial and important issues await resolution.
(Pagbilao, supra)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE (4) When transcendental matters of life, liberty or state
security are involved.(Mindanao Savings Loan Asso. V.
1. First law—august 7, 1901—code of civil Vicenta Vda. De Flores, 469 SCRA 416).
procedure(40yrs) (5) The constitutional power of the Supreme Court to
2. Second law—july 1, 1940—old rules of court (24 yrs) promulgate rules of practice and procedure necessarily
3. Third law—January 1, 1964, revised rules of court carries with it the power to overturn judicial precedents
(33yrs) on points of remedial law through the amendment of the
4. Fourth law—JULY 1, 1997—New rules of civil Rules of Court (Pinga vs. Heirs of Santiago, GR
procedure 170354, June 30, 2006).

SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE RULE 1

1. Old rules of court GENERAL PROVISIONS
2. 1964 rules
3. Civil code Section 1. Title of the Rules.
4. Jurisprudence These Rules shall be known and cited as the Rules of Court.
5. SC circulars
Sec. 2. In what courts applicable.
Rule-Making Power of the Supreme Court These Rules shall apply in all the courts, except as otherwise
- Section 5 (5), Art. VIII of the Constitution provides that provided by the Supreme Court.
the Supreme Court shall have the power to promulgate
rules concerning the protection and enforcement of “except as otherwise provided by law”
constitutional rights, pleading, practice, and procedure in - Summary rules
all courts, the admission to the practice of law, the - Election cases
Integrated Bar, and legal assistance to the - Land registration
underprivileged. Such rules shall provide a simplified - Cadastral
and inexpensive procedure for the speed disposition of - Naturalization
cases, shall be uniform for all courts of the same grade, - Insolvency proceddings
and shall not diminish, increase, or modify substantive - And other cases not herein provided for except by
rights. Rules of procedure of special courts and quasi- analogy
judicial bodies shall remain effective unless disapproved
by the Supreme Court. Sec. 3. Cases governed.
These Rules shall govern the procedure to be observed in
Limitations of the Rule-making Power of the Supreme Court actions, civil or criminal, and special proceedings.
(1) The rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases (a) A civil action is one by which a party sues another for the
(2) They shall be uniform for all courts of the same grade enforcement or protection of a right, or the prevention or
(3) They shall not diminish, increase, or modify substantive redress of a wrong.
rights (Sec. 5[5], Art. VIII, Constitution).
(4) The power to admit attorneys to the Bar is not an A civil action may either be ordinary or special. Both are
arbitrary and despotic one, to be exercised at the governed by the rules for ordinary civil actions, subject to the
pleasure of the court, or from passion, prejudice or specific rules prescribed for a special civil action.
personal hostility, but is the duty of the court to exercise
and regulate it by a sound and judicial discretion.(Andres (b) A criminal action is one by which the State
vs. Cabrera, 127 SCRA 802) prosecutes a person for an act or omission
punishable by law.
Power of the Supreme Court to amend and suspend
procedural rules (c) A special proceeding is a remedy by which a party
(1) When compelling reasons so warrant or when the seeks to establish a status, a right, or a particular fact.
purpose of justice requires it. What constitutes and
good and sufficient cause that would merit suspension
of the rules is discretionary upon courts. (CIR v. Migrant What is an action?
Pagbilao Corp., GR 159593, Oct. 12, 2006). Reasons
 Formal demand of one’s legal rights in a court of justice in the
that would warrant the suspension of the Rules: (a) the
manner prescribed by the court or by the law.
existence of special or compelling circumstances (b)
 Method of applying legal remedies according to definite
merits of the case (c) cause not entirely attributable to
established rules.
the fault or negligence of the party favored by the
suspension of rules (d) a lack of ay showing that the
CLASSIFICATION OF CIVIL ACTIONS
review sought is merely frivolous and dilatory (e) the
other party will not be unjustly prejudiced
I. AS TO NATURE
thereby (Sarmiento v. Zaratan, GR 167471, Feb. 5,
a. Ordinary civil actions
2007)
b. Special civil actions
(2) To relieve a litigant of an injustice commensurate with his
failure to comply with the prescribed procedure and the
II. AS TO CAUSE OR FOUNDATION
mere invocation of substantial justice is not a magical
a. Real actions
incantation that will automatically compel the Court to

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 11

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ATTY MELISSA ROMANA SUAREZ

b. Personal actions
c. Mixed actions Held: Certiorari is similar to appeal. Applying the
foregoing rules in a supplementary manner or by
III. AS TO PLACE OF FILING analogy, upon the withdrawal of a petition in a special
a. Local actions civil action before the answer or comment thereto has
b. Transitory actions been filed, the case sall stand as though no appeal has
been taken, so that the judgment or order of the lower
IV. AS TO OBJECT court being questioned becomes immediately final and
a. Action in personam executor.
b. Action in rem
c. Action quasi in rem Thus, a resolution granting the withdrawal of such a
petition is with prejudice and petitioner is precluded from
ORDINARY V. SPECIAL CIVIL ACTIONS bringing a second action based on the same subject
matter.
(1) Ordinary civil action is one by which one party sues
another, based on a cause of action, to enforce or
protect a right, or to prevent or redress a wrong, RULE 72-109—SPECIAL PROCEEDINGS
whereby the defendant has performed an act or 1. Habeas corpus
omitted to do an act in violation of the rights of the 2. Adoption
plaintiff. (Sec. 3a) The purpose is primarily 3. Settlement of estate
compensatory. 4. Escheat
5. Change of name
(2) Special civil action is also one by which one party sues 6. Constitution of family house
another to enforce or protect a right, or to prevent or 7. Allowance or disallowance of will
redress a wrong.
What is a special proceeding?
RULE 1-56—ORDINARY CIVIL ACTIONS  Application or proceeding to establish:
1. Breach of contract o the status of a party, or
2. Legal separation o the right of a party, or
3. Annulment o a particular fact.
4. Support  Examples are petition for adoption, petition for hospitalization
5. Action publiciana of an insane person, settlement of estate of a deceased
6. Action reinvindicatoria person
7. Collection of sum of money
Distinguish civil action from special proceedings
RULE 62-71—SPECIAL CIVIL ACTION 1. Civil action is one by which a party sues another for the
1. Interpleader enforcement or protection of a right or the prevention or
2. Declaratory relief redress of a wrong, whereas, a
3. Certiorari Special proceeding is a remedy by which a party seeks
4. Prohibition to establish a status,a right or a particular fact;
5. Mandamus
6. Quo warranto 2. Civil action, there are 2 definite and particular adverse
7. Expropriation parties the party who demands a right, called a plaintiff,
8. Foreclosure of mortgage and the other whom the right is sought,called a
9. Partition defendant, whereas,
10. Forcible entry In a special proceeding, while there is a definite party
11. Unlawful detainder petitioner, there is no definite adverse party as the
12. Contempt proceeding is usually considered to be against the whole
13. Review of final decisions or world;
resolutions of COMELEC and COA
3. Civil action requires the filing of formal pleadings
Importance of distinguishing ordinary from special civil action whereas in a special proceeding, relief may be obtained
- This is because of the fact that there are some specific by mere application or petition;
rules prescribed for them which are not found in the other
rules. 4. The period to appeal in civil action is generally 15 days
- Rules on ordinary civil actions apply to special civil and the requirement is the filing of a notice of appeal
actions. But rules on special civil actions do not whereas in a special proceeding, the period to appeal is
necessarily apply to ordinary civil actions. 30 days and aside from notice of appeal, the law requires
- For special civil actions, they are subject to specific the filing of a record on appeal.
rules.
- THEREFORE, IN CASE OF CONFLICT BETWEEN REAL, PERSONAL AND MIXED ACTIONS
SPECIFIC RULE AND THE ORDINARY RULE Action is either REAL or PERSONAL. Reason: venue for real
FOLLOW THE SPECIFIC PROVSION. If the SVA rules actions is different from venue for personal actions.
are silent, apply the ordinary rules.
REAL ACTIONS
Example: AMBERTI V. CA - action where the issue or the subject matter involved is
Issue: when you file an SVA for certiorari and then before title, ownership, possession or interest over a real
the other party could answer, you withdraw it, is the property
withdrawal with or without prejudice? Can you refile it?

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 12

CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
- accion publiciana, forcible entry, unlawful detainder,
foreclosure of mortgage or real property, partition of
real property, accion reinvindicatoria (controversy
relates to REAL property)
PERSONAL ACTIONS
- founded on privity of contract or on quasi-delict
- i.e. sum of money, damages, enforcement or
resolution of a contract, recovery of personal
property
MIXED ACTIONS
- Mixtrure of real and personal actions; pertain in some
degree to both real and personal actions and therefore
are properly reducible to neither of them, being brought
for the specific recovery of land and for damages
sustained in respect of such land.
- i.e. accion publiciana + damages
- BUT if the main action is really recovery of possession of
land, then that is more of a REAL action and damages is
merely incidental to the main action. (i.e. Tacay v. RTC
tagum)
(1) An action is real when it affects title to or possession of real
property, or an interest therein. All other actions are personal
actions.
(2) An action is real when it is founded upon the privity of real
estate, which means that the realty or an interest therein is the
subject matter of the action. The issues involved in real actions are
title to, ownership, possession, partition, foreclosure of mortgage
or condemnation of real property.
(3) Not every action involving real property is a real action
because the realty may only be incidental to the subject matter of
the suit. Example is an action for damages to real property, while
involving realty is a personal action because although it involves
real property, it does not involve any of the issues mentioned.
(4) Real actions are based on the privity of real estates; while
personal actions are based on privity of contracts or for the
recovery of sums of money.
(5) The distinction between real action and personal action is
important for the purpose of determining the venue of the action. A
real action is “local”, which means that its venue depends upon the
location of the property involved in the litigation. A personal action
is “transitory”, which means that its venue depends upon the
residence of the plaintiff or the defendant at the option of the
plaintiff.
LOCAL AND TRANSITORY ACTIONS
A LOCAL ACTION is one founded on privity of estates only and
there is no privity of contracts. A real action is a local action, its
venue depends upon the location of the property involved in
litigation. “Actions affecting title to or possession of real property,
or interest therein, shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the real property
involved, or a portion thereof is situated” (Sec. 1, Rule 4).
i.e. accion publiciana, forcible entry, unlawful detainder, quieting of
title.
TRANSITORY ACTION is one founded on privity of contracts
between the parties. A personal action is transitory, its venue
depends upon the residence of the plaintiff or the defendant at the
option of the plaintiff. A personal action “may be commenced and
tried where the plaintiff or any of the principal plaintiffs resides (
not domicile) or where the defendant or any of the principal
defendants resides, or in the case of non-resident defendant,
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
where he may be found, at the election of the plaintiff” (Sec. 2,
Rule 4).
i.e. passengers injured in a plane in a Manila-davao flight..if
company’s address is in cebu and the passenger is from davao ,
the passenger can file a complaint in the business address of the
company which is stated in their registration in the sEC, Cebu in
this case or at where the plaintiff resides, Davao in this case.
ACTIONS IN PERSONAM, IN REM AND QUASI IN REM
(1) An action in rem, one instituted and enforced against the
whole world.
(2) An action in personam is one filed against a definite
defendant. It is intended to subject the interest of defendant
on a property to an obligation or lien. Jurisdiction over the
person (defendant) is required. It is a proceeding to enforce
personal rights and obligations brought against the person,
and is based on the jurisdiction of the person, although it
may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or
dispose of it in accordance with the mandate of the court.
The purpose is to impose through the judgment of a court,
some responsibility or liability directly upon the person of
the defendant. No other than the defendant is liable, not the
whole world, as in an action for a sum of money or an
action for damages.
(3) An action quasi in rem, also brought against the whole
world, is one brought against persons seeking to subject
the property of such persons to the discharge of the claims
assailed. An individual is named as defendant and the
purpose of the proceeding is to subject his interests therein
to the obligation or loan burdening the property. It deals
with status, ownership or liability or a particular property but
which are intended to operate on these questions only as
between the particular parties to the proceedings and not to
ascertain or cut off the rights or interests of all possible
claimants. Examples of actions quasi in rem are action for
partition, action for accounting, attachment, foreclosure of
mortgage.
(4) An action in personam is not necessarily a personal
action. Nor is a real action necessarily an action in rem.
An in personam or an in rem action is a classification of
actions according to foundation. For instance, an action to
recover, title to or possession of real property is a real
action, but it is an action in personam, not brought against
the whole world but against the person upon whom the
claim is made.
(5) The distinction is important to determine whether or not
jurisdiction over the person of the defendant is required and
consequently to determine the type of summons to be
employed. Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide a case
against said defendant where the action is one in
personam but not where the action is in rem or quasi in
rem.
(6) SC sums up the basic rules in Biaco vs. Philippine
Countryside Rural Bank, GR 161417, February 8, 2007:
The question of whether the trial court has jurisdiction depends on
the nature of the action – whether the action is in personam, in
rem, or quasi in rem. The rules on service of summons under Rule
14 likewise apply according to the nature of the action.
An action in personam is an action against a person on the basis
of his personal liability. And action in rem is an action against the
thing itself instead of against the person. An action quasi in rem is
one wherein an individual is named as defendant and the purpose
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CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
of the proceeding is to subject his interest therein to the obligation
or lien burdening the property.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the
case. In a proceeding in rem or quasi in rem, jurisdiction over
the person of the defendant is not a prerequisite to confer
jurisdiction over the res. Jurisdiction over the res is acquired either
(1) by the seizure of the property under legal process, whereby it is
brought into actual custody of the law; or (2) as a result of the
institution of legal proceedings, in which the power of the court is
recognized and made effective.
Nonetheless, summons must be served upon the defendant not
for the purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements.
SUMMARY:
1. ACTION IN PERSONAM
o Any judgment of the court will render in that
case binds only the parties to the action or their
privies or successors in interest
o Directed against a specific person and seeks
personal judgment
o i.e. recovery of possession
illustration: If X and Y are litigating in an action
for recovery of possession. The land was
adjudicated by the court to X. then here comes
Z, presenting proof that she has better title and
that the decision of the court between x and y
binds only the parties thereto, z is not bound for
Z was not a party to the case. The action
between x and y is an action in personam only.
RECOVERY OF POSSESSION AS A REAL
ACTION BUT AN ACTION IN REM
 It is a real action because it involves a
piece of land but it is an action in
personam only because any judgment
therein binds only the parties and not
the whole world. It is real action as to
CAUSE, but it is an action in
personam as to OBJECT.
o i.e. collection of sum of money (personal
action and action in personam)
o action to recover damages
o action for breach of contract
2. ACTION IN REM
a. Any judgment of the court will render in the
case binds not only the parties to the case but
the whole world
b. I.e. action for annulment of marriage or
declaration of nullity of marriage.
Illustration: when court rules that marriage of X
and Y is already nullified, the judgment of the
court in that case is binding against the whole
world.
ACTION FOR ANNULMENT OF MARRIAGE
 It is a personal action because it does
not involve real property, it is about
STATUS but it is an action in rem
because the judgment therein binds
the whole world.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
c. i.e. Civil action for acknowledgment. ..your
status to be recognized as a child. It is an
action in rem.
d. Land registration case
e. Probate proceedeings for allowance of will
3. QUASI IN REM
o It is actually an action in personame because it
is directed only against a particular individual
but the purpose fo the proceeding is to subject
his property to the obligation of lien burdening
it. The object of the case is the sale or other
disposition of property of the defendant over
which you have a right or lien over the property.
o i.e. FORECLOSURE OF MORTAGE
 It is a real action because it involves
real property.
 There is a defendant (mortgagor) and
the object of the case is to have the
property foreclosed/sold/disposed of
to satisfy the mortgage lien of the
mortgagee. It is in personam beause
it is directed only against person who
mortgaged it to you. BUT ONCE THE
PROPERTY IS FORECLOSED,
everybody must respect it! That’s why
its calle quasi in rem.
 “quasi in rem” against the person in
respect to the res, against the
mortgagor in respect to the thing
mortgaged.
Sec. 4. In what cases not applicable.
These Rules shall not apply to election cases, land
registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever
practicable and convenient.
Not applicable to:
1. Election cases
2. Land registration cases
3. Cadastral cases
4. Naturalization cases
5. Insolvency proceedings
6. Other cases not herein provided for except by analogy or
for suppletory purposes.
Sec. 5. Commencement of action.
A civil action is commenced by the filing of the original
complaint in court. If an additional defendant is impleaded in
a later pleading, the action is commenced with regard to him
on the date of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied
by the court.
 The commencement of an action interrupts the period of
prescription as to all the parties to the action.
When does an action commence?
 Upon filing of the original complaint in the court and
PAYMENT OF THE DOCKET FEES.
 This is important to determine the exact date that the action
has commenced because it is from that moment the running
of the prescriptive period is interrupted.
Example: you filed a case on December 1 and that is the last
day for filing of the pleading, and yet, you did not pay the
correct amount of docket fee. By December, your action has
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ATTY MELISSA ROMANA SUAREZ
already prescribed. Thus, the court acquires no jurisdiction to
try the case until the payment of the whole fee is made.
With respect to an additional defendant, when does it commence?
 The present rule provides that it is the date of the filing of
the amended complaint joining the additional defendant
which is the date of the commencement of the action with
regard to such additional defendant.
o You only file a motion for the admission of such
amended complaint when then here has been an
answer served on the plaintiff.
o In cases where the amended complaint is attached
to the motion for its admission, the date of filing
thereof is the date of the commencement of the
action with regard to the additional defendant,
irrespective of the action of the court on the motion.
Does the filing alone vest the court with jurisdiction over the
subject matter?
 No. You have to 1) file and 2) pay the docket fees.
 It is important to remember that it is not simply the filing of the
complaint or appropriate initiatory pleading but also the
payment of the prescribed docket fee that vests a trial court
with jurisdiction over the subject matter or nature of the action.
 Without the payment of the docket fees, no original complaint
or pleading is considered.
 If the complete amount of the docket fee is not paid, the
prescriptive period continues to run as the complaint is
deemed not filed.
MANCHESTER V. CA
FACTS: Plaintiff filed a complaint and paid the docket fee but he
did nto specify the amount of the damages he was claiming. He
contended tha the is claiming for moral damages in such amount
as the court will grant. Respondent contended that it cannot be
done, there is a necessity to state the exact amount of the
damages I order to determine the correct amount of the docket
fee. So the plaintiff amended the complaint and paid the
BALANCE of the docket fees.
ISSUE: WON the subsequent amendment cures the defect?
HELD: NO. the defect is incurable. Thus the action has to be
DISMISSED. The court acquires no jurisdiction over the case. The
REMEDY is to RE-FILE the complaint and pay again the complete
amount of the docket fee. The prior payment made is FORFEITED
in as much as the defect in the first complaint is incurable.
SUN INSURANCE—SEE SUMMARY OF CASES
Third rule on sun insurance: if judgment awards claims not
specified in the pleadings, it will be considered a LIEN on the
judgment. i.e. pending ang case then may additional expenses
ka,etc.
This case was followed by TACAY V. RTC TAGUM
This is a case for RECOVER OF LAND + DAMAGES.
2 OPTIONS:
1. Kung nabayaran ang docket fee for the recovery of the
land pero wala ang damages, do not dismiss the case.
Just do not consider or expunge the claim for damages
OR
2. Citing the rule on sun insurance, give him reasonable
time to pay the balance.
On the matter of: FILE NOW, PAY YOUR DOCKET FEES
LATER. It’s like allowing you to file your case now and the docket
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
fee is deductible from whatever judgment of damages will be
awarded to you by the court. So if tala ka sa case, walang
mabayad sa gobyerno? Is that allowed?
HELD: NO. filing fees are intended to take care of court expenses
in the handling of cases in terms of cost of supplies, use of
equipments, salaries and fringe benefits of personnel,e tc.
Computed as to man hours used in handling of each case. The
payment of said fees therefore, cannot be made dependednt on
the result of the action taken, without entailing tremendous losses
to the government and to the judiciary in particular.
LACSON V. REYES
FACTS; case filed and laywer filed a MOTION TO DIRECT
PLAINTIFF TO PAY HIM HIS ATTYS FEES. – motion for payment
of atty’s fees. So court said to the lawyer that the latter must pay
the docket fees for that.
HELD: LAWYER MUST PAY. It may be true that the claim for
atty’s fees was but an incident in the main case, still, it is not an
escape valve from the payment of docket fees because as in all
acitons, whether separate or as an offshoot of a pending
proceeding, the payment of docket fees is mandatory. The docket
fee should be paid before the court would validly act on the motion.
Compare this case with:
PASCUAL V. CA
FACTS: layer filed a CLAIM against estate of the deceased client
for his atty’s fees. Heirs contended that the intestate court has no
jurisdiction to award the same coz the lawyer did nto pay the
docket fee.
HELD: HEIRS ARE NOT CORRECT. The court required in lacson
the payment of docket fee since the lawyer’s “motion for atty’s
fees” was in the nature of an “action commenced by a lawyer
against his client”. In contrast, the lawyer filed a claim agains the
estate of his deceased client.
Sec. 6. Construction.
These Rules shall be liberally construed in order to promote
their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding
When may lapses in the literal observance of a rule of procedure
be overlooked:
1. When they do not involve public policy;
2. When they arose from an honest mistake or unforeseen
accident;
3. When they have not prejudiced the adverse party;
4. And when they have not deprived the court of its
authority.
Rules of the SC which are STRICTLY CONSTRUED to minimize
delay:
1. Time to file an answer
2. Filing of a NOTICE OF APPEAL
RULE 2
CAUSE OF ACTION
Section 1. Ordinary civil actions, basis of.
Every ordinary civil action must be based on a cause of
action.
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Sec. 2. Cause of action, defined.
A cause of action is the act or omission by which a party
violates a right of another.
What is a cause of action?
 It is an act or omission of one party in violation of the legal
right or rights of the other.
ESSENTIAL ELEMENTS are:
o Legal right of the plaintiff
o Correlative obligation of the defendant
o Act or omission of the defendant in violation of the
plaintiff’s said legal right.
Example – Mario doesn’t pay Luigi as agreed upon in a debt
contract.
o Luigi has the legal right to be paid and Mario has the
obligation to pay, arising from the contract.
o The non-payment of debt is the act/omission or the
cause of action.
Example:
SWAGMAN V. CA
ISSUE: May a complaint state a cause of action if at the time the
same was filed, none of the promissory notes were due yet?
Although during the pendency of the case, 2 of the PNs have
already matured?
HELD NO. a complaint whose cause of action has not yet accrued
cannot be cured or remedied by an amended or supplemental
pleading alleging the existence or accrual of a cause of action
while the case is pending. Such an action is prematurely brought
and is, therefore, a groundless suit, which should be dismissed by
the court upon proper motion seasonably filed by the defendant.
Unless the plaintiff has a valid and subsisting cause of action at
the time his action is commenced, the defect cannot be cured or
remedied by the acquisition or accrual of one while the action is
pending, and a supplemental complaint or an amendment setting
up such after-accrued cause of action is not permissible. Contrary
to the holding of the trial court and the Court of Appeals, the defect
of lack of cause of action at the commencement of this suit cannot
be cured by the accrual of a cause of action during the pendency
of this case arising from the alleged maturity of two of the
promissory notes
ELEMENTS OF A CAUSE OF ACTION
Situation #1: borrowing of money
Right right of the creditor to get back his money
Obligation debtor has obligation to pay back the loan under the
law on contracts
Violation non payment
Damage creditor cannot get back his money
Situation #2: damages arising from CULPA AQUILIANA
(pedestrian hit by a vehicle)
Right right of every person not to be molested. Right to walk
peacefully and not harmed
Obligation obligation of every person to drive carefully so he will
not hit any person while driving
Violation reckless driving
Damage the pedestrian has to spend money for hospital
expenses + lost income d/t absence from work
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
RIGHT OF ACTION
- Right of the plaintiff to bring an action and to prosecute
that action to final judgment
- ELEMENTS:
1. Plaintiff must have a good cause of
action; AND
2. Plaintiff must have performed all
conditions precedent to the filing of the
action.
“good cause of action”
DE GUZMAN V. CA
- Right of action springs from the cause
of action, but does not accrue until all
the facts which constitute the cause of
action have occurred. When there is
an invasion of primary rights, then
and not until then does the adjective
or remedial law becomes operative,
and under it arise rights of action.
There can be no right of action until
there has been a wrong—a violation
of a legal right—and it is then given
by the adjective law.
“THERE CAN BE NO RIGHT OF ACITON
UNTIL THERE HAS BEEN A WRONG OR A
VIOLATION OF A LEGAL RIGHT. THERE
CAN BE NO RIGHT OF ACTION UNLESS
THERE IS FIRST A CAUSE OF ACTION”
“performed all conditions precedent”
PHIL. AMERICAN GENERAL INSURANCE V.
SWEETLINES
Issue: the matter of filing of a case vs. a carrier
for damage done in the goods of the
consignee. Condition precedent: file notice of
loss first to the carrier before filing a case in
court. If you go to court agad, is there RIGHT
OF ACTION?
HELD: NO. consignee did not comply with the
conditions precedent.
“right of action does not arise until the
performance of all conditions precedent to the
action. Performance or fulfillment of all
conditions precedent upon which a right of
action depends must be sufficiently alleged,
considering that the burden of proof to show
that a party has a right of action is upon the
person initiating the suit.” Where the contract
of shipment contains a reasonable requirement
of giving notice of loss or injury to the goods,
the giving of such notice is a condition
precedent to the action for loss or injury or the
right to enforce the carrier’s liability.
RIGHT OF ACTION VERSUS CAUSE OF ACTION
(1) A cause of action refers to the delict or wrong committed
by the defendants, whereas right of action refers to the
right of the plaintiff to institute the action;
(2) A cause of action is determined by the pleadings; whereas
a right of action is determined by substantive law; (cause
of action is created by substantive law; right of action is
REGULATED by procedural law)
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ATTY MELISSA ROMANA SUAREZ

(3) A right of action may be taken away by the running of the pleading asserting the claim “states no cause of action”.
statute of limitations, by estoppels or other circumstances This means that the cause of action must unmistakably
which do not at all affect the cause of action (Marquez v. be stated or alleged in the complaint or that all the
Varela, 92 Phil. 373). elements of the cause of action required by substantive
o Example: if B owes A money, tapos wala law must clearly appear from the mere reading of the
nagbayad. After 10 years—prescribed na ang complaint. To avoid an early dismissal of the complaint,
ROA. But the Cause of action remains, it is not the simple dictum to be followed is: “If you have a cause
affected by prescription. Civil code provides of action, then by all means, state it!” Where there is a
that the obligation is converted to a NATURAL defect or an insufficiency in the statement of the cause of
OBLIGATION which is based on equity, rather action, a complaint may be dismissed not because of an
than a right. absence or a lack of cause of action by because the
complaint states no cause of action. The dismissal will
CAUSE OF ACTION RIGHT OF ACTION therefore, be anchored on a “failure to state a cause of
- Delict or wrongful act - Remedial right or right action”.
or omission to relief granted by
committed by the law to a party to - It doesn’t mean that the plaintiff has no cause of action. It
defendant in violation institute an action only means that the plaintiff’s allegations are insufficient
of the primary right of against a person who for the court to know that the rights of the plaintiff were
the plaintiff has committed a delict violated by the defendant. Thus, even if indeed the
or wrong against him plaintiff suffered injury, if the same is not set forth in the
complaint, the pleading will state no cause of action even
- Remedy or means if in reality the plaintiff has a cause of action against the
- Reason for the action afforded or the defendant.
consequent relief
Test of the Sufficiency of a Cause of Action
- Right that is given—  The test is whether or not admitting the facts alleged, the
- Formal statement of right to litigate court could render a valid verdict in accordance with the
alleged facts because of the prayer of the complaint
occurrence of the  To be taken into account are only the material allegations
alleged facts in the complaint; extraneous facts and circumstances or
other matter aliunde are not considered but the court
- Determined by facts - Determined by may consider in addition to the complaint the appended
as alleged in the substantive law. annexes or documents, other pleadings of the plaintiff, or
complaint and not the admissions in the records (Zepeda v. China Banking
prayer therein Corp., GR 172175, Oct. 9, 2006).
 In determining whether or not a cause of action is
CAUSE OF ACTION vs. SUBJECT MATTER OF ACTION sufficiently stated in the complaint, the statements in the
- CAUSE OF ACTION is an act or ommisison of one party complaint may be properly considered. It is error for the
in violation of the legal right of the other. court to take cognizance of external facts or to hold
- SUBJECT MATTER is the item, with respect to which the preliminary hearings to determine its existence
controversy has arisen OR concerning which the wrong  The sufficiency of the statement of the COA must appear
has been done, AND it is ordinarily the right, the thing or on the face of the complaint and its existence may be
the contract under dispute. determined only by the allegations of the complaint,
- Example: breach of contract subject matter is the consideration of other facts being proscribed and any
contract violated and the cause of action is the breach attempt to prove extraneous circumstances not being
thereof by the obligor allowed

RELIEF vs. REMEDY vs. SUBJECT MATTER
- RELIEF redress, protection, award or coercive
measure which the plaintiff prays the corut to rended in
his favor as a consequence of the delict committed by
the defendant; always stated in the PRAYER
- REMEDY procedure or type of action which may be
availed of by the plaintiff as the means to obtain the
desired relief; i.e. collection of sum of money,
foreclosure, etc.
- SUBJECT MATTER thing, wrongful act, contract or
property which is directly involved in the action,
concerining which the wrong has been done and with
respect to which the controversy has arisen; i.e. in
collection—SM is the loan; in recovery case SM is the
property involved.
Failure to State Cause of Action
- The mere existence of a cause of action is not sufficient
for a complaint to prosper. Even if in reality the plaintiff
has a cause of action against the defendant, the
complaint may be dismissed if the complaint or the
Sec. 3. One suit for a single cause of action.
A party may not institute more than one suit for a single
cause of action.
SPLITTING OF A CAUSE OF ACTION
 DEFINITION: Practice of dividing one cause of action
into different parts and making each part a subject of a
different or separate complaint. This is PROHIBITED.
 RULE: if there is only 1 cause of action, file only 1 case.
You cannot file 1,2 or 3 cases arising out of 1 cause of
action, otherwise you are splitting it.
 EXAMPLES:
1. 1 promissory note which is unpaid: you file 1 case
for the principal loan, another for interest and
another to collect atty’s fees. THERE IS ONLY ONE
PN, ONE CAUSE OF ACTION, FILE ONLY 1
CASE.
2. DAMAGE SUIT: 1 case vs. owner of the vehicle for
reimbursement of hospital expendes, one case for
medicine, another for doctors fee,etc.

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 17

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ATTY MELISSA ROMANA SUAREZ
Sec. 4. Splitting a single cause of action; effect of.
If two or more suits are instituted on the basis of the same
cause of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the dismissal of
the others.
 The purpose of this rule is to prevent repeated litigation.
 The rule applies not only to complaints but also to
counterclaims and cross-claims.
 If two or more complaints are brought for different parts of a
single cause of action, the filing of the first may be pleaded in
abatement of the other. It can be set up either by means of:
o A motion to dismiss; or
o An affirmative defense on the ground of pendency of
another action between the same parties for the
same cause or bar by prior judgment.
SPLITTING OF CAUSE OF ACTION: It is the act of instituting
two or more suits for the same cause of action (Sec. 4, Rule
2). It is the practice of dividing one cause of action into
different parts and making each part the subject of a separate
complaint (Bachrach vs. Icaringal, 68 SCRA 287). In splitting
a cause of action, the pleader divides a single cause of action,
claim or demand into two or more parts, brings a suit for one
of such parts with the intent to reserve the rest for another
separate action . This practice is not allowed by the Rules
because it breeds multiplicity of suits, clogs the court dockets,
leads to vexatious litigation, operates as an instrument of
harassment, and generates unnecessary expenses to the
parties.
EFFECTS OF SPLITTING
 The filing of the first may be pleaded in abatement of the other
or others and a judgment upon the merits in any one is
available as a bar to, or a ground for dismissal of, the
others (Sec. 4, Rule 2;) The remedy of the defendant is to file
a motion to dismiss.
TWO EFFECTS:
1. Hence, if the first action is pending when the second
action is filed, the latter may be dismissed based on litis
pendencia, there is another action pending between the
same parties for the same cause.
2. If a final judgment had been rendered in the first action
when the second action is filed, the latter may be
dismissed based on res judicata, that the cause of
action is barred by prior judgment. As to which action
should be dismissed would depend upon judicial
discretion and the prevailing circumstances of the case.
REASON AGAINST SPLITTING A SINGLE CAUSE OF ACTION:
1. Intended to prevent repeated litigations between the
same parties in regard to the same subject of
controversy;
2. To protect the defendant from unnecessary vexation and
3. To avoid the costs incident to numerous suits.
You can’t split…
 Recovery of property and damages
 Recovery of ownership of and income from same land
 Installments due and unpaid
 Non-payment of debt secured by a mortgage (you can’t split it
to payment of debt and foreclosure of mortgage, you have to
choose one)
 Total breach of entire contract
o As a general rule, a contract to do several things at
several times is divisible, and a judgment for a
single breach of a continuing contract is not a bar to
a suit for a subsequent breach.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 But where the contract is entire, and the
breach total, there can be only one action
in which plaintiff must recover all
damages.
SINGLENESS OF A CAUSE OF ACTION
How determined:
 By the singleness of the delict or wrong committed by the
defendant and NOT by the number of remedies that the
law grants the injured pary.
 Meaning, a single delict may give 2 or more possible
remedies BUT it does not mean to say the injured party
can avail of all those remedies simultaneously or one
after the other.
EXAMPLE of cases with only 1 SINGLE CAUSE OF
ACTION but with SEVERAL REMEDIES:
1. Violation of breach of contract remedies: specific
performance or rescission of contract
2. Remedies of unpaid seller of personal properties
rescission, exact fulfillment of obligation and
foreclosure of mortgage
3. Bank’s remedies vs. non payment of loan secured
by a mortgage foreclosure of mortgage on the
land or file an action to collect the loan.
RULE: YOU CANNOT FILE 2 CASES FOR ALL
THE REMEDIES AVAILABLE. OTHERWISE, YOU
ARE SPLITTING YOUR CAUSES OF ACTION.
THEY MAY PURSUE EITHER OF THE REMEDIES
BUT NOT BOTH. IF THEY DO SO, IT IS ONLY A
DEMONSTRATION OF THE PROHIBITED
SPLITTING UP OF A CAUSE OF ACTION AND
ALSO OF THE RESULTING VEXATION AND
OPPRESSION TO THE DEBTOR.
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF
ACTION:
RULE #1: a contract embraces only one cause of action because
it may be violated only once, even if it contains several
stipulations.
 ILLUSTRATION: 1 contract stating that 3 things are
supposed to be delivered on the same date. These are
provided as 3 stipulations. So 3 violations if none are
delivered?
Answer: NO. It is only based on 1 cause of action even if
it contains several stipulations. The COA is not based on
the number of paragraphs violated but on the contract
itself.
RULE #2: a contract which provides for several stipulations to be
performed at DIFFERENT TIMES; gives rise to as MANY
CAUSES OF ACTION as there are violations.
 ILLUSTRATION: 1 contract of loan with 1 promissory
note with payment on 3 installments 3 causes of
action!
 1997—if he did not pay, creditor can file 1 case
 1998—if he still did not pay—file another case.
Reason: EVERY INSTALLMENT IS ONE COA even if
there is only ONE NOTE. They are to be performed
several times.
RULE #3: all obligations which have matured at the time of the suit
must be integrated as 1 cause of action in one complaint and
those not included would be barred.
 ILLUSTRATION: 1st installment did not pay but you
did not file case; 2nd installment did not pay, no case;
3rd installment you can’t file 3 cases.
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ATTY MELISSA ROMANA SUAREZ
 RULE: CONSOLIDATE CASES FOR DEBTS THAT
HAVE ALREADY FELL DUE. If you did not include in the
case a demand for the 1st installment unpaid, you are
barred from claiming the same.
RULE #4: when the failure to comply with one of several
stipulations in a continuing contract constitutes a total breach.
 ILLUSTRATION: Debtor failed to pay 1st installment but
he says” the signature in the PN is not mine!”
REPUDIATING THE ENTIRE PROMISSORY NOTE.
 RULE: creditor need not wait for the remaining
installments to fall due. Creditor may file a case for the
ENTIRE LOAN. FILE ONE CASE FOR THE ENTIRE
BREACH. THERE IS A TOTAL BREACH FOR A
CONTINUING OBLIGATION AND THERE IS ONLY 1
COA FOR THE ENTIRE PN.
Sec. 5. Joinder of causes of action.
A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions:
(a) The party joining the causes of action shall comply
with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or
actions governed by special rules;
(c) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions, the
joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
 You do this when there’s 1 case but several causes of action.
 Maraming angal si Mario versus Luigi (hindi nagbayad ng
utang tapos kinain yung pasta niya na hindi nagpapaalam
tapos hinalikan si Princess Daisy tapos sinuntok si Toad
tapos hindi pina-tae si Yoshi, etc)
JOINDER OF CAUSES OF ACTION
 Provision of the rules which allows a party to join in 1
pleading, 2 or more causes of actions against the
OPPOSING PARTY.
 ILLUSTRATION: 3 promissory notes which fell due on
the same date or year there are 3 causes action; 1 for
each PN but can only file 1 CASE.
 PRINCIPLE: YOU CANNOT FILE 1 CASE WHEN YOU
Only have 1 CAUSE OF ACTION BUT the law allows
you to FILE 1 CASE for more than 1 cause of action
against the SAME PERSON.
 SITUATIONS:
1. If he files only against the 2 PNs, is he barred from
filing a case against the 3rd PN? NO. there are 3
causes of action in this case.
2. Is this joinder MANDATORY? NO. it is only
permissive.
How may causes of action be joined?
1. ALTERNATIVE JOINDER
2. CUMULATIVE JOINDER
ALTERNATIVE JOINDER
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 Exists when your cause of action is against either one or
the other defendant. You are not seeking relief from both
but either one.
 ILLUSTRATION:
1. REMEDIES OF AN IMPORTER IF GOODS, UPON
DELIVERY, ARE DAMAGED. There are 2 causes
of action.
1. Against the stevedoring operator under the
contract of deposit
2. Against the carrier for breach of the
contract of carriage
Rule: file one case against the 2 defendants to
claim damages on either but not both.
2. REMEDIES OF A PASSENGER OF BUS INJURED IN A
VEHICULAR ACCIDENT. Passenger is not sure who is
at fault, the driver of the bus she is riding or the other
vehicle. So, he may file one complaint naming 2
defendants for the following:
1. Against the other vehicle for QUASI-
DELICT
2. Against the operator of the bus for CULPA
CONTRACTUAL
CUMULATIVE JOINDER
 Exists when you are seeking relief for ALL your causes of
action
 ILLUSTRATION:
1. FILING 1 CASE TO COLLECT 3 UNPAID
PROMISSORY NOTES FROM 1 PERSON
2. Case of compulsory acknowledgement filed by a
child seeking for 2 reliefs: action for recognition and
also for support.
Manner of joining the DEFENDANTS, alternatively or otherwise:
1. ALTERNATIVE DEFENDANTS where the plaintiff is
uncertain who of several persons he is entitled to relief,
he may join any or all of them as defendants in the
alternative, although a right to relief against one may be
inconsistent with a right of relief against the other.
2. ALTERNATIVE CAUSES OF ACTION OR
DEFENSES a party may set forth 2 or more
statements of a claim or defense alternatively or
hypothetically, either in 1 cause of action or defense or in
separate causes of action or defenses. When 2 or more
statements ar emade in the alternative and one of them if
made independently would be sufficient,, the pleading is
not made insufficient by the insufficiency of one or more
of alternatie statements.
What conditions must be met?
1. The rules on joinder of parties must be observed,
meaning:
a. It arises from the same or series of transactions,
and
b. It involves a common question of law (Rule 3,
Sec 6)
ILLUSTRATION: 2 or more persons injured on the
same bus which met a vehicular accident. They can
all file 1 case because there is a common question
of fact or law; they are riding on the same bus, same
accident, against the same operator.
BUT if they rode on different buses at different
routes BUT same bus company NO JOINDER.
There is no common question of fact or law;
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ATTY MELISSA ROMANA SUAREZ
defenses of operator here in 2 instances are
different. You cannot join the parties under Rule 3,
joinder of causes of action under Rule 2 is also
improper.
2. Special civil actions or actions governed by special rules
are not covered.
 Reason: simple civil actions are governed by certain
rules which do not apply to ordinary civil actions.
 ILLUSTRATION:
1. You can’t join an ejectment case with money
claims because ejectment cases are governed by
special rules on summary procedure.
2. Quieting of title can’t be joined with unlawful detainer
3. Right of a stockholder of a corporation with rights
under the corp code but is also a creditor of same
corporation asserting her rights as a creditor under
the civil code. NO JOINDER. One is governed by
SEC and the other one is a case triable by the RTC.
3. Where the causes of action are between the SAME
PARTIES but pertain to different venues or jurisdiction,
the joinder may be made in the RTC, provided it has
jurisdiction over one of the causes of action and the
venue lies therein.
a. If one cause of action falls within the RTC and the
other in the MTC, the action should be filed in the
RTC.
b. If the causes of action have different venues, they
may be joined in any of the courts of proper venue.
 So, a real action and a personal action
may be joined either in the RTC of the
place where the real property is located or
where the parties reside.
ILLUSTRATION:
1. Accion publiciana case:
Land 1: 20,000 (mtc)
Land 2: 1 million (RTC)
JOIN IN: RTC
2. Accion publiciana
Land 1 in Tagum: 20,000 (MTC tagum)
Land 2 in Davao: 1 million (RTC davao)
JOIN IN : RTC OF DAVAO prevails.
3. Accion publiciana
Land 1 in tagum: 1 million (RTC tagum)
Land 2 in davao: 1 million (RTC davao)
JOIN IN: EITHER IN TAGUM OR DAVAO CITY
BECAUSE BOTH ARE RTCs.
4. Accion publiciana
Land 1 in tagum: 20,000 (mtc tagum)
Land 2 in davao: 20,000(mtc davao)
Held: NO JOINDER. Because the law provides that
one of the causes of action must fall within the
jurisdiction of RTC and the venue lies therein. None
of the 2 belongs to the RTC.
5. 2 different persons encroached land for MORE THAN 1
YEAR already both actions for ACCION PUBLICIANA
A encroached my land worth 20,000 (mtc)
B encroached my land worth 1 million (RTC)
Held: NO JOINDER for there is non-compliance with
the rule on joinder of parties. The law only allows
joinder if it between the SAME parties. Besides, in
these cases, there is no common question of fact
and law.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
6. Complaint filed: December 2011
A encroached my land worth 1 million on November
2011 FORCIBLE ENTRY IN MTC
A also encroached my land worth 1 million in 2008
ACCION PUBLICIANA IN RTC
Held: NO JOINDer because forcible entry is a SVA
which is also governed by the summary procedure.
You cannot join a special civil action with an
ordinary civil action.
4. Where all the causes of action are for recovery of money,
the aggregate amount claimed shall be the test of
jurisdiction.
a. The totality of the principal claims for money
determines which court has jurisdiction.
b. But, in cases of joinder of parties, the first condition
should apply.
ILLUSTRATION: A has a cause of action against
B,C and D for 200k each. Can there be joinder? NO.
there is no compliance with joinder of parties.
Parties there are different. They may have different
defenses. They cannot be joined together.
Sec. 6. Misjoinder of causes of action.
Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action may,
on motion of a party or on the initiative of the court, be
severed and proceeded with separately.
Is misjoinder a ground for dismissal of an action?
- No.
- In fact, if neither the court nor the adverse party objects,
it will be adjudicated together with the other causes of
action.
- Example – a joinder of collection of money and an
ejectment case. Di pwede yan, boy! Pero kung walang
nagobject, oh di lusot!
What is a possible remedy?
 Ask the court to SEVER the misjoined causes of action
and try it separately.
What about misjoined PARTIES?
 REMEDY: parties may be dropped or added by the order
of the court on motion of any party or on its won inititative
at any stage of the action an don such terms as are just.
RULE 3
PARTIES TO CIVIL ACTIONS
Classes of parties:
1. Real parties in interest
2. Representative parites
3. Permissive parties
4. Indispensable parties
5. Necessary parties
Section 1. Who may be parties; plaintiff and defendant.
Only natural or juridical persons, or entities authorized by
law may be parties in a civil action. The term "plaintiff"
may refer to the claiming party, the counter-claimant, the
cross-claimant, or the third (fourth, etc.) party plaintiff. The
term "defendant" may refer to the original defending party,
the defendant in a counterclaim, the cross-defendant, or
the third (fourth, etc.) party defendant.
Plaintiff=claimant, original plaintiff, counter-claimant, cross-
claimant, 3rd, 4th paty plaintiff.
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ATTY MELISSA ROMANA SUAREZ
Defendant=against whom the claim is asserted; may refer to the
original defending party, defendant in the counterclaim, the cross-
defendant or other 3rd, 4th, paty defendant.
Who may be parties to a civil action?
1. Natural persons
2. Juridical persons
3. Entities authorized by law (see Rule 3, Sec 15)
 SECTION 15: “entities authorized by law” An example
is when two or more persons not organized as an entity
with juridical personality enter into a transaction, they
may be sued under the name by which they are generally
or commonly known. (only as defendants!) in the
answer of such defendant, the NAMES AND
ADDRESSES of the persons composing said entity must
all be revealed.
 Legitimate labor organizations – they have judicial
personality to sue and be sued. It may not be registered
under the corporation code but they are registered under
the labor code.
Kung marami sila, paano yan?
 In the case of an association of natural folk not legally
organized as a juridical entity, each and every one of the
members thereof must be made parties.
 Except:
o They are so numerous that it is impracticable to join
them all.
o Two or more persons not organized as an entity with
juridical personality can be sued as they are
generally or commonly known.
Can the state be sued?
 Generally, no. Except when:
o There is express consent (there’s a law allowing it)
o There is implied consent, like when:
 The state enters into a private contract
 It enters into a business operation, unless
it does so only as a necessary incident of
its prime governmental function
 the state sues a private party, unless the
suit is entered into only to resist a claim.
 There is failure to abide by what the law of
contract requires.
I. REAL PARTIES IN INTEREST
Sec. 2. Parties in interest.
A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in
interest
Who is the party in interest?
 He is the party who:
o Stands to be benefited or injured by the judgment in
the suit, or
o Is entitled to the avails of the suit.
 What’s important here is actual interest, substantial intest, not
merely inchoate or expectant interest.
 Every action must be prosecuted or defended in the name of
the real party in interest.
What happens when the action has commenced, but the party in
interest changes?
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 The original action continues, and the original plaintiff
becomes the representative of the transferee of the interest.
What happens when the interest has changed, and then the action
commences?
 The original plaintiff is no longer the party in interest.
Examples of parties in interest
 Assignee for collection of credits
 Corporation sole
 If you are a pedestrian which got hit by a bus, file a case for
CULPA AQUILIANA against the bus driver or the bus
operator.
 In a case of accion publiciana or recovery of possession, file
case against the owner as RPII and not the tenant
 In a case of ACCION REINVINDICATORIA (sale of land by a
forger) for recovery of ownership, RPII is the NEW owner;
your cause of action against the forger is a criminal case.
Examples of not parties in interest
 Attorney-in-fact
 Agent of a disclosed principal
 Tenant, in an action to recover a piece of land. Case must be
filed against the owner.
 Driver of a bus which hit a pedestrian. File case against the
OPERATOR for culpa contractual and not the bus driver.
Effect if complaint is not made in the name of the RPII?
 Complaint is dismissible.
CASES:
GENERAL RULE: in a breach of contract, the RPII are the
parties to a contact.
EXCEPTION: when there is a stipulation in the contract
favorable to a third person—stipulation pour autrui
ILLUSTRATION: third party liability in insurance. A
insured his car with B insurance company. A bumped
C’s car. B can file against A and X to recover from
the insurance contract.
BALIWAG TRANSIT V. CA
FACTS: students who got injured in a VA and entered into a
compromise agreement instead of pursuing the case. The
PARENTS objected.
HELD: Parents are NOT the RPII. They were not the
passengers. The real parties in a CONTRACT OF CARRIAGE
are the parties to the contract itself. In the absence of any
contract of carriage between the transpo company and the
parents of the injured party, the parents are not the RPII in an
action for breach of contract.
SALONGA V. WARNER BARNES
FACTS: atty in fact who instituted a suit and was named as
plaintiff.
HELD: NOT PROPER. The RPII is the principal, the owner of
the property and nto the atty. In fact. The latter file a suit in his
own name because precisely, he is not the RPII. He was given
the authority to sue, manage, hroe a lawyer but NOT as the
plaintiff.
Twist: suppose it is written as, “Ken, as attorney in fact of
Barbie, plaintiff vs. lewee, defendant”
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ATTY MELISSA ROMANA SUAREZ
Answer: NOT PROPER. This is even worse.
PRINCIPLE: the law does not require the plaintiff who is
abroad to come to the Philippines to file the case. The law only
requires that “EEVERY ACTION MUST BE PROSECUTED
AND DEFENDED IN THE NAME OF THE REAL PARTIES IN
INTEREST” and not, “by the RPII”. An atty in fact can
prosecute or defend but IN THE NAME of the RPII. The RPII
has submitted himself to the juris of the court by filing a
complaint through his lawyer anyway.
REPUBLIC V. CA
 case of republic of the PI suing a person for a land
that is no longer a land of the public domain
 Real interest is meant a present substantial interst,
as distinguished form a mere expectancy, or a future,
contingent, subordinate or consequential interest.
PASCUAL , REPRESENTED BY SAGARIO V. PASCUAL
 Attorney in fact and defendant live in the same
barangay, there is no need to go to baragany
conciliation. The basis should be that of the name
and address of the REAL PARTY IN INTEREST.
 Since the plaintiff is not an actual resident of the
barangay where the defendant resides,the local
lupon has no jurisdiction over their dispute, hence,
prior referral to it for conciliation is NOT a pre-
condition to its filing in court.
II. REPRESENTATIVE PARTIES
Sec. 3. Representatives as parties.
Where the action is allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express
trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his
own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except
when the contract involves things belonging to the
principal.
If the action is allowed to be prosecuted or defended by a
representative, what should be done?
 The beneficiary should be included in the title of the case and
shall be deemed to be the real party in interest.
 A representative may be:
o A trustee of an express trust,
o A guardian,
o An executor or administrator,
o A party authorized by law or these Rules.
ILLUSTRATIONS
1. If a minor was injured, a case for damages has to be filed
in behalf of the minor. The law allows the PARENTS to
come iin and be the plaintiff.parents are the
representative parties but the law still requires the minor
to be include in the TITLE of the case and shall be
deemed the RPII.
2. Administrator or executor of the estate of the deceased
will be the one fo file a case if ever the estate has some
collectibles.
CHING V. CA
FACTS: A doesn’t know B’s whereabouts to file case for
collection of sum of money. So defendant was named,
“defendant and/or estate of the defendant”. Favorable
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
judgment obtained. Later, B died pala. So A took hold of
B’s properties. Heirs of B questioned such.
HELD: the decision of the court in so far as the deceased
is concerned is VOID for lack of jurisdiction over his
person. He was not, and he could not have been validly
served with summons. He had no more civil personality.
His juridical personality, that is fitness to be subject of
legal relations was lost through death. The same
conclusion will still be reached notwistanding the joinder
of B’s estate as co-defendant. An estate can sue or be
sued but only through an EXECUTOR OR
ADMINISTRATOR in his representative capacity. As
provided for under Section 3, in order to bind the estate,
one should sue the executor or adminsitaro of his estate.
Otherwise, the case cannot prosper.
An agent acting in his own name and for the benefit of an
undisclosed principal may be sued or sue without joining the
principal
o EXCEPT when the contract involves things
belonging to the principal. Principal has really to be
included, agent cannot file case where the principal
will stand to lose his property without being named
as party to the case.
Sec. 4. Spouses as parties.
Husband and wife shall sue or be sued jointly, except as
provided by law.
General rule: Husband and wife shall sue or be sued jointly as
both are co-administrators of the community property.
Exceptions:
1. A spouse without just cause abandons the other or
fails to comply with his or her obligations to the
family with respect to marital, parental or property
relations.
2. A spouse mortgages, encumbers, alienates or
disposes of his or her exclusive property.
3. When the regime is separation of property.
Effect if they are not sued jointly:
 it does not cause for the instant dismissal of the case.
Complaint can be amended. The defect is not fatal but
only formal.
Sec. 5. Minor or incompetent persons.
A minor or a person alleged to be incompetent, may sue or be
sued, with the assistance of his father, mother, guardian, or if
he has none, a guardian ad litem.
Can a minor or incompetent be a party?
 Yes, but with the assistance of his father, mother, guardian, or
if he has none, a guardian ad litem.
 A person need not be judicially declared to be incompetent. It
is enough that he be alleged to be incompetent. (Kawawa
naman. Paano kung hindi talaga bobo?)
III. PERMISSIVE PARTIES
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ATTY MELISSA ROMANA SUAREZ
Sec. 6. Permissive joinder of parties.
All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of
transactions is alleged to exist, whether jointly, severally, or
in the alternative, may, except as otherwise provided in these
Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the
action; but the court may make such orders as may be just to
prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which
he may have no interest.
PERMISSIVE JOINDER OF PARTIES; Principle involved:
Where there is joinder of parties, there is AUTOMATICALLY
joinder of causes of action. (remember, for joinder of causes of
action to be valid, one must comply with joinder of parties first.
BUT BUT BUT, there can be joinder of causes of action, without
joinder of parties. How? Case of collection of sum of money
against A for 3 loans. 3 loans but only 1 defendant, 1 plaintiff. I can
join my 3 causes of action for the 3 unpaid loans in 1 complaint.
There is joinder of my 3 causes of action but there is NO joinder of
parties as there is only 1 plaintiff and 1 defendant. )
What are the requisites for permissive joinder of parties?
1. Right to relief in favor of or against the parties joined in
respect to or arising out of the same or series of transactions
and
2. Common questions of law or fact common to the parties
joined in the action
Examples
Mario & Luigi versus Bowser & Princess
Mario, Luigi & Princess versus Bowser
Mario versus Luigi, Princess & Bowser
Illustrations:
1. Passengers riding in same common carrier and are
injured may file one case against the operator. There
is 1 cause of action for breach of contract of carriage.
There is a common question of fact or law; evidence
identical; issues whether carrier is at fault are the ame;
witnesses for both parties are the same; reports will be
thee same; defense of the operator against one party will
be the same defense as against the other passenger.
Since there is a common denominator on their causes of
action, they can be joined.
2. 5 people named as jueting kings in 1 news article
may file 1 case against the newspaper. Because it
refers to the same news story; names appeared in the
same sory; it is not a different issue; common question of
fact or law in their cause of action.
3. A bumped B’s car and injuring the owner, the driver
and the passengers. They may all file 1 case against A.
but the owner,driver and passengers may file separates
cases each for the law is only PERMISSIVE joinder. It is
not mandatory.
Why does the law encourgage joinder of parties?
1. Promote convenience in trial
2. Prevent multiplicity of suits
3. Expedite the termination of the litigation
4. Attain economy of procedure under which several
demands arising out of the same occurrence may be
tried together, thus avoiding the repetiion of evidence
relating to facts common to the general demands.
IV. INDISPENSABLE PARTIES
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Sec. 7. Compulsory joinder of indispensable parties.
Parties in interest without whom no final determination can be
had of an action shall be joined either as plaintiffs or
defendants.
Who is an indispensable party?
 Parties in interest without whom no final determination can be
had.
 Without them, there will be no resolution of the case, no
judgment at all.
Examples
1. Co-owners in an action for partition of an undivided
interest in land.
2. All of the heirs in an action for annulment of partition
3. Vendee in an action for annulment of a contract of sale.
4. Those with titled claims over the land in a petition for
reconstitution of title.
5. Person who claims to be the owner of the land and not
the tenant in an action for recovery of ownership of land.
V. NECESSARY PARTY
Sec. 8. Necessary party.
A necessary party is one who is not indispensable but who
ought to be joined as a party if complete relief is to be
accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action
Who is a necessary party?
 Party in interest who ought to be joined
o if complete relief is to be accorded as to those
already parties, or
o for a complete determination or settlement of the
claim subject of the action.
 Plaintiff may choose to file versus the necessary party not
impleaded, but they ought to be joined to avoid multiple
litigation.
Examples
1. Co-owners of a promissory note in an action for its
collection
2. If Mario and Luigi are solidarily liable, either is
indispensable, and the other is not even necessary
because complete relief may be obtained from either.
3. If Mario and Luigi are jointly liable, either is
indispensable, and the other is necessary to accord
complete relief.
4. In an action for collection of debt against a surety, the
principal debtor is merely a necessary party.
5. In an action for recovery of debt against the debtor, the
guaranty or surety is merely a necessary party.
Difference of surety and guarantor
 Liability of GUARANTOR to the creditor is only
secondary. He is only liable if the principal
debtor CANNOT pay. i.e. debtor insolvent.
 SURETY is PRINCIPALLY LIABLE to the
creditor whether or not the debtor CAN pay or
DOES NOT pay.
 Rule: if you file case against a surety or
guarantor, principal debtor is merely a
necessary party. So case can still proceed if he
is not named in the 1st case. However, pag
nagbayad na ang surety, the latter will file case
agains the debtor for reimbursement. Ganun
din. Might as well included the debtor in the first
case para isahang kaso na.
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6. In an action for foreclosure of REM institured by the 1st amended complaint impleading the necessary party as co-
mortgagee, the 2nd mortgagee is merely a necessary defendant.
party.
When if, after the order, the pleader fails to explain to the non-
Indispensable Necessary joinder or fails to comply, without justifiable cause, with the order of
An action cannot proceed The action can proceed even in the court? (Given that jurisdiction over the person may be
unless they are joinedty the absence of some obtained)
necessary parties  Then it will be deemed a waiver of the claim against such
No valid judgment, if The case may be determined party. Except that the plaintiff may not be compelled to amend
indispensable parties are not in court but the judgment the complaint to include the necessary party if jurisdiction over
joined therein will not resolve the his person cannot be obtained.
entire controversy if a
necessary party is nto joined What if the joint obligor can’t be impleaded because jurisdiction
They are those with such an They are those whose over the person couldn’t be obtained?
interest in the controversy that a presence is necessary to  The judgment rendered against the impleaded joint obligor will
final decree would necessarily adjudicate the whole not prejudice the rights of the joint obligor not impleaded.
affect their rights so that the controversy but whose
court cannot proceed without interests are so far separable Sec. 10. Unwilling co-plaintiff.
their presence that a final decree can be If the consent of any party who should be joined as plaintiff
made in their absence without can not be obtained, he may be made a defendant and the
affecting them reason therefor shall be stated in the complaint.

JOINT AND SOLIDARY DEBTORS
1. JOINT DEBTORS (d1, d2 and d3 owes A money)
Nature:
o Cumulative joinder of causes of action
o Permissive joinder of parties
o A debtor is an indispensable party with respect
to his own share and a necessary party with
respect to the share of others.
2. SOLIDARY DEBTORS
o Alternative joinder of causes of action
o Joinder of parties, automatically, you also join
your 3 causes of action against the 3 solidary
debtors
o If the 3 are sued, they are necessary parties to
each other; if only 1 of them is sued, the one
sued is an indispensable party
Sec. 9. Non-joinder of necessary parties to be pleaded.
Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth his
name, if known, and shall state why he is omitted. Should the
court find the reason for the omission unmeritorious, it may
order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim
against such party.
The non-inclusion of a necessary party does not prevent the
court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of
such necessary party.
What if a necessary party is not joined, what happens?
 The pleader shall set forth his name and shall state why he is
omitted.
What if the court finds the reason for his omission unmeritorious?
 The court may order the inclusion of the omitted necessary
party if jurisdiction over his person may be obtained. If court
orders the inclusion, the plaintiff shall be ordered to file an
What if the consent of a party who should be joined as plaintiff can
not be obtained?
 He may be made a defendant, and
 The reason therefore shall be stated in the complaint.
 May refer to both indispensable or necessary party. The law
only mentions “any party”.
Sec. 11. Misjoinder and non-joinder of parties.
Neither misjoinder nor non-joinder of parties is ground for
dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed and
proceeded with separately.
What is misjoinder?
 Means that 2 or more parties who should not be joined
were iimproperly joined. Also known as ‘spurious class
suit’
What is nonjoinder?
 A party who should be joined was not joined as a
necessary party.
Is misjoinder or non-joinder of parties a ground for dismissal of an
action?
 No.
 The non-joinder of an indispensable or a necessary party is
not ipso facto a ground for the dismissal.
What is the remedy?
 The court should order the removal of the party who is
misjoined or to order the inclusion of the party who
should be joined. Non-compliance with the said order
would be a ground for the dismissal of the action. (it’s the
non-compliance with the order, not the misjoinder itself)
 The absence of an indispensable party renders all
subsequent actions of the court null and void for want of
authority to act, not only as to the absent parties but even
as to those present.
Principles:
 Objections to defect in parties should be mae at the
earliest opportunity—the moment such defect becomes
apparent by a MOTION TO STRIKE THE NAMES OF
THE PARTIES IMPLEADED
 If there is misjoinder, a separate action should be

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 24

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ATTY MELISSA ROMANA SUAREZ
brought agains the party misjoined.
 There can be misjoinder of parties even if there is only 1
cause of acion common to them, and there can be
misjoinder of causes of action even if there is only 1
plaintiff.
 The absence of an indispensable party renders all
subsequent actions of the court N/V for want of authority
to act, not only as the absent parties but even to those
present.
Does this mean that plaintiff is given license to include anybody in
the action?
 No. what the law contemplates, the party was joined in
good faith believing that he was a defendant but actually
it turned out to be wrong.
 Section 11 or Rule does nto comprehend whimsical and
irrational dropping or adding or parties in a complaint.
What it really contemplates is errornious or mistaken
non-joinder and misjoinder of parties. No one is free to
join anybody in a complaint in court only to drop him
unceremoniously later at the pleasure of the plaintiff. The
rule presupposes that the original inclusion had been
made in the honest conviction that it was proper and the
subsequent dropping is requested because it turned out
that such inclusion was a mistake.
Sec. 12. Class suit.
When the subject matter of the controversy is one of common
or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which
the court finds to be sufficiently numerous and representative
as to fully protect the interests of all concerned may sue or
defend for the benefit of all. Any party in interest shall have
the right to intervene to protect his individual interest.
What are the requisites/conditions for a class suit?
1. Subject matter is one of common or general interest to many
persons, and
2. The interested persons are so numerous that it is
impracticable to join them all as parties.
What is the procedure?
 In which case, a number of them which the court finds to
be sufficient and numerous and representative as to fully
protect the interests of all concerned may sue or defend
for the benefit of all.
 Example:
1. Case of borlaza v. polistico
2. Taxpayer’s suit
3. Case of sulo ng bayan, etc.
Tip: If a judge denies the class suit, go for a permissive
joinder of parties. The thing here is that those not pleaded will
not be affected by the judgment (as compared to having a
class suit where all will get affected)
GENERAL RULE: if there are several real parties in interest, they
shall all be included in the case, whether indispensable or
necessary.
EXCEPTION: CLASS SUIT or the DOCTRINE OF VIRTUAL
REPRESENTATION. Some will sue to represent the rest.
CASES:
BORLAZA V. POLISTICO
FACTS: group of people forming an association called “turnuhang
polistico”. Some members filed a class suit against its officers to
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
rendering an accounting of their money.
HELD: THIS IS A CLASS SUIT. It satisfies the 2 conditions: first,
there was a common or general interest which is to ask the officers
where did their money go. The suit was for the purpose of
accounting all the amounts they paid to the association. Second,
the members are so numerous that it is impracticable to bring them
all to the court.
SULO NG BAYAN V. ARANETA
ISSUE: won the action was filed in the name of the RPI?
HELD: NO. sulo ng bayan is not the RPI. It violates section 2
which provides that the action must be prosecuted and defended
in the name of the RPI. The members occupying the land are the
plaintiffs. The association is not the one occupying the lt. who
should be the plaintiff then? It should be the MEMBERS.
ISSUE 2: WON action was properly filed as class suit
HELD 2: NO. First, there is no common or general interest
involved. Subject matter is not of common interest. The interest of
one occupant is only on the lot he occupies. Second, although they
are so numerous, it still did not comply with the first condition,
hence, it still could not be regarded as class suit. In this case,
section 6 on PERMISSIVE JOINDER OF PARTIES should be
applied coz there is a common question of fact.
BULIG BULIG KITA KAMAGANAK V. SULPICIO LINES
CASE: survivors filied ‘class suit’ in behalf of all those victims of
the ship which sanked against sulpico lines
HELD: NO CLASS SUIT. The survivors have no interest in the
death of other passengers. The interest in this case is
INDIVIDUAL. What would have been proper is PERMISSIVE
JOINDER OF PARTIES because there is a common question of
fact or law, but NOT class suit.
OPOSO V. FACTORAN
FACTS: atty. Oposa, in behalf of all the minors and the future
generation, filed a ‘class suit’ to annul TLA’s.
HELD: VALID CLASS SUIT. The case has a special and novel
element. The personality of the minors to sue for the succeeding
generations is based on the concept of INTER-GENERATIONAL
RESPONSIBILITY in so far as a balnced and healthful ecology is
concerned. Every generation has a responsibility to preserve the
ecology. The minors’ right to a sound environment constitutes at
the same time the performance of the obligation to ensure the
protection of the rights or the generations to come.
In case of doubt, should a class suit be allowed?
NO. when the issue is not so clear, a class suit should not be
allowed because class suit is an exception to the general rule that
all the parties should be included. It should only be allowed with
caution because the fact that you represent others is only a fiction
of law. In an improperly instituted class suit, there would be no
problem if the decision secured is favorable to the plaintiffs. The
problem arises where the decision is adverse to them. In which
case, the parties who are impleaded through their self-appointed
representatives would surely plead denial of due process.
Distinguish REPRESENTATIVE SUIT from a CLASS SUIT.
1. In CLASS SUIT—there is only one cause of action
belonging to many persons but in
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REPRESENTATIVE SUIT—there are many causes of
action pertaining separately to several people; ( as a
group, not as distinct individuals)
2. In CLASS SUIT—only the names of those representing
the class appear in the title but
REPRESENTATIVE SUIT—all the names of the
beneficiaries must be included in the title.
3. CLASS SUIT—those representing the “class” must be
real parties in interest
REPRESENTATIVE SUIT—the representative chosen
NEED NOT be a real party in interest.
How do you distinguish a legitimate labor organization as
representatives in a representative suit and that when itself, it is
the real party in interest?
 Illustration: such as when such LLO members involve
themselves in a strike
 Answer: in a representative suit, they represent all the
other members of the organization or that of the
employees. They have the right to file a representative
suit for the benefit of its members in the interest of
avoiding an otherwise cumbersome proecedure of joining
all union members in the complaint, even if they number
by the hundreds. However, for instances when they are
involved in a case d/t involvement in unauthorized
striking, they need not include the names of all the other
members because they themselves are already the real
parties in interest.
LIANA’S SUPERMARKET V. NLRC
FACTS: Labor union vs. the employer
HELD: REPRESENTATIVE SUIT.
What makes the situation a proper case for a CLASS SUIT is the
circumstance that there is only one right or cause of action
pertaining or belonging in common to many person, not separately
or severally to distinct individuals. The object of the suit is to obtain
relief for or against numerous persons as a group or as an integral
entity, and not as separate, distinct individuals whose rights or
liabilities are separate from and independent of those affecting the
others.
In a REPRESENTATIVE SUIT, (section 3, rule 3), there are
different causes of action pertaining to different persons.
In the present case, there are MULTIPLE RIGHTS OR CAUSES
OF ACTION pertaining separately to SEVERAL, DISTINCT
employees who are members of the respondent union. Therefore,
the applicable rule is that on REPRESENTATIVE PARTIES.
Sec. 13. Alternative defendants.
Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them
as defendants in the alternative, although a right to relief
against one may be inconsistent with a right of relief against
the other.
If you’re not sure who to go against, what do you do?
 This is related to the alternative joinder of causes of action.
Join any or all of them as defendants in the alternative,
although a right to relief against one may be inconsistent with
a right of relief against the other.
 Just be careful, because this will open yourself up to counter-
suits.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
This provision speaks of ALTERNATIVE DEFENDANTS. May
plaintiffs join in the alternative as well?
 YES. Plaintiffs may join in the alternative under ht same
principle as alternative joinder of defendants. When
several persons are uncertain as to hwo among them is
entitled to relief from a certain defendant, they may join
as plaintiffs in the alternative. This is also sanctioned by
the rule on permissive joinder of parties.
Thus, the principal and his agent may join as plaintiffs in
the alternative against a defendant. If the agency is
proved, the relief is awarded to the principal. If not, award
is then made to the agent.
Sec. 14. Unknown identity or name of defendant.
Whenever the identity or name of a defendant is unknown, he
may be sued as the unknown owner, heir, devisee, or by such
other designation as the case may require; when his identity
or true name is discovered, the pleading must be amended
accord.
Later, if you discover the true identity of the defendant, amend the
complaint to place the name of such defendant.
Sec. 15. Entity without juridical personality as defendant.
When two or more persons not organized as an entity with
juridical personality enter into a transaction, they may be
sued under the name by which they are generally or
commonly known. In the answer of such defendant, the
names and addresses of the persons composing said entity
must all be revealed
 These folk can only be sued under the name which they are
generally or commonly known, i.e as defendants.
o Service of summons may be effected upon all the
defendants by serving upon any one of them; or
upon the person in charge of the office or place of
business maintained under such name.
 They can’t sue as an entity because it has no juridical
personality, they will have to file as individuals.
What should be contained in their answer?
 Their answer must reveal the names and addresses of the
persons composing it, so that the judgment rendered against
them shall set out their individual or proper names.
GENERAL RULE: actions must be filed against the RPII.
EXCEPTIONS:
1. Class suit
2. Entity without juridical personality
3. Any co-owners may bring an action for ejectment.
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Sec. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies, and the claim is
not thereby extinguished, it shall be the duty of his counsel to
inform the court within thirty (30) days after such death of the
fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary
action.
The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period
of thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
party, within a specified time, to procure the appointment of
an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of
the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be
recovered as costs.
 This provision applies when the action survives the death of a
party.
Mario filed a case of collection of money versus Luigi. While the
case was pending, Luigi was killed by Bowser.
What’s the test to determine whether the action survives or not?
 If the wrong complained of affects primarily and principally
property or property rights, the action will survive, the injuries
to the person being merely incidental.
o Money claims
 If the injury complained of is to the person and the injuries to
the property are incidental, then the action will not survive.
o Annulment of marriage, legal separation, action for
support– even if it involves changes in the property
relations
What should the lawyer do?
 He should, within 30 days after the death, inform the court
thereof and give the name and address of the legal
representative of the deceased. (under legal ethics, lawyer-
client relationship is automatically terminated by the death of
the client because the lawyer-client relationship is
PERSONAL. But procedurally, he can be re-hired under a
new contract. If the court is NOT INFORMED of such death 
heirs are bound by the judgment of the court. Moreover, if the
counsel failed to comply with his duty  disciplinary action)
 The court will order the representative to appear and be
substituted within 30 days from notice.
 Upon failure to of the legal rep to appear, the court may order
the opposing party, within a given period, to procure the
appointment of an executor or administrator who shall
immediately appear for the estate of the deceased.
Who is given priority?
 The legal representative of the deceased – that’s the executor
or the admin of his estate, as the substitute.
 Only when there is unreasonable delay in procuring an
executor or when the heirs resort to an extra-judicial
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
settlement that the court may allow the heirs of the deceased
to be substituted for the deceased.
What if no administrator is procured?
 The case will be archived.
What happens if there is no valid substitution despite notice or
knowledge of the court death of the party?
 The proceedings are null and void because the court never
acquired jurisdiction over the purported substitute.
What if there was no notice of death and the court has no
knowledge thereof?
 The proceedings will not be set aside.
 The court cannot be expected to know of the death of the
plaintiff without the proper manifestation of her counsel.
LAWAS V. CA
HELD: the priority of stubsistiution would be the
EXECUTOR/ADMINSITRATOR and not the heirs. The heirs would
only be allowed to be substituted if there is:
1. Unreasonable dealy in the appointment of
admin/executor
2. When the heirs resort to extra-jud partition.
VDA DE SALAZAR V. CA
FACTS: ejectment case. Defendant died while case was pending.
Substitution should ensue but no substitution even after 10 years.
Case was decided. Court was not informed.
Issue: when there is failure to effectuate the substitution of heirs
befor ehte rendition of judgment, is the judgment jurisdictionally
defective?
HELD: NO. Heirs were in estoppels. Judgment is still valid as the
heirs themselves appared before the trial court and participated in
the proceedings. They presented evidence for the deceased,
sought their day in court and exercised their right to due process.
POE V. MACAPAGA-ARROYO
HELD: RULE 3, SECTION 16 is the rule on substitution of the
rules of court. In the present case, the movant/intervenor seeks to
appear before the court as the legal representative/substitute of
the late Fernando poe. However, SC said that in the application of
the rule on substitution to an election contest, public office is
personal to the public officer and nto a property transmissible to
the heirs upon death. Thus, SC consistently rejected substitution
by the widow or the heirs in election contests where the protestant
dies during the pendency of the protest.
Proceed to section 21: effect of death of a party on MONEY
CLAIMS
Sec. 20. Action on contractual money claims.
When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in
these Rules for prosecuting claims against the estate of a
deceased person.
What happens if the defendant dies in a case involving a money
claim?
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 The defendant is substituted by his executor or administrator
or legal heirs and the action continues until final judgment is
entered.
 Once a final judgment is entered against the estate of the
deceased, it shall be enforced as a claim without need of
proving the same.
 If based on a contract, file money claim in probate court.
 If based on tort or delict, file against the executor or
administrator.
OUTLINE:
DEATH OF PARTY IN A PENDING CIVIL ACTION: DETERMINE
FIRST WHAT ACTION IT IS
1. ACTIONS WITH DO NOT SURVIVE
 Actions which are abated upon the
death of the party; refers to those
which are purely personal in character
Examples:
1. Annulment of marriage
2. Action for declaration of nullity of
marriage
3. Action for legal separation
4. Action for support.
EFFECT: case is DISMISSED.
2. ACTIONS WHICH SURVIVE
a. CONTRACTUAL MONEY CLAIMS
 If plaintiff dies: case will CONTINUE. The heirs
or legal representatives will substitute.
 If it is the DEFENDANT who dies, when did he
die?
a. If he died BEFORE the entry of final
judgment, case shall not be dismissed but
shall be allowed to continue UNTIL
ENTRY OF FINAL JUDGMENT. The
favorable judgment obtained by the
plaintiff threin shall be enforced in the
manner especiall provided in the rules of
court for prosecuting claims against the
estate of a deceased person.
b. If the defendant died AFTER the entry of
final judgment BUT BEFORE execution
(after judgment became final but before
there could be levy or execution), you
cannot move to execute. Apply setion 5 or
rule 86 file your judgment as a CLAIM
against the ESTATE of the deceased
defendant. (purpose: so that creditor will
share with the other creditors pro-rata in
the distribution of the estate.
c. If he died AFTER levy or execution BUT
BEFORE auction sale, apply Section 7(c)
of rule 39, the property may be sold for the
satisfaction of the judgment obligation and
the officer making the sale shall account to
the corresponding executor or
administrator for any surplus in his hands.
Meaning, after levy, he died, AUCTIO
SALE PROCEEDS AS SCHEDULED. If
there is an excess, the excess shall be
delivered to the administrator or executor.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
b. NON-CONTRACTUAL MONEY CLAIMS
Examples:
1. Action for recovery of property, real or
personal i.e. replevin
2. Forcible entry
3. Unlawful detainer
4. Accion publiciana
5. Accion reinvivindicatoria
6. Action for damages (damages that is not
the same for transaction of money
because damages arising from culpa
aquiliana is one not arising from contract).
EFFECT: there is SUBSTITUTION OF PARTIES.
Sec. 17. Death or separation of a party who is a public officer.
When a public officer is a party in an action in his official
capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30)
days after the successor takes office or such time as may be
granted by the court, it is satisfactorily shown to the court by
any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or
threatens to adopt or continue the action of his predecessor.
Before a substitution is made, the party or officer to be
affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an
opportunity to be heard.
Applicability of the rule:
When the public officer is party to an action in his OFFICIAL
CAPACITY. If he:
1. Dies
2. Resigns
3. Ceases to hold office
EFFECT: there is SUCCESSSION.
PROCEDURE:
1. If the successor intends to continue with the policy, he
will substitute and is given 30 days to comment.
2. If the successor does not adopt the policy, the case will
be dismissed.
Sec. 18. Incompetency or incapacity.
If a party becomes incompetent or incapacitated, the
court, upon motion with notice, may allow the action to be
continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem
What do I do if my client becomes incompetent or incapacitated
midway?
 File a motion with notice asking the court to continue the case
and for the client to be assisted by a legal guardian or
guardian ad litem.
NOTE: If compared to rule 3 section 3 on representative party, the
client there is already insane BEFORE the case was filed.
Sec. 19. Transfer of interest.
In case of any transfer of interest, the action may be
continued by or against the original party, unless the court
upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the
original party.
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Mario filed an action for replevin of his mushroom against Luigi.
While the case was pending, Luigi sold the mushroom to Bowser.
What if there was a transfer of interest?
 The action may be continued by or against the original party.
o He will then hold the fruits of the action as sort of
trustee for the use and benefit of his transferee. In
the same manner that the transferee of the original
defendant is bound by the judgment against the
latter.
 UNLESS the court, upon motion, directs the person to whom
the interest is transferred to be substituted in the action or
joined with the original party.
 The transferee pendent elite is a proper party in the case but
not an indispensable party.
Another example:
A files case against B to recover a piece of land. While case was
pending, B sold the land to C (transferee pendent lite). C now
assumes the risk and takes the property subject to the outcome of
the case.
Q. can case continue against B?
A: YES.
1. If B loses and cannot pay, C is subsidiarily liable;
2. B can be removed and C will be substituted; OR
3. B can stay and C will be added as a party.
Note: in all 3 cases, C will be bound by the judgment.
Sec. 21. Indigent party.
A party may be authorized to litigate his action, claim or
defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who
has no money or property sufficient and available for food,
shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of
docket and other lawful fees, and of transcripts of
stenographic notes which the court may order to be furnished
him. The amount of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent,
unless the court otherwise provides.
Any adverse party may contest the grant of such authority at
any time before judgment is rendered by the trial court. If the
court should determine after hearing that the party declared
as an indigent is in fact a person with sufficient income or
property, the proper docket and other lawful fees shall be
assessed and collected by the clerk of court. If payment is not
made within the time fixed by the court, execution shall issue
for the payment thereof, without prejudice to such other
sanctions as the court may impose.
Who can be considered an indigent?
 Party is one who has:
o No money or property sufficient and available for
 Food
 Shelter
 Basic necessities
 for himself and his family.
If he is an indigent party, what are the benefits?
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
- In civil cases, plaintiff need not pay the docket fee if he
files an application (ex parte application) to allow him to
litigate as an indigent litigant.
What if he wins the case?
- He has to pay the fees. File now, pay later. The amount
thereon shall be a lien on a favorable judgment.
What if he wasn’t an indigent and he claimed he was?
 The proper docket and lawful fees shall be assessed and
collected by the clerk of court.
 If payment is not made within the time fixed by the court,
execution shall issue or the payment thereof, without
prejudice to such other sanctions as the court may impose.
Sec. 22. Notice to the Solicitor General.
In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or
regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in
person or through a representative duly designated by him.
Illustration: A files case against B for declaration of nullity of
their marriage on the ground of PI. B alleges that Article 38 of FC
is unconstitutional. So the court will rule on the validity of the law
in which case, the SolGen has to be involved to defend the
validity of the law.
REASON: SolGen is the legal counsel of the rP whose duty is to
defend all the official acts of the Govt. it is his duty to defend the
laws enacted.
RULE 4—VENUE OF ACTIONS
Venue is the place or the geographical area where an action is to
be filed and tried. In civil cases, it relates only to the place of the
suit and not to the jurisdiction of the court
Section 1. Venue of real actions. — Actions affecting title to or
possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or a portion
thereof, is situated.
Forcible entry and detainer actions shall be commenced and tried
in the municipal trial court of the municipality or city wherein the
real property involved, or a portion thereof, is situated. (1[a], 2[a]a)
Distinguish when the action is real:
1. Accion publiciana
2. Action reinvindicatoria can either be RTC or MTC
depending on amount of the real property involved; the
proper venue if the place which has jurisdiction over the
area wherein the real property involved or a portion
thereof is situated.
3. Forcible entry
4. Unlawful detainer always MTC; Proper venue
is the municipality or city wherein the real property
involved or a portion therof is situated.
What if nasa boundary of two towns?
Case can be filed in the MTC or RTC of EITHER towns.
Section 2. Venue of personal actions. — All other actions may be
commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant
where he may be found, at the election of the plaintiff.
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TRANSITORY ACTION
- Venue will depend on the residence of parties
- Case can be field on the residence of any of the principal
plaintiffs or principal defendants reside—not nominal
plaintiffs or defendants.
Situation:
1. If you want to file for annulment of sale/rescisiion of
contract of sale of real property—parang personal action
2. But if your purpose is to recover the ownership of that
land—real action na xa; primary object of the suit is to
recover ownership which involves title to or possession of
or interest in real property.
Situation: file action for specific performance to execute
deed of sale in your favor
HELD: The complaint is one for specific performance
with damages. They do not claim ownership fot he lot but
in fact recognized title of defendants by annotating a
notice of lis pendes. It is a personal action which may be
f8iled in the proper court where the party resides. Not
being an action involving title to or ownership of real
property, venue, was not improperly laid in the place
where both are residents. (LA TONDENA DISTILLERS
V. PONRERRADA)
What if daming alternative reliefs then mixed real and personal,
how is venue determined?
It is determined by the PRIMARY OBJECT OF SUIT or
by the NATURE OF PRINCIPAL CLAIM. Thus, where the
purpose is to nullify the title to real property, the venue of
the action is in the province where the property lies,
notwithstanding the relief sought, recovfery of damages,
which is predicated upon a declaration of nullity of the
title.
NOTE:
1. Residence means actual or physical residence and not
domicle
2. The residence of the corporation is the place wehre its
head or main office is situated.
3. Any person, whether natural, juridical can only have one
residence. A corporation cannot be allowed to file
personal actions in a place other than its principal place
of business unless such a place is also the residence of
a co-plaintiff or defendant.
What if defendant is a NON-RESIDENT but temporarily IN THE
PHILIPPINES?
File the case wherever he may be found.
What if NON-RESIDENT and is NOT IN THE PHILIPPINES?
There is no way for the phlippine courts to acquire
jurisdiction over his person. Otherwise, he will not be
bound by the decision. However, even in that case, even
if he is not in the Philippines but the subject of the
controversy (res) is in the philippines, then the non-
resident defendant can be sued in the Philippines. Court
can now acquire juris over the res for it is here, hence,
judgment tcan be enforced.
Principles ot remember:
1. Subject to rules on jurisdiction, venue may be the subject
of a VALID AGREEMENT if the agreement states that
the case can ‘only’ or ‘exclusively’ be filed in the place
agreed upon. Otherwise, the same becomes optional.
2. Requisites for venue to be EXCLUSIVE:
A. Valid written agreement
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
B. Excecuted by the parties before the
filing of the action; and
C. Exclusive nature of the venue
Note: in the absence of qualifying or restrictive words,
venue stipulation is merely PERMISSIVE. The stipulated
venue is only IN ADDITION to the venue provided for in
the rule.
4. Means of WAIVING venue:
a. Failure to object via an MTD
b. Affirmative relief sought in the court where the case
is filed
c. Voluntary submission to the court where the case is
filed
d. Laches.
5. If property is located on the boundary of 2 places: file case in
either place at the option of PLAINTIFF
6. If case involves 2 properties located in 2 different places:
a. If the properties are objects of SAME transaction
FILE IN ANY Of the 2 places
b. If 2 distinct rtransactions file SEPARATE
ACTIONS
7. If alternative relief is sought primary object of the action
determines the venue.
Section 3. Venue of actions against nonresidents. — If any of the
defendants does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff, or any
property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is
situated or found.
Actions that can proceed even if defendant is a non resident?
1. Action that affects the personal status of the plaintiff
Example:
a. Compulsory recognition
2. Action that affects the property or any portion thereof of
said defendants located here in the Philippines.
Section 4. When Rule not applicable. — This Rule shall not apply.
(a) In those cases where a specific rule or law provides otherwise;
or
(b) Where the parties have validly agreed in writing before the filing
of the action on the exclusive venue thereof.
What are those cases where a specific rule or law provides
otherwise?
1. Civil action for LIBEL
o Criminal action may be filed in:
a. Province or city where the libelous article is printed
and first published or
b. Where any of the offended parties actually resides
at te time of the commission of the offense.
2. SC may order change of venue or place of trial to avoid a
miscarriage of justice
3. Warsaw convention. Case may be tried in:
a. Domicile of carrier
b. Principal place of business
c. Where contract was entered into
d. Place of destination.
Can parties agree for an exclusive venue?
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YES. The law says we can agree on a place wehre the
action will be filed provided it is in writing and it is stipulated even
before the filing of the action.
Effects of stipulations on venue
1. The parties may stipulate on the venue as long as
the agreement is (a) in writing, (b) made before the
filing of the action, and (3) exclusive as to the
venue (Sec. 4[b], Rule 4).
2. The settled rule on stipulations regarding venue is
that while they are considered valid and enforceable,
venue stipulations in a contract do not, as a rule,
supersede the general rule set forth in Rule 4 in the
absence of qualifying or restrictive words. They should
be considered merely as an agreement or additional
forum, not as limiting venue to the specified place.
They are not exclusive by rather permissive. If the
intention of the parties were to restrict venue, there
must be accompanying language clearly and
categorically expressing their purpose and design that
actions between them be litigated only at the place
named by them.
3. In interpreting stipulations as to venue, there is a
need to inquire as to whether or not the agreement is
restrictive or not. If the stipulation is restrictive, the suit
may be filed only in the place agreed upon by the
parties. It must be reiterated and made clear that under
Rule 4, the general rules on venue of actions shall not
apply where the parties, before the filing of the action,
have validly agreed in writing on an exclusive venue.
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties must be
able to show that such stipulation is exclusive. In the
absence of qualifying or restrictive words, the
stipulation should be deemed as merely an agreement
on an additional forum, not as limiting venue to the
specified place (Spouses Lantin vs. Lantin, GR
160053, August 28, 2006).
Venue versus Jurisdiction
1. Jurisdiction is the authority to hear and determine a case;
venue is the place where the case is to be heard or tried;
2. Jurisdiction is a matter of substantive law; venue of
procedural law;
3. Jurisdiction establishes a relation between the court and
the subject matter; venue, a relation between plaintiff and
defendant, or petitioner and respondent;
4. Jurisdiction is fixed by law and cannot be conferred by
the parties; venue may be conferred by the act or
agreement of the parties; and
5. Lack of jurisdiction over the subject matter is a ground for
a motu propio dismissal; venue is not a ground for
a motu propio dismissal except in cases subject to
summary procedure.
RULE 5
Uniform Procedure In Trial Courts
Section 1. Uniform procedure. — The procedure in the Municipal
Trial Courts shall be the same as in the Regional Trial Courts,
except (a) where a particular provision expressly or impliedly
applies only to either of said courts, or (b) in civil cases governed
by the Rule on Summary Procedure. (n)
Section 2. Meaning of terms. — The term "Municipal Trial Courts"
as used in these Rules shall include Metropolitan Trial Courts,
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts. (1a)
NOTES:
1. Rules on Civ Pro which applies to rtc also allpies to MtC
except when a particular provision expressly appeoes
only to either of said courts.
Example:
1. Rule 40—appeal from MTC to RTC only
applies to MTC
2. Rules on summary procedure
RULE 14
Summons
Section 1. Clerk to issue summons. — Upon the filing of the
complaint and the payment of the requisite legal fees, the clerk of
court shall forthwith issue the corresponding summons to the
defendants.
1. Summons is a writ or process issued and served upon
the defendant in a civil action for the purpose of securing
his appearance therein.
2. The service of summons enables the court to acquire
jurisdiction over the person of the defendant. If there is
no service of summons, any judgment rendered or
proceedings had in a case are null and void, except in
case of voluntary appearance(Echevarria vs. Parsons
Hardware, 51 Phil. 980). The law requiring the manner of
service of summons in jurisdictional (Toyota Cubao vs.
CA, GR 126321, Oct. 23, 1997).
3. Summons is the counterpart of warrant of arrest in
criminal cases.
4. The rule is that it is only when new causes of action are
alleged in an amended complaint filed before the
defendant has appeared in court that another summons
must be served on the defendant with the amended
complaint. 6
In determining whether a different cause of action is
introduced by amendments to the complaint, the court
must ascertain if the defendant shall be required to
answer for a liability or legal obligation wholly different
from that which was stated in the original complaint. 7 An
amendment will not be considered as stating a new
cause of action if the facts alleged in the amended
complaint show substantially the same wrong with
respect to the same transaction, or if what are alleged
refer to the same matter but are more fully and differently
stated, or where averments which were implied are made
in express terms, and the subject of the controversy or
the liability sought to be enforced remains the same.
A reading of the amended complaint in the case at bar
shows that it merely supplemented an incomplete
allegation regarding the subject property. The purpose of
the amendment was merely to include the additional
information that the subject property "was and is still
under litigation and the contract was entered into without
the knowledge and approval of the litigants or of
competent judicial authority."
It is clear from a comparison of the allegations appearing
in the original complaint and in the amended complaint
that the cause of action of the private respondent had not
been changed. The amended complaint also asked for
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ATTY MELISSA ROMANA SUAREZ
the rescission of the Memorandum of Agreement and the
Addendum and the return of the sum of P 725,000.00
which had been given by Lopingco to the petitioner as
down payment on the subject property. Plainly, what was
sought to be enforced against the petitioner both in the
original complaint and in the amended complaint was his
obligation to refund the said sum to the private
respondent. The amended complaint did not change the
cause of action but simply advanced the above-quoted
additional information.
We hold therefore that no new summons on the
amended complaint was necessary. (DE DIOS V. CA)
Section 2. Contents. — The summons shall be directed to the
defendant, signed by the clerk of court under seal and contain (a)
the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by
these Rules; (c) a notice that unless the defendant so answers
plaintiff will take judgment by default and may be granted the relief
applied for.
A copy of the complaint and order for appointment of guardian ad
litem if any, shall be attached to the original and each copy of the
summons.
1. If a complait is amended and an additional defendant is
included, there is a necessity to issue new summons on
the additional defendant for the purpose of enabling the
court to acquire jurisdiction over his person. The case is
commenced against the additional defendant upon the
amendment in the complaint. (FETALINO V. SANZ)
2. If a defendant who has been summoned had died and
there was substitution by the legal representative, there
is NO necessity of issuing new summons. The order of
the court ordering him to be substituted is already
sufficient. Just serve the order—where he is ordered to
be substituted. (FETALINO V. SANZ)
3. BQ: if a defendant is served with summons and later on ,
the complaint was amended, is there a necessity to issue
new summons based on amended complaint? IT
DEPENDS.
a. If the defendant has not filed an answer to the
original complaint, there must be ANOTHER
summons issued on the amended complaint.
b. If the defendant has already filed an answer to the
original complaint or he has already APPEARED in
the action, then after that, the complaint was
amended, there is NO NEED of issuing new
summons on the amended complaint.
4. Suppose defendant has already been served with
summons, no answer filed yet, then an amended
complaint came in, so new summons where served, the
period to file an answer will be another 15 days reckoned
upon the receipt of the AMENDED COMPLAINT AND
THE NEW SUMMONS.
5. Suppose defendant has already filed his answer and the
complaint was amended, no need to serve new
summons. All plaintiff must do is to furnish the defendant
a copy of the amended complaint with a copy of the order
admitting the filing of the amended complaint. In this
case, according to rule 11, the defendant only has 10
days to answer the amended complaint from the receipt
of the ORDER ALLOWING THE AMENDED
COMPLAINT.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
6. Appearance in an action is best manifested by filing of an
answer. However, appearance in the action is not only
limited to the filing of answer. When defendant files a
MOTION FOR EXTENSION OF TIME TO FILE
ANSWER, that is already appearance in the action.
(same thing with fling of a MOTION FO RBILL OR
PARTICULARS) (PAN ASIATIC TRAVEL V. CA)
Nature and purpose of summons in relation to actions in
personam, in rem andquasi in rem
(1) In an action in personam, the purpose of summons is not
only to notify the defendant of the action against him but
also to acquire jurisdiction over his person(Umandap vs.
Sabio, Jr., 339 SCRA 243). The filing of the complaint
does not enable the courts to acquire jurisdiction over
the person of the defendant. By the filing of the
complaint and the payment of the required filing and
docket fees, the court acquires jurisdiction only over the
person of the plaintiff, not over the person of the
defendant. Acquisition of jurisdiction over the latter is
accomplished by a valid service of summons upon him.
Service of summons logically follows the filing of the
complaint. Note further that the filing of the complaint
tolls the running of the prescriptive period of the cause
of action in accordance with Article 1155 of the Civil
Code
(2) In an action in rem or quasi in rem, jurisdiction over the
defendant is not required and the court acquires
jurisdiction over an action as long as it acquires
jurisdiction over the res. The purpose of summons in
these actions is not the acquisition of jurisdiction over
the defendant but mainly to satisfy the constitutional
requirement of due process(Gomez vs. CA, 420 SCRA
98).
Voluntary appearance
(1) Voluntary appearance is any appearance of the
defendant in court, provided he does not raise the
question of lack of jurisdiction of the court (Flores vs.
Zurbito, 37 Phil. 746; Carballo vs. Encarnacion, 92 Phil.
974). It is equivalent to service of summons (Sec. 20).
(2) An appearance is whatever form, without explicitly
objecting to the jurisdiction of the court over the person,
is a submission to the jurisdiction of the court over the
person. It may be made by simply filing a formal motion,
or plea or answer. If his motion is for any other purpose
than to object to the jurisdiction of the court over his
person, he thereby submits himself to the jurisdiction of
the court (Busuego vs. CA, L-48955, June 30, 1987; La
Naval Drug Corp. vs. CA, 54 SCAD 917).
(3) Voluntary appearance may be in form of:
a. Voluntary appearance of attorney;
b. A motion, by answer, or simple
manifestation (Flores vs. Surbito);
c. A telegraphic motion for postponement (Punzalan
vs. Papica, Feb. 29, 1960);
d. Filing a motion for dissolution of attachment;
e. Failure to question the invalid service of
summons (Navale vs. CA, GR 109957, Feb. 20,
1996);
f. Filing a motion for extension of time to file an
answer.
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Section 3. By whom served. — The summons may be served by
the sheriff, his deputy, or other proper court officer, or for justifiable
reasons by any suitable person authorized by the court issuing the
summons.
Who can serve?
1. Sheriff
2. Deputy sheriff
3. Other proper court officer (court employees)
4. For justifiable reasons, by any suitable person authorized
by the court
‘any suitable person authorized by the court’—barangay
captains may be authorized by the court.
JURISPRUDENCE:
1. Policeman is NOT a sheriff, or a deputy sheriff or a
proper court officer. He belongs to the PNP under the
executive branch and NOT under the judiciary.
(SEQUITO V. LETRONDO) – no problem is there was a
court order
2. Service of summons is MINISTERIAL. Service may be
made at night as well as during the day, or even of a
Sunday or holiday because of its ministerial character.
(LAUS V. CA)
Section 4. Return. — When the service has been completed, the
server shall, within five (5) days therefrom, serve a copy of the
return, personally or by registered mail, to the plaintiff's counsel,
and shall return the summons to the clerk, who issued it,
accompanied by proof of service.
The sheriff must make a report because that will determine when
the period to file an answer will start to run. Or, if he failed to serve
it, sheriff must at least return the summons to the court. He must
also furnish a copy of it to the plaintiff’s lawyer so that plaintiff’s
lawyer can determine what is the deadline for the defendant to file
his answer.
Section 5. Issuance of alias summons. — If a summons is
returned without being served on any or all of the defendants, the
server shall also serve a copy of the return on the plaintiff's
counsel, stating the reasons for the failure of service, within five (5)
days therefrom. In such a case, or if the summons has been lost,
the clerk, on demand of the plaintiff, may issue an alias summons.
The server must serve a copy of the return on the plaintiff’s
counsel, stating the reasons for the failure of service. PURPOSE:
so the laywer himself will look for the defendant! Once he finds the
correct addres, he has to inform the court of the new address so
that new summons can be issued. The 2nd summons is what
laywers call the ALIAS SUMMONS.
3 modes of service of summons:
1. Section 6—service in person
2. Section 7—substituted service
3. Sections 14,15,16—service by publication
Section 6. Service in person on defendant. — Whenever
practicable, the summons shall be served by handling a copy
thereof to the defendant in person, or, if he refuses to receive and
sign for it, by tendering it to him.
Notes:
1. It is effected by:
a. Handing a copy thereof to the defendant in person
b. OR if he refuses to receive and sign for it, by
tendering it to him. The summons must be served in
person.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
2. Where served? Anywhere he may be found.
3. Defendant’s residence is only 2kms. Away from the trial
court. Hence, the most practicable mode of service of
summons was by tendering a copy on him in person.
However, respondent resorted to service by registered
mail without any justification. (PACLIBAR V. PAMPOSA)
4. NOTE: Don’t confuse this with ‘personal service’.
Personal service is under Rule 13 on service of
pleadings while ‘service in person’ is governed by rule 14
on service of summons.
Service in person (rule 14, Personal service (Rule 13,
section 6) section 6)
Handing a copy in person or 1. On counsel or party
tendering it to him 2. Leaving a copy in his
office
3. Leaving copy in his
residence with person
of sufficient age and
discretion.
Section 7. Substituted service. — If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided
in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant's residence with some
person of suitable age and discretion then residing therein, or (b)
by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.
Comments:
1. If the defendant cannot be served in person under
section 6, sheriff may resort to substituted service under
section 7. This time, he can course it to somebody else.
2. Requirements:
a. At the defendant’s residence with some person of
suitable age and discretion residing therein. OR
In his office or regular place of business with some competent
person in charge thereof, like the manager or the foreman.
JURISPRUDENCE
We can break down this section into the following requirements to
effect a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must
show that defendant cannot be served promptly or there is
impossibility of prompt service. 22 Section 8, Rule 14 provides
that the plaintiff or the sheriff is given a "reasonable time" to
serve the summons to the defendant in person, but no
specific time frame is mentioned. "Reasonable time" is
defined as "so much time as is necessary under the
circumstances for a reasonably prudent and diligent man to
do, conveniently, what the contract or duty requires that
should be done, having a regard for the rights and possibility
of loss, if any[,] to the other party." 23 Under the Rules, the
service of summons has no set period. However, when the
court, clerk of court, or the plaintiff asks the sheriff to make
the return of the summons and the latter submits the return of
summons, then the validity of the summons lapses. The
plaintiff may then ask for an alias summons if the service of
summons has failed. 24 What then is a reasonable time for the
sheriff to effect a personal service in order to demonstrate
impossibility of prompt service? To the plaintiff, "reasonable
time" means no more than seven (7) days since an
expeditious processing of a complaint is what a plaintiff wants.
To the sheriff, "reasonable time" means 15 to 30 days
because at the end of the month, it is a practice for the branch
clerk of court to require the sheriff to submit a return of the
summons assigned to the sheriff for service. The Sheriff’s
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Return provides data to the Clerk of Court, which the clerk
uses in the Monthly Report of Cases to be submitted to the
Office of the Court Administrator within the first ten (10) days
of the succeeding month. Thus, one month from the issuance
of summons can be considered "reasonable time" with regard
to personal service on the defendant.
Sheriffs are asked to discharge their duties on the service of
summons with due care, utmost diligence, and reasonable
promptness and speed so as not to prejudice the expeditious
dispensation of justice. Thus, they are enjoined to try their
best efforts to accomplish personal service on defendant. On
the other hand, since the defendant is expected to try to avoid
and evade service of summons, the sheriff must be
resourceful, persevering, canny, and diligent in serving the
process on the defendant. For substituted service of
summons to be available, there must be several attempts by
the sheriff to personally serve the summons within a
reasonable period [of one month] which eventually resulted in
failure to prove impossibility of prompt service. "Several
attempts" means at least three (3) tries, preferably on at least
two different dates. In addition, the sheriff must cite why such
efforts were unsuccessful. It is only then that impossibility of
service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts
and circumstances surrounding the attempted personal
service. 25 The efforts made to find the defendant and the
reasons behind the failure must be clearly narrated in detail in
the Return. The date and time of the attempts on personal
service, the inquiries made to locate the defendant, the
name/s of the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to
justify substituted service. The form on Sheriff’s Return of
Summons on Substituted Service prescribed in the Handbook
for Sheriffs published by the Philippine Judicial Academy
requires a narration of the efforts made to find the defendant
personally and the fact of failure. 26 Supreme Court
Administrative Circular No. 5 dated November 9, 1989
requires that "impossibility of prompt service should be shown
by stating the efforts made to find the defendant personally
and the failure of such efforts," which should be made in the
proof of service.
(3) A Person of Suitable Age and Discretion
If the substituted service will be effected at defendant’s house
or residence, it should be left with a person of "suitable age
and discretion then residing therein." 27 A person of suitable
age and discretion is one who has attained the age of full
legal capacity (18 years old) and is considered to have
enough discernment to understand the importance of a
summons. "Discretion" is defined as "the ability to make
decisions which represent a responsible choice and for which
an understanding of what is lawful, right or wise may be
presupposed". 28 Thus, to be of sufficient discretion, such
person must know how to read and understand English to
comprehend the import of the summons, and fully realize the
need to deliver the summons and complaint to the defendant
at the earliest possible time for the person to take appropriate
action. Thus, the person must have the "relation of
confidence" to the defendant, ensuring that the latter would
receive or at least be notified of the receipt of the summons.
The sheriff must therefore determine if the person found in the
alleged dwelling or residence of defendant is of legal age,
what the recipient’s relationship with the defendant is, and
whether said person comprehends the significance of the
receipt of the summons and his duty to immediately deliver it
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
to the defendant or at least notify the defendant of said receipt
of summons. These matters must be clearly and specifically
described in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendant’s office or
regular place of business, then it should be served on a
competent person in charge of the place. Thus, the person on
whom the substituted service will be made must be the one
managing the office or business of defendant, such as the
president or manager; and such individual must have
sufficient knowledge to understand the obligation of the
defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons. Again, these
details must be contained in the Return. (MA. IMELDA
MANOTOC V. CA)
It is well-established that summons upon a respondent or a
defendant (i.e., petitioner herein) must be served by handing a
copy thereof to him in person or, if he refuses to receive it, by
tendering it to him. Personal service of summons most effectively
ensures that the notice desired under the constitutional
requirement of due process is accomplished. If however efforts to
find him personally would make prompt service impossible, service
may be completed by substituted service, i.e., by leaving copies of
the summons at his dwelling house or residence with some person
of suitable age and discretion then residing therein or by leaving
the copies at his office or regular place of business with some
competent person in charge thereof.
Substituted service derogates the regular method of personal
service. It is an extraordinary method since it seeks to bind the
respondent or the defendant to the consequences of a suit even
though notice of such action is served not upon him but upon
another whom the law could only presume would notify him of the
pending proceedings. As safeguard measures for this drastic
manner of bringing in a person to answer for a claim, it is required
that statutory restrictions for substituted service must be strictly,
faithfully and fully observed.24 In our jurisdiction, for service of
summons to be valid, it is necessary first to establish the following
circumstances, i.e., (a) impossibility of service of summons within
a reasonable time, (b) efforts exerted to locate the petitioners and,
(c) service upon a person of sufficient age and discretion residing
therein or some competent person in charge of his office or regular
place of business. It is also essential that the pertinent facts
proving these circumstances be stated in the proof of service or
officer's return itself and only under exceptional terms may they be
proved by evidencealiunde.25 Failure to comply with this rule
renders absolutely void the substituted service along with the
proceedings taken thereafter for lack of jurisdiction over the person
of the defendant or the respondent. (FEDERICO SANDOVAL V.
HRET)
Summons were served on defendant’s 12 year old daughter who
threw the summons away and the father did nto receive it. SC held
that service of summons is void because the daughter is not a
person of suitable discretion. (SEQUIOTO V. LETRONDO)
Section 7 cannot be applied unless you attempt under section
6, service in person. The sheriff has to try several times to reach
the defendant in person. It can only be applied if there is failure of
personal service within reasonable time and for justifiable causes.
Impossibility of prompt service should be shown by stating the
efforts failed. This statement should be made in the proof of
service. This is necessary because substituted service is in
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ATTY MELISSA ROMANA SUAREZ
derogation of the usual method of service. (MAPA V. CA)
Substituted service of summons may still be considered valid even
if the sheriff failed to state in his return of the facts of the
impossibility of prompt service if the server subsequently explains
in court, by giving testimony, the facts why he resorted to a
substituted service. The plaintiff should not be made to suffer for
the lapses committed by an officer of the court.
A law prescribing the manner in which the service of summons
should be effected is jurisdictional in character and its proper
observance is what dictates the court's ability to take cognizance
of the litigation before it. Compliance therewith must appear
affirmatively in the return. It must so be as substitute service is a
mode that departs or deviates from the standard rule. Substitute
service must be used only in the way prescribed, and under
circumstances authorized, by law.[(TOYOTA CUBAO V. CA)
Service of summons upon the defendant is essential for the court
to acquire jurisdiction over his person. [11] The modes of service
should be strictly followed in order that the court may acquire
jurisdiction over the person.[12] Thus, it is only when a defendant
cannot be served personally "within a reasonable time" that
substituted service may be made.[13]
In the instant case, the Sheriff’s Return of Service reads:
"Respectfully returned to the Clerk of Court,
Court of First Instance, Manila, the herein
summons of the above-entitled case, copy of
which and a copy of the complaint were served
on December 9, 1965 at 11:00 o’clock in the
morning by substituted service(stress supplied)
through Ernesto Elizondo, son-in-law of
defendants Lucila Java and Pablo Java and
living together with them."[14]
Even the briefest perusal of the aforementioned Return clearly
shows no reason why personal service could not be made.
Impossibility of prompt, personal service should be shown by
stating in the proof of service that efforts were made to find the
defendant personally and that said efforts failed, hence the resort
to substituted service.[15] Here, no such explanation was made.
Failure to faithfully, strictly, and fully comply with the requirements
of substituted service renders said service ineffective. [16]
Petitioners point to the deposition of Ernesto Elizondo to support
their argument that there was valid service of summons. [17] Ernesto
Elizondo emphatically testified under oath, however, that at the
time he allegedly signed for the summons, he was not living in the
same house as his parents-in-law, "although I am living within the
compound of my father-in-law."[18] Rule 14, Section 8 of the Rules
of Court specifically provides that substituted service must be
effected by "(a) leaving copies of the summons at the
defendant’s dwelling house or residence with some person of
suitable age and discretion then residing therein." Since Ernesto
Elizondo admitted that he was not living with the spouses Java, the
requirement that the summons be left with a person of suitable age
residing in the same dwelling house or residence as the defendant,
for substituted service to be valid, has not been complied with.
For want of proper service of summons upon defendants, the trial
court in Civil Case No. 63117 never acquired jurisdiction over the
former and hence, could not render valid judgment over their
persons. Hence, the execution sales of the "Thames" vehicle and
Lot 8015, pursuant to said void judgment, are void ab initio. A final
judgment may be annulled upon either of two grounds: (1) extrinsic
fraud, and (2) lack of jurisdiction. [19] In the present case, the trial
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
court did not have jurisdiction. No reversible error was thus
committed by the Court of Appeals in annulling the judgment in
Civil Case No. 63117 for absence of jurisdiction on the part of the
court which rendered the same. (MIRANDA V. CA)
Substituted service under RULE 13 AND 14; DISTINCTIONS
RULE 13 RULE 14
Governs service of pleadings Governs service of summons
ON SUBSTITUTED SERVICE: It means that if you cannot
If personal service or service by serve the defendant in person,
registered mail have failed, then then you can serve the
serve it on the clerk of court SUMMONS wit some person of
suitable age and discretion
residing therein or by leving
copies at the defendan’t office
or regular place of business
with some competent person in
charge thereof.
NOTE: there is no such thing as service of summons therough
registered mail! If you are in davao and summons must be served
in manila, the davao sheriff will mail summons to manila sheriff
who will in turn serve the summons to the defendant in Manila.
Other notes:
1. It may be resorted to if there are justifiable causes, where
the defendant cannot be served within a reasonable time
(Sec. 7). An example is when the defendant is in hiding
and resorted to it intentionally to avoid service of
summons, or when the defendant refuses without
justifiable reason to receive the summons (Navale vs.
CA, 253 SCRA 705).
2. In substituted service of summons, actual receipt of the
summons by the defendant through the person served
must be shown (Millennium Industrial Commercial Corp.
vs. Tan, 383 Phil. 468). It further requires that where
there is substituted service, there should be a report
indicating that the person who received the summons in
defendant’s behalf was one with whom petitioner had a
relation of confidence ensuring that the latter would
receive or would be notified of the summons issued in his
name(Ang Ping vs. CA, 369 Phil. 609; Casimina vs. Hon.
Legaspi, GR 147530, June 29, 2005).
3. Substituted service is not allowed in service of summons
on domestic corporations(Delta Motor Sales Corp. vs.
Mangosing, 70 SCRA 598).
EXCEPTIONAL CASES:
1. Service upon entity without juridical personality
2. Service of summons upon somebody who is a prisonder
3. Service of summons upon minors and incompetents
4. When service of summons on domestic private juridical
entity
Section 8. Service upon entity without juridical personality. —
When persons associated in an entity without juridical personality
are sued under the name by which they are generally or commonly
known, service may be effected upon all the defendants by serving
upon any one of them, or upon the person in charge of the office or
place of business maintained in such name. But such service shall
not bind individually any person whose connection with the entity
has, upon due notice, been severed before the action was brought.
Notes:
1. HOW?
a. Through any one of them
b. Upon the person in charge of the office or place of
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ATTY MELISSA ROMANA SUAREZ
business.
Section 9. Service upon prisoners. — When the defendant is a
prisoner confined in a jail or institution, service shall be effected
upon him by the officer having the management of such jail or
institution who is deemed deputized as a special sheriff for said
purpose.
HOW?
Through the person in charge of the jail. (i.e. jail warden)
Section 10. Service upon minors and incompetents. — When
the defendant is a minor, insane or otherwise an incompetent,
service shall be made upon him personally and on his legal
guardian if he has one, or if none his guardian ad litem whose
appointment shall be applied for by the plaintiff. In the case of a
minor, service may also be made on his father or mother.
Section 11. Service upon domestic private juridical entity. —
When the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
house counsel.
Notes:
1. Domestic means a corporation or association organized
under Philippine laws.
2. Who are authorized?
a. President—a.k.a. CEO
b. Managing partner—in cases of partnership
c. General Manager—overall manager of the
corporation throughout the Philippines; not just
branch managers
d. Corporate Secretary—not just the typist secretary;
he must be a stockholder
e. Treasurer
f. In-house counsel—lawyer of the company
3. Under the new rules, service of summons upon an
AGENT of the corporation is no longer authorized. The
designation of persons or officers who are authorized to
accept summons for a domestic corporation or
partnership is now limited and more clearly specified in
section 11, rule 14. (E.B. VILLAROSA V. BENITO)
Section 12. Service upon foreign private juridical entities. —
When the defendant is a foreign private juridical entity which has
transacted business in the Philippines, service may be made on its
resident agent designated in accordance with law for that purpose,
or, if there be no such agent, on the government official designated
by law to that effect, or on any of its officers or agents within the
Philippines.
Notes:
1. This provision applies to a defendant who is a foreign
private juridical entity which TRANSACTED BUSINESS
in the Philippines. So when a foreign corp is not doing
business in the Philippines, it cannot sued just like a non-
resident defendant.
2. To whom do you serve?
a. To its designated resident agent; -- period to answer
is 15 days
b. If none, then to the appropriate Philippine
government officer who will transmit it to the head
office. – perod of file answer is 30 days.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
JURISPRUDENCE:
1. section 14, Rule 14 of the Rules of Court provides that if
the defendant is a foreign corporation doing business in
the Philippines, service may be made: (1) on its resident
agent designated in accordance with law for that
purpose, or, (2) if there is no such resident agent, on the
government official designated by law to that effect; or (3)
on any of its officers or agents within the Philippines.
If the foreign corporation has designated an agent to
receive summons, the designation is exclusive, and
service of summons is without force and gives the court
no jurisdiction unless made upon him. 11
Where the corporation has no such agent, service shall
be made on the government official designated by law, to
wit: (a) the Insurance Commissioner in the case of a
foreign insurance company; (b) the Superintendent of
Banks, in the case of a foreign banking corporation; and
(c) the Securities and Exchange Commission, in the case
of other foreign corporations duly licensed to do business
in the Philippines. Whenever service of process is so
made, the government office or official served shall
transmit by mail a copy of the summons or other legal
proccess to the corporation at its home or principal office.
The sending of such copy is a necessary part of the
service. (NORTHWEST ORIENT AIRLINES V. CA)
2. if you have found out that a domestic corporation has
already transferred office, you must make a diligent
inquirty. A litigant or process serve who has nto gone
through the records of the SEC cannot claim to have
carried out the ‘diligent inquiry” required under the law for
valid service of summons by publication upon a domestic
corporation. (BALTAZAR V. CA)
situation: what if when the action was filed, the corporation was
already dissolved?
3. Although Pepsi Cola was already dissolved when
summons was served, the same may be served upon the
same person upon whom the process could be served
before the dissolution. Therefore, service to any of the
persons in R 14 Sec. 13 is allowed.
Purpose of Summons: To render it reasonably certain
that corporation will receive prompt & proper notice in an
action vs. it.
Liberal Interpretation of Sec. 13: That there
is Substantial Compliance w/ the requirement of Sec. 13if
the purpose for the service of summons is attained, & the
person served knew what to do w/ the legal papers
served upon him.
When a corporation is placed under Voting Trust
agreement, the summons should be served on the
person in whose favor the VTA was executed because
the officers of the corporation have no more personality
to manage the affairs of the corporation. (REBOLIDO V.
CA)
JURISPRUDENCE ON ‘TRANSACTED BSUINESS IN THE
PHILIPPINES’
1. It is a rule generally accepted that one single or isolated
business transaction does not constitute "doing
business" within the meaning of the law, and that
transactions which are occasional, incidental and casual,
not of a character to indicate a purpose to engage in
business does not constitute the doing or engaging in
business contemplated by law. In order that a foreign
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ATTY MELISSA ROMANA SUAREZ

corporation may be regarded as doing business within s AMENDMENT OF SECTION 12, RULE 14 •
State, there must be continuity of conduct and intention OF THE RULES OF COURT ON SERVICE UPON
to establish a continuous business, such as the FOREIGN PRIVATE JURIDICAL ENTITY
appointment of a local agent, and not one of a temporary Section 12, Rule 14 of the Rules of Court is hereby amended to
character. (PACIFIC MICRONISIAN V. DEL ROSARIO) read
as follows:
2. The rule stated in the preceding section that the doing of
a single act doesnot constitute business within the "SEC. 12. Service upon foreign private juridical entity. —
meaning of statutes prescribing the conditions to be When the defendant is a foreign private juridical entity which
complied with the foreign corporations must be qualified has transacted business in the Philippines, service may be made
to this extent, that a single act may bring the corporation. on its resident agent designated in accordance with law for that
In such a case, the single act of transaction is not merly purpose, or, i f there be no such agent, on the government
incidental or casual, but is of such character as distinctly official designated by law to that effect, or on any of its officers
to indicate a purpose on the part of the foreign or agents within the Philippines.
corporation to do other business in the state, and to
make the state a basis of operations for the conduct of a If the foreign private juridical entity is not registered in
part of corporation's ordinary business. (FAR EAST the Philippines or has no resident agent, service may, with leave
INTERNATIONAL V. NANKAI KOGYO) of court, be effected out of the Philippines through any of the
following means:
Situation: Philippine corporation entered into a contract with a
foreign corporation and then their agreement says that foreign corp a) B y personal service coursed through the
agrees to be sued in the Philippines. Is sectioN 12 applicable? appropriate court in the foreign country with the
assistance of the Department of Foreign Affairs;
Answer: For the expeditious determination of this controversy,
therefore, in view of the insufficiency of evidence that LINGNER is
doing business in the Philippines, which is a sine qua b) B y publication once in a newspaper of general
non requirement under the provision of Section 14, Rule 14 1 of the circulation in the country where the defendant may be
Rules before service of process can be effected upon a foreign found and by serving a copy of the summons and the
corporation and jurisdiction over the same may be acquired, it is court order by-registered mail at the last known address
best that alias summons on LINGNER be issued, in this case of the defendant;
under the provisions of Section 17, Rule 14, 2 in relation to Rule 4
of the Rules of Court, which recognizes the principle that venue c)by facsimile or any recognized electronic
can be agreed upon by the parties. If a local plaintiff and a foreign means that could generate proof of service; or
corporation have agreed on Philippine venue, summons by
publication can be made on the foreign corporation under the
principle of liberal construction of the rules to promote just d) B y such other means as the court may in its
determination of actions. (service of summons be done in discretion direct."
accordance with section 15 on extraterritorial service) (LINGNER
AND FISHER V. IAC) This rule shall take effect fifteen (15) days after publication in a
newspaper of general circulation in the Philippines.
It is not enough to merely allege in the complaint that a defendant
foreign corporation is doing business. For purposes of the rule on March 15, 2011
summons, the fact of doing business must first be "established by
appropriate allegations in the complaint" 7 and the court in Section 13. Service upon public corporations. — When the
determining such fact need not go beyond the allegations defendant is the Republic of the Philippines, service may be
therein. 8 In this case, the allegations that petitioner entered into a effected on the Solicitor General; in case of a province, city or
contract with private respondent to supply and install various municipality, or like public corporations, service may be effected on
machineries and equipments for the use of the latter's oil mill its executive head, or on such other officer or officers as the law or
factory 9 and that the first shipment of machineries from petitioner the court may direct.
was received by private respondent 10 are sufficient allegations
that petitioner is doing business for purposes of Section 14, Rule
14. In any case, the determination that a foreign corporation is Section 14. Service upon defendant whose identity or
doing business is merely tentative and only to enable the local whereabouts are unknown. — In any action where the defendant
court to acquire jurisdiction over the person of the foreign is designated as an unknown owner, or the like, or whenever his
corporation through service of summons. It does not foreclose a whereabouts are unknown and cannot be ascertained by diligent
subsequent finding to the contrary depending on the evidence. inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such
Private respondent alleged in its complaint that Trans-World is places and for such time as the court may order.
petitioner's agent, so that the service was made on the latter. Such
general allegation is insufficient to show the agency relationship Notes:
between petitioner and Trans-World. However, although there is 1. Section 14 applies if the defendant’s identity is unknown
no requirement to first substantiate the allegation of agency yet it is or if known, his whereabouts IN THE PHILIPPINES in
necessary that there must be specific allegations in the complaint unknown.
that establishes the connection between the principal foreign 2. Service by publication under section 14 can only be
corporation and its alleged agent with respect to the transaction in availed of when th action is IN REM or QUASI INREM. If
question. (FRENCH OIL MILL V. CA) the action is in personam, i.e. collection of sum of money,
service of summons by publication to the defendant is
NOTE: AMENDMENT TO SECTION 12, RULE 14 improper. If it is in personam, SC said that you convert
your action to in rem or quasi in rem by looking for any

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 37

CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
property of the defendant and have ti attached under rule
57. (MAGDALENA ESTATE V. NIETO)
Section 15. Extraterritorial service. — When the defendant does
not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or
in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property
of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by
personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such time
as the court may order, in which case a copy of the summons and
order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer.
Notes:
1. Instances when a defendant who DOES NOT RESIDE
and is NOT FOUND IN THE PHILIPPINES may be sued
and summons served by EXTRATERRITORIAL
SERVICE, provided case is in rem or quasi in rem:
a. The action affects personal status of plaintiff
b. When the action relates to or the subject of which is,
property within the Philippines, in which the
defendant has or claims a lien or interest, actual or
contingent;
c. When the action relates to or the subject of which is,
property within the Philippines, in which the relief
demanded consists, wholly or in part, in excluding
the defendant from any interest therein; or
d. When the property of the defendant has been
attached within the Philippines.
MODES OF EXTRATERRITORIAL SERVICE
1. By personal service under section 6
2. By publication in a newspaper of general circulation in
such places and for such time as the court may order, in
which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address
of the defendant; or
3. In any other manner the court may deem sufficient.
JURISPRUDENCE on publication in a newspaper of general
circulation:
1. In an action in personam, jurisdiction over the person of
the defendant is necessary for the court to validly try and
decide the case. Jurisdiction over the person of
a resident defendant who does not voluntarily appear in
court can be acquired by personal service of summons
as provided under Section 7, Rule 14 of the Rules of
Court. If he cannot be personally served with summons
within a reasonable time, substituted service may be
made in accordance with Section 8 of said Rule. If he is
temporarily out of the country, any of the following modes
of service may be resorted to: (1) substituted service set
forth in Section 8; 21 (2) personal service outside the
country, with leave of court; (3) service by publication,
also with leave of court;22 or (4) any other manner the
court may deem sufficient. 23
However, in an action in personam wherein the
defendant is a non-resident who does not voluntarily
submit himself to the authority of the court, personal
service of summons within the state is essential to the
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
acquisition of jurisdiction over her person. 24 This method
of service is possible if such defendant is physically
present in the country. If he is not found therein, the court
cannot acquire jurisdiction over his person and therefore
cannot validly try and decide the case against him.
In the case at bar, the action filed in Hong Kong against
HERAS was in personam, since it was based on his
personal guarantee of the obligation of the principal
debtor. Before we can apply the foregoing rules, we must
determine first whether HERAS was a resident of Hong
Kong. (ASIAVEST V. CA)
2. There is no question that the facts of the present case
warrant extraterritorial service of summons as authorized
by Section 17, Rule 14 of the Rules of Court. Admittedly,
one of the defendants, Abel Sahagun, has left the
Philippines and has been residing somewhere in the
United States. Per the certification of the Commission on
Immigration and Deportation dated July 22, 1983, Abel
Sahagun left on April 23, 1978 24 hence he was a
nonresident defendant at the time private respondent
brought suit in the court below. Also, since the suit
involves real property wherein said defendant ostensibly
has an interest and which property has in fact been
attached at the instance of private respondent, the
court a quo correctly ordered service of summons on
said defendant out of the Philippines, adopting for such
service one of the modes authorized by the aforecited
provision of the Rules, that is, "by publication in a
newspaper of general circulation in such places and for
such time as the court may order."
It was posited during the deliberations on this case that
such publication of summons in a local newspaper, as
sanctioned by the trial court, was wrong and that the
publication should have been made in a newspaper
published in the state and county of the United States
where Abel Sahagun now allegedly resides. Such
publication in a foreign newspaper, it is claimed, would
most likely give notice to the person to be served,
although it is also conceded that such condition has not
been incorporated in Section 17 of Rule 14. We believe,
however, that such a sweepimg doctrine would virtually
unsettle a long standing interpretation of the aforesaid
rule on extraterritorial service of summons by publication,
as well as its implementation sanctioned by the practice
followed in this jurisdiction.
True it is that there is no specific proscription against
resorting to publication of summons in a foreign
publication circulating in the place where the defendant
resides.
What further compounds the difficulty in the proposed
requirement for foreign publication of the summons in the
case at bar is the fact that it does not appear in what
state or county of the United States the defendant Abel
Sahagun presently resides. Necessarily, if the trial court
should be required to resort to publication in a foreign
newspaper it must have at hand not only the name and
availability of such newspaper or periodical but also the
laws and rules governing the publication of judicial
processes and notices in said place. Here, we only have
a defendant in the United States to contend with, but we
can very well anticipate the plethora of problems that
would arise if the same question on nonresident
defendants is replicated in the other countries of the
world. In this jurisdiction, at least, we have the
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corresponding regulatory guidelines in Presidential
Decree No. 1079.
In fine. while there is no prohibition against availing of a
foreign newspaper in extraterritorial service of summons,
neither should such publication in a local newspaper of
general circulation be altogether interdicted since, after
all, the rule specifically authorizes the same to be made
in such places and for such time as the court concerned
may order. If it is felt that adjective policy would be better
served by denying such discretion to the trial court, then
the corresponding amendment of the present rule would
be indicated but subject to empirical proof of the
necessity for and the wisdom of such a change.
Accordingly, for the nonce, the matter should continue to
be addressed to the sound discretion of the trial court in
each particular case since it has the facts before it, and
we should interfere only in the exercise of our corrective
power over an error or abuse in its actuations in a
specific case. Undeniably, some controversies may
present factual features which would justify resort to local
publication of summons. There is the possibility of
debtors escaping the jurisdiction of our courts through
the simple expedient of seeking a foreign refuge,
probably with their subsequent whereabouts unknown or
unascertainable. For that matter, it is on that very
rationale that summons by publication is authorized
whenever the address of a defendant is unknown and
cannot be ascertained by diligent even if he is in the
Philippines.
We repeat, service of summons on a nonresident
defendant who is not found in the country is required, not
for purposes of physically acquiring jurisdiction over his
person but simply in pursuance of the requirements of
fair play, so that he may be informed of the pendency of
the action against him and the possibility that property in
the Philippines belonging to him or in which he has an
interest may be subjected to a judgment in favor of a
resident, and that he may thereby be accorded an
opportunity to defend in the action, if he be so minded.
The only relief that may be granted in such an action
against such a nonresident defendant, who does not
choose to submit himself to the jurisdiction of the
Philippine court, is limited to the res. (SAHAGUN V. CA)
JURISPRUDENCE ON ‘IN ANY OTHER MANNER WHICH THE
COURT MAY DEEM SUFFICIENT”
1. SC said that extraterritorial service of summons by
REGISTERED MAIL may fall under the 3rd mode of
service under section 15 which says, .”in any other
manner which the court may deem sufficient’. There is no
denial of due process to be informed because you were
informed so you cannot resort to technicality. The non-
resident defendant is given 60 days to file an answer.
(CARRIAGA V MALAYA)
Section 16. Residents temporarily out of the Philippines. —
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is temporarily out
of it, service may, by leave of court, be also effected out of the
Philippines, as under the preceding section.
Situation: defendant is residing in the Philippines but temporarily
out of the Philippines. It does not matter if the action is in rem ,
quasi in rem or in personam. Basta temporarily not here in the
Philippines lang. xa.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
How do you serve summons?
1. Personal service
2. By publication
3. In any other manner which the court may deem sufficient.
JURISPRUDENCE:
1. In practical terms, we perceive that — in suits in
personam — the more circuitous procedure delineated in
Sections 17 and 18 is resorted to by a plaintiff if
defendant's dwelling house or residence or place of
business in this country is not known; or, if known,
service upon him cannot be had thereat upon the terms
of Section 8. Here, since personal service is impossible,
resort to substituted service becomes a necessity. (so in
section 16, when residents are temporarily outside the
Philippines, there could also be substituted service of
summons in addition to section 15 and the action could
be in personam. ) (MONTALBAN V. MAXIMO)
IMPORTANT CASE: VALMONTE V. CA
Situation: Lourdes valmonte is a foreign resident. She is residing
abroad but her husband has a law office in the philipines and the
summons were served to him. The action is for PARTITITION of
real property which is an action quasi in rem.
HELD: To provide perspective, it will be helpful to determine first
the nature of the action filed against petitioners Lourdes A.
Valmonte and Alfredo D. Valmonte by private respondent, whether
it is an action in personam, in rem or quasi in rem. This is because
the rules on service of summons embodied in Rule 14 apply
according to whether an action is one or the other of these actions.
In an action in personam, personal service of summons or, if this is
not possible and he cannot be personally served, substituted
service, as provided in Rule 14, § 7-8[2] is essential for the
acquisition by the court of jurisdiction over the person of a
defendant who does not voluntarily submit himself to the authority
of the court.[3] If defendant cannot be served with summons
because he is temporarily abroad, but otherwise he is a Philippine
resident, service of summons may, by leave of court, be made by
publication.[4] Otherwise stated, a resident defendant in an actionin
personam, who cannot be personally served with summons, may
be summoned either by means of substituted service in
accordance with Rule 14, § 8 or by publication as provided in § 17
and 18 of the same Rule.[5]
In all of these cases, it should be noted, defendant must be a
resident of the Philippines, otherwise an action in
personam cannot be brought because jurisdiction over his person
is essential to make a binding decision.
On the other hand, if the action is in rem or quasi in
rem, jurisdiction over the person of the defendant is not essential
for giving the court jurisdiction so long as the court acquires
jurisdiction over the res. If the defendant is a nonresident and he is
not found in the country, summons may be served extraterritorially
in accordance with Rule 14, § 17, which provides:
§ 17. Extraterritorial service. - When the defendant does
not reside and is not found in the Philippines and the
action affects the personal status of the plaintiff or relates
to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the
Philippines by personal service as under Section 7; or by
publication in a newspaper of general circulation in
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such places and for such time as the court may order, in
which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address
of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than
sixty (60) days after notice, within which the defendant
must answer.
In such cases, what gives the court jurisdiction in an action in rem
or quasi in rem is that it has jurisdiction over the res, i.e. the
personal status of the plaintiff who is domiciled in the Philippines
or the property litigated or attached. Service of summons in the
manner provided in § 17 is not for the purpose of vesting it with
jurisdiction but for complying with the requirements of fair play or
due process, so that he will be informed of the pendency of the
action against him and the possibility that property in the
Philippines belonging to him or in which he has an interest may be
subjected to a judgment in favor of the plaintiff and he can thereby
take steps to protect his interest if he is so minded. [6]
Applying the foregoing rules to the case at bar, private
respondent’s action, which is for partition and accounting under
Rule 69, is in the nature of an action quasi in rem. Such an action
is essentially for the purpose of affecting the defendant’s interest in
a specific property and not to render a judgment against him.
As petitioner Lourdes A. Valmonte is a nonresident who is not
found in the Philippines, service of summons on her must be in
accordance with Rule 14, § 17. Such service, to be effective
outside the Philippines, must be made either (1) by personal
service; (2) by publication in a newspaper of general circulation in
such places and for such time as the court may order, in which
case a copy of the summons and order of the court should be sent
by registered mail to the last known address of the defendant; or
(3) in any other manner which the court may deem sufficient.
Since in the case at bar, the service of summons upon petitioner
Lourdes A. Valmonte was not done by means of any of the first
two modes, the question is whether the service on her attorney,
petitioner Alfredo D. Valmonte, can be justified under the third
mode, namely, “in any . . . manner the court may deem sufficient.”
We hold it cannot. This mode of service, like the first two, must be
made outside the Philippines, such as through the Philippine
Embassy in the foreign country where the defendant
resides.[8] Moreover, there are several reasons why the service of
summons on Atty. Alfredo D. Valmonte cannot be considered a
valid service of summons on petitioner Lourdes A. Valmonte. In
the first place, service of summons on petitioner Alfredo D.
Valmonte was not made upon the order of the court as required by
Rule 14, § 17 and certainly was not a mode deemed sufficient by
the court which in fact refused to consider the service to be valid
and on that basis declare petitioner Lourdes A. Valmonte in default
for her failure to file an answer.
In the second place, service in the attempted manner on petitioner
was not made upon prior leave of the trial court as required also in
Rule 14, § 17. As provided in § 19, such leave must be applied for
by motion in writing, supported by affidavit of the plaintiff or some
person on his behalf and setting forth the grounds for the
application.
Finally, and most importantly, because there was no order granting
such leave, petitioner Lourdes A. Valmonte was not given ample
time to file her Answer which, according to the rules, shall be not
less than sixty (60) days after notice. It must be noted that the
period to file an Answer in an action against a resident defendant
differs from the period given in an action filed against a
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
nonresident defendant who is not found in thePhilippines. In the
former, the period is fifteen (15) days from service of summons,
while in the latter, it is at least sixty (60) days from notice.
Strict compliance with these requirements alone can assure
observance of due process. That is why in one case, [9] although
the Court considered publication in the Philippines of the summons
(against the contention that it should be made in the foreign state
where defendant was residing) sufficient, nonetheless the service
was considered insufficient because no copy of the summons was
sent to the last known correct address in the Philippines.
Private respondent cites the ruling in De Leon v. Hontanosas, 67
SCRA 458,462-463 (1975), in which it was held that service of
summons upon the defendant’s husband was binding on her.
But the ruling in that case is justified because summons were
served upon defendant’s husband in their conjugal home in Cebu
City and the wife was only temporarily absent, having gone to
Dumaguete City for a vacation. The action was for collection of a
sum of money. In accordance with Rule 14, § 8, substituted
service could be made on any person of sufficient discretion in the
dwelling place of the defendant, and certainly defendant’s
husband, who was there, was competent to receive the summons
on her behalf. In any event, it appears that defendant in that case
submitted to the jurisdiction of the court by instructing her husband
to move for the dissolution of the writ of attachment issued in that
case.
On the other hand, in the case of Gemperle v. Schenker,[10] it was
held that service on the wife of a nonresident defendant was found
sufficient because the defendant had appointed his wife as his
attorney-in-fact. It was held that although defendant Paul Schenker
was a Swiss citizen and resident of Switzerland, service of
summons upon his wife Helen Schenker who was in the
Philippines was sufficient because she was her husband’s
representative and attorney-in-fact in a civil case, which he had
earlier filed against William Gemperle. In fact Gemperle’s action
was for damages arising from allegedly derogatory statements
contained in the complaint filed in the first case. As this Court said,
“i]n other words, Mrs. Schenker had authority to sue, and had
actually sued, on behalf of her husband, so that she was, also,
empowered to represent him in suits filed against him, particularly
in a case, like the one at bar, which is a consequence of the action
brought by her on his behalf.”[11]Indeed, if instead of filing an
independent action Gemperle filed a counterclaim in the action
brought by Mr. Schenker against him, there would have been no
doubt that the trial court could have acquired jurisdiction over Mr.
Schenker through his agent and attorney-in-fact, Mrs. Schenker.
In contrast, in the case at bar, petitioner Lourdes A. Valmonte did
not appoint her husband as her attorney-in-fact. Although she
wrote private respondent’ s attorney that “all communications”
intended for her should be addressed to her husband who is also
her lawyer at the latter’s address in Manila, no power of attorney to
receive summons for her can be inferred therefrom. In fact the
letter was written seven months before the filing of this case below,
and it appears that it was written in connection with the
negotiations between her and her sister, respondent Rosita
Dimalanta, concerning the partition of the property in question. As
is usual in negotiations of this kind, the exchange of
correspondence was carried on by counsel for the parties. But the
authority given to petitioner’s husband in these negotiations
certainly cannot be construed as also including an authority to
represent her in any litigation.
For the foregoing reasons, we hold that there was no valid service
on petitioner Lourdes A. Valmonte in this case.
Additional notes:
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Constructive service (by publication) (2) Non-resident

(1) As a rule, summons by publication is available only in 1. Present in the Philippines
actions in rem or quasi in rem. It is not available as a 1. Personal service (Sec. 6, Rule 14)
means of acquiring jurisdiction over the person of the 2. Substituted service (Sec. 7, Rule 14)
defendant in an action in personam.
(2) Against a resident, the recognized mode of service is 3. Absent from the Philippines
service in person on the defendant under Sec. 6 Rule 1. Action in rem or quasi
14. In a case where the defendant cannot be served in rem – only Extraterritorial
within a reasonable time, substituted service will service (Rule 14, Sec. 15)
apply (Sec. 7, Rule 14), but no summons by publication 2. Action in personam,
which is permissible however, under the conditions set and judgment cannot be
forth in Sec. 14, Rule 14. secured by attachment (e.g.
(3) Against a non-resident, jurisdiction is acquired over the action for injunction)
defendant by service upon his person while said 3. Wait for the defendant
defendant is within the Philippines. As once held, when to come to the Philippines and to
the defendant is a nonresident, personal service of serve summons then
summons in the state is essential to the acquisition of 4. Bait the defendant to
jurisdiction over him (Banco Do Brasil, supra). This is in voluntarily appear in court (Rule
fact the only way of acquiring jurisdiction over his 14, Sec. 20)
person if he does not voluntarily appear in the action. 5. Plaintiff cannot resort to
Summons by publication against a nonresident in an extraterritorial service of
action in personam is not a proper mode of service. summons (Kawasaki Port
(4) Publication is notice to the whole world that the Services vs. Amores, 199 SCRA
proceeding has for its object to bar indefinitely all who 230 [1991]; Dial Corporation vs.
might be minded to make an objection of any sort Soriano, 161 SCRA 737 [1988]).
against the right sought to be established. It is the
publication of such notice that brings the whole world as Service upon residents temporarily outside the Philippines
a party in the case and vests the court with jurisdiction (1) Service of summons upon a resident of the Philippines
to hear and decide it(Alaban vs. CA, GR 156021, Sept. who is temporarily out of the country, may, by leave of
23, 2005). court be effected out of the Philippines as under the rules
on extraterritorial service in Sec. 15, Rule 14 by any of
Service upon a defendant where his identity is unknown or the following modes: (a) by personal service as in Sec. 6,
where his whereabouts are unknown (b) by publication in a news paper of general circulation
(1) Where the defendant is designated as unknown, or together with a registered mailing of a copy of the
whenever his whereabouts are unknown and cannot be summons and the order of the court to the last known
ascertained despite a diligent inquiry, service may, with prior leave address of the defendant, or (c) by any manner the court
of court, be effected upon the defendant, by publication in a may deem sufficient under Sec. 16. Like in the case of an
newspaper of general circulation. The place and the frequency of unknown defendant or one whose whereabouts are
the publication is a matter for the court to determine (Sec. 14, Rule unknown, the rule affecting residents who are temporarily
14). The rule does not distinguish whether the action is in out of the Philippines applies in any action. Note also,
personam, in rem or quasi in rem. The tenor of the rule authorizes that summons by publication may be effected against the
summons by publication whatever the action may be as long as defendant.
the identity of the defendant is unknown or his whereabouts are (2) The defendant may however, also be served by
unknown. Under the previous rulings, jurisdiction over the substituted service (Montalban vs. Maximo, 22 SCRA
defendant in an action in personam cannot be acquired by the 1070). This is because even if he is abroad, he has a
summons by publication (Pantaleon vs. Asuncion, 105 Phil. 761; residence in the Philippines or a place of business and
Consolidated Plyware Industries vs. Breva, 166 SCRA 516). surely, because of his absence, he cannot be served in
person within a reasonable time.

Rules on Summons on Defendant Extra-territorial service, when allowed

(1) Resident (1) Under Sec. 15, Rule 14, extraterritorial service of
(a) Present in the Philippines summons is proper only in four (4) instances namely:
1. Personal service (Rule 14, Sec. 6) a. When the action affects the personal
2. Substituted service (Rule 14, Sec. 7) status of the plaintiffs;
3. Publication, but only if b. When the action relates to, or the
1. his identity or whereabouts subject of which is, property within the
is unknown (Rule 14, Sec. 14); Philippines, in which the defendant
and has or claims a lien or interest, actual
2. the action is in rem or quasi or contingent;
in rem (Citizen Surety v. c. When the relief demanded in such
Melencio-Herrera, 38 SCRA 369 action consists, wholly or in part, in
[1971]). excluding the defendant from any
interest in property located in the
(b) Absent from the Philippines Philippines; and
1. Substituted service (Rule 14, Sec. 7) d. When the defendant non-resident’s
2. Extraterritorial service (Rule 14, Sec. 16 and property has been attached within the
15); action need not be in rem orquasi in Philippines.
rem (Valmonte v. CA, 252 SCRA 92 [1996])

BY: RIZADA, Resci Angelli

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ATTY MELISSA ROMANA SUAREZ

(2) Extraterritorial service of summons applies when the Service of summons on an Upon any or all defendants
following requisites concur: entity WITHOUT juridical being sued under common
a. The defendant is nonresident; personality name OR
b. He is not found in the Philippines; and Person in charge of office
c. The action against him is either in Service upon minors and 1. By serving upon the
rem or quasi in rem. incompetents minor regardless of
age, and upon his
(3) If the action is in personam, this mode of service will not be legal guardian or also
available. There is no extraterritorial service of summons in an upon either of his
action in personam. Hence, extraterritorial service upon a parets
nonresident in an action for injunction which is in personam is not 2. In case of
proper(Kawasaki Port Service Corp. vs. Amores, 199 SCRA 230; incompetent: by
Banco Do Brasil vs. CA, 333 SCRA 545). serving on him
personally and upon
Section 17. Leave of court. — Any application to the court under his legal guardian, but
this Rule for leave to effect service in any manner for which leave NOT upon his
of court is necessary shall be made by motion in writing, supported parents, unless they
by affidavit of the plaintiff or some person on his behalf, setting are his legal
forth the grounds for the application. guardians
Service upon prisoner Serve on officer having
management of the jail or
Section 18. Proof of service. — The proof of service of a prison
summons shall be made in writing by the server and shall set forth Service upon domestic 1. To the president,
the manner, place, and date of service; shall specify any papers private juridical entity managing partner,
which have been served with the process and the name of the general manager,
person who received the same; and shall be sworn to when made corporate secretary,
by a person other than a sheriff or his deputy. treasurer or in house
counsel
Proof of service 2. Service upon person
(1) When the service has been completed, the server shall, other than those
within five (5) days therefrom, serve a copy of the return, mentioned is INVALID
personally or by registered mail, to the plaintiff’s counsel, and shall and does not bind the
return the summons to the clerk who issued it, accompanied by corporation
proof of service (Sec. 4, Rule 14). Service upon foreign private 1. Serve on resident
(2) After the completion of the service, a proof of service is juridicial enityt agent or if none,
required to be filed by the server of the summons. The proof of 2. To the government
service of summons shall be made in writing by the server and official designated by
shall set forth the manner, place and date of service; shall specify law or
any papers which have been served with the process and the 3. On any officer or
name of the person who received the same; and shall be sworn to agent of the
when made by a person other than a sheriff or his deputy (Sec. corporation within the
18). Philippines
Service upon public 1. In case defendant is
Section 19. Proof of service by publication. — If the service has corporation the RP—by serving
been made by publication, service may be proved by the affidavit upon the solgen
of the printer, his foreman or principal clerk, or of the editor, 2. In case of province,
business or advertising manager, to which affidavit a copy of the city or municipality or
publication shall be attached and by an affidavit showing the like public
deposit of a copy of the summons and order for publication in the corporation—by
post office, postage prepaid, directed to the defendant by serving on its
registered mail to his last known address. executive head, or on
such other officer or
officers as the law or
Section 20. Voluntary appearance. — The defendant's voluntary the court may direct
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance.

Types of voluntary appearance

1. Filing of answer
2. Motion for extension of time to file an answer
3. Motion for bill of particulars

Special appearance--- filing a motion to dismiss on the ground that

court has not acquired jurisdiction over his person. This is NOT
voluntary appearance.

SUMMARY

BY: RIZADA, Resci Angelli

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Extra-territorial service Requisites: (1) A motion shall state the order sought to be obtained, and the
a. Defendant does not grounds which it is based, and if necessary shall be accompanied
reside or is not found by supporting affidavits and other papers(Sec. 3).
w/I the Philippines (2) All motions must be in writing except those made in open
b. The action either: court or in the course of a hearing or trial (Sec. 2).
1. Affects the status
of plaintiff Section 2. Motions must be in writings. — All motions shall be
2. Relates to or the in writing except those made in open court or in the course of a
subject of which hearing or trial.
is property within
the Philippines in
w/ch defendant Section 3. Contents. — A motion shall state the relief sought to
has a lien or be obtained and the grounds upon which it is based, and if
interest; required by these Rules or necessary to prove facts alleged
3. Demands a relief therein, shall be accompanied by supporting affidavits and other
which consists papers.
wholly or in part
in excluding the NOTE:
defendant from 1. It is not necessary that a motion be accompanied by
any interest in supporting affidavits and other papers unless ti is
any property required by the rules or necessary to prove the facts
within the alleged therein.
Philippines or 2. Examples of motions where supporting affidavits are
4. Property of required are:
defendant has a. motion for new trial on the ground of FAME
been attached in b. when you move for postponement of trial coz your
the Philippines. client is sick, the best supporting paper is a medical
certificate.
2.Mode of service
a. with leave of court served 3. Instance when no need to attach supporting affidavits is
outside the Philippines by MOTION TO DECLARE ADVERSE PARTY IN
personal service or DEFAULT. This is because the clerk of court can just
b. with leave of court serve by look at the records, sheriff’s return to check defendant
publication in a newspaper of was not served iwht summons.
general circulation, in which
case, copy of the summons and JURISPRUDENCE: if you will not state the relief sought to be
order of court must also be sent obtained, as a result, it is PRO-FORMA or a mere scrap of paper
by registered mail to the last and of no legal effect which the CA may ignore. (MARCIAL V. HI-
known address of defendant or CEMENT)
c. any other manner the court
deem sufficient. Section 4. Hearing of motion. — Except for motions which the
Service upon resident Substituted service or with court may act upon without prejudicing the rights of the adverse
temporarily out of the leave of court, personal service party, every written motion shall be set for hearing by the
Philippines out of the Philippines as under applicant.
extraterritorial service.
Every written motion required to be heard and the notice of the
hearing thereof shall be served in such a manner as to ensure its
RULE 15 receipt by the other party at least three (3) days before the date of
Motions hearing, unless the court for good cause sets the hearing on
shorter notice.
Section 1. Motion defined. — A motion is an application for relief
other than by a pleading. NOTES:
1. You must furnish a copy of your motion to the adverse
Motions versus Pleadings aprty AT LEAST 3 DAYS BEFORE THE DATE OF
1. A pleading is a written statement of the respective claims HEARING to prevent surprise upon the other party and to
and defenses of the parties submitted to the court for enable the latter to study the motion and file his
appropriate judgment (Sec. 1, Rule 6). It may be in the opposition.
form of a complaint, counterclaim, cross-claim, third-party 2. A motion cannot be filed ex-parte.
complaint, or complaint-in-intervention, answer or 3. However, motion need NOT be set for hearing if it is not
reply (Sec. 2, Rule 6). a controversial motion; one that will not prejudice the
2. A motion on the other hand is an application for relief rights of the adverse party. i.e. extension of time to file
other than a pleading (Sec. 1, Rule 15). answer.

EXCEPTIONS: (Prayed for as motion but actually, it is a pleading) JURISPRUDENCE;

1. Motion for judgment to the demurrer to evidence 1. As a general rule, notice of motion is required where a
2. Motion for judgment on the pleadings party has a right to resist the relief sought by the motion
3. Motion for summary judgment. and principles of natural justice demand that his right be
not affected without an opportunity to be heard. 20 The
Contents and form of motions three-day notice required by law is intended not for the

BY: RIZADA, Resci Angelli

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ATTY MELISSA ROMANA SUAREZ
benefit of the movant but to avoid surprises upon the
adverse party and to give the latter time to study and
meet the arguments of the motion.21 Principles of natural
justice demand that the right of a party should not be
affected without giving it an opportunity to be heard.
The test is the presence of the opportunity to be heard,
as well as to have time to study the motion and
meaningfully oppose or controvert the grounds upon
which it is based.23 Considering the circumstances of the
present case, we believe that procedural due process
was substantially complied with.
There are, indeed, reasons which would warrant the
suspension of the Rules: (a) the existence of special or
compelling circumstances, b) the merits of the case, (c) a
cause not entirely attributable to the fault or negligence of
the party favored by the suspension of rules, (d) a lack of
any showing that the review sought is merely frivolous
and dilatory, and (e) the other party will not be unjustly
prejudiced thereby.24 Elements or circumstances (c), (d)
and (e) exist in the present case.
The suspension of the Rules is warranted in this case.
The motion in question does not affect the substantive
rights of petitioner as it merely seeks to extend the period
to file Memorandum. The required extension was due to
respondent’s counsel’s illness, lack of staff to do the work
due to storm and flood, compounded by the grounding of
the computers. There is no claim likewise that said
motion was interposed to delay the appeal.25 As it
appears, respondent sought extension prior to the
expiration of the time to do so and the memorandum was
subsequently filed within the requested extended period.
Under the circumstances, substantial justice requires that
we go into the merits of the case to resolve the issue of
who is entitled to the possession of the land in question.
(SARMIENTO V. ZARATAN)
Does this rule apply to a MOTION FOR ISSUANCE OF WRIT
OF POSSESION?
Answer: section 4, rule 15 apply only to a litigated motion and not
to an ex parte motion.
The said rules do not apply to a motion which is merely a
mode by which the respondent herein informed the Court that the
writ of execution had not been implemented, and that she had not
been placed in possession of the property. There is no need for a
hearing of such motion because it is not a litigated motion, and the
court may act thereon without prejudice to the rights of the
petitioner as the adverse party. The prejudice caused to the
petitioner as the adverse party from the HLURB order directing it
and its officers and employees to vacate the condominium unit
would not have been greater than that caused by the issuance of
the writ of execution itself. The writ of possession was but an
implementation of the writ of execution.[31]
The procedure in a motion for the issuance of a writ of
possession is ex parte and summary in nature. It is a proceeding
brought for the benefit of one party only and without notice by the
court to any person adverse of interest. It is a proceeding wherein
relief is granted without an opportunity for the person against
whom the relief is sought to be heard. [32] The issuance of a writ of
possession is not a judgment on the merits. [33] Thus, the HLURB
may grant the motion even in the absence of the judgment obligor,
herein petitioner. (PRIMETOWN V. JUNTILLA)
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Effect of failure to file motion and serve to party LESS than 3
days? Court may refuse to take action on a motion which does not
comply with the rule requiring a 3-day notice to the adverse party.
Section 5. Notice of hearing. — The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and
date of the hearing which must not be later than ten (10) days after
the filing of the motion.
Notes:
1. A motion that does not contain a notice of hearing is but
a mere scrap of paper; it presents no question which
merits the attention and consideration of the Court. It is
not even a motion for it does not comply with the rules
and, hence, the clerk has no right to receive it
2. Notice of hearing must be addressed tot eh PARTIES
and not to the clerk of court. Otherwise, it is no notice at
all.
JURISPRUDENCE:
Purpose of the notice requirement: This Court has indeed held
time and time again that, under Sections 4[11] and 5[12] of Rule 15 of
the Rules of Court, mandatory is the notice requirement in a
motion, which is rendered defective by failure to comply with the
requirement.[13] As a rule, a motion without a notice of hearing is
considered pro forma and does not affect the reglementary period
for the appeal or the filing of the requisite pleading. [14]
As an integral component of procedural due process, the
three-day notice required by the Rules is not intended for the
benefit of the movant. Rather, the requirement is for the purpose
of avoiding surprises that may be sprung upon the adverse party,
who must be given time to study and meet the arguments in the
motion before a resolution by the court. [15] Principles of natural
justice demand that the right of a party should not be affected
without giving it an opportunity to be heard. [16]
The test is the presence of the opportunity to be heard,
as well as to have time to study the motion and meaningfully
oppose or controvert the grounds upon which it is based.
Considering the circumstances of the present case, we believe
that the requirements of procedural due process were substantially
complied with, and that the compliance justified a departure from a
literal application of the rule on notice of hearing. (JEHAN
SHIPPING V. NATIONAL FOOD AUTHORITY)
Section 6. Proof of service necessary. — No written motion set
for hearing shall be acted upon by the court without proof of
service thereof.
1. As a rule, you cannot file anything without serving a copy
to your opponent. A motion cannot be filed ex-parte.
2. EXCEPTIONS:
a. Motions that are not controversial
b. Indigent or pauper litigants
SUMMARY: REQUISITES OF VALID MOTION
1. It msut be in writing except those made in open court or
in the course of hearing or trial
2. State the relief sought to be obtained and ground upon
which it is based
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3. Must be accompanied by supporting affidavits and other
papers, if required by these rules or necessary to prove
facts alleged therein. However, if the facts are already
stated on record, the court can check the records;
4. There must be notice of the hearing attached to the
motion and the adverse party must receive the motion at
least 3 days before the date of hearing, unless the court
for good cause sets the hearing on shorter notice;
5. There must be notice of hearing addressed to all parties
concerened and shall specify the time and date of
hearing which must not be later than 10 days after the
filing of the motion and
6. There must be proof of service of the motion on the
adverse party.
Section 7. Motion day. — Except for motions requiring immediate
action, all motions shall be scheduled for hearing on Friday
afternoons, or if Friday is a non-working day, in the afternoon of
the next working day.
Section 8. Omnibus motion. — Subject to the provisions of
section 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then available,
and all objections not so included shall be deemed waived.
Examples:
1. Motion to dismiss
2. New trial
In these cases, if you have 2 or more grounds, file only 1
motion where you invoke all of them. If you did not place
the grounds, it deemed waived.
EXCEPTIONS:
1. Lack of jurisdiction ove rhte subject matter
2. Litis pendentia
3. Res judicata
4. Prescription
Section 9. Motion for leave. — A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted.
Section 10. Form. — The Rules applicable to pleadings shall
apply to written motions so far as concerns caption, designation,
signature, and other matters of form.
Additional notes:
Omnibus Motion Rule
1. The rule is a procedural principle which requires that
every motion that attacks a pleading, judgment, order or
proceeding shall include all grounds then available, and
all objections not so included shall be deemed
waived (Sec. . Since the rule is subject to the
provisions of Sec. 1, Rule 9, the objections mentioned
therein are not deemed waived even if not included in the
motion. These objections are: (a) that the court has no
jurisdiction over the subject matter, (b) that there is
another action pending between the same parties for the
same cause (litis pendencia), (c) that the action is barred
by a prior judgment (res judicata), and (d) that the action
is barred by the statute of limitations (prescription) (Sec.
1, par. 2, Rule 9).
2. A motion to dismiss is a typical example of a motion
subject to omnibus motion rule, since a motion to dismiss
attacks a complaint which is a pleading. Following the
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
omnibus motion rule, if a motion to dismiss is filed, then
the motion must invoke all objections which are available
at the time of the filing of said motion. If the objection
which is available at the time is not included in the
motion, that ground is deemed waived. It can no longer
be invoked as affirmative defense in the answer which
the movant may file following the denial of his motion to
dismiss.
Litigated and ex parte motions
1. A litigated motion is one which requires the parties to be
heard before a ruling on the motion is made by the court.
Sec. 4 establishes the general rule that every written
motion is deemed a litigated motion. A motion to
dismiss (Rule 16), a motion for judgment for the
pleadings (Rule 34), and a summary judgment (Rule 35),
are litigated motions.
2. An ex parte motion is one which does not require that the
parties be heard, and which the court may act upon
without prejudicing the rights of the other party. This kind
of motion is not covered by the hearing requirement of
the Rules (Sec. 2). An example of an ex parte motion is
that one filed by the plaintiff pursuant to Sec. 1, Rule 18,
in which he moves promptly that the case be set for pre-
trial. A motion for extension of time is an ex parte motion
made to the court in behalf of one or the other of the
parties to the action, in the absence and usually without
the knowledge of the other party or parties. Ex parte
motions are frequently permissible in procedural matters,
and also in situations and under circumstances of
emergency; and an exception to the rule requiring notice
is sometimes made where notice or the resulting delay
might tend to defeat the objective of the
motion (Sarmiento vs. Zaratan, GR 167471, Feb. 5,
2007).
Pro-forma motions
1. The Court has consistently held that a motion which does
not meet the requirements of Sections 4 and 5 of Rule 15
on hearing and notice of the hearing is a mere scrap of
paper, which the clerk of court has no right to receive and
the trial court has no authority to act upon. Service of a
copy of a motion containing a notice of the time and the
place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with
these requirements renders their motions fatally
defective(Vette Industrial Sales vs. Cheng, GR 170232-
170301, Dec. 5, 2006).
2. A pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated
as a motion intended to delay the proceedings (Marikina
Development Corporatoin vs. Flojo, 251 SCRA 87).
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RULE 16
MOTION TO DISMISS
NOTE: this is the counterpart of a motion to quash. In criminal
procedure, the grounds are:
1. Lack of juris over SM or over person of the accused
2. Person who filed it has no authority to do so
3. Complaint/info charges more than 1 offense
4. Double jeopardy
5. Criminal liability has been extinguished
Section 1. Grounds. — Within the time for but before filing the
answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made on any of the following grounds:
1. The time to answer is 15 days after service of summons
upon defendant. In lieu of an answer, he may instead file
a motion to dismiss within the time to answer.
2. Where an answer is filed, defendant is stopped from filing
a MTD. The only exceptions are:
a. When ground is lack of jurisdiction of the court over
the SM
b. Where complaitn states no cause of action
c. Prescription and
d. Where the evidence that would constitute a ground
for the dismissal fo the complaint was discovered
only during trial. (PHIL-VILLE V. JAVIER)
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
2. MTD is also available in dismissing a counterclaim, cross
claim, third party complaint because the law says, ‘
before filing the answer to the complaint or pleading
asserting a claim’.
1st ground:
(a) That the court has no jurisdiction over the person of the
defending party;
1. Objection to jurisdiction over the person is getting weak
because of so many exceptions:
a. Waiver
b. Voluntary appearance
c. Improper service but the defendant came to know
aobut it so you cannot rely on the technicality
d. Case of linger: if it is the fault of the sheriff and not
the plaintiff, case will NOT be dismissed. Alias
summons will be issued and direct sheriff to serve it
properly.
2. When you file MTD on the ground of lack of juris over the
person of the defending party, it is OK to cite other
grounds. ‘The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary
appearance’. (LA NAVAL DRUG V. CA)
(b) That the court has no jurisdiction over the subject matter
of the claim;
PRINCIPLES TO REMEMBER:
1. Jurisdiction over the SM is determined by the allegations
in the complaint and not by the allegations of the
defendant is his motion to dismiss.
2. When a defendant files a MTD on the ground that the
court has no jurisdiction over the SM, the defendant
hypothetically admits all the allegations in the complaint
to be true. The defendant, in the meantime, is nto
allowed to present evidence that the court has no
jurisdiction. Everything must be decided on the face of
the complaint only.
3. Jurisdiction over the SM, once acquired by the court
upon the filing of the complaint, the court retains the
jurisdiction over that case until that case is terminated.
Any subsequent development or amendment of the law
will no longer deprive the court of its jurisdiction.
EXCEPTION: curative laws.
4. Lack of jurisdiction over the SM may be raised in:
a. In the answer as an affirmative defense;
b. In the course of the trial
c. After the trial or
d. Even for the first time on appeal
EXCEPTION: CASE OF TIJAM V. SIBONGHANOY
doctrine of estoppels by laches.
“in the past, the principle of estoppels has been used by
the courts toa void a clear case of injustice. Its use as a
defense to a jurisdicitional error is more of an exception
rather than the rule. The circumstances outlining
estoppels must be unequivocal and intentional, for it is an
exception to standard legal norms and is generally
applied only in highly exceptional and justifiable causes.”
(DE LEON V. CA)
(c) That venue is improperly laid;
1. If you file a MTD based on this ground and the court still
continues to hear the case, your remedy is to file a
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petition for certiorari on the ground of grave abuse of
discretion amounting to excess or lack of jurisdiction.
(d) That the plaintiff has no legal capacity to sue;
1. people who have no capacity to sue are:
a. minor filing a case without assistance of parents or
guardian
b. person files a case in behalf of a minor claiming that
he is a guardian when in fact, he is not
c. person filing is not the parent of the child
d. person filing is the person appointed by the court
e. insane
f. civil interdictees
2. when plaintiff lacks legal capacity to sue, it means:
a. when the plaintiff does not possess the necessary
qualifications to appear at the trial; not in the full
exercise of his civil right. i.e. minor, insane and
b. when plaintiff does not have the character or
representation which he claims to be a guardian
when in reality he is not.
3. difference of LEGAL CAPACITY TO SUE and LACK OF
LEGAL PERSONALITY TO SUE
LEGAL CAPACITY—refers to the disability of plaintiff
LEGAL PERSONALITY—suing without authority
LITIS PENDENTIA
(e) That there is another action pending between the same
parties for the same cause;
LITIS PENDENTIA V. FORUM SHOPPING
1. forum-shopping exists where the elements of litis
pendentia are present or where a final judgment in one
case will amount to res judicata in the other.
Consequently, where a litigant (or one representing the
same interest or person) sues the same party against
whom another action or actions for the alleged violation
of the same right and the enforcement of the same relief
is/are still pending, the defense of litis pendencia in one
case is a bar to the others; and, a final judgment in one
would constitute res judicata and thus would cause the
dismissal of the rest. In either case, forum shopping
could be cited by the other party as a ground to ask for
summary dismissal of the two[20] (or more) complaints or
petitions, and for the imposition of the other sanctions,
which are direct contempt of court, criminal prosecution,
and disciplinary action against the erring lawyer. (FIRST
PHILIPPINE CORPORATION V. CA)
2. forum-shopping exists where the elements of litis
pendencia are present or where a final judgment in one
case will amount to res judicata in the other. The test
therefore in determining the presence of forum-shopping
is whether in the two (or more cases) pending, there is
identity of (a) parties, (b) rights or causes of action and
(c) reliefs sought. Forum-shopping does not require
a literal identity of parties. It is sufficient that there is
identity of interests represented. Forum-shopping
applies only when the two (or more) cases are still
pending(ECC V. CA)
REQUISITES OF LITIS PENDENTIA AS A GROUND FOR MTD
1. Identity of parties between 2 actions, or ast least such as
represent the same interest
2. Identity of rights asserted and relief prayed for
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
3. Relief must be founded on the same facts
4. The identity in these particulars should be such that any
judgment which may be rendered on the other action will,
regardless of which party is successful, amount to res
judicata in the action under consideration.
JURISPRUDENCE
1. The issue of support having been raised in the first action
as a counterclaim, it cannot be made an issue in a
subsequent independent action. Hence, the independent
action for support should be dismissed on the ground of
lis pendens, all the other requisites being present.
4th element: IDENTITY OF PARTIES, RIGHTS, RELIEF AND
FACTS SHOULD BE SUCH THAT ANY JUDGMENT WHICH THE
COURT WILL RENDER IN THE OTHER ACTION WILL
AUTOMATICALLY BE RES JUDICATA IN THE PRESENT
ACTION. (regardless of wins in the FIRST case, it will bar the
second case)
Situations in Jurisprudence:
1. mortgagor files 1st action: annulment of REM
mortgagee files 2nd action: foreclosure of mortgage
HELD: NO LITIS PENDENTIA
4th element missing; 2nd case will not be barred.
(TAMBUNTING V. ONG)
2. plaintiff filed 1st case: accion publiciana
defendant filed 2nd case: quieting of title
HELD: LITIS PENDENTIA (FRANCISCO V. VDA. DE
BLAS)
Which of the 2 cases should be dismissed?
3. Lessee filed declaratory relief on the issue as to whether
the contract will expire by April or after 1 year pa.
After 1 year, lessor filed case for unlawful detainer.
HELD: LITIS PENDENTIA. FIRST CASE must be
dismissed. However, law only says, ‘another action
pending’. So, either of the 2 cases must be dismissed.
(TEODORO V. MIRASOL)
4. 2ND case should be dismissed by applying the principle of
priority in time. (VINTRONICS COMPUTER V. RTC
MAKATI)
5. 1st case should be dismissed by applying the criterion of
interest of justice. Court should ask which case is in a
better position to serve the interest of justice or which
case should remain taking into account the nature of the
controversy, comparative accessibility of the court to the
parties and other similar factors. (MAGSAYSAY V.
MAGSAYSAY)
6. The following are relevant considerations in determining
which action should be dismissed:
a. the date of filing , with preference generally given to
the first action filed to be retained—that is the
priority in time rule;
b. whether the action sought to be dismissed was filed
merely to pre-empt the later action or to anticipate
its filing and lay the basis for its dismissal.
c. Whether the action is the appropriate vehicle for
litigating the issues between the parties. (ALLIED
BANKING V. CA)
Case where 1st action is dismissed for being an anticipatory suit:
(f) That the cause of action is barred by a prior judgment or by
the statute of limitations;
Notes:
1. Barred by prior judgment (res adjudicate) and
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2. Barred by statute of limitations (prescription)
3. If the case is on appeal—case is NOT yet final and
executor.
Requisites of RES JUDICATA:
1. Former judgment must be final an executor
2. Court which rendered the judgment had jurisdiction over
the SM and the parties
3. Judgment must be on the merits
4. There must be between the 1st and 2nd action—identity of
parties, subject matter and causes of action
Jurisprudence:
1. JUDGMENT ON THE MERITS—when it determines the
rights and liabilities of the parties based on the ultimate
facts as disclosed by the pleadings or issues presented
for trial; not necessary that there should be trial, actual
hearing or arguments on the facts of the case for as long
as parties had full legal opportunity to be heard; it is one
rendered after a determination of which party is right ad
distinguished from a judgment rendered upon some
preliminary or final or merely technical point.
Principle of res judicata—may not be evaded by the mere
expedient of including an additional party to the 1 st and
2nd action. Only SUBSTANTIAL IDENTITY is necessary
to warrant the application of res judicata. The addition or
elimination of some parties does not alter the situation.
1st action: Revocation of sale and reconveyance of title
with dmages
2nd action: recovery of ownership and damages—accion
reinvindicatoria
HELD: IDENTITY OF CAUSES OF ACTION.
TEST OF ASCERTAINING IDENTITY OF ACTION:
when there is identity in the facts essential to the
maintenance of the 2 actiosn of whre the same
eveidence will sustain both actions. (HEIRS OF
MAGLAQUE V. CA)
2. PRESCRIPTION V. LACHES
Concerned with fact of Effect of delay
delay
Matter of time Question of inequity of
pertmitting a claim to be
enforced
Statutory Not
Applies at law Apllies in equity
Based on fied time Not based on fixed time
(g) That the pleading asserting the claim states no cause of
action;
Failure to state a cause of action—4 elements of causes of action
not present. This is determined by the allegations in the complaint
and not in the answer or motion to dismiss.
Test to determine if it states a cuase of action: Assuming for the
sake of argument that everything contained in the complaint or
pleading is correct, are you entitled to the relief prayed for? If yes,
then it states a cause of action.
JURISPRUDENCE
1. Lack of cause of action is not a ground for dismissal. The
ground is FAILURE to state a cuase of action. (MUN. OF
BINAN V. GARCIAQ)
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
2. Hypothetical admission is limited to material and relevant
facts and not those conclusions or interpretatiosn of law
or allegations of fact the falsity of which is subject to
judicial notice. (RAVA DEVT CORP V. CA)
3. Motion to dismiss does not admit the ff:
a. Mere epithets of fraud
b. Allegations of legal conclusions
c. Erroneous statement of law
d. Mere inferences or conclusions from facts not stated
e. Mere conclusions of law
f. Allegations of fact the falsity of which is subject to
judicial notice
g. Matters of evidence
h. Surplusage and irrelevant matter
i. Scandalous matter inserted merely to insult the
opposing party
j. Legally impossible facts
k. Facts unfounded by record
l. General avermetns contradicted by more specific
averments.
(h) That the claim or demand set forth in the plaintiff's
pleading has been paid, waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action is founded is
enforceable under the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been
complied with.
Examples:
1. Failure to exhaust admin remedies
2. Failure to undergo barangay conciliation
3. Failure to do earnest efforts towards a compromise
regarding suits between family members (does not apply
to suits against nephews, brother or stranger)
Section 2. Hearing of motion. — At the hearing of the motion, the
parties shall submit their arguments on the questions of law and
their evidence on the questions of fact involved except those not
available at that time. Should the case go to trial, the evidence
presented during the hearing shall automatically be part of the
evidence of the party presenting the same.
General rule: on hearing of MTD, defendant is allowed to present
evidence to prove the ground for his dismissal.
Exception:
1. Lack of jurisdiction over the SM
2. Pleading asserting a claim states no cause of action
Rationale: when you state these grounds, you are
hypothetically admitting all the allegations in the
complaint as true and correct.
Section 3. Resolution of Motion. — After the hearing, the court
may dismiss the action or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the
reasons therefor.
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JUDGMENT.
Process: SECTION 1—WHO Who:
1. Court will dismiss the action. (motion granted) MAY INTERVENE 1. Person with legal interest in the
2. Deny the motion. (proceed to trial) matter in litigation
3. Court will order amendment of the pleading. (motion 2. Has interest in the success of
denied) EITHER of the parties
3. Has interest against both
Note: 4. Situated as to be adversely
1. If the plaintiff filed a complaint and defendant files MTD, affected by a
plaintiff can still amend his complaint coz MTD is not a distribution/disposition of property
responsive pleading. in court’s custody or officer
2. Suppose there is already an order of dismissal coz HOW:
complaint does not state a cause of action, plaintiff can 1. With leave of court—motion to
still amend his complaint provided the order of dismissal intervene filed
has not yet become final and exectuory. So within 15
days therefore, he has to amend his complaint. Court shall:
1. Consider WON intervention will
unduly delay/prejudice
Section 4. Time to plead. — If the motion is denied, the movant adjudication of rights of original
shall file his answer within the balance of the period prescribed by parites AND
Rule 11 to which he was entitled at the time of serving his motion, 2. WON intervenor’s rights be fully
but not less than five (5) days in any event, computed from his protected in separate proceeding.
receipt of the notice of the denial. If the pleading is ordered to be
amended, he shall file his answer within the period prescribed by Principles:
Rule 11 counted from service of the amended pleading, unless the 1. On legal interest—it has to be
court provides a longer period. direct, immediate, actual existing
as distinguished from inchoate
rights. (so no legal interest pa if
Section 5. Effect of dismissal. — Subject to the right of appeal, buhi pa ang parents)
an order granting a motion to dismiss based on paragraphs (f), (h) 2. Granting of motion to intervene is
and (i) of section 1 hereof shall bar the refiling of the same action DISCRETIONARY.
or claim.

Cannot refile if the ground is: Exception:

1. Res judicata
2. Statute of frauds 1. Intervenor is an
3. Prescription of the claim indispensable party
2. Class suit

Section 6. Pleading grounds as affirmative defenses. — If no 3. Since it is generally discretionary,

motion to dismiss has been filed, any of the grounds for dismissal mandamus will NOT prosper to
provided for in this Rule may be pleaded as an affirmative defense compel a discretionary act.
in the answer and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss had been
filed. (5a) Exception: gross abuse of
discretion, manifest injustice,
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a excess of authority, denial of right
counterclaim pleaded in the answer. AND there is not other plain,
speedy remedy.

SECTION 2— When: At ANY time BEFORE rendition of

CIVIL PROCEDURE 3RD EXAM REVIEWER WHEN AND HOW judgment (so if human na ang kaso, wala
TO FILE na!)
RULE 19—INTERVENTION How:
1. Section 1 who may intervene 1. File motion to intervene
2. Section 2time to intervene 2. Attach copy of pleading in
3. Section 3 pleadings in intervention intervention to motion
4. Section 4 answer to complaint in intervention 3. Serve on original parties.
(compliant with Rule 15, sec. 9)
Definition Legal proceeding by which a person who is
NOT a party to action is permitted by court
to be a party by INTERVENING in a
pending action after meeting the conditions
required. He is one NOT ORIGINALLY
impleaded in the case.

Note: there must be a MOTION FOR

INTERVENTION filed BEFORE

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 49

CIVIL PROCEDURE EXCLUSIVE COPY OF
ATTY MELISSA ROMANA SUAREZ

Section 3— Types: branches 2. Open session

Pleadings in 1. Complaint in intervention—if 3. Adequate notice to interested
intervention asserts claim against either or all parties
of orig parties
2. Answer in intervention—if unites RULE 21-SUBPOENA
with defending party in resisting
claim against latter 1. Section 1—Subpoena and SP duces tecum
Section 4—when Within 15 days from NOTICE of order 2. Section 2—by whom issued
to file Answer to admitting the same 3. Section 3—Form and contents
complaint in 4. Section 4—quashing a subpoena
intervention Exception: if a different period is fixed by 5. Section 5—subpoena for depositions
court 6. Section 6—service
7. Section 7—personal appearance in court
Principles: 8. Section 8—compelling attendance
1. If CII was amended BEFORE 9. Section 9—contempt
answer was filed, period to answer 10. Section 10—exceptions
is within 15 days after being
served a copy thereof (rule 11, Section 1—SP and Subpoena ad testificandum
sec.3) SP duces tecum 1. Process directed to person
2. If may answer na 10 days 2. Requiring him to attend/testify at
nalang. (filing not a matter of right) hearing or trial of an action
3. 3. Any investigation conducted by
What if main 2 different rules: competent authority
action was 4. Or taking of deposition
dismissed BIG COUNTRY RANCH V. CA
- intervention dismissed since it is Subpoena duces tecum
merely collateral/accessory to 1. Process directed to person
main action 2. Requiring him to bring any
- i.e. creditor files surety, debtor books, documents or other
intervened but creditor withdrew things under his control
case wala ng utang
Note: PROCESS means court compels
compliance with its demands. It means
METROBANK V. PRESIDING JUDGE there is already a proceeding or action
- case will continue if the ground for commenced before a court.
intervening is to assert a superior
right over the land in dispute Section 2—who Who issues:
Intervenor v. If you are a TRANSFEREE PENDE LITE, are authorized to 1. Court where witness is required
transferee pende there is NO NEED TO INTERVENE issue subpoena to attend
lite because you are for all intents and 2. Court of place where deposition
purposes considered joined or substituted in is to be taken
the pending action commencing at the exact 3. Officer/body authorized by law in
moment when the transfer of interest is connection with investigations
perfected between original party transferor conducted by them (labor
and transferee pende lite. arbiters)
REMEDIES Denied appeal 4. ANY justice of SC or CA in ANY
Granted Certiorari case or investigation pending
within the Philippines.
RULE 20
1. Section 1—Calendar of cases For Prisoners:
2. Section 2—assignment of cases 1. Judge/officer carefully examines
application to determine WON it
Section 1— Who shall calendar: CLERK OF COURT was made for a VALID purpose
CALENDER OF (w/ direct supervision of judge) 2. If prisoner was sentenced to
CASES death, RP or life imprisonment
What is calendared: AND confined in any penal
1. Pre trial institution he can’t be brought
2. Trial outside for appearance in any
3. Trials adjourned or postponed court.
4. Motions to set for hearing

Rule: PREFERENCE given to: Exception: if with authorization

1. Habeas corpus from SC.
2. Election cases
3. Special civil actions
4. Those required by law
Assignment of 1. Done EXCLUSIVELY by
cases to different RAFFLE

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Section 3—Form SP ad test: 1. Witness not bound thereby

and contents 1. State the name of court 2. Witness fees and
2. Title of action/investigation kilometrage allowed by
3. Directed to person whose rules were not paid
attendance is required

Duces tecum: Section 5—

1. Those 3 + Subpoena for PROCEDURE:
2. Reasonable description of the DEPOSITIONS 1. Make a notice in writing to take
books/documents/things deposition (either oral—section
demanded 15, rule 23 or upon written
3. Such books must appear to interrogatories—section 25, rule
court prima facie relevant 23)
2. Serve it to the party
Tests used: 3. Present proof of service to clerk
1. TEST OF RELEVANCE proof of court
sought to be obtained contains 4. Clerk of court (of the place
relevant and material issues where deposition is to be taken)
2. TEST OF DEFINITENESS considers it sufficient
precise book/paper/docu authorization to issue
containing such evidence must subpoenas
be so designated/described. 5. If SP DUCES TECUM there
must be an ORDER OF THE
COURT.
Section 4—how to GROUNDS TO QUASH:
quash a subpoena Types of service:
A. DUCES TECUM Section 6--- 1. Service in person
1. If unreasonable and Service 2. Substituted service
oppressive(no reasonable a. Residence with person of
description) sufficient age and discretion
2. Relevancy of books…does or
not appear b. Principal place of business
3. Person in whose behalf it is with a competent person in
issued fails to advance charge thereof
reasonable cost for its
production Procedure:
4. Witness fees and 1. Original of subpoena exhibited
kilometrage allowed by 2. Copy delivered to person to
Rules were NOT tendered whom it is served
when subpoena was 3. Tender to him fees for 1 day
served. attendance and the kilometrage
allowed
Other grounds:
1. secrecy of bank docus, self-
incriminating docus and diary Exception: if issued by or on
2. if it constitutes privileged behalf of RP/officer/agency
communication or info and
tender need not be made
therefore inadmissible
3. inadmissible for being violative
of one’s constitutional rights
4. those declared by law absolutely
confidential If duces tecum tender the
reasonable cost for producing
the books, docus, things
exception: demanded

1. written permission of
depositor 4. Allow witness a reasonable time
2. impeachment case for preparation and travel to
3. order of competent court in place of attendance
cases of bribery or
dereliction of udty of public Section 7— Person present in court may be required
officials personal to testify as if he is under a subpoena
4. money deposited is the SM appearance in
of the litigation. court

B. AD TESTIFCANDUM
QUASHAL

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CIVIL PROCEDURE
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Section 8— Presumptions:
consequences of 1. Proof of service of that
FAILURE to subpoena
appear 2. Failure of witness to attend
What court can do for such failure:
1. Ask court to issue
WARRANT for his arrest
(SECTION 8)
a. Issue a warrant to sheriff of
the province or his deputy
arrest the witness AND
bring him before the court
or officer where his
attendance is required AND
b. Cost of such warrant and
seizure paid by the
WITNESS (if failure to
answer subpoena was
willfull and without just
cause)
2. Declare him in contempt of
court for failure to obey the
subpoena. (SECTION 9)
a. Ground: failure WITHOUT
ADEQUATE CAUSE to
obey subpoena
b. This is usually the case of
RECALCITRANT
WITNESSES
c. If it was court who issued
cite him for contempt
d. If not disobedience
punished by applicable
rule/law.
Section 10—When (Sections 8 & 9 will not apply) if:
witness NOT 1. Witness resides >100kms. From
BOUND by a his residence to place of trial by
subpoena ORDINARY course of travel
(does not apply to criminal
cases)
2. In case of detention prisoner if
there was no permission of the
court where his case is pending
VIATORY RIGHT OF WITNESS
- Right of witness not to comply
with subpoena
- Exercised in civil cases if
residence is more than 100kms
from his residence
- Especially applies to defense
witnesses
SUMMONS SUBPOENA
-directed to - Directed to witness
defendant in civil
case
- defendant
informed that
complaint is filed - Witness directed to appear in
against him ahd he court or to bring documents
must file a deponents
responsive
pleading
-failure to comply,
judgment in default
will be rendered
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
- Witness declared in contempt or
-applies only to civil attendance compelled by
cases warrant for his arrest
-no distance - Applies to both civil/criminal
limitation cases
a
- 100km limitation for
enforceability
RULE 22—COMPUTATION OF TIME
1. Section 1—how to compute time
2. Section 2—effect of interruption
Section 1—how to Day of the act or event from which the
compute time designated period of tie begins to run is to
be EXCLUDED and the date of
performance INCLUDED.
If last day falls on Saturday/Sunday/legal
holiday (in place where court sits) time
shall not run till the next working day.
Section 2—Effect DAY OF THE ACT THAT CAUSED THE
of interruption INTERRUPTION EXCLUDED IN THE
COMPUTATION OF THE PERIOD
Illustration:
January 31—served with summons
February 8—filed motion to dismiss (act
which caused the interruption; this should
be excluded so 7 days lang iyang
naconsume)
February 15—MTD denied (so naa pay 8
days balance)
Deadline to file answer: FEB. 23
MODES OF DISCOVERY
RULE 23—DEPOSITIONS PENDING ACTION
1. Section 1—when may be taken
2. Section 2—scope of examination
3. Section 3—examination and cross-examination
4. Section 4—use of depositions
5. Section 5—effect of substitution of parties
6. Section 6—objections to admissibility
7. Section 7—effect of taking depositions
8. Section 8—effect of using depositions
9. Section 9—rebutting deposition
10. Section 10—persons before whom depositions may
be taken within the Philippines
11. Section 11—persons before whom depositions may
be taken in foreign countries
12. Section 12—commission or letters rogatory
13. Section 13—Disqualification by interest
14. Section 14—stipulations regarding taking of
depositions
15. Section 15—deposition upon oral examination;
notice; time and place.
16. Section 16—orders for the protection of parties and
17. Section 17—record of examination; oath; objections
18. Section 18—motion to terminate or limit examination
19. Section 19—submission to witness, changes,
signing
20. Section 20--certification and filing by officer
21. Section 21—notice of filing
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22. Section 22—furnishing copies

23. Section 23—failure to attend of party giving notice When depositions are taken:
24. Section 24—failure of party giving notice to serve GENERAL RULE: it is taken at the start of
subpoena the case BEFORE the trial.
25. Section 25—deposition upon written interrogatories;
service of notice and of interrogatories Exceptions: may be taken at any time
26. Section 26—officers to take responses and prepare after the institution of any action,
record whenever necessary or convenient. May
27. Section 27-- Notice of filing and furnishing copies be taken:
28. Section 28—orders for the protection of parties and 1. Before or after appeal
deponents 2. Even during execution of a final
29. Section 29—effect of errors and irregularities in and executory judgment.
depositions
Principles:
What are the 5 modes of discovery? 1. A non-resident foreign
1. DEPOSITIONS—pending action (Rule 23) /before action corporation can apply for depo
or pending appeal (Rule 24) taking for as long as it is a party.
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25)
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES
(Rule 26) Section 2—scope What may be examined:
4. PRODUCTION OR INSPECTION OF DOCUMENTS of examination 1. Any matter not privileged
AND THINGS (Rule 27) 2. Relevant to subject of pending
5. PHYSICAL AND MENTAL EXAMINATION OF action
PERSONS (Rule 28) 3. Relates to claim or defense of
any other party
Definition 1. Written testimony of a witness 4. Includes the existence,
2. Given in the course of judicial description, nature, custody,
proceeding condition, location of any books,
3. In advance of the trial or hearing docus or other tangible things
4. Upon oral exam or written and
interrogatories 5. Identity and location of persons
5. Opportunity is given for cross having knowledge of relevant
examination facts.
Section 1—when Presumption: CASE IS PENDING
may be taken LIMITATIONS in deposition taking:
1. WITH LEAVE OF COURT 1. Matter is nto privileged
a. If jurisdiction obtained (over 2. It is releavant to pending action
person or property) but NO 3. Court may issue orders to
answer yet; file motion for protect the parties and its
leave of court to take deponents.
deposition Section 3— it may be had as if permitted at the trial
b. Deposition taking of a Examination and
prisoner Cross
Examination
2. WITHOUT LEAVE OF
COURT if answer is filed
already

What can be taken:

1. Testimony of ANY PERSON,
whether party or not

How:
1. At instance of ANY party
2. By deposition upon oral
examination or written
interrogatories.

How attendance may be compelled:

1. Use of subpoena under rule 21.

Illustration: if case is in davao and

witness is in cebu, you cannot issue a
subpoena to compel him coz the distance
is more than 100kms. The remedy is to
get a deposition officer and ask him to get
the deposition. To compel such witness to
go to the cebu deposition officer, get a
subpoena from cebu under rule 21.

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Section 4—USE In what proceedings may depo be COMPARATIVE TABLE RE: USES OF DEPOSITIONS
OF DEPOSITIONS used:
1. At the trial Deponent Use of Need for
2. Hearing of a motion depostition testimony in
3. Interlocutory proceeding court
Paragraph A Deponent is May be used The deponent
Against whom: ANY witness, by ANY must be
1. Against ANY party who was whether a PARTY to subsequently
present party or not impeach the presented as
2. Party represented at the taking testimony of a witness in
of deposition the deponent court to serve
3. Party with due notice thereof as witness the purpose of
impeachment
USE OF DEPOSITIONS: ; deposition
a. ANY deposition may be used by should not
ANY party for take the place
contradicting/impeaching of oral
testimony of deponent as testimony in
witness (deponent is a court
WITNESS and not a party to Paragraph B Deponent is a ADVERSE Deponent
case; If this person says aPARTY or an party for ANY need not be
something in your favor, you OFFICER of a purpose, presented so
cannot use it as evidence but party including that any
only for purposes of impeachment admission
IMPEACHING his testimony in contained in
case bumaliktad xa sau depo may be
pagdating ng trial) used against
b. Deposition of A PARTY or of him. It is
ANYONE who at time of taking evidence per
of depo was an se
officer/director/managing agent Paragraph C Deponent is ADVERSE A deposition
of public/private ANY witness, party for ANY taken under
corp/partnership/assn which is a whether a purpose, but Paragraph C
party may be used by party ornot, logically can be used
ADVERSE PARTY for ANY who is dead, excluding as a substitute
purpose (deponent is a PARTY not bound by impeachment for oral
TO THE CASE; so if favorable subpoena, as a witness testimony.
sau, u can use it as an incapacitated cannot testify
admission in your favor) by age, sick, in court
c. Deposition of a WITNESS, party ifirm or
or not may be used by ANY imprisoned or
party for ANY purpose if: unable to
1. Witness is dead attend despite
2. Witness resides >100km being
from place of trial or is out subpoenaed
of the PI, unless absence is
procured by party offering Section 5—EFFECT OF It does not affect right to use
the depo SUBSTITUTION OF depositions previously taken.
3. Witness unable to PARTIES
attend/testify because of Action dismissed and another brought
Age, Sickness, Infirmity or again all depo lawfully taken and
imprisonment duly filed may be used.
4. Party offering depo has Section 6— 1. May be made during trial or
been unable to procure OBJECTIONS TO hearing to receiving in
attendance of witness by ADMISSIBILITY evidence
subpoena 2. Any deposition or any part
5. Exceptional circumstances thereof may be objected
exist, in the interest of 3. May be objected for any
justice w/ due regard to reason
importance of presenting 4. But depo officer CANNOT
testimony of witnesses RULE ON OBJECTION.
orally in open court + Section 7—EFFECT OF Party not deemed to make deponent
application and notice TAKING DEPOSITIONS his own witness for any purpose
d. If only part of depo offered
ADVERSE party may require
him to introduce all w/c is
relevant and ANY party may
introduce any other parts.

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Section 8—EFFECT OF GR: by taking your deposition, it will 3. Relative within the same
USING DEPOSITIONS not make you as my witness. If I offer degree
your deposition to court, you are now 4. Employee of such counsel
my witness 5. Person with financial
interest in the action
Exception: (if offered, not witness) Section 14— They can stipulate that depo be taken
1. Offering deposition to STIPULATIONS before ANY PERSON authorized to
contradict or impeach REGARDING TAKING admin oaths, at any time o place.
2. Offering deposition of the OF DEPO
adverse party Section 15— Procedure:
Section 9—REBUTTING 1. ANY party may rebut any DEPOSITION UPON 1. Give reasonable notice in
DEPOSITION relevant evidence in the ORAL EXAMINATION witing to every other party to
deposition whether action
introduced by him or by any 2. Notice shall state the time
other party and place, name and addres
2. Party may rebut at the trial of each person to be
or hearing. examined if known or a
Section 10—PERSONS If within the Philippines: general description
BEFORE WHOM 1. ANY JUDGE. 3. If they want to shorten or
DEPOSITIONS MAY BE 2. Notary public enlarge time, motion must
TAKEN WITHIN THE 3. Person authorized to be filed to the court upon
PHILIPPINES administer oaths if so good cause by person
stipulated by the parties in served with notice
writing. (barangay captain Section 16— When such order may be issued:
NOT included) PROTECTIVE ORDERS 1. Notice to take deposition
Section 11—if taken in 1. ON NOTICE, before a BEFORE DEPOSITION had been served
FOREIGN COUNTRIES secretary of embassy or TAKING 2. Motion seasonably made to
legation, consul general, court for good cause
consul, vice-consul or
consular agent of the RP what orders can be issued:
(ask for leave of court if no 1. Deposition shall not be
answer is filed yet, course it taken
through DFA) 2. Depo taken only at some
2. Before such person or designated place
officer as may be appointed 3. Depo taken only on written
by COMMISSION or interrogatories
LETTERS ROGATORY 4. Depo shall not have certain
(made if Phils has no matters be inquired
secretary of 5. Scope of exam shall be held
embassy,consul..etc) by no one except parties to
3. Person authorized to action and their officers or
administer oaths if so counsel
stipulated by the parties in 6. After sealing of deposition, it
writing. shall only be opened by
Section 12— 1. Issued only when necessary order of the court
COMMISSION OR and convenient 7. That parties shall
LETTERS ROGATORY 2. There must be application simultaneously file specified
and notice documents
3. Issued only on such terms 8. Info in sealed envelopes be
and with direction as are just opened only by order of
and appropriate court or
9. Any other order which
Commission designated in notices justice requires protecting
or commissions either by name or the party or witness from
descriptive title annoyance, embarrassment
or oppression.
Letters rogatory addressed to
appropriate judicial authority in foreign
country

NOTE: letters rogatory may be issued

only after a commission has been
“RETURNED UNEXECUTED”.
Section 13— Disqualified to be a deposition officer:
DISQUALIFICATION BY 1. Relative within the 6th
INTEREST degree of
consanguinity/affinity
2. Employee OR counsel of
ANY of the parties

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Section 18— How to terminate or limit examination: SUBMISSION OF 1. Testimony is fully

PROTECTIVE ORDERS 1. Motion or petition of any DEPOSITION TO transcribed
DURING DEPOSITION party or deponent must be WTNESS 2. Submit depositin to witness
TAKING filed at ANY time DURING for examination
the taking of deposition 3. It shall be read to or by him
2. There must be a showing unless waived
that examination is 4. If there are changes in form
conducted in bad faith or and substance it shall be
unreasonably annoy, entered upon the deposition
embarrass or oppress the by the officer. Statemet of
deponent or party reasons given by witness
must be written.
Who can limit: 5. Deposition must then be
1. Court in which action is signed by witness unless
pending OR waived, or witness is ill,
2. RTC of the place where cannot be found or refuses
depo is being taken to sign. (even if unsigned, it
does not preclude its use
It can order: during the trial. It is only to
1. The deposition officer to ensure that deponent is
cease from taking given opportunity to correct
deposition OR any errors)
2. Limit the scope and manner 6. EFFECT OF NOT
of taking SIGNING officer shall sign
it and state on record the
It shall be resumed only upon order of fact of waiver, illness,
the court. If they refuse the order, absence of witness or fact of
court may impose upon either party or refusal + reasons
witness payment of costs and deposition may then be
expenses used as though fully signed.
Section 17— 1. Deposition officer puts the
PROCEDURE FOR witness on oath
DEPOSITION TAKING 2. Personally, or by someone Exception: there is a motion
acting under his direction to suppress the deposition
AND in his presence, because the reasons given
RECORD the testimony of
witness for refusal to sign requires
3. Testimony taken rejection of the deposition.
stenographically
4. All objections made at the Section 20— What must be certified:
time of examination as to: CERTIFICATION AND 1. Witness was duly sworn to
a. Qualifications of FILING BY OFFICER by him
deposition officer 2. Deposition is a true record
b. Manner of taking of testimony of witness
c. Evidence presented
d. Conduct of ANY party Procedure:
e. Any other objections 1. Seal the deposition in an
These shall be NOTED BY envelope
DEPOSITION OFFICER. 2. Indorsed with title of action
and marked, “DEPOSITION
Effect: evidence objected shall be OF __”
taken subject to the objections. 3. Promptly file with court
where case is pending OR
If notice to take deposition by oral send by registered mail to
examinationis refused party may the clerk thereof for filing.
transmit written interrogatories who Section 21—NOTICE It must be given by the deposition
shall propound them to witness and OF FILING officer to all the parties
record the answers verbatim.
Secton 22— Furnish copies of the deposition to
Principles: FURNISHING COPIES ANY party or to the DEPONENT after
1. Counsel cannot prevent his payment of charges.
client from answering even if
there were objections to Section 23—FAILURE Court may order such person to pay
questions mde. TO ATTEND OF PARTY the other party the amount of
2. Deposition officer CANNOT GIVING NOTICE reasonable expenses incurred by him
RULE ON OBJECTIONS. and his counsel + attorney’s fees
Only the judge of court
where case is pending.
Section 19— Procedure:

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Section 24—FAILURE Both parties present but witness-

TO SERVE SUBPOENA deponent absent coz walang
TO WITNESS subpoena party giving notice may
be ordered to pay the reasonable
expenses incurred by him and his
counsel + attorney’s fees.
Effects of Errors and Irregularities Rule 23, Sec. 29
Section 25— Procedure:
DEPOSITION UPON 1. Serve upon every other As to Objections Effect Unless
WRITTEN party a notice stating the to:
INTERROGATORIES name and address of
person who is to answer 1 Errors and WAIVED Written objection is
them and name/descriptive irregularities in the promptly served upon
title and address of notice for taking a the party giving the
deposition officer deposition notice
2. Within 10 days thereafter
party served may serve
cross-interrogatories 2 Disqualification WAIVED Made before the
3. Within 5 days re-direct of the officer taking of the
interrogatories before whom it is deposition begins or
4. Within 3 days re-cross to be taken as soon thereafter as
interrogatories the disqualification
Section 26—DUTY OF Duties are: becomes known or
DEPOSITION OFFICER 1. Serve a copy of the notice could be discovered
IF DEPOSITION WAS and all interrogatories to with reasonable
TAKEN UPON both parites diligence.
WRITTEN 2. Take the testimony of
INTERROGATORIES witness in response to
As to Objections Effect Unless
interrogatoris
to:
3. Prepare, certify and file or
mail the deposition + copy of
3 Competency of a NOT The ground of the
the notice + interrogatories
witness or the waived by objection is one which
received by him to the Clerk
competency, failure to might have been
of court.
relevancy, or make obviated or removed if
Section 27—NOTICE After being filed, deposition officer
materiality of them presented at that time.
OF FILING AND shall give notice to all the parties of
testimony before or
FURNISHING COPIES the filing thereof and furnish them
during the
copies.
taking of
the
Section 28— How to ask for protective orders: deposition
PROTECTIVE ORDERS 1. File motion to court where
IN DEPOSITIONS UPON action is pending 4 The oral WAIVED Reasonable objection
WRITTEN 2. Good cause must be shown examination in thereto is made at the
INTERROGATORIES 3. It must be done after service the manner of taking of the
of interrogatories and prior taking the deposition.
to taking of testimony of deposition, in
deponent. the form of the
questions or
Protective orders in depositions answers, in the
upon written interrogatories: oath or
1. Order to enlare/shorten time affirmation, or in
within which to take the the conduct of
testimony of deponent the parties and
(section 15) errors of any
2. Order that testimony in kind which might
answer to written be obviated,
interrogatories shall not be removed, or
taken (section 16) cured if promptly
3. Order to terminate/limit prosecuted
taking of testimony (section
18)
4. Order that deposition not to
be taken before officer
designated (section 28)
5. Order that testimony not to
be taken except upon oral
examination (section 28)

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5 The form of WAIVED Served in writing upon desiring to perpetuate it

written the party propounding 5. Names or description of the
interrogatories them within the time persons he expects will be
submitted under allowed for serving adverse parties and their
Sec. 25 and 26 succeeding cross or addresses
other interrogatories 6. Names and addresses of
and within 3 days after persons to be examined and
service of the last substance of their testimony
interrogatories 7. State that you are asking for
authorized an order of authority to take
depositions of persons name
6 The manner in WAIVED A motion to suppress therein for the purposes of
which the the deposition or perpetuating their testimony.
testimony is some part thereof is
transcribed or made with reasonable
the deposition is promptness after such Section 3--NOTICE Duties of petitioner:
prepared, defect is, or with due AND SERVICE 1. Serve notice upon each
signed, certified, diligence might have person anme in petition as
sealed, indorsed, been, ascertained expected adverse party
transmitted, 2. Attach also copy of the
filed, or petition
otherwise dealt 3. Court shall cause notice
with by the thereof to be served AT
officer under LEAST 20 DAYS BEFORE
Sec. 17, 19, 20 HEARING. (same manner
and 26 with service of summons)

RULE 24—DEPOSITIONS BEFORE ACTION OR PENDING

APPEAL Section 4—ORDER Orders of the court:
1. Section 1—Petition for to take deposition before AND EXAMINATION 1. Order designating the
action deposition officer
2. Section 2—Contents of petition 2. Order specifying the subject
3. Section 3—notice and service matter of the examination
4. Section 4—order and examination 3. Order stating whether depo
5. Section 5—reference to corut taken orally or upon written
6. Section 6—use of deposition interrogatories
7. Section 7—deposition pending appeal 4. Procedure followed under rule
23
Section 1—PETITION 1. Purpose: perpetuate his own
FOR PERPETUATION or that of another person’s
OF TESTIMONY testimony regarding ANY Section 5— Rule 23 says, “court in which action is
matter cognizable in any court REFERENCE TO pending” under Rule 24, it means the
of the Philippines COURT “court in which petition for perpetuation
2. VERIFIED petition must be was filed” (place of residence of any
filed in the court of the place expected adverse party)
of residence of ANY expected Section 6—USE OF Same with sections 4 and 5 of Rule 23
ADVERSE party. DEPOSITION (impeachment,any purpose,etc)

Principles:
1. Applies to prospective plaintiff
or defendant
2. Can include probable wintess
3. May include situations where
cause of action has not yet
accrued

Section 2— 1. Title in the name of petitioner

CONTENTS OF and
PETITION 2. Show that petitioner expects
to be a party to an action in
court but presently unable to
bring it
3. SM of expected action and
interest therein
4. Facts which he desire to
establish by proposed
testimony and his reasons for

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Section 7— Depositions pending appeal means: depo officer ask deponent 3rd person involved.
DEPOSITIONS 1. Appeal has been taken from questions and record the
PENDING APPEAL judgment in court, including answers
CA OR Deposition of ANY person may Applies to PARTIES ONLY.
2. Before taking an appeal if time be taken, party or not You cannot ask question to a
has not yet expired. stranger.

Who may allow this:

1. Court which rendered the Purpose: to elicit material and relevant facts from adverse party.
judgment
Section 1—HOW TO Procedure:
Purpose: MAKE 1. If answer already served
1. Perpetuate their testimony for INTERROGATORIES NO leave of court required.
use in the event of further TO PARTIES 2. If NO answer yet, although
proceedings in the said court court has jurisdiction
(court which rendered the already LEAVE OF COURT
decision) required.
3. File and serve upon adverse
How to file for depositions pending party the written
appeal: interrogatories to be answered
1. Party who desires to OR if public/private corp
perpetuate testimony must serve on officer thereof
make a MOTION FOR LEAVE Section 2—ANSER HOW:
OF COURT TO TAKE TO 1. Answer fully in writing
DEPOSITIONS INTERROGATORIES 2. Signed and sworn to (notary
2. Give notice and serve a copy public lang; hindi verification)
of the same 3. File and serve a copy of
3. Motion shall state: answers to the other party
a. Names and addresses of WITHIN 15 DAYS after
person to be examined service of the interrogatories
b. Substance of the
testimony
c. Reason for perpetuating Exception: unless court
their testimony
extends or shortens the time
Possible actions of court:
1. It may GRANT MOTION if Section 3- 1. Present objections to court
perpetuation of testimony is OBJECTIONS TO WITHIN 10 DAYS after
proper to avoid failure or delay INTERROGATORIES service thereof
of justice 2. Motion shall include notice of
hearing
Orders of the court: 3. Answers deferred until
1. Order allowing the taking of resolution of objections
deposition 4. Grounds for objecting:
impropriety, immateriality,
Effect:  it may be used in the same inadmissibility or privilege
manner and under the same conditions
as are prescribed for rules on
depositions taken in PENDING Section 4—NUMBER No party, may without leave of court,
ACTIONS. OF serve more than 1 set of
INTERROGATORIES interrogatories to be answered by
RULE 25—INTERROGATORIES TO PARTIES same party.
1. Section 1—service of interrogatories to parties Section 5—SCOPE Scope:
2. Section 2—answer to interrogatories AND USE OF 1. Anything related to claim or
3. Section 3—objections to interrogatories INTERROGATORIES defense provided it is releant
4. Section 4—number of interrogatories and
5. Section 5—scope and use of interrogatories 2. It is not privileged
6. Section 6—effect of failure to serve written
interrogatories Use: same with section 4 of rule 23

Distinction made: DEPOSITION UPON WRITTEN

INTERROGATORIES V. INTERROGATORIES TO PARTIES

DEPOSITION UPON WRITTEN INTERROGATORIES TO

INTERROGATORIES
Taken before a deposition
officer
Questions are prepared
beforehand submitted to
PARTIES
No deposition officer
Questioning is direct. Plaintiff
questions D, D questions P. no

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Section 6—EFFECT A party not served with written request

OF FAILURE TO interrogatories may NOT be compelled b. admission of the truth of
SERVE WRITTE by the adverse party to give the any material/relevant
INTERROGATORIES testimony in open court or to give a matter of fact
deposition pending appeal.
3. deliver copies of the
(rule is that a party may be called to the documents + request to the
witness stand to testify. However, other party.
written interrogatories must be served
first in order that this rule may be NOTE:
allowed.) 1. LEAVE OF COURT IS NOT
REQUIRED. There is a
presumption that answer has
RULE 26—ADMISSION BY ADVERSE PARTY already been filed.
1. Section 1—request for admission 2. This rule contemplates of
2. Section 2—implied admission interrogatories that would
3. Section 3—effect of admission clarify and tend to shed light
4. Section 4—withdrawal on the truth or falsity of
5. Section 5—effect of failure to file and serve request allegations in the pleading.
for admission 3. PURPOSE: expedite trial and
relieve the cost of proving
ADMISSION in a request for admission, you are requiring the facts that are not disputed
opposing party to admit the truth or authenticity of NON-
ACTIONABLE documents. If actionable, it must be pleaded
properly.

Distinction with interrogatories to parties:

INTERROGATORIES TO REQUEST FOR ADMISSION
PARTIES
Answer under oath Answer also under othat
Purely between parties to Same
action
Specific details or evidentiary Admissions are sought.
attes are sought. Questions Questions only answerable by
asked are: who, when, where, YES or NO.
what
Leave of court necessary if no Leave of court totally
answer is served yet unnecessary

DISTINCTIONS on OBJECTIONS between Interrogatories and

request for admission
INTERROGATORIES TO REQUEST FOR ADMISSION
PARTIES
Objection to questions Objections to request submitted
submitted directly to court directly to court
Answer may be deferred Same
pending resolution of objections
Period to object is 10 DAYS Period to object is NOT LESS
after service of interrogatories THAN 15 DAYS from date of
service of the request for
admission
Period to answer may be Period to answer may
shortened or extended EXTENDED but not shortened.

Section 1—REQUEST Procedure:

FOR ADMISSION 1. File request for admission AT
ANY TIME after issues have
been joined (answer already
FILED)
2. Party may file and serve to the
other party a written request
for the:
a. admission by the latter of
the genuineness of any
material and relevant
document described in
and exhibited with the

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Section 2—IMPLIED Duty if a request for admission is sent:
ADMISSION 1. Within the period designated
(which should be not be less
than 15 days after service) or
within time court allows
party requested must file and
serve a SWORN
STATEMENT either:
a. Specifically denying the
matters or
b. Setting forth details why
he cannot truthfully admit
or deny those matters.
account of failure to answer
rquet for admission.
Section 3—EFFECT Limitations:
OF ADMISSION 1. Admission can be used only
for the purpose of the pending
action
2. It shall not constitute ad
admission by him and for any
other prupose
3. It may not be used against
him for any other proceeding

2. FOR OBJECTIONS: Section 4— Express or implied admissions may be

1. Submit objections to WITHDRAWAL withdrawn or amended but only upon
court within the period for LEAVE OF COURT.
and prior to filing of sown
statement Section 5—EFFECT The supposed requestion party shall
2. Compliance with request OF FAILURE TO not be permitted to present evidence on
deferred until the same is FILE/SERVE such facts during the trial.
resolved. REQUEST FOR
ADMISSION TO THE
EFFECT of failure to file answer to ADVERSE PARTY OF
request for admission each of the MATERIAL FACT
matters of which an admission is WHICH ARE OUGHT
requested shall be DEEMED TO BE WITHIN THE
ADMITTED. Hence, judgment on the PERSONAL
pleadings may be had as a matter of KNOWLEDGE OF
right (Diman v. Alumbres) LATTER
Principles:
1. If an admission was made but
during the trial, it was not RULE 27—PRODUCTION OR INSPECTION OF DOCUMENTS
presented, the court may still OR THINGS
take judicial notice thereof 1. Section 1—motion for production of inspection;
because you are required to order
file and serve them so court
has knowledge of it.
2. If there was already a denial
of an actionable document in
an answer then a request for
admission was subsequently
given to you, do you have to
deny everything all over
again?

NO. (Po v. CA) a request for

admission not intended to
reproduce or reiterate
allegations of the requesting
party’s pleading.

3. Request for admission must

be SENT TO PARTY
HIMSELF and NOT to lawyer.
Although a lawyer may be the
one to answer the request.

4. Effect of serving on counsel

and not party—party to whom
request is directed CANNOT
BE DEEMED TO HAVE
ADMITED the genuineness of
any relevant document in and
exhibited in the request, on

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Section 1—how to file Procedure: incapaicyt

Motion FOR 1. File motion for 2. On ground of impotency
PRODUCTION OR production/inspection 3. Annulment of contract on the
INSTPECTION 2. Good cause must be shown ground of insanity at time of
3. File in the court where action execution
is pending. 4. Physical disability d/t quasi-
4. Notice of motion given to all delicts
parites Section 2—ORDER Procedure:
5. Motion must specifily describe FOR EXAMINATION 1. File motion
document orthing sought to be 2. Good cause must be shown
produced or inspected 3. Notice given to party to be
6. Document or thing must examined and to all other
constitute evidence material to parties
the action; must not be 4. Notice shall specify the time,
privileged and must be in the place, manner, conditions and
possession of the adverse scope of the examination and
party the person before whom it is
to be made
Orders of the court: Section 3—REPORT Party examined asks for report
1. Order ANY party to OF FINDINGS 1. Adverse party who requested
produce/permit instpection, the examination must give the
copying or photographing any party examined a copy of the
designated documents, detailed written report of the
papers, bookds,accounts, examining physician’s findings
letters,photographs, objects or and conclusions
tangible things NOT 2. Adverse party can demand
PRIVILEGED which contain results of prior or subsequent
material evidence to action examination:
and which are in his a. If party examined does
possession not comply court may
2. Orderny party to permit entry order him
upon designated land or other b. If physician does not
property in his possession for comply with the report
inspecting/measuring/surveyn he cannot testify;
g or photographing. testimony excluded if
offered at the trial.
Section 4—WAIVER By requesting/obtaining a report of the
Such order must: OF PRIVILEGE examination so ordered OR by taking
1. Specify the time, place and deposition of examiner party
manner of making the examined WAIVES ANY PRIVILEGE he
inspection and taking of might have:
copies and photographs 1. in that action
2. Prescribe terms as are just 2. any other action involving
PRODUCTION/ SUBPOENA DUCES TECUM same controversy, regarding
INSPECTION OF testimony of every other
DOCUMENTS person examined or may
Essentially a mode of Means of compelling production of thereafter examine
discovery evidence which must be brought to
court SUMMARY OF MODES OF DISCOVERY
Limited to parties to the May be directed to any person, party or REQUIREMENT FOR LEAVE OF COURT
action not
Issued only upon May be issued upon an ex-parte 1. DEPOSITIONS
motion with notice to application a. Pending action; no REQUIRED
adverse party answer filed yet
b. Pending action;
RULE 28—PHYSICAL AND MENTAL EXAMINATION OF answer filed; NOT REQUIRED
PERSONS c. Before
1. Section 1—when examination may be ordered action/pending REQUIRED
2. Section 2—order for examination appeal
3. Section 3—report of findings 2. INTERROGATORIES
4. Section 4—waiver of privilege a. No answer yet REQUIRED
Section 1—when may In an action in which the b. Answer filed NOT REQUIRED
be ordered mental/physical condition of a party is in 3. REQUEST FOR NOT RQUIRED
controversy ADMISSION
4. PRODUCTION OR REQUIRED
Examples: INSPECTION OF
1. Annulment of marriage on DOCUMENTS OR
ground of psychological THINGS

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5. PHYSICAL AND REQUIRED 3. Refusal to answer written

MENTAL EXAMINATION interrogatories (rule 25)
OF PERSONS
Procedure if there is refusal:
SUMMARY ON DEPOSITIONS 1. Go to court of place where
P - Plaintiff deposition is being taken
D - Defendant 2. Get an order to compel an
W - Witness answer
Situation 3. Application granted
P wants to file an action for Collection of Sump of Money refusiwng party may be
[P150,000] against D in the MTC ordered to pay proponent
reasonable expenses in
obtaining the order
Stage What to File Where to File Basis
4. Application denied
proponent may be held liable
Before an Verifies Petition Court of the Rule for reasonable expenses
action is filed to Perpetuate place of 24, incurred
against D Testimony of W residence of D Sec. 1

Section 2— What constitutes contempt:

After MTC Motion for Leave Court of the Rule CONTEMPT OF 1. Refusal of party or witness to
acquires of Court to Take place where the 23, COURT be sworn
jurisdiction Deposition of W case is pending Sec. 1 2. Refusal to answer any
over the or where W question after being directed
person of D situated by court

After the Notice to Take Serve on the Rule Note: this applies to Rule 23, 24, 25.
answer has Deposition of W parties 23, There is no contempt if there is refusal
been served Sec. 1 to undergo physical/mental
on P examination.

Before Motion for Leave MTC that Rule

judgment of of Court to Take rendered 24,
the MTC Deposition of W judgment Sec. 7
becomes
final

Pending Motion for Leave MTC that Rule

Appeal with of Court to Take rendered 24,
the RTC Deposition of W judgment Sec. 7

Before Motion for Leave RTC that Rule

decision of of Court to Take rendered 24,
RTC Deposition of W judgment Sec. 7
becomes
final/pending
appeal with
CA

RULE 29—REFUSAL TO COMPLY WITH MODES OF

DISCOVERY
1. Section 1—refusal to answer
2. Section 2—Contempt of court
3. Section 3—other consequences
4. Section 4—expenses on refusal to admit
5. Section 5—failure of party to attend or serve answers
6. Section 6—expenses against republic of the
Philippines
Section 1—REFUSAL Section applies on:
TO ANSWER 1. Refusal to answer oral
examination during deposition
taking
2. Refusal to answer deposition
upon written interrogatories

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Section 3—OTHER APPLICATION:
CONSEQUENCES 1. Applies to all modes of
discovery
2. Applies only to parties and When may defendant
officers of a corporation, not to
witnesses
When may he be punished:
1. Refusal to obey order to
answer under Section 1 of EXPENSES AGAINST
rule 29
2. Resutal to obey orders under
Rule 27—to produce any
document or other thing for RULE 30—TRIAL
inspection, copying,etc.
3. Refusal to obey orders under
rule 28—requiring him to
submit to physical/mental
examination
EFFECTS OF SUCH REFUSAL
a. Court may order that
questions asked, character of
thing thing,contents of paper,
physical mental condition of
party SHALL BE TAKEN TO
BE ESTABLISHED for the
purposes of the action IN
ACCORDANCE WITH CLAIM
OF PARTY OBTAINING the
order.
b. Order fusing to allow the
disobedient party to
support/oppose designated
claims or defenses or
prohibiting him from
introducing evidence
c. Order striking out pleadings or
part thereof or staying further
proceedings until order is
obeyed or dismissing the
action or proceeding or
rendering a judgment by
default against the
disobedient party
d. IN LIEU OF or IN
ADDITION court may order
DIRECTING ARREST of any
party or agent for disobeying
such orders EXCEPT order to
submit to physical/mental
examination.
Section 4— If there was a request for admission,
EXPENSES ON then it was denied but was
REFUSAL TO ADMIT subsequently proven to be true he
may apply to the court for an ORDER
REQUIRING THE other party to pay
him the reasonable expenses incurred
in making such proof + attorney’s fees.
Section 5—FAILURE Court MAY: (this is only discretionary
OF PARTY TO on the part of the court)
ATTEND OR SERVE 1. Strike out all or any part of
ANSWERS any pleading of that party OR
2. Dismiss the action or any part
thereof OR
3. Enter a judgment by default
against that party AND
4. In the court’s discretion, order
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
such party to pay reasonable
expenses incurred by the
other + attorney’s fees
1. Failure to appear at the pre-
be considered in trial conference
default even if 2. Failure to file pre-trial brief
ANSWER IS 3. Failure to cooperate in the
ALREADY FILED mode of discovery.
Section 6— Expenses and attorney’s fees are NOT
TO BE IMPOSED upon the RP.
REPUBLIC OF THE
PHILIPPINES
1. Section 1—notice of trial
2. Section 2—adjournments and postponements
3. Section 3—requisities of motion to postpone trial for
absence of evidence
4. Section 4—requisities of motion to postpone trial for
illness of party or counsel
5. Section 5—order of trial
6. Section 6—agreed statement of facts
7. Section 7—statement of judge
8. Section 8—suspension of actions
9. Section 9—judge to receive evidence; delegation to
clerk of court
Section 1—NOTICE Clerk of court must give notice of trial to
OF TRIAL all parties AT LEAST 5 DAYS before
such date.
Section 2— RULE:
ADJOURNMENTS 1. Court may adjourn trial from
AND day to day and to any stated
POSTPONEMENTS time
2. Adjournments must NOT be
longer than one month for
each postponement nor more
than 3 months in all
3. Exception: when authorized in
writing by the SC
administrator.
Section 3— Requisites for a motion to postpone
REQUISITES OF trial:
MOTION TO 1. Ground must be absence of
POSTPONE TRIAL evidence or sickness of party
FOR ABSENCE OF or counsel
EVIDENCE 2. There must be a VERIFIED
AFFIDAVIT. .
3. There should be materiality or
relevancy of such evidence
and due diligence used to
procure it.
4. Motion must not be filed at the
last hour or on the day of the
trial itself. It must have to be
presented earlier.
When postponement no longer
needed:
1. If adverse party ADMITS the
facts to be given in evidence
but RESERVES its right to
object to its admissibility to
court.
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Section 4—MOTION Requisites: Section 8— 2030 of the civil provides that parties
TO POSTPONE TRIAL 1. There must be an AFFIDAVIT SUSPENSION OF may suspend the action or proceeding
FOR ILLNESS OF (not verified) or sworn ACTIONS to discuss a POSSIBLE AMICABLE
PART OR COUNSEL certification SETTLEMENT OR COMPROMISE.
2. Affidavit or certification must
show that presence of such Failing to submit to a comprise, case
party or counsel at the trial is shall continue and should not be
indispensable dismissed.

Subject matters which could not be

Section 5—ORDER GR: Trial limited to issues stated in the subject to a compromise:
OF TRIAL PRE-TRIAL ORDER: 1. Civil status of persons
(legitimate or illegitimate)
ORDER: 2. Validity of marriage or legal
1. Plaintiff shall adduce evidence separation
for his complaint 3. Any ground for legal
2. Defendant adduce evidence in separation
support of his defense, 4. Future support
counterclaim, cross-claim and 5. Jurisdiction of courts
3rd party complaint 6. Future legitime
3. 3rd party defendant adduce Section 9— General Rule : judge of court where
evidence of his defense, DELEGATION TO case is pending shall personally receive
counter claim and cross-claim RECEIVE EVIDENCE evidence
and 4th party complaint TO THE CLERK OF
4. 4th party, etc adduce COURT Exception: delegation to clerk of court
evidence of material facts
pleaded by them When:
5. Party against whom any 1. In cases of default or
counterclaim or cross-claim 2. Ex-parte hearings
has been pleaded adduce 3. Case where parties agree in
evidence in support of their writing
defense, in the order to be
prescribed by the court Rule:
6. REBUTTAL parties may 1. Clerk of court must be a
then adduce rebutting member of the bar
evidence unless court permits 2. He shall have no power to rule
them to adduce evidence on on objections to any question
their original case and 3. No power to the admission of
7. Upon ADMISSION OF the exhibits
EVIDENCE case deemed 4. Objections resolved by the
submitted for decision (unless court upon submission of the
court directs parties to submit clerk of court’s report and
respective memoranda or any transcripts WITHIN 10 DAYS
further pleadings) from termination of hearing.

If several defendants or 3rd party RULE 31—CONSOLIDATION OR SEVERANCE

defendants and so forth, having 1. Section 1—consolidation
separate defenses appear by 2. Section 2—separate trials
different counsel court shall
determine the relative order of
presentation of their evidence.
Section 6— Rule:
JUDGMENT BASED 1. Parties to action must agree
ON STIPULATION OF IN WRITING.
FACTS 2. They may agree on facts
involved and submit case for
judgment without introduction
of evidence
3. If parties agree only to some
facts, trial shall be held on the
disputed facts
4. Parties cannot withdraw nor
may court ignore the same.
Section 7— It shall be made of record in the
STATEMENT OF stenographic notes
JUDGE TO CASE,
PARTIES,
WITNESSES OR
COUNSEL

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Section 1— When consolidation is proper:

CONSOLIDATION 1. When 2 or more actions
involve the same or common
question of law or fact (there
is also permissive joinder of
parties)
2. Said actions are pending
before the same court (NOT
necessarily same branch
basta same court—MTC or
RTC in the same city or
proveince)
What court may order:
1. Joint hearing or tirla of all the
matters in issue in the actions
2. Order all actions consolidated
3. Such orders as may tend to
avoid unnecessary costs or
delay.
Principles:
1. Ordinary civil action may be
consolidated with a petition for
a writ of possession even if it
is a proceeding and is
summary in nature
2. Consolidation of cases for
actions pending in the same
court also applies to cases
even it is pending appeal.
Cases may then be
consolidated in the CA.
LANDMARK CASE: YU V. BASILIO
- A court may order several
actions pending before it to be
tried together where they arise
from the same act, event or
transaction, involve the same
or like issues and depend
largely or substantially on the
same evidence, provided that
the court has jurisdiction over
the case to be consolidated
and that a joint trial will not
give one party an undue
advantage or prejudice the
substantial rights of any of the
parties
CONSOLIDATION CONSOLIDATION OF CRIMINAL
OF CIVIL ACTIONS ACTIONS
One or more causes of Only 1 offense can be the subject of 1
action may be complaint or information; consolidation
embodied in 1 of criminal actions is exclusively for joint
complaint because trial; duplicitous complaint not allowed
when there is
permissive joinder,
there is automatic
consolidation
Opposite: severance Opposite: separate trial
Judge will then apply 2 criteria. Proof
beyond reasonable doubt and
preponderance of evidence.
Section 2— Court, in furtherance of convenience
SEPARATE TRIAL and to avoid prejudice MAY order a
separate trial of:
1. Any claim, cross claim,
counterclaim or 3rd party
complaint OR
2. Any separate issue OR
3. Any number of claims, cross
claims, counterclaims, 3rd
party complaints or issues.
RULE 32—TRIAL BY COMMISSIONER
1. Section 1—reference by consent
2. Section 2—reference ordered on motion
3. Section 3—order of reference; powers of the
commissioner
4. Section 4—oath of commissioner
5. Section 5—proceedings before commissioner
6. Section 6—failure of parties to appear before
commissioner
7. Section 7—refusal of witness
8. Section 8—commissioner shall avoid delays
9. Section 9—report of commissioner
10. Section 10—notice to parties of the filing of report
11. Section 11—hearing upon report
12. Section 12—stipulations as to findings
13. Section 13—compensation of commissioner
Section 1— Requirements:
REFERENCE BY 1. There is written consent of
CONSENT both parties
2. Court may order issues in a
case to be referred to a
commissioner—agreed upon
by parties or appointed by the
court
Commissioner includes:
1. Referee
2. Auditor
3. Examiner

CONSOLIDATION OF This is allowed. Under Sec. 2, rule 111,

CRIMINAL AND CIVIL “before judgment on the merits is
CASE rendered in the civil action, the same
may, upon motion of the OFFENDED
party, be consolidated with the criminal
action in the court trying the criminal
action”.

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Section 2— Presumption: parties DO NOT COMMISIONER to a faithful and honest

REFERENCE CONSENT, so either party files a
ORDERED ON motion or the court motu proprio may
MOTION direct reference of the case to a
commissioner in the ff. cases:
1. Trial of issue requires
examination of a long account
OR
2. Taking of an account is
necessary for the information
of the court BEFORE
judgment or for carrying a
judgment or order into effect.
3. Question of fact (other than
upon pleadings) arise upon
motion or otherwise, in any
stage of a case or for carrying
a judgment or order into
effect.
Other instances of trial
commissioner:
1. Special civil action
expropriation—court
determines just compensation
2. Special civil action of partition
NOTE: trial by commissioner not only
for the purpose of rendering a judgment
but also for carrying a judgment or order
into effect.
Section 3—ORDER Order of reference:
OF REFERENCE 1. It is the clerk of court which
gives the commissioner a
copy of the order
2. May limit the powers of
commissioner
3. May direct him to report only
upon particular issues
4. May direct him to do or
perform particular acts or
5. Direct him to receive and
report evidence only and
6. Fix date for beginning and
closing the hearings and for
the filing ofhis report
Powers of commissioner
1. Power to regulate the
proceedings in every hearing
before him and
2. Do all acts and measures
necessary or proper for the
efficient performance of his
duties
3. Issue subpoenas and
subpoena duces tecum
4. Swear witnesses
5. Rule upon the admissibility of
evidence.
performance thereof
2. The oath must be taken
BEFORE entering upon his
duties.
Section 5— 1. Proceedings start after receipt
PROCEEDINGS of the order of reference
BEFORE 2. Commissioner shall set a time
COMMISSIONER and place for the 1st meeting
of the parties or their counsel
3. Proceedings must be held
WITHIN 10 DAYS after date
of the order of reference
4. Commissioner shall then
notify the parties or their
counsel
Section 6—FAILURE 1. Commissioner may proceed
OF PARTIES TO EX-PARTE OR
APPEAR BEFORE 2. In his discretion, adjourn the
COMMISSIONER proceedings to a future day
by then give notice to absent
party or his counsel
for Section 7—WHEN 1. Refusal of witness to obey
WITNESS DEEMED subpoena issued by
TO BE IN CONTEMPT commissioner
OF COURT 2. Refusal of witness to give
evidence
Section 8— How to avoid delays:
COMMISSIONER 1. Commissioner has the duty to
SHALL AVOID proceed with all reasonable
DELAYS diligence
2. Either party may apply to
court for an order requiring the
commissioner to expedite
proceedings and to make his
report
3. Such application to the court
must be with notice to the
parties.
Section 9—REPORT 1. Report must be made upon
OF COMMISSIONER completion of trial or hearing
2. Must be filed in court
3. His report must be in writing
and covers the matters
submitted to him by the order
of reference
4. He shall set forth his findings
of fact and conclusions of law
5. Attach all exhibits, affidavits,
depositions, papers and the
transcript of the testimonial
evidence presented before
him

Trial or hearing before him shall

proceed in all respects as if would if
held before the court.

Clerk of court may also be a

commissioner.
Section 4—OATH OF 1. Commissioner must be sworn

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Section 10—NOTICE After commissioner files his report: present evidence.

TO PARTIES OF THE 1. Clerk of court shall notify the DEMURRER IN CIVIL DEMURRER IN CRIMINAL CASES
FILING OF REPORT parties CASES
2. Parties have 10 DAYS to When demurrer is If demurrer of accused is denied
signify grounds of objection to denied defendant accused no longer allowed to present
findings of the report presents his evidence evidence if he no prior leave of court
3. If objections are based on Demurrer granted but If granted no more appeal by the
grounds which were available subsequently reversed prosecution because it is tantamount to
during the proceedings before on appeal defendant acquittal of the accused
the commissioner (other than loses his right to
objections to findings and present evidence and
conclusions therein) it shall appellate court
NOT be considered by the rrenders judgment
court immediately
No motu proprio Court may dismiss the criminal action
dismissal of cases on its own initiative
Exception: unless they were without any demurrer
made before the by defendant;
commissioner
MOTION TO DISMISS MOTION TO DISMISS IN RULE 33
UNDER RULE 16
Section 11— 1. Conducted upon the
HEARING UPON expiration of 10 days in the
REPORT preceding section Made before filing of Made after plaintiff rests its case
2. Report shall then be set for answer
hearing There are many Ground is only insufficiency of evidence
grounds
Court may: If denied defendant If denied defendant may present his
1. Issue an order adopting, may file his responsive evidence
modifying or rejecting the pleading
report Granted complaint Granted complaint may not be re-filed
2. Recommit it with instructions may be re-filed and remedy is to APPEAL the order of
or depending on ground dismissal
3. Require the parties to present for dismissal
further evidence before the
commissioner of the court RULE 34—JUDGMENT ON THE PLEADINGS
Section 12— General rule: findings of the 1. Section 1—judgment on the pleadings
STIPULATIONS AS commissioner on question of fact may
TO FINDINGS be questioned

Exception: when parties stipulate that

a commissioner’s findings of fact shall
be final

Effect: only questions of law shall

thereafter be considered.
Section 13- 1. Reasonable compensation
COMPENSATION OF 2. May be taxed as costs against
COMMISSIONER defeated party or
3. apportioned between the 2
parties

RULE 33—DEMURRER OT EVIDENCE

1. Section 1—demurrer to evidence

Section 1— 1. Demurrer to evidence is filed

DEMURRER TO by defendant after plaintiff had
EVIDENCE rested its case
2. It is a motion to dismiss filed
on the ground of insufficiency
of evidence or that plaintiff
has no right to relief

MOTION DENIED defendant shall

have the right to present evidence

MOTION GRANTED ORDER OF

DISMISSAL REVERSED defendant
deemed to have waived the right to

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Section 1— Grounds:
JUDGMENT ON THE 1. Answer fails to tender an
PLEADINGS issue
a. Neither admits nor denies
the allegations in the
complaint
b. All denials in the answer
are general denials.
2. Answer admits the material
allegations of the adverse
party’s pleadings
Requirements:
1. There must be a motion to
render judgment ton the
pleadings
2. Court MAY then direct
judgment on such pleading
This is not available in:
1. Actions for declaration of
nullity
2. Annulment of marriage
3. Legal separation
Reason: material facts alleged in
the complaint shall always be
proved.
4. Issue is the amount of
UNLIQUIDATED damages
because there must always be
evidence to prove such
amount
5. When only conclusions of law
are being alleged
RULE 35—SUMMARY JUDGMENTS
1. Section 1—summary judgments for claimant
2. Section 2—summary judgment for defending party
3. Section 3—motion and proceedings thereon
4. Section 4—case not fully adjudicated on motion
5. Section 5—form of affidavits and supporting papers
6. Section 6—affidavits in bad faith
NOTE: difference with Rule 34 on judgment upon pleadings
Rule 34 (judgment on pleadings) answer fails to tender an
issue.
Rule 35 (summary judgments) may issue ang answer but it is
NOT GENUINE; allegations therein are false; issues are a sham,
contrived, fictitious, set up in bad faith and patently unsubstantial;
So you file motion for summary judgment and alongside execute
such affidavit under oath.
Section 1— Claimant means:
SUMMARY 1. Person seeking to recover
JUDGMENT FOR upon a claim, counterclaim,
CLAIMANT cross claim
2. Person seeking to obtain a
declamatory relief
Procedure:
1. File a motion for summary
judgment AT ANY TIME
AFTER PLEADING IN
ANSWER thereto is served
2. Motion must be supported by
affidavits, depositions or
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admissions
Section 2— Defending party:
SUMMARY 1. Party against whom a claim,
JUDGMENT FOR counterclaim, cross claim or a
DEFENDING PARTY declaratory relief is sought
Ground:
1. Cause of action is not genuine
How:
1. AT ANY TIME (even prior to
answer)
2. File motion for summary
judgment
3. Motion filed with supporting
affidavits, depositions or
admissions in his favor
Section 3—MOTION 1. Motion must be Served AT
AND PROCEEDINGS LEAST 10 DAYS before the
THEREON time specified for hearing
2. Adverse party may serve
opposing
affidavits/depositions/admmis
sions AT LEAST 3 DAYS
before the hearing. (copy of
opposition)
3. After hearing there is
summary judgment if the
pleadings, supporting
affidavits, depositions and
admissions show that there is
NO GENUINE ISSUE as to
any material fact and that
moving party is entitled to
judgment as matter of law
Exception: no summary judgment
on amount of damages.
Section 4—PARTIAL Nature of partial summary judgment
SUMMARY 1. Judgment not rendered upon
JUDGMENT the whole case or for all releifs
sought
2. Trial is still necessary
3. Here, court at hearing of
motion shall ascertain material
facts which exist without
substantial controversy and in
good faith controverted
4. Court will order specifying
facts that appear without
controversy, it shall be
deemed established and case
shall go on for the
controverted facts only.
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Section 5—FORM OF Forms of affidavits: DOES NOT EXCEED 100K

AFFIDAVITS AND 1. Supporting affidavits exclusive of interests and cost
SUPPORTING 2. Opposing or counter affidavits
PAPERS This rule shall not apply to a civil case
Requisites for supporting or where cause of action is pleaded with
opposing affidavits to a motion for another cause of action subject of the
summary judgment: regular rules.
1. It shall be made on personal Section 2— 1. It is determined upon filing of
knowledge (bawal ang DETERMINATION the civil or criminal action.
hearsay) OF APPLICABILITY 2. Court shall issue an order
2. Shall set forth such facts as declaring WON case governed
would be admissible in by summary rule
evidence 3. If determination is patently
3. Shall show affirmatively that erroneous ground for
affiant is competent to testify discriplinary action
to matters therein Section 3— Pleadings allowed:
4. Certified true copies of all PLEADINGS 1. Complaints
papers referred in affiavits ALLOWED 2. Compulsory counterclaims
shall be attached thereto or 3. Cross claims pleaded in the
served therewith. answer
Section 6— Court shall order the offending party or 4. And the answers thereto
AFFIDAVITS IN BAD counsel to PAY THE OTHER PARTY
FAITH OR FOR THE REASONABLE EXPENSES Not allowed:
PURPOSE OF DELAY incurred + attorney’s fees. 1. Permissive counterclaim
2. Reply
It MAY also hold them, after hearing, 3. 3rd party complaint
guilty of CONTEMPT. 4. Complaint in intervention
SUMMARY JUDGMENT ON PLEADINGS
JUDGMENT What is needed?
Gound: when there is No issue of fact at all 1. ALL PLEADINGS SHALL BE
NO GENUINE ISSUE VERIFIED.
OF FACT to be tried
Rendered on the basis Rendered on the basis ONLY of Pleadings which must be verified:
of pleadings, affidavits, pleadings 1. When pleading denies the
depositions and genuineness and due
admissions on file execution of an actionable
Remedy available to Available only to CLAIMANT because document pleaded by the other
both claimant and answer fails to tender an issue party in order to have a valid
defending party denial
General rule: you Exception: 3 motions where you can 2. Allegations of usury in the
cannot secure a pray for immediate judgment complaint if denied; such denial
judgment by motion 1. Demurrer to evidence must be verified
alone. It must be 2. Judgment on the pleadings 3. In a motion to dismiss, when
through pleadings. 3. Summary judgment suit is between members of the
family; complaint must be
RULES OF SUMMARY PROCEDURE verified
4. All pleadings under the
Things to remember 1. Regular procedure applies summary rules
suppletorily. 5. Petitions for prohibition,
2. Took effect on November 15, certiorari and mandamus
1991
3. It does not apply to RTC; only
in the MTC
4. Applies only to certain cases in
the MTC and not all; so some
MtC cases are governed by the
regular rules.
Section 1—SCOPE Civil cases covered:
1. ALL cases of forcible entry and
unlawful detainer (irrespective
of amount of damages or
unpaid rental sought to be
recovered). Where attorney’s
fees are awarded it should
NOT exceed 20,000.
2. ALL other civil cases EXCEPT
probate proceedings, where
total amount of plaintiff’s claim

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Section 4—DUTY OF 1. Determine if case falls under of one to answer. The answer
COURT summary procedure filed will benefit those who did
2. It MAY dismiss the case not answer.
outright on any of the grounds Section 7— 1. Preliminary conference must be
apparent therefrom for PRELIMINARY held NOT LATER THAN 30
dismissal of a civil action; it CONFERENCE DAYS AFTER LAST ANSWER
may dismiss only by examining is filed.
the allegations and evidence 2. Rules on pre-trial in ordinary
attached thereto. cases shall apply:
3. If no ground for dismissal is a. Plaintiff fails to appear
found court shall issue case shall be dismissed;
SUMMONS which sgate that defendant who appears
summary procedure shall apply shall be entitled to
judgment in his
General rule: court cannot dismiss a counterclaim; ALL cross-
case motu proprio. There must be a claims shall be dismissed.
motion filed. b. Sole defendant fails to
appear plaintiff entitled
Exceptions: to IMMEDIATE judgment
1. If plaintiff fails to appear on the c. If one of 2 or more
date of his presentation of defendants appears
evidence in chief; fails to section 7 does not apply
prosecute for an unreasonable Section 8—RECORD Court shall issue an order stating the
length of time; fails to comply OF PRELIMINARY matters taken up WITHIN 5 DAYS after
with rules or order of the court CONFERENCE termination of the pre-con.
2. When ground for dismissal is
lack of jurisdiction Order shall state: (this is the record of
3. Res judicata preliminary conference)
4. Litis pendentia 1. Whether parties have arrived at
5. Prescription an amicable settlement and
Section 5—ANSWER 1. Summons must be served terms thereof;
2. Defendant must file an answer 2. Stipulations or admissions
to complaint WITHIN 10 DAYS entered into
from service of summons. 3. Whether, on basis of
3. A copy of the answer must be pleadings/stipulations and
served on the plaintiff admissions of parties, judgment
4. Affirmative and negative may be rendered without need
defenses not pleaded therein of further proceedings
shall be deemed waived, judgment shall be rendered
EXCEPT for lack of jurisdiction WITHIN 30 DAYS FROM
on the subject matter ISSUANCE OF ORDER.
5. Cross claims and compulsory 4. A clear specification of material
counterclaims NOT asserted in facts which remain
answer shall be barred. controverted and
6. Answer to counterclaims or 5. Such other matters intended to
cross-claims shall be filed and expedite disposition of the
served WITHIN 10 DAYS from case.
service of the answer in which Section 9— WITHIN 10 DAYS FROM RECEIPT OF
they are pleaded. SUBMISSION OF ORDER, parties shall:
Section 6—EFFECT 1. The court motu proprio OR on AFFIDAVITS AND 1. Submit affidavits of their
OF FAILURE OF motion of plaintiff, render POSITION PAPERS witnesses and other evidence
DEFENDANT TO judgment as may be warranted on the factual issues defined in
ANSWER by the facts alleged in the the order
complaint and limited to what is 2. And sumbit their position
prayed for therein. (motion for papers setting forth the law and
Need not wait order
immediate decision; there is no the facts relied upon by them.
more declaration of default, no
presentation of evidence ex Note: there is no more trial. Only TRIAL
parte; so whatever plaintiff BY AFFIDAVITS.
asks, the court may grant it)
2. Court MAY in its discretion,
reduce the amount of damages
and attorney’s fees claimed for
being excessive or otherwise
unconscionable.
3. If there are 2 or more
defendants, one will answer
and the other will not, there can
be no judgment by mere failure

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Section 10— 1. Court shall render judgment resort to said procedure.

RENDITION OF WITHIN 30 DAYS AFTER
JUDGMENT RECEIPT OF THE LAST COMMON If parties in a case covered under the
AFFIDAVITS and positon PROVISIONS summary rules did not resort to
papers OR upon expiration of conciliation under the barangay case
period for filing the same. Section 18— will be dismissed
2. If court needs to clarify certain REFERRAL TO
material facts it may, during LUPON
the said period, issue an order Section 19— 1. MOTION TO DISMISS
spcifiyng the matters to be PROHIBITED complaint EXCEPT lack of
clarified AND require parties to PLEADINGS AND jurisdiction over the Subject
submit affidavits or evidence MOTIONS matter or failure to comply with
WITHIN 10 DAYS from receipt barangay conciliation ( instead
of the order. of a motion to dismiss, just file
3. Judgment shall then be an answer with grounds for
rendered WITHIN 15 DAYS dismissal invoked as affirmative
after receipt of the last defenses)
clarificatory affidavits or the 2. Motion for BILL OF
expiration of the period for filing PARTICULARS
the same. 3. MOTION FOR NEW TRIAL,
MOTION FOR
Prohibition: Court shall not resort to RECONSIDERATION OF
clarificatory procedure to gain time for JUDGMENT OR FOR
the rendition of the judgment. REOPENING OF TRIAL
Illustration Summary procedure: 4. PETITION FOR RELIEF FROM
1. Preliminary conference JUDGMENT
2. Pre-trial or pre-con order 5. MOTION FOR EXTENSION
issued within 5 days after OF TIME TO FILE
termination of pre-con PLEADINGS, AFFIDAVITS OR
3. You will receive pre-con order ANY OTHER PAPER
within 10 days 6. MEMORANDA
4. Within 10 days after such 7. PETITION FOR CERTIORARI,
receipt, both parties sumit their MANDAMUS, PROHIBITION
position papers. against any interlocutory order
5. Clarificatory affidavits may be issued by court
asked to be submitted by the 8. MOTION TO DECLARE
court. There’s no trial here. DEFENDANT IN DEFAULT
6. Judgment 9. DILATORY MOTIONS FOR
CASES 1. If there was preliminary POSTPONEMENT
conference, court must then 10. REPLY
issue the preliminary 11. 3RD PARTY CMPLAINTS
conference order. Without this, 12. INTERVENTIONS
court cannot immediately
render judgment
2. If after pre-con order was
issued and both parties did not
file their position papers, you
cannot conduct a clarificatory
hearing to ask them why they
did not comply.

Rule: it is only after evaluating

the affidavits and positions
papers submitted by parties
that court can determine
whether he should resort to the
clarificatory procedure in
section 10. Otherwise, a party
can derail the proceedings and
defeat the purpose of the
summary procedure by not
filing the affidavits of his
witnesses and his position
paper, thus forcing the court to

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PRINCIPLES ON
PROHIBITED 1. If you filed an answer and then
PLEADINGS after, filed a motion to
dismiss it is ALLOWED.
What is prohibited is filing a
MTD in lieu of an answer.
2. Parties are no prohibited from
filing an answer with affirmative
defenses. But courts are not
allowed to conduct hearings on
those affirmative defenses.
3. If the judgment under the
summary rule is against you,
do NOT file an MR or MNT.
Just file an APPEAL.
4. What is prohibited is motion for
reconsideration of
JUDGMETN. Hence, you can
file MR of an
INTERLOCUTORY ORDER.
5. 10-day period to file an answer
cannot be extended. Period to
file a position paper is also non-
extendible.
6. Under the summary rule, if
defendant will not file answer,
file a motion for immediate
judgment under section 6 and
not motion to declare him in
default.
7. Motion for postponement is
NOT allowed.
8. Reply is prohibited. Under the
summary rules, the last
pleading is the ANSWER.
Section 20— Affidavits shall:
AFFIDAVITS 1. State only facts of direct
personal knowledge of the
affiants which are admissible in
evidence
2. Show their competence to
testify to the matters stated
therein
3. Violation of this requirement
subject the part or counsel to
disciplinary action AND case to
expunge the inadmissible
affidavit from the record.
Rule: affidavits must be based on
personal knowledge, admissible and
reliable.
Section 21— What may be appealed:
APPEAL 1. Judgment or final order of the
MTC
How appeal is made:
1. Appeal to the RTC
2. RTC decision in such case,
including FE and UD, shall be
IMMEDIATELY EXECUTORY
3. It is immediately executor
without prejudice to a further
appeal that may be taken.
RULE OF PROCEDURE FOR SMALL CLAIMS CASES—AM O8-
8-7-SC (October 1, 2008)
Section 2—SCOPE It shall govern the procedure before the
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
MTC for payment of money where value
of claim DOES NOT EXCEED 100K
exclusive of interest and costs
Section 4— MTC shall apply this rule in ALL actions
APPLICABILITY which are:
1. Purely civil in nature whre claim
or relief prayed for is solely for
PAYMENT or reimbursement of
SUM OF MONEY and
2. Civil aspect of criminal actions,
either filed before or resrved
upon filing of criminal action in
court.
Claims or demands may be:
1. For money owed in the ff:
a a. Contract of lease
b. Loan
c. Services
d. Sale
e. Mortgage
2. Damages arising from:
a. Fault or negligence
b. Quasi-contract or
c. Contract
3. Enforcement of a barangay
amicable setllemetn or an
arbitration award involving a
money claim
Section 5— It is commenced by filing with the court
COMMENCEMENT of:
OF SMALL CLAIMS 1. an accomplished and verified
ACTION statement of claim and
2. certification of non-forum
shopping
3. 2 duly certified photopies of the
actionable document subject of
the claim
4. Affidavits of witnesses and
other evidence to support the
claim
Rule:
1. No evidence shall be allowed
during the hearing which was
not attached to or submitted
together with the Claim
2. No formal pleading, other than
Threre is a pro forma form the statement of claim is
Everything must be
included
necessary to initiate a small
claims action.
Section 6—JOINDER
OF CLAIMS
Seciton 7—
AFFIDAVITS
Section 8—
PAYMENT OF
FILING FEES
Section 9— Look for a ground for dismissal
DISMISSAL OF THE If cannot find one- issue
summons
CLAIM
RULE 36—JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF
1. Section 1—rendition of judgments and final orders
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2. Section 2—entry of judgments and final orders 5. Judgment upon a compromise

3. Section 3—judgment for or against one or more of or judgment upon an amicable
several parties settlement
4. Section 4—several judgments 6. Judgment upon a confession
5. Section 5—separate judgments SIN PERJUICIO 1. Contains only a dispositive
6. Section 6—judgment against entity without juridical JUDGMENT protion and reserves making of
personality findings of fact and conclusions
Judgment definition It is a final consideration and of law in a subsequent
determination by a court of the rights of judgment; there is a
the partis as those rights presently “wherefore” but without a ratio
exists, upon matters submitted to it in decidindi
action or proceeding. 2. It is a VOID judgment because
Requisites of a valid 1. Court must have jurisdiction it violates the constitutional
judgment over the subject matter provision that “no decision shall
2. Jurisdiction over person of the be rendered by any court of
defendant or of the res (if non- record without expressing
resident) clearly and distinctly the facts
3. Jurisdiction over the issues and law on which it is based.
4. Court rendering judgment must CONDITIONAL
be validly constituted court and JUDGMENT 1. Judgment which is subject to
judge thereof, a judge de jure the performance of a condition
or de facto. precedent and is not final until
the condition is performed.
Rule: if judge writes a decision but 2. It is also a VOID JDUGMENT
before promulgation he resigns or because it contains no
dies, any promulgation to be made disposition at all and is a mere
cannot be valid. What is important is anticipated statement of what
the same judge who rendered. the court shall do in the future
when a particular event should
5.
Judgment must be rendered happen. For this reason,
after lawful hearing; due judgments of such kind are
process observed. NULL AND VOID.
Section 1— FORMAL REQUISITES: INCOMPLETE
RENDIITON OF 1. Judgment shall be in writing JUDGMENT 1. One which leaves certain
JUDGMENTS AND 2. Personally and directly matters to be settled in a
FINAL ORDERS prepared by judge subsequent proceeding; there
3. State clearly and distinctly the is a decision but there are still
facts and the law on which it is other matters to be
based and incorporated later in such
4. Signed by the judge and filed decision
with the clerk of court. 2. Example: awarding of damages
but no statement as to how
Note: much; there is nothing et to
1. Judiciary law also allows the execute.
appellate court to make a
memorandum decision; either
affirm or reverse the decision of
the lower court.
2. Decision is the entire written
effort from the first sentence;
judgment is usually the last
paragraph, the wherefore part
or the dispositive proiton or the
decretal porition; it is the fallo of
the case; the discussions,
findings of facts, conclusions of
law to justify the fallo is called
RATIO DECIDINDI, the
reasoning.
3. In case of conflict between
judgment and decision,
JUDGMENT PREVAILS. Fallo
is the final order while the
opinion in the body is merely a
statement ordering nothing.
TYPES OF 1. Sin perjuicio judgment
JUDGMENTS 2. Conditional
3. Incomplete
4. Nunc pro tunc judgment

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NUNC PRO TUNC expired Motion for NEW

JDUGMENT 1. “Judgment now for then” TRIAL OR
2. Its function is to record some RECONSIDERATION
act of the court done at a JUDGMENT UPON A 1. One entered against a person
former time which was then CONFESSION upon his admission or
carried into the record. (COGNOVIT confession of liability without
3. It is an AMENDED JUDGMENT JUDGMENT) the formality, time and expense
where certain matters which involved in ordinary
are containe din the records proceeding.
and transpired in court were not 2. Wrrant Of attorney to confess
incorporated. When you made judgment is null and void for
the decision kulang xa. So in being contrary to public policy
order to make it clearer, you because the defendant waives
will incorporate those matters his right in advance to defend
which should have been himself.
incorporated in the amended
deicison. General rule: final Exceptions;
and executor 1. Clerical errors
Where nunc pro tunc NTO proper: judgments are 2. Nunc pro tunc entries which
1. It cannot remedy errors or immutable and cause no prejudice to party
omissions in an imperfect or unalterable 3. Void judgments
improper judgment. 4. Judgment for support
2. It cannot change the judgment s
in any material aspect.
3. It cannot change judicial errors,
however flagrant and glaring
they may be.
JUDGMENT UPON A
COMPROMISE 1. Judgment rendered with the
consent of the parties for the
purpose of effecting a
compromise or settlement of an
action.
2. Court is NOT required to make
findings fo fact and conclusions
of law. The court is deemed to
have adopted the statement of
facts and conclusions of law
made and resolved by parties
themselves.
3. If lawyers enters into a
compromise without his client,
it is unenforceable. But when
client knew about it but did not
reject, it is now valid and
enforceable.

LEGAL EFFECTS:
1. Compromise judgment is not
appealable and it is
immediately executor.
2. It cannot be annulled unless
vitiated by error, deceit,
violence or forgery of
documents
3. Constitutes res judicata.

REMEDIES IF PERSON WANTS TO

SET ASIDE THE COMPROMISE
AGREEMEN: (DOMINGO V. CA)
1. If 15-day period from receipt of
judgment has already
expired file ACTION TO
ANNUL JUDGMENT before the
CA on the ground of mistake,
fraud, violence, intimidation,
undue influence or falsity.
(DOMINGO V. CA)
2. If 15-days period has not yet

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Section 2—ENTRY When judgment becomes final: 1. Determine issues material to a

OF JUDGMENTS 1. If no appeal or motion for new
AND FINAL ORDERS trial or MR is filed
Procedure:
1. Clerk of court shall enter the
order in the book of entries of
judgments
2. DATE OF FINALITY shall be
deemed to be the date of its
entry. (even if entered late but
decision already became final
after expiration of the 15-day
period to appeal, the day after
the 15-day period shall be the
date of its entry and finality)
3. The record shall contain the
dispositive part of judgment or
final order
4. It shall be signed by clerk with
a certificate that such judgment
or final order has become final
and executory.
Effects of finality of judgment:
1. Prevailing party entitled to have
judgment executed as a matter
of right and the issuance of a
writ of execution becomes a
ministerial duty.
2. Court rendering judgment loses
jurisdiction over the case so
that it can no longer correct the
judgment in substance, except
to make corrections of clerical
errors and omissions plainly
due to inadvertence or
negligence.
Exception: judgment for
support. It can be modified
anytime.
particular claim and
counterclaims arising out of the
transaction which is the SM of
claim
2. Court may render a separate
judgment disposing of only 1
claim
3. Such claim shall be terminated
and action as to the others will
proceed.
Further actions by court:
1. Court may order or stay its
enforcement until the rendition
of a subsequent judgment
2. Prescribe conditions necessary
to secure the benefit thereof to
the party in whose favor the
judgment is rendered.
Section 6— The judgment shall set out their
JUDGMENT individual or proper names
AGAINST ENTITY
WITHOUT
JURIDICAL
PERSONALITY
RULE 37—NEW TRIAL OR RECONSIDERATION
1. Section 1—grounds of and period for filing MNT or
MR
2. Section 2—contents of motion for new trial or recon
and notice thereof
3. Section 3—action upon motion for new trial or
reconsideration
4. Section 4—resolution of motion
5. Section 5—second motion for new trial
6. Section 6—effect of granting MNT
7. Section 7—partial new trial or reconsideration
8. Section 8—effect of order for partial new trial
9. Section 9—remedy against order denying a motion
for new trial or recon

3. The same cause of action

between same parties can
never be the subject matter of
another litigation in the future.
Section 3— Rule:
JUDGMENT FOR OR 1. Judgment may be given
AGAINST ONE OR against or more of several
MORE OF SEVERAL plaintiffs or of defendants
PARTIES 2. When justice demands, court
(action by several may require parties to file
parties) adversary pleadings and
determine their rights and
obligations.
Section 4— 1. If there are several defendants,
SEVERAL court may render judgment on
JUDGMENTS one case, leaving the action to
(action against proceed against the others.
several defendants)
Section 5— Application:
SEPARATE 1. There is more than 1 claim for
JUDGMENTS relief presented in one action

What court may do:

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Section 1— MOTION FOR NEW TRIAL
GROUNDS AND When to file:
PERIOD FOR FILING 1. Within the period for taking an
appeal
What may be done:
1. Motion to set aside judgment or
final order and grant a new trial
GROUNDS:
1. FAME—which ordinary
prudence could not have
guarded against and by reason
of which impaired the rights of
the aggrieved party
2. NEWLY DISCOVERED
EVIDENCE—which he could
not, with reasonable diligence,
have produced and discovered
and which if presented would
alter the result.
MOTION FOR RECONSIDERATION:
1. File motion for reconsideration
2. When: within the same period
for taking an appeal
3. Grounds:
a. Damages awarded are
excessive
b. Evidence is insufficient to
justify the decision or final
order or
c. Decision or final order is
contrary to law.
PRINCIPLES:
1. Both motions must be filed
within the period for taking an
appeal. If you did not file, the
decision will become final and
executory. Judgment cannot be
changed anymore.
2. If you filed MNT and MR,
period to appeal is suspended.
If DENIED you still have the
REMAINING BALANCE of the
period to appeal.
3. When applied to a party
declared in default:
a. After notice of order of
default file motion to set
aside order of default.
b. If there was already
judgment and you did not
avail of setting aside the
order of default  file
MOTION FOR NEW
TRIAL on the ground of
fame.
Application of Rule 37:
1. It applies even if declared in
default or not.  plaintiff or
defendant fails to appear in the
case because of FAME
REMEDY: Motion to set aside
order of dismissal and have the
case continued by filing an
MNT on the groud of fame.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Grounds: 1. It must be extrinsic fraud; one
which prevents a party to
FAME present his case in court
2. Intrinsic fraud not a ground.
(falsity of documents or
testimonies not a ground)
ACCIDENT 1. Something unforeseen
(lawyer got sick, post office did not
deliver it in court, receipt of notice of trial
only on the day of the trial itself)
MISTAKE General rule: client is bound by mistakes
of lawyer
Exception: equity;
EXCUSABLE 1. Inexcusable negligence not a
NEGLIGENCE ground for new trial.
Examples of INEXCUSABLE NEG:
1. Failure to file answer due to
lawyer’s negligence to file on
time
2. Lawyer failed to appear in court
because he forgot.
3. Failure of lawyer to appear in
court because of secretary’s
negligence
EXCUSABLE:
1. delay in flights
Standard of care required:
1. That which an ordinarily
prudent man bestows on his
important business.
When counsel’s negligence does not
bind client:
1. Where the reckless or gross
negligence of counsel deprives
the client of due process of law
2. When the rule’s application will
result in outright deprivation of
the client’s liberty or property
3. Where the interests of justice
so required.
NEWLY
DISCOVERED 1. Discovered after trial or
EVIDENCE 2. Cannot be discovered during
trial give the exercise of
reasonable diligence and
3. If admitted such evidence
would probably alter the result
of case
4.
RULE 38—RELIEF FROM JUDGMENTS ORDERS OR OTHER
PROCEEDINGS
1. Section 1—petition for relief form judgment, order or
other proceedings
2. Section 2—petition for relief from denial of appeal
3. Section 3—time for filing petition; contents and
verification
4. Section 4—order to file an answer
5. Section 5—preliminary injunction pending proceedings
6. Section 6—proceedings after answer is filed
7. Section 7—procedure where the denial of an appeal is
set aside
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RULE 39
Execution, Satisfaction and Effect of Judgments

Classes of execution under the law:

1. As to their NATURE:
a. COMPULSORY—execution as a matter of right
(section)
b. DISCRETIONARY—Execution pending appeal
(section 2)

2. How it is enforced (section 6)

a. Execution by motion
b. Execution by independent action

EXECUTION AS A MATTER OF RIGHT

A. Section 1, paragraph 1 NO APPEAL; JUDGMENT

BECOMES FINAL AND EXECUTORY
Section 1— Execution shall issue as a matter of right:
EXECUTION 1. on motion,
UPON
JUDGMENTS 2. upon a judgment or order that
OR FINAL disposes of the action or proceeding
ORDERS
3. upon the expiration of the period to
appeal therefrom if no appeal has
been duly perfected.

If the appeal has been duly perfected and

finally resolved the execution may forthwith
be applied for:
1. in the court of origin,

2. on motion of the judgment oblige

(winning party)

3. submitting therewith certified true

copies of the judgment or judgments
or final order or orders sought to be
enforced and of the entry thereof,

4. with notice to the adverse party.

The appellate court may, on motion in the

same case, when the interest of justice so
requires direct the court of origin to issue the
writ of execution.******

Conditions:
1. judgment has disposed already of
the action or proceeding it can be
executed because if the judgment
has not yet disposed of the action or
proceeding, it is called an
interlocutory judgment or order.
There is something more for the court
to do, and as a rule, you cannot
execute. i.e. denial of a motion to
dismiss

2. period to appeal has expired and

no appeal has been filed or taken

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from the judgment judgment

becomes final. As an effect, under
rule 36, prevailing party is entitled to
have judgment executed as a matter
of right.

Principles:
1. EBERO V. CANIZARES court
cannot refuse to execute a judgment
on the ground that judgment was
wrong or erroneous. Execution is a
matter of right and the issuance of
the corresponding writ of execution
upon a final and executor judgment is
a ministerial duty of the court to
execute; compellable by mandamus.
No matter how erroneous a
judgment can be, so long as
judgment is valid, said judgment is
enforceable by execution once it
becomes final and executory. If
erroneous remedy is to APPEAL.

2. RTC cannot refuse to execute a

writ of execution.

3. Only the court of origin can issue

the writ. You may apply in the
appellate court but once decision has
become final, it will still be the court
of origin who will be directed to issue
the writ.

4. Execution CANNOT be issued ex-

parte; the rules require that a motion
be filed with notice.

5. Final and executory judgment

one that finally disposes of the action
on the merits, leaving nothing to be
done by court

Final judgment one where period

to appeal has expired and no appeal
was taken.

6. GENERAL RULE: judgment is

enforceable by execution once it
becomes FE.

EXCEPTION:

1. Supervening effect doctrine

change in the situation of parties
which makes execution
inequitable

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Examples: judgment of another court.

a. ejectment case tapos Exceptions:

namortgage ang property 1. Upon the filing of a petition for relief
then you yourself bought it form judgment, court may grant
in an auction sale; of preliminary injunction to preserve the
course, you can’t eject rights of the parties
yourself;
2. When there is an action for
b. bank placed under annulment of judgment of the RTC
receivership; its properties filed in CA CA may issue writ of
cannot be disposed of when PI—annulment of judgment,
under control of CB so certiorari, prohibition cases where CA
prevailing party cannot issues PI to stop RTC from enforcing
insist on enforcement of its judgment pending resolution of
judgment and levy whether its judgment was issued in
properties of the bank excess or without jurisdiction.

c. employee ordered to be
reinstated but later on B. Section 1, Pragraph 2 there is an appeal; CA
AFFIRMS RTC JUDGMENT
convicted of theft; execution - Basis: if the appeal has been duly perfected……
of reinstatement case
cannot be had C. CASES UNDER SECTION 4 Judgments not stayed
by appeal judgments in actions for:
d. unlawful detainer and 1. Injunction
quieting of title 2. Receivership
3. Accounting
4. Support
NOTE: for the supervening event to apply 5. Such other judgments as are now or may hereafter
SE must happen AFTER the judgment has be declared immediately executory. (i.e. RTC
become final and executory; if it happened decisions on MTC cases falling under the summary
while case was going on, you must bring it to procedure)
the attention of the court.
D. Judgments in FORCIBLE ENTRY AND UNLAWFUL
2. It appears that controversy DETAINER CASES
DISCRETIONARY EXECUTION: EXECUTION PENDING
never been submitted to the
APPEAL
judgment of the court

3. Judgment novated by
subsequent agreement of
parties parties enter into a
compromise agreement even
before, during or while case is
on appeal. If you entered into
such, you can no longer execute
on the original judgment.

4. Writ of execution improvidently

issued;

5. Writ of execution defective in

substance

6. WE issued against wrong party

and

7. Judgment debt has been paid or

satisfied.

NOTE: A Court cannot by injunction or

restraining order stop the execution of a

BY: RIZADA, Resci Angelli

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Section 2. (a) Execution of a judgment or final c. When appeal is for the

Discretionary order pending appeal. purpose of delay (Home
execution. 1. On motion of the prevailing party insurance v. CA)
2. with notice to the adverse party d. When the successful party
3. filed in the trial court while it has files a bond (additional good
jurisdiction over the case and is in reason only but it is NOT by
possession of either the original itself, a good reason: PNB V.
record or the record on appeal, as PUNO)
the case may be,
4. at the time of the filing of such Not good reasons:
motion, 1. Posting of bond by winning
said court may, in its discretion, order party
execution of a judgment or final order even 2. Appeal is dilatory
before the expiration of the period to appeal. 3. Husband of plaintiff is sick and
money needed for medicine
After the trial court has lost jurisdiction 4. Financial distress of
the motion for execution pending appeal may corporation
be filed in the appellate court.
Where to file motion for execution
Discretionary execution may only issue pending appeal:
upon good reasons to be stated in a 1. TRIAL COURT while it has juris
special order after due hearing. over case and still in possession of
records of the case.
(b) Execution of several, separate or a. Judgment not yet final
partial judgments. b. Still within the 15 day period
A several, separate or partial judgment may c. Court in possession of the
be executed under the same terms and records.
conditions as execution of a judgment or
final order pending appeal.********** 2. APPELATE COURT AFTER trial
court lost its jurisdiction.
Requisites for discretionary execution:
1. Motion filed by prevailing party Principles:
2. Notice of the motion given to 1. First judgment may be immediately
adverse party AND executed while waiting for the 2nd
3. Good reasons to execute to be judgment. GR: court decides
stated ina special order after due there has to be a good reason.
hearing. 2. Execution pending appeal may be
proper for enforcing collection of
Note: ACTUAL damages but it is not
1. This is only discretionary proper to enforce payment of moral
because court may or may not or exemplary damages.
grant the execution depending on
your good reason. This is because
under section 2, you filed the
motion WITHIN THE 15 DAY
period, where judgment is not yet
final and executory.
2. CITY OF BACOLOD V.
ENRIQUEZ requirement of good
reason is important and must not
be overlooked because if judgment
is executed and on appeal, the
same is reversed, damages may
arise which cannot be fully
compensated.
3. If there are NO GOOD
REASONS writ of execution is
VOID.
4. If judgment is executed pending
appeal and appeal does not favor
you under section 5, there will be
MUTUAL RESTITUTION.
5. Examples of GOOD REASONS:
a. Danger of judgment becoming
INEFFECTUAL;(SCOTTISH
UNION V. MACADAEG—
foreign corp ending business
in the PI)
b. Old age

BY: RIZADA, Resci Angelli

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Section 3—stay Stay of discretionary execution. — Section 5. Effect Where the executed judgment is reversed
of discretionary Discretionary execution issued under the of reversal of totally or partially, or annulled, on appeal or
execution. preceding section may be stayed upon executed otherwise the trial court may, on motion,
approval by the proper court of a sufficient judgment. issue such orders of restitution or
supersedeas bond: reparation of damages as equity and
1. filed by the party against whom it is justice may warrant under the
directed, circumstances.
2. conditioned upon the performance of
the judgment or order allowed to be
executed in case it shall be finally
sustained in whole or in part.
The bond thus given may be proceeded
against on motion with notice to the
surety.********

In order to stop the execution pending

appeal:
1. apply section 3.
2. Defendant ask court to fix the
superseadeas bond which will
answer for any damages that plaintiff
may suffer if the defendant’s appeal
is not meritorious.
3. When defendant puts up ond court
shall withdraw the execution pending
appeal.

EXCEPTION: Execution pending

appeal may be granted if there are
SPECIAL AND COMPELLING
REASONS justifying the same
which outweigh the security offered
by supersedeas bond.(i.e.
judgment for support) (DE LEON
V. SORIANO)

Recap: how to stay or stop execution

pending appeal:
1. Filing of supersedeas bond by
adverse party
2. Certiorari under rule 65
Section 4. Judgments in actions for
Judgments not 1. injunction,
stayed by appeal. 2. receivership,
3. accounting and
4. support, and
5. such other judgments as are
now or may hereafter be
declared to be immediately
executory,
shall be enforceable after their rendition and
shall not, be stayed by an appeal taken
therefrom, unless otherwise ordered by the
trial court.

On appeal therefrom, the appellate court in

its discretion may make an order
suspending, modifying, restoring or
granting the injunction, receivership,
accounting, or award of support.

The stay of execution shall be upon such

terms as to bond or otherwise as may be
considered proper for the security or
protection of the rights of the adverse party.

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Section 6. A final and executory judgment or order up by the judgment debtor. (SALVANTE V.
Execution by may be executed on motion  within five UBI CRUZ)
motion or by (5) years from the date of its entry.
independent After the lapse of such time, and before it is EXCEPTION to the rule on dormant
action. barred by the statute of limitations a judgment: JUDGMENT FOR SUPPORT. It
judgment may be enforced by action. does not become dormant, nor does it
prescribe.
The revived judgment may also be
enforced by motion within five (5) years Application:
from the date of its entry and thereafter by 1. Execution, levy of the property and
action before it is barred by the statute of auction sale must also be within
limitations. ******* the 10 years. Any auction sale
beyond the 10 years is null and
NOTE: void.
1. File motion for execution before 2. “the revived judgment may also be
same court which rendered the enforced by motion within 5 years
judgment from the date of its entry and
2. 2 modes under section 6 thereafter by action before it is
a. Execution by motion barred by the statute of
within 5 years from date of its limitations” PNB V. BONDOC
entry and one you have secured a 2nd
b. Execution by independent judgment, the revived judgment is
action within 5-10 years. good for another 10 years.
3. CENTRAL SURETY V. 3. ARCENAS V. CA The purpose
PLANTERS Under rule 39, of the action for revival of a
section 6, a final judmgnet may be judgment is not to, modify the
executed by mere motion within 5 original judgment subject of the
years from the date of entry of action but is merely to give a
judgment. However, execution of creditor a new right of enforcement
final judgment by mere motion may from the date of revival. The rule
be allowed even after the lapse of seeks to protect judgment creditors
5 years when the delay in the from wily and unscrupulous
execution is caused or occasioned debtors, who in order to evade
by the actions of the judgment attachment or execution, cunningly
debtor and/or incurred for his conceal their assets and wait until
benefit. the statute of limitation sets in.
4. CAMACHO V. CA Period is 4. TING V. HEIRS OF LIRIO
deemed effectively interrupted Section 6 Rule 39 refers only to
when delay in execution is civil actions is NOT applicable to
occasioned by oppositor’s own special proceedings such as
initiatives in order to gain an undue land registration cases. In a civil
advantage. action, failure to act to enforce the
judgment makes it unenforceable
DORMANT JUDGMENT one not executed against the losing party. in land
within 5 years. It is revived by an registration cases, the
EXECUTION BY INDEPENDENT ACTION ownership by a person of a
which must be filed before it is barred by the parcel of land is sought to be
statute of limitations. Basis: 1144 of NCC established. After ownership has
judgment may be enforced only within 10 been proved and confirmed by
years. So start the civil action for revival of judicial declaration, no further
judgment between or after the 5th year but proceeding to enforce said
before the 10th year! ownership is necessary, except
the proceedings to place winner in
Nature of enforcement of a dormant possession by virtue of a writ of
judgment: it is an ORDINARY civil action possession. The decision in a LRC
the object of which is to: becomes final without any further
1. Revive the dormant judgment and action, upon the expiration of the
2. Execute the judgment reviving it, if period for perfecting an appeal.
it grants the plaintiff any relief.

Hence, the rights of the judgment creditor

depend upon the 2nd judgment. Being an
ordinary CA, it is subject to all defenses,
objections, and counterclaims which
judgment debtor may have except that no
inquiry can be made as to the merits of the
1st judgment. Therefore, defenses that do
NOT go to the merits, i.e. lack of jurisdiction,
collusion, fraud, or prescription, may be set

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Section 7. In case of the death of a party, execution of such judgment obligor;

Execution in case may issue or be enforced in the following (b) If it be against real or personal
of death of party. manner: property in the hands of personal
representatives, heirs, devisees,
(a) In case of the death of the judgment legatees, tenants, or trustees of the
oblige upon the application of his executor judgment obligor, to satisfy the
or administrator, or successor in interest; judgment, with interest, out of such
property;
(b) In case of the death of the judgment (c) If it be for the sale of real or
obligor against his executor or personal property to sell such
administrator or successor in interest, if the property describing it, and apply
judgment be for the recovery of real or the proceeds in conformity with the
personal property, or the enforcement of a judgment, the material parts of
lien thereon; which shall be recited in the writ of
execution;
(c) In case of the death of the judgment (d) If it be for the delivery of the
obligor, after execution is actually levied possession of real or personal
upon any of his property, the same may be property, to deliver the possession
sold for the satisfaction of the judgment of the same, describing it, to the
obligation, and the officer making the sale party entitled thereto, and to satisfy
shall account to the corresponding executor any costs, damages, rents, or
or administrator for any surplus in his hands. profits covered by the judgment out
of the personal property of the
Effects of death of a party in execution of person against whom it was
a judgment: rendered, and if sufficient personal
1. If the obligee/creditor will die after property cannot be found, then out
winning the case, his executor or of the real property; and
admin, legal rep, heirs or SII can (e) In all cases, the writ of
enforce the judgment. They will be execution shall specifically state
the one to collect. the amount of the interest, costs,
2. If it is the defendant/obligor who damages, rents, or profits due as
dies and there is final judgment of the date of the issuance of the
which is recovery of real or writ, aside from the principal
personal prop, judgment is obligation under the judgment.
executed against the admininstator For this purpose, the motion for
or executor because this is an execution shall specify the
action which survives. amounts of the foregoing reliefs
3. Under paragraph C, it is the death sought by the movant.
of obligor in a MONEY claim.
a. If before entry of final RULE: when you file motion for execution,
judgment, there will be a state also how much is the cost or interest.
substitution of party and case
will continue until entry of final
judgment. (rule 3, section 20)
b. If there is final judgment but
before levy,judgment shall be
enforced in the manner
provided for by the rules on
clams against the estate of the
deceased under Rule 86.
c. If there is already levy, auction
sale will proceed as
scheduled. No more
substitution. (section 7 (c ))
Section 8. The writ of execution shall:
Issuance, form (1) issue in the name of the Republic of
and contents of a the Philippines from the court which
writ of execution. granted the motion;
(2) state the name of the court, the case
number and title, the dispositive part of
the subject judgment or order; and
(3) require the sheriff or other proper officer
to whom it is directed to enforce the writ
according to its terms, in the manner
hereinafter provided:
(a) If the execution be against the
property of the judgment obligor, to
satisfy the judgment, with interest,
out of the real or personal property

BY: RIZADA, Resci Angelli

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Section 9. (a) Immediate payment on demand. —

Execution of The officer shall enforce an execution of a
judgments for judgment for money by demanding from the
money, how judgment obligor the immediate payment of
enforced. the full amount stated in the writ of execution
and all lawful fees. The judgment obligor
shall pay in cash, certified bank check
payable to the judgment obligee, or any
other form of payment acceptable to the
latter, the amount of the judgment debt
under proper receipt directly to the judgment
obligee or his authorized representative if
present at the time of payment. The lawful
fees shall be handed under proper receipt to
the executing sheriff who shall turn over the
said amount within the same day to the clerk
of court of the court that issued the writ.

If the judgment obligee or his authorized

representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within
the same day to the clerk of court of the
court that issued the writ, or if the same is
not practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the Regional Trial Court
of the locality. (What if plaintiff is not there?
(see 2nd paragraph) payment is made to
sheriff who will endorse it to the clerk of
court. The latter will look for the obligee to
remit the money.)

The clerk of said court shall thereafter

arrange for the remittance of the deposit to
the account of the court that issued the writ
whose clerk of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment. The excess, if
any, shall be delivered to the judgment
obligor while the lawful fees shall be retained
by the clerk of court for disposition as
provided by law. In no case shall the
executing sheriff demand that any
payment by check be made payable to
him. (this assumes property which as levied
is in cotabato but jdugmetn is one which
originated in davao—clerk to clerk)

(b) Satisfaction by levy. — If the judgment

obligor cannot pay all or part of the obligation
in cash, certified bank check or other mode
of payment acceptable to the judgment
obligee, the officer shall levy upon the
properties of the judgment obligor of every
kind and nature whatsoever which may be
disposed, of for value and not otherwise
exempt from execution giving the latter the
option to immediately choose which property
or part thereof may be levied upon, sufficient
to satisfy the judgment. If the judgment
obligor does not exercise the option, the
officer shall first levy on the personal
properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.

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The sheriff shall sell only a sufficient portion

of the personal or real property of the
judgment obligor which has been levied
upon.
When there is more property of the judgment
obligor than is sufficient to satisfy the
judgment and lawful fees, he must sell only
so much of the personal or real property as
is sufficient to satisfy the judgment and
lawful fees.
Real property, stocks, shares, debts, credits,
and other personal property, or any interest
in either real or personal property, may be
levied upon in like manner and with like
effect as under a writ of attachment.
Note:
1. An auction sale to be valid must be
preceded by levy on the property
2. Levy is allowed if judgment debtor
cannot pay in cash, certified check
3. The option to choose theproperty
belongs to the judgment debtor
4. If debtor does not, sheriff must first
levy on personal, before real
peroperty
5. Sheriff shall only sell sufficient to
satisfy the judgment and lawful
fees
6. Intangible property (stocks, shares,
debts) is subject to levy
In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees
who shall be required to deliver the amount
due, otherwise, the choice shall be made by
the judgment obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect
to delivery of payment to the judgment
obligee.
Definition of garnishment
- A process in which money or
goods in the hands of a 3rd person
are attached by the plaintiff
Procedure:
1. Sheriff serves notice upon the
person owing such debts
(garnishee)
2. Garnishee makes a report to the
court stating whether the funds
with him are sufficient or how much
3. Garnished amount is delivered
directly to judgment oblige
EXECUTION OF JUDGMENT OTHER THAN MONEY

HOW TO LEVY INTANGIBLES:

(c) Garnishment of debts and credits. —
The officer may levy on debts due the
judgment obligor and other credits, including:
1. bank deposits,
2. financial interests,
3. royalties,
4. commissions and
other personal property not capable of
manual delivery in the possession or control
of third parties.

Levy shall be made by serving notice upon

the person owing such debts or having in his
possession or control such credits to which
the judgment obligor is entitled. The
garnishment shall cover only such amount
as will satisfy the judgment and all lawful
fees.

The garnishee shall make a written report to

the court within five (5) days from service of
the notice of garnishment stating whether or
not the judgment obligor has sufficient funds
or credits to satisfy the amount of the
judgment. If not, the report shall state how
much funds or credits the garnishee holds
for the judgment obligor. The garnished
amount in cash, or certified bank check
issued in the name of the judgment obligee,
shall be delivered directly to the judgment
obligee within ten (10) working days from
service of notice on said garnishee requiring
such delivery, except the lawful fees which
shall be paid directly to the court.

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Section 10. (a) Conveyance, delivery of deeds, or within a reasonable time fixed by the court.
Execution of other specific acts; vesting title. — If a
judgments for judgment directs a party to execute a (d) Removal of improvements on property
specific act. conveyance of land or personal property, or subject of execution. — When the property
to deliver deeds or other documents, or to subject of the execution contains
perform, any other specific act in connection improvements constructed or planted by the
therewith, and the party fails to comply within judgment obligor or his agent the officer
the time specified, the court may direct the shall not destroy, demolish or remove said
act to be done at the cost of the disobedient improvements except upon special order of
party by some other person appointed by the the court, issued upon motion of the
court and the act when so done shall have judgment obligee after the hearing and after
like effect as if done by the party. If real or the former has failed to remove the same
personal property is situated within the within a reasonable time fixed by the court.
Philippines, the court in lieu of directing a (writ of execution not sufficient basis for
conveyance thereof may by an order divest removal of improvements in the property; get
the title of any party and vest it in others, a special order form the court by filing a
which shall have the force and effect of a petition to authorize destruction or removal
conveyance executed in due form of law. of such after defendant is given a reasonable
time to remove his shanty or hosue
Examples: voluntarily.
1. Action for reconveyance of
property Requisites for writ of demolition:
2. Pacto de retro. I-repurchase na 1. Written motion with notice to
ang property but ayaw mo adverse party and hearing of
3. Public land law. Refusal to grant motion
the right to repurchase 2. Special order issued by court
4. Action for specific performance to 3. Reasonable time to remove)
compel you to return subject
property. (e) Delivery of personal property. — In
judgment for the delivery of personal
(b) Sale of real or personal property. — If property, the officer shall take possession
the judgment be for the sale of real or of the same and forthwith deliver it to the
personal property, to sell such property, party entitled thereto and satisfy any
describing it, and apply the proceeds in judgment for money as therein provided.
conformity with the judgment. (this is related to REPLEVIN, action to
(i.e. action for termination of co-owernship; recover personal property)
property ordered sold and proceeds
distributed among co-owners) LANDMARK CASE: ABINUJAR V. CA
- Facts: ejectment case which was
settled through a compromise
(c) Delivery or restitution of real property. agreement with a provision that
— The officer shall demand of the person upon failure to pay 3 installements,
against whom the judgment for the delivery plaintiffs entitled to writ of
or restitution of real property is rendered and execution. Spouses were ordered
all persons claiming rights under him to to vacate.
peaceably vacate the property within three - Issue: execution under section 9
(3) working days, and restore possession on collection of sum of money or
thereof to the judgment obligee, otherwise, section 10 on ejectment
the officer shall oust all such persons - SC: SECTION 9. When the parties
therefrom with the assistance, if necessary, entered into a compromise
of appropriate peace officers, and employing agreement, the original action for
such means as may be reasonably ejectment was set aside and the
necessary to retake possession, and place action was changed to a monetary
the judgment obligee in possession of such obligation. As abinuja’s obligation
property. Any costs, damages, rents or under the compromise agreemtn
profits awarded by the judgment shall be as approved by the court was
satisfied in the same manner as a judgment monetary in nature, plaintiffs can
for money. (applicable to actions for forcible only avail of the wirt of execution
entry, UD, accion publiciana,) under section 9 and not that
provided under section 10.
SAN MANUEL V. TUPAS When the
property subject of the execution contains
improvements constructed or planted by the
judgment obligor or his agent, the officer
shall not destroy, demolish or remove said
improvements except upon special order of
the court, issued upon motion of the
judgment oblige after due hearing and after
the former has failed to remove the same

BY: RIZADA, Resci Angelli

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ORDINARY AND SPECIAL JUDGMENTS always subject to the liens and

encumbrances of the property then
2 types: existing.
1. ORDINARY judgment orders the defendant to pay
money i.e. collection case or delivery personal or real
property
2. SPECIAL judgment which requires the defendant to
perform an act other than payment of money or delivery
of property. (i.e. usurpation of government office quo
warranto proceedings where you will be ordered to
vacate yoru position) this is a judgment that can ONLY
be complied with by the obligor himself.

DIFFERENCE BETWEEN ORDINARY AND SPECIAL

JUDGMENT
SPECIAL ORDINARY
May be enforced It is not a ground for contempt
by contempt if
defendant refuses
to comply with
judgment
Section 11. When a judgment requires the performance
Execution of of any act other than those mentioned in the
special judgments two preceding sections:
1. a certified copy of the judgment
shall be attached to the writ of
execution and
2. shall be served by the officer:
a. upon the party against whom
the same is rendered, or
b. upon any other person
required thereby, or by law, to
obey the same, and
c. such party or person may be
punished for contempt if he
disobeys such judgment.

Application:
1. Under section 9, if judgment debtor
refuses to pay debt, you cannot
cite him in contempt because
under the Consti, no person shall
be imprisoned for debt. Just look
for his properties and levy it.
2. Under section 10, if squatter
refuses to vacate, you cannot cite
him in contempt and send to jail.
Just get the polic for back up
3. Under section 11, if defendant is
ordred to vacate office, plaintiff can
have him arrested and brought to
jail beause that is a SPECIAL
judgment which can be enforced
by contempt.
4. Judgment in certiorari, prohibition
or mandamus, if not complied with
is also punishable by contempt.
(rule 65, section 9)
Section 12. Effect The levy on execution shall create a lien in
of levy on favor of the judgment obligee over the right,
execution as to title and interest of the judgment obligor in
third person such property at the time of the levy, subject
to liens and encumbrances then existing.

Application:
1. Land you own was mortgaged to
bank then levied by a creditor
who has better rights? BANK’S
MORTGAGE LIEN. An execution is

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Section 13. Except as otherwise expressly provided by
Property exempt law, the following property, and no other,
from execution shall be exempt from execution:
(a) The judgment obligor's family
home as provided by law, or the
homestead in which he resides,
and land necessarily used in
connection therewith;
(b) Ordinary tools and
implements personally used by
him in his trade, employment, or
livelihood;
PENTAGON SECURITY V.
JIMENEZ The term “tools and
implements” refer to instruments of
husbandry or manual labor needed
by an artisan craftsman or laborer
to obtain his living. The exemption
contemplates something that is
personal, available only to a
natural person. Firearms can be
levied according to SC. However,
there must be prior clearance on
the sale of such by the PNP.
(c) Three horses, or three cows, or
three carabaos, or other beasts of
burden, such as the judgment
obligor may select necessarily
used by him in his ordinary
occupation;
(d) His necessary clothing and
articles for ordinary personal
use, excluding jewelry;(so alahas
pwede ma-levy; but personal
comb, toothbrush not)
(e) Household furniture and utensils
necessary for housekeeping, and
used for that purpose by the
judgment obligor and his family,
such as the judgment obligor may
select, of a value not exceeding
one hundred thousand pesos;
(f) Provisions for individual or family
use sufficient for four months;
(g) The professional libraries and
equipment of judges, lawyers,
physicians, pharmacists, dentists,
engineers, surveyors, clergymen,
teachers, and other professionals,
not exceeding p300,000 in value;
(h) One fishing boat and
accessories not exceeding the
total value of one hundred
BY: RIZADA, Resci Angelli
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EXCLUSIVE COPY OF
thousand pesos owned by a
fisherman and by the lawful use of
which he earns his livelihood;
(i) So much of the salaries, wages,
or earnings of the judgment
obligor for his personal services
within the four months preceding
the levy as are necessary for the
support of his family;(salaries,
wages and earnings of a laborer is
more than exempt)
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or
annuities accruing or in any
manner growing out of any life
insurance;
(l) The right to receive legal
support, or money or property
obtained as such support, or any
pension or gratuity from the
Government;
(m) Properties specially exempted
by law. (i.e. homestead not subject
to claim within 5 years, SS
benefits, GSis benefits, property
acquired by tenant through CARP)
But no article or species of property
mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a
judgment of foreclosure of a mortgage
thereon. (i.e. you bought books worth 500K
then wala nimu nabayaran, you cannot claim
that it cannot be levied upon because of this
last paragraph. Properties mentioned here
are exempt EXCEPT when that debt arose
out of that property. But if its another creditor
who files a case against you, such creditor
cannot levy on the books coz they are
exempt. But the creditor from whom the
books were bought can levy on the same
books which gave rise to the obligation.)
Rationale for this rule: public policy. In order
to be able to invoke the exemption, invoke it
AT THE TIME OF LEVY or WITHIN A
REASONABLE PERIOD thereafter. Any
claim for exemption from execution under
section 12 of Rule 39 must be presented
before its sale on execution by the sheriff
(HONRADO V. CA)
LIFETEIME OF WRIT OF EXECUTION—5 YEARS
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Section 14. The writ of execution shall be returnable to
Return of writ of the court issuing it immediately after the
execution. judgment has been satisfied in part or in full.
If the judgment cannot be satisfied in full
within thirty (30) days after his receipt of the
writ, the officer shall report to the court and
state the reason therefor. Such writ shall
continue in effect during the period within
which the judgment may be enforced by
motion. The officer shall make a report to the
court every thirty (30) days on the
proceedings taken thereon until the
judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall
set forth the whole of the proceedings taken,
and shall be filed with the court and copies
thereof promptly furnished the parties.
RULE: the writ is good for 5 years and
EVERY 30 days, the sheriff has to make a
report with the court.
NOTICE OF SALE
Section 15. Notice Before the sale of property on execution,
of sale of property notice thereof must be given as follows:
on execution.
(a) In case of perishable property, by
posting written notice of the time
and place of the sale in three (3)
public places, preferably in
conspicuous areas of the municipal
or city hall, post office and public
market in the municipality or city
where the sale is to take place, for
such time as may be reasonable,
considering the character and
condition of the property;
sale shall be given to the judgment
obligor, at least three (3) days
before the sale, except as provided
in paragraph (a) hereof where
notice shall be given the same
manner as personal service of
pleadings and other papers as
provided by section 6 of Rule 13.
The notice shall specify the place, date and
exact time of the sale which should not be
earlier than nine o'clock in the morning and
not later than two o'clock in the afternoon.
The place of the sale may be agreed upon
by the parties. In the absence of such
agreement, the sale of the property or
personal property not capable of manual
delivery shall be held in the office of the clerk
of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of
or which was designated by the appellate
court. In the case of personal property
capable of manual delivery, the sale shall be
held in the place where the property is
located.
TERCERIA (THRID PARTY CLAIM)

(b) In case of other personal

property, by posting a similar
notice in the three (3) public places
above-mentioned for not less than
five (5) days;

(c) In case of real property, by

posting for twenty (20) days in the
three (3) public places
abovementioned a similar notice
particularly describing the property
and stating where the property is to
be sold, and if the assessed value
of the property exceeds fifty
thousand (P50,000.00) pesos, by
publishing a copy of the notice
once a week for two (2)
consecutive weeks in one
newspaper selected by raffle,
whether in English, Filipino, or any
major regional language published,
edited and circulated or, in the
absence thereof, having general
circulation in the province or city;

(d) In all cases, written notice of the

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Section 16. If the property levied on is claimed by any

Proceedings person other than the judgment obligor or
where property his agent, and such person makes an
claimed by third affidavit of his title thereto or right to the
person. possession thereof, stating the grounds of
such right or title, and serves the same upon
the officer making the levy and copy thereof,
upon the judgment obligee, the officer shall
not be bound to keep the property, unless
such judgment obligee, on demand of the
officer, files a bond approved by the court
to indemnity the third-party claimant in a
sum not less than the value of the
property levied on. In case of disagreement
as to such value the same shall be
determined by the court issuing the writ of
execution. No claim for damages for the
taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty
(120) days from the date of the filing of the
bond.

The officer shall not be liable for damages

for the taking or keeping of the property, to
any third-party claimant if such bond is filed.
Nothing herein contained shall prevent
such claimant or any third person from
vindicating his claim to the property in a
separate action, or prevent the judgment
obligee from claiming damages in the
same or a separate action against a third-
party claimant who filed a frivolous or plainly
spurious claim.

When the writ of execution is issued in favor

of the Republic of the Philippines, or any
officer duly representing it, the filing of such
bond shall not be required, and in case the
sheriff or levying officer is sued for damages
as a result of the levy, he shall be
represented by the Solicitor General and if
held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of such funds as may
be appropriated for the purpose. (17a)

Distinctions: THIRD PARTY CLAIM vs.

THIRD-PARTY COMPLAINT

1. As to definition, a Third-Party
Complaint under Rule 6 is a
PLEADING filed by a defendant
against the third person not a party
to the action for contribution,
indemnity, subrogation, or any
other relief in respect of the
plaintiff’s complaint, whereas

A Third-Party Claim or Terceria

under Rule 39 is an AFFIDAVIT
made by a third person who claims
to be entitled to the property in the
custody of a sheriff by virtue of a
writ of execution.

2. As to the person who files, the

one who files a Third-Party
Complaint is called THIRD-PARTY

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PLAINTIFF, whereas and issue is to who is the

rightful owner court cannot
The one who files a Third-Party summarily decided on this
Claim is technically called THIRD- issue. It should be threshed
PARTY CLAIMANT. out in a separate civil action.

 A third-party claim is filed with the The remedies of a third person whose
sheriff although legally, it is property was seized by the sheriff to answer
considered as filed in court for the obligation of the judgment obligor are
because the sheriff is only an the following: (EVANGELISTA V.
agent of the court. PENSERGA)
 Re other remedies: “Nothing
herein contained shall prevent 1. Invoke the supervisory
such claimant or any third person power of the court which
from vindicating his claim to the authorized such
property in a SEPARATE execution;
ACTION.” 2. Terceria or third party
 Other option: Instead of filing a claim; and
third-party claim, the third person 3. Any proper action to
may file a case in court where the vindicate his claim to the
cause of action is that the sheriff property, meaning a
mistakenly or erroneously levied separate civil action.
the properties not owned by
obligor because the third person is Section 17. An officer selling without the notice
the real owner. Since there was a Penalty for selling prescribed by section 15 of this Rule shall
mistaken levy, the third person without notice, or be:
may also ask the court to declare removing or 1. liable to pay punitive damages in
the levy as null and void; the defacing notice. the amount of five thousand
auction sale should not proceed. (P5,000.00) pesos to any person
 it is possible that the 3rd party injured thereby,
claimant is also a frivolous claim, 2. in addition to his actual damages,
hence, the prevailing party has the 3. both to be recovered by motion in
right to claim damages against the same action;
such 3rd party claimant for filing and a person willfully removing or
frivolous claims. (basis:..Nothing defacing the notice posted, if done before
herein shall prevent the prevent the sale, or before the satisfaction of the
the judgment obligee from judgment if it be satisfied before the sale,
claiming damages in the same shall be:
or a separate action against a 1. liable to pay five thousand
third-party claimant who filed a (P5,000.00) pesos to any person
frivolous or plainly spurious claim.) injured by reason thereof,
 INTERVENTION is not proper in 2. in addition to his actual damages,
a third-party claim because under 3. to be recovered by motion in the
Rule 19, an intervention can only same action. (19a)
be done at any time before Section 18. No At any time before the sale of property on
judgment. Under Rule 39, sale if judgment execution, the judgment obligor may
however, there is already a and costs paid. prevent the sale by paying the amount
judgment. required by the execution and the costs that
 in Terceria, what court can do is have been incurred therein.
limited o the determination of
whether the sheriff acted rightly or RULE: you have to pay ALL. Not just half of
wrongly in the perforanc eof his it.
dueties in the execution of the
judgment. Court does nto pass
upon the question of title to the
property, with any character of
finality.

Present rule:
1. if sheriff committed a 100%
mistake of levying a proerpty
belonging to a 3rd person who
is not a defendant, filing
another case would be
tedious. He can seek relief
from the same court
2. but when the issue is WON
the property is owned by
defendant or the 3rd person

BY: RIZADA, Resci Angelli

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Section 19. How All sales of property under execution
property sold on must be made at public auction, to the
execution; who highest bidder, to start at the exact time
may direct manner fixed in the notice. After sufficient property
and order of sale. has been sold to satisfy the execution no
more shall be sold and any excess property
or proceeds of the sale shall be promptly
delivered to the judgment obligor or his
authorized representative, unless otherwise
directed by the judgment or order of the
court. When the sale is of real property,
consisting of several known lots, they must
be sold separately; or, when a portion of
such real property is claimed by a third
person he may require it to be sold
separately. When the sale is of personal
property capable of manual delivery, it must
be sold within view of those attending the
same and in such parcels as are likely to
bring the highest price. The judgment
obligor, if present at the sale, may direct the
order in which property, real or personal
shall be sold, when such property consists of
several known lots or parcels which can be
sold to advantage separately. Neither the
officer conducting the execution sale, nor
his deputies, can become a purchaser,
nor be interested directly or indirectly in any
purchase at such sale. (even judges and
lawyers of the parties cannot be interested in
the sale of real property to prevent conflict of
interest)
Section 20. If a purchaser refuses to pay the amount bid
Refusal of by him for property struck off to him at a sale
purchaser to pay. under execution, the officer may again sell
the property to the highest bidder and
shall not be responsible for any loss
occasioned thereby; but the court may
order the refusing purchaser to pay into
the court the amount of such loss, with
costs, and may punish him for contempt
if he disobeys the order. The amount of such
payment shall be for the benefit of the
person entitled to the proceeds of the
execution, unless the execution has been
fully satisfied, in which event such proceeds
shall be for the benefit of the judgment
obligor. The officer may thereafter reject any
subsequent bid of such purchaser who
refuses to pay.
returned to you if it turns out the
claim is frivolous; if 3rd party claim
is valid, it will be given to the real
owner because the property you
bought turned out to be someone
not your debtor)
Section 22. By written consent of the judgment
Adjournment of obligor and obligee, or their duly
sale. authorized representatives, the officer
may adjourn the sale to any date and time
agreed upon by them. Without such
agreement, he may adjourn the sale from
day to day if it becomes necessary to do so
for lack of time to complete the sale on the
day fixed in the notice or the day to which it
was adjourned.
PROCEDURE FOR SALE
1. Personal property capable of manual delivery—
Sec.23
2. Personal property not capable of MD—section 24
3. sale of real property—section 25
Section 23. When the purchaser of any personal
Conveyance to property, capable of manual delivery,
purchaser of pays the purchase price, the officer making
personal property the sale must:
capable of manual 1. deliver the property to the
delivery. purchaser and,
2. if desired, execute and deliver to
him a certificate of sale.
3. The sale conveys to the purchaser
all the rights which the judgment
obligor had in such property as of
the date of the levy on execution or
preliminary attachment.

Section 21. When the purchaser is the judgment obligee,

Judgment obligee and no third-party claim has been filed, he
as purchaser need not pay the amount of the bid if it
does not exceed the amount of his
judgment. If it does, he shall pay only the
excess.

G.R.: Apply the LAW ON COMPENSATION

Exceptions:
1. When his bid is higher than the
judgment, he has to pay the cash
for the excess; or
2. When the property which is to be
sold is a subject of a third party
claim; there’s a controversy
regarding the ownership of the
property. (your money will be
placed on deposit; it will be

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CIVIL PROCEDURE
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Section 24. When the purchaser of any personal
Conveyance to property, not capable of manual delivery,
purchaser of pays the purchase price, the officer making
personal property the sale must:
not capable of 1. execute and deliver to the
manual delivery. purchaser a certificate of sale.
2. Such certificate conveys to the
purchaser all the rights which the
judgment obligor had in such
property as of the date of the levy
on execution or preliminary
attachment.
NOTE: there is nothing given physically to
you.
1. In both sections, “the sale conveys
to the purchaser…” so you become
the owner because you acquire the
judgment obligor’s right of
ownership over the property.
2. But if he is not the owner but only
has rights, then you only acquire
whatever rights he has.
3. If you bought his interest and
afterwards develops that he has
none,you are liable on your bid
because you have offered so much
for his interest in open market and
its for you to determine what is his
interest in the property.
4. Further, in sheriff’s sale, the sheriff
does nto warrant the ownership of
the property. Law only warrants the
guarantee, that you will acquire
whatever interest he has. NO
WARRANTY AGAINST EVICTION.
 Caveat emptor!
Section 25. Upon a sale of real property, the officer
Conveyance of must give to the purchaser a certificate of
real sale containing:
property; certificat (a) A particular description of the
e thereof given to real property sold;
purchaser and (b) The price paid for each distinct
filed with registry lot or parcel;
of deeds. (c) The whole price paid by him;
(d) A statement that the right of
redemption expires one (1) year
from the date of the registration
of the certificate of sale.
Such certificate must be registered in the
registry of deeds of the place where the
property is situated.
Conveyance of Property
Acquisition of the ownership of the property
by the highest bidder:
a.) If it is a PERSONAL PROPERTY,
the title is transferred after
payment of the purchase price and
delivery upon the purchaser –
either physical or symbolic delivery;
b.) If it is REAL PROPERTY, the title
is transferred, not after the auction
sale, but after the expiration of the
right to redeem.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 There is no right of redemption
under personal property.
 The right of redemption (real
property) expires after one year
from the date of the registration of
the certificate of sale in the office of
the ROD and NOT from the date of
auction sale.
Attacking the validity of an auction sale:
General Rule: One cannot attack the validity
of an auction sale on the presumption that
every fair sale is final. There is presumption
of regular performance of duty by the sheriff.
EXCEPTIONS: When an execution may be
set aside:
1. When it is shown from the nature of
the irregularity or from intrinsic facts
that an injury resulted therefrom. There
were serious irregularities committed
by the officer in conducting the sale.
e.g. no publication, no notice, no prior
levy, etc.
2. When the price obtained at the
execution sale is shockingly
inadequate and it is shown that a
better price can be obtained at a
resale.
EXCEPTION TO THE EXCEPTION:
Questions on the inadequacy of the price are
only applicable when the property sold is
PERSONAL PROPERTY. The same is not
applicable to real properties because of the
availability of the right of
redemption.(RAMOS V. PABLO)
Section 26. When a property sold by virtue of a writ of
Certificate of sale execution has been claimed by a third
where property person, the certificate of sale to be issued
claimed by third by the sheriff pursuant to sections 23, 24 and
person. 25 of this Rule shall make express
mention of the existence of such third-
party claim.
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Section 27. Who Real property sold as provided in the last They should not be prohibited from
may redeem real preceding section, or any part thereof sold doing their share in its
property so sold. separately, may be redeemed in the manner preservation.
hereinafter provided, by the following 5. If the redeeming heir wants to
persons: place the property in his name, the
motion to transfer titles cannot
(a) The judgment obligor; or his prosper at this time. Otherwise, to
successor in interest in the whole or any allow such would amount to the
part of the property; distribution of the estate. Instead,
the other heirs are given 6
(b) A creditor having a lien by virtue of an MONTH to join as co-
attachment, judgment or mortgage on the redemptioners in the redemption
property sold, or on some part thereof, made by the redeeming heir before
subsequent to the lien under which the the motion to transfer titles to the
property was sold. Such redeeming creditor latter’s name may be granted.
is termed a redemptioner.

NOTES:
1. The right to redeem can be sold.
2. If there are several levying
creditors, the 1st levying credit
enjoys full rights and there is no
need to respect other creditors. As
to the 2nd levying creditor, h must
respect the rights of the 1st levying
creditor.

Example of Maam: property of 10 million

divided to 4 creditors with 2M credit each. If
judgment obligor redeems within 1 year
the redemptioners cannot redeem. If
judgment debtor does not redeem:
1. A can redeem by paying the
purchase price.
2. If B redeems—purchase price +
2M of A (4 million)
3. C redeems 6M
4. D redeems 8M

landmark case: PALICTE V. REMOLETE

facts: only 1 heir redeemed when judgment
debtor died; estate under administration.
1. The HEIR has a right to redeem.
At the moment of decedent’s
death, heirs start to own the
property, subject to the decedent’s
liabilities. In fact, they may dispose
even while property is under
admin. If it is so, with ore reason
should the heirs be allowed to
redeem redeemable properties
despite presence of an
administrator.
2. If 1 heir redeem, the other co-
heirs, administrator and court
NEED NOT expressly agree to
the redemption.
3. While it may be true that the
interest of a specific heir is not yet
fixed and determinate pending
order of distribution, nonetheless,
his interest in the preservation of
the estate and recovery of its
properties is greater than anybody
else’s.
4. The estate of the deceased is the
judgment debtor and the heirs who
will eventually acquire that estate.

BY: RIZADA, Resci Angelli

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Section 28. Time The judgment obligor, or redemptioner,
and manner of, may redeem the property from the
and amounts purchaser, at any time within one (1) year
payable from the date of the registration of the
on, successive certificate of sale, by:
redemptions; notic 1. paying the purchaser the amount
e to be given and of his purchase,
filed. 2. with the per centum per month
interest thereon in addition, up to
the time of redemption,
3. together with the amount of any
assessments or taxes which the
purchaser may have paid thereon
after purchase, and interest on
such last named amount at the
same rate; and
4. if the purchaser be also a creditor
having a prior lien to that of the
redemptioner, other than the
judgment under which such
purchase was made, the amount of
such other lien, with interest.
Property so redeemed may again be
redeemed within sixty (60) days after the
last redemption:
1. upon payment of the sum paid on
the last redemption,
2. with two per centum thereon in
addition and
3. the amount of any assessments or
taxes which the last redemptioner
may have paid thereon after
redemption by him, with interest on
such last named amount, and
4. in addition, the amount of any liens
held by said last redemptioner prior
to his own, with interest.
The property may be again, and as often as
a redemptioner is so disposed, redeemed
from any previous redemptioner within sixty
(60) days after the last redemption:
1. on paying the sum paid on the last
previous redemption,
2. with two per centum thereon in
addition, and
3. the amounts of any assessments
or taxes which the last previous
redemptioner paid after the
redemption thereon, with interest
thereon, and
4. the amount of any liens held by the
last redemptioner prior to his own,
with interest.
Written notice of any redemption must be
given to the officer who made the sale and a
duplicate filed with the registry of deeds of
the place, and if any assessments or taxes
are paid by the redemptioner or if he has or
acquires any lien other than that upon which
the redemption was made, notice thereof
must in like manner be given to the officer
and filed with the registry of deeds; if such
notice be not filed, the property may be
redeemed without paying such assessments,
taxes, or liens.
NOTES:
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
1. Judgment obligor and 1st
redemptioner are given 1 year from
the date of registration of the cert
of sale to redeem and after that,
subsequent redemptioners are
given 60 days.
2. Suppose the debtor or the 2nd
redemptioner would like to redeem
it from the 1st redemptioner, under
section 28 the redemption price=
bid price + 1% interest PER
MONTH. In other words, if you
redeem AFTER 1 year bid price
+ 12% of the bid price.
3. SY V. CA within the 1 year
redemption period, how much
interst will be imposed? Ung 2% as
stipulated + 1% imposed by law
during the redemption period or
ung 1% lang?
SC: 3% a month stipulated under
the mortgage contract prevails.
Basis: Section 78 of the General
Banking Act, RA 337. The bank
rate prevails.
Section 29. Effect If the judgment obligor redeems he must
of redemption by make the same payments as are required to
judgment effect a redemption by a redemptioner,
obligor, and a whereupon, no further redemption shall be
certificate to be allowed and he is restored to his estate. The
delivered and person to whom the redemption payment is
recorded made must:
thereupon; to 1. execute and deliver to him a
whom payments certificate of redemption
on redemption acknowledged before a notary
made. public or other officer authorized to
take acknowledgments of
conveyances of real property.
2. Such certificate must be filed and
recorded in the registry of deeds of
the place in which the property is
situated and
3. the registrar of deeds must note
the record thereof on the margin of
the record of the certificate of sale.
The payments mentioned in this and the last
preceding sections may be made to the
purchaser or redemptioner, or for him to the
officer who made the sale.
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Section 30. Proof A redemptioner must produce to the officer, occupation thereof when such
required of or person from whom he seeks to redeem, property is in the possession of a
redemptioner. and serve with his notice to the officer: tenant.
1. a copy of the judgment or final All rents, earnings and income derived
order under which he claims the from the property pending redemption shall
right to redeem, belong to the judgment obligor until the
2. certified by the clerk of the court expiration of his period of redemption
wherein the judgment or final order .
is entered,
or, if he redeems upon a mortgage or
other lien:
1. a memorandum of the record
thereof,
2. certified by the registrar of deeds,
or
3. an original or certified copy of any
assignment necessary to establish
his claim; and
4. an affidavit executed by him or his
agent, showing the amount then
actually due on the lien.

NOTE: if it is the Original owner who wants

to redeem, there is no need to prove is right
as a judgment debtor. He has that automatic
right to redeem. But if it is B, C or D
(redemptioners), they must prove to sheriff
that they are qualified to redeem.

Section 31. Until the expiration of the time allowed for

Manner of using redemption, the court may, as in other
premises pending proper cases, restrain the commission of
redemption; waste waste on the property by injunction, on
restrained the application of the purchaser or the
judgment obligee, with or without notice; but
it is not waste for a person in possession of
the property at the time of the sale, or
entitled to possession afterwards, during the
period allowed for redemption, to continue to
use it in the same manner in which it was
previously used, or to use it in the ordinary
course of husbandry; or to make the
necessary repairs to buildings thereon while
he occupies the property.

NOTE: during the 1 year redemp period,

debtor is in possession of the property. If
before that, he decides to destroy the
property, the purchaser has a remedy.

Remedy: Ask the court to issue a writ of

injunction according to Section 31 – an
injunction to restrain the commission of
waste on the property.

Nature of the right of PURCHASER:

1. Takes effect only after expiration of
redemption period
2. Not entitled to possession of the
property
3. Not entitled to receive rents
4. As to rights acquired, retroacts to
date of levy

Section 32. The purchaser or a redemptioner shall:

Rents, earnings 1. not be entitled to receive the rents,
and income of earnings and income of the
property pending property sold on execution, or
redemption. 2. the value of the use and

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 97

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Section 33. Deed If no redemption be made within one (1)
and possession to year from the date of the registration of the
be given at certificate of sale:
expiration of 1. the purchaser is entitled to a
redemption conveyance and possession of the
period; by whom property; or,
executed or given. 2. if so redeemed whenever sixty (60)
days have elapsed and no other
redemption has been made, and
notice thereof given, and the time
for redemption has expired, the last
redemptioner is entitled to the
conveyance and possession;
but in all cases the judgment obligor shall
have the entire period of one (1) year
from the date of the registration of the
sale to redeem the property. The deed
shall be executed by the officer making the
sale or by his successor in office, and in the
latter case shall have the same validity as
though the officer making the sale had
continued in office and executed it.
Upon the expiration of the right of
redemption the purchaser or
redemptioner shall be substituted to and
acquire all the rights, title, interest and claim
of the judgment obligor to the property as of
the time of the levy. The possession of the
property shall be given to the purchaser or
last redemptioner by the same officer unless
a third party adversely to the judgment
obligor.
NOTES: The sheriff will now execute in favor
of the highest bidder or purchaser what is
known as the final deed of sale or DEED OF
CONVEYANCE.
TWO DOCUMENTS which the sheriff
executes in case of real property:
1. CERTIFICATE
OF SALE. After the auction sale, the
sheriff shall execute in favor of the
highest bidder or purchaser the
certificate of sale under Section 25.
By the time the same is registered,
the counting of one year shall run;
2. DEED OF
CONVEYANCE. If after one year
there is no redemption, a deed of
conveyance is executed under
Section 33. Only the same transfers
title to the property.
 Suppose the debtor refuses to
vacate, there is no more need of
filing another action to eject the
former owner. The purchaser can
ask the court to ISSUE A WRIT OF
POSSESSION under the Property
Registration Decree to take over
the property.
 GOMEZ V. GEALONE Claims
for exemption from execution of
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
properties under Section 13 must
be presented BEFORE ITS SALE
ON EXECUTION by the sheriff.
You can raise the issue of
exemption at the time of levy but
NOT later than the auction sale.
Section 34. If the purchaser of real property sold on
Recovery of price execution, or his successor in interest:
if sale not 1. fails to recover the possession
effective; revival of thereof, or
judgment. 2. is evicted therefrom, in
consequence of irregularities in the
proceedings concerning the sale,
or
3. because the judgment has been
reversed or set aside, or
4. because the property sold was
exempt from execution, or
5. because a third person has
vindicated his claim to the property,
he may:
1. on motion in the same action or in
a separate action recover from
the judgment obligee the price
paid, with interest, or so much
thereof as has not been delivered
to the judgment obligor, or
2. he may, on motion, have the
original judgment revived in his
name for the whole price with
interest, or so much thereof as has
been delivered to the judgment
obligor.
The judgment so revived shall have the
same force and effect as an original
judgment would have as of the date of the
revival and no more.
REMEDIES of purchaser if property
removed from him:
1. recover the money from the
obligee (assuming obligee is
different from the purchaser)
2. have the judgment revived in your
name and look for properties of
debtor to execute because:
a. he lost possession of property
b. he’s evicted
c. there was irregularity in the
proceedings
d. judgment reversed or set
aside on appeal
e. property sold was exempt
form execution or
f. 3rd person has validity of his
claim of the property.
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Section 35. Right When property liable to an execution
to contribution or against several persons is sold thereon,
reimbursement. and more than a due proportion of the
judgment is satisfied out of the proceeds of
the sale of the property of one of them, or
one of them pays, without a sale, more than
his proportion, he may compel a
contribution from the others; and when a
judgment is upon an obligation of one of
them, as security for another, and the
surety pays the amount, or any part thereof,
either by sale of his property or before sale,
he may compel repayment from the
principal.
REMEDIES IN AID OF EXECUTION (Section 36 and 37)
Section 36. When the return of a writ of execution issued
Examination of against property of a judgment obligor, or
judgment obligor any one of several obligors in the same
when judgment judgment, shows that the judgment
unsatisfied. remains unsatisfied, in whole or in part, the
judgment obligee, at any time after such
return is made, shall be entitled to an order
from the court which rendered the said
judgment, requiring such judgment obligor to
appear and be examined concerning his
property and income before such court or
before a commissioner appointed by it at a
specified time and place; and proceedings
may thereupon be had for the application of
the property and income of the judgment
obligor towards the satisfaction of the
judgment. But no judgment obligor shall be
so required to appear before a court or
commissioner outside the province or city in
which such obligor resides or is found.
Section 37. When the return of a writ of execution
Examination of against the property of a judgment obligor
obligor of shows that the judgment remain unsatisfied,
judgment obligor. in whole or in part, and upon proof to the
satisfaction of the court which issued the
writ, that a person, corporation, or other
juridical entity has property of such judgment
obligor or is indebted to him, the court may,
by an order, require such person,
corporation, or other juridical entity, or any
officer, or member thereof, to appear before
the court or a commissioner appointed by it,
at a time and place within the province or city
where such debtor resides or is found, and
be examined concerning the same. The
service of the order shall bind all credits due
the judgment obligor and all money and
property of the judgment obligor in the
possession or in the control of such person
corporation, or juridical entity from the time
of service; and the court may also require
notice of such proceedings to be given to
any party to the action in such manner as it
may deem proper.
REMEDIES IN AID OF EXECUTION
Examination of judgment obligor when
judgment unsatisfied
The obligee can ask the court to render
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
judgment to allow him to subpoena the
obligor and take the witness stand subject to
questioning so that he can discover where
his properties are. (deposition taking)
Examination of obligor of judgment
obligor
This time, it is the “obligor” of the judgment
obligor who will be examined. If there are
people whom you believe owe the obligor
something, such as his debtors, those
holding his property. You can ask them to be
examined. In this case, oblige can ask the
court to garnish the money.
Appointment of receiver
The court may appoint a receiver who is an
officer of the court who will manage the
property of the litigants pending litigation.
(Rule 59 on Receivership) The purpose of
receivership is to preserve the property by
placing it in the hands of the court to remove
it from the control of a party because the
latter may dispose of the same.
Section 38. A party or other person may be
Enforcement of compelled, by an order or subpoena, to
attendance and attend before the court or commissioner to
conduct of testify as provided in the two preceding
examination. sections, and upon failure to obey such
order or subpoena or to be sworn, or to
answer as a witness or to subscribe his
deposition, may be punished for contempt
as in other cases. Examinations shall not
be unduly prolonged, but the proceedings
may be adjourned from time to time, until
they are completed. If the examination is
before a commissioner, he must take it in
writing and certify it to the court. All
examinations and answers before a court
commissioner must be under oath, and when
a corporation or other juridical entity
answers, it must be on the oath of an
authorized officer or agent thereof.
Section 39. After a writ of execution against property has
Obligor may pay been issued, a person indebted to the
execution against judgment obligor may pay to the sheriff
obligee. holding the writ of execution the amount of
his debt or so much thereof as may be
necessary to satisfy the judgment, in the
manner prescribed in section 9 of this Rule,
and the sheriff's receipt shall be a sufficient
discharge for the amount so paid or directed
to be credited by the judgment obligee on
the execution.
Note: this is a case where there is change of
the party creditor. i.e. garnishment from a
bank. B as debtor of judgment tobligor will
directly pay the bank instead of paying the
judgment obligor. So B no longer indebted to
the latter.
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Section 40. Order The court may order any property of the
for application of judgment obligor, or money due him, not
property and exempt from execution, in the hands of
income to either himself or another person, or of a
satisfaction of corporation or other juridical entity, to be
judgment. applied to the satisfaction of the judgment,
subject to any prior rights over such
property.
If, upon investigation of his current income
and expenses, it appears that the earnings
of the judgment obligor for his personal
services are more than necessary for the
support of his family, the court may order
that he pay the judgment in fixed monthly
installments, and upon his failure to pay
any such installment when due without good
excuse, may punish him for INDIRECT
CONTEMPT.
Note: if you are earning a lot, more than
sufficient for your family, the excess of your
income can be garnished under section 40.
Section 41. The court may appoint a receiver of the
Appointment of property of the judgment obligor; and it may
receiver also forbid a transfer or other disposition of,
or any interference with, the property of the
judgment obligor not exempt from execution.
Section 42. Sale If it appears that the judgment obligor has
of ascertainable an interest in real estate in the place in
interest of which proceedings are had, as mortgagor or
judgment obligor mortgagee or other- wise, and his interest
in real estate. therein can be ascertained without
controversy the receiver may be ordered
to sell and convey such real estate or the
interest of the obligor therein; and such sale
shall be conducted in all respects in the
same manner as is provided for the sale of
real state upon execution, and the
proceedings thereon shall be approved by
the court before the execution of the deed.
such terms as may be just.
Power of the court issuing order of
execution:
1. cannot determine ownership of
disputed property
2. can only authorize creditor to sue
3. can prohibit transfer within 120
days.
Notes: if naa ka nahibal-an na debtor of the
obligor,you can ask the court that you be
allowed to file a collection case against such
person on behalf of the obligor. You are
considered a real party in interest in the case
as a REPRESENTATIVE party under rule 3,
section 3.
SATISFACITON OF JUDGEMENT
Section 44. Entry Satisfaction of a judgment shall be:
of satisfaction of 1. entered by the clerk of court in the
judgment by clerk court docket, and in the execution
of court book,
2. upon the return of a writ of
execution showing the full
satisfaction of the judgment, or
3. upon the filing of an admission to
the satisfaction of the judgment
executed and
4. acknowledged in the same manner
as a conveyance of real property
by the judgment obligee or by his
counsel unless a revocation of his
authority is filed, or
5. upon the endorsement of such
admission by the judgment obligee
or his counsel, on the face of the
record of the judgment.

Note: here, if obligor has interest in real

property, the oblige can LEVY on these
rights because these are property rights by
themselves. This time, it is NOT the property
which is sold but the interest.

Section 43. If it appears that a person or corporation,

Proceedings when alleged to have property of the judgment
indebtedness obligor or to be indebted to him, claims an
denied or another interest in the property adverse to him or
person claims the denied the debt the court may authorize,
property. by an order made to that effect, the judgment
obligee to:
1. institute an action against such
person or corporation for the
recovery of such interest or debt,
2. forbid a transfer or other
disposition of such interest or debt
within one hundred twenty (120)
days from notice of the order, and
3. may punish disobedience of such
order as for contempt.
Such order may be modified or vacated at
any time by the court which issued it, or by
the court in which the action is brought, upon

BY: RIZADA, Resci Angelli

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Section 45. Entry Whenever a judgment is satisfied in fact, or

of satisfaction with otherwise than upon an execution on
or without demand of the judgment obligor, the
admission judgment obligee or his counsel must
execute and acknowledge, or indorse an
admission of the satisfaction as provided in
the last preceding section, and after notice
and upon motion the court may order either
the judgment obligee or his counsel to do so,
or may order the entry of satisfaction to be
made without such admission.

Execution vs. Satisfaction

EXECUTION is the method of enforcement

of a judgment.

SATISFACTION OF JUDGMENT is the

compliance with or fulfillment of the mandate
of judgment.

Satisfaction of judgment may be compelled

by the judgment-creditor by means of
execution, or by the judgment-debtor by
means of voluntary payment.

VITAL-GOSON V. CA: can plaintiff appeal

from the judgment and at the same time
move for execution o the same?
 Where the judgment is
INDIVISIBLE, acceptance of full
satisfaction of the judgment
annihilates the right to further
prosecute the appeal; and that
even partial execution by
compulsory legal process at the
instance of the prevailing party,
places said party in estoppels to
ask that the judgment be amended.

 When the judgment is DIVISIBLE,

estoppel should not operate
against the judgment creditor who
causes implementation of a part of
the decision by writ of execution.

Section 46. When When a judgment is rendered against a party

principal bound by who stands as surety for another, the latter is
judgment against also bound from the time that he has
surety. notice of the action or proceeding, and an
opportunity at the surety's request to join
in the defense.

PRINCIPLE OF RES JUDICATA

Section 47. Effect The effect of a judgment or final order

of judgments or rendered by a court of the Philippines,
final orders. having jurisdiction to pronounce the
judgment or final order, may be as follows:

(Res judicata in judgment in rem or at least

quasi in rem)
(a) In case of a judgment or final order
against a specific thing, or in respect to the
probate of a will, or the administration of
the estate of a deceased person, or in
respect to the personal, political, or legal
condition or status of a particular person or

BY: RIZADA, Resci Angelli

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his relationship to another the judgment or invoked as res judicata because

final order is conclusive upon the title to such is binding upon parties until
the thing, the will or administration or the annulled.
condition, status or relationship of the
person, however, the probate of a will or 3rd REQUISITE: JUDGMENT MUST BE
granting of letters of administration shall only UPON THE MERITS
be prima facie evidence of the death of the  Judgment upon the merits oen
testator or intestate; finally settling the issues raised in
the pleadings.
(paragraphs b and c only on judgments in  Not upon the merits dismissal of
personam; binding only on the parties) case d/t lack of juris or imporper
BAR BY A FORMER JUDGMENT venue. Plaintiff can still refile case.
(b) In other cases, the judgment or final  Generally, a dismissal without a
order is, with respect to the matter directly trial is not adjudication upon the
adjudged or as to any other matter that merits EXCEPT in Rule 17,
could have been missed in relation Section 3 when the case was
thereto conclusive between the parties dismissed for failure of the plaintiff
and their successors in interest, by title to appear during the presentation
subsequent to the commencement of the of his evidence, or to prosecute his
action or special proceeding, litigating for the action for an unreasonable period
same thing and under the same title and in of time, or failed to comply with the
the same capacity; and rules or order of the court. There is
no trial but the dismissal shall have
CONCLUSIVENESS OF JUDGMENT the effect of adjudication upon the
(c) In any other litigation between the same merits.
parties or their successors in interest, that  PEREZ V. CA A judgment or
only is deemed to have been adjudged in a order is on the merits when it
former judgment or final order which appears determines the rights and liabilities
upon its face to have been so adjudged, or of the parties based on the ultimate
which was actually and necessarily included facts as disclosed by the pleadings
therein or necessary thereto. or issues presented for trial. Its not
necessary that an actual hearing or
RES ADJUDICATA; requisites argument on the facts of the case
1. The judgment or order invoked as ensued, for as long as parties had
res adjudicate must be final; full opportunity to be heard on their
2. The court rendering the same must respective claims and contentions.
have jurisdiction over the subject The judgment thereon is on the
matter and of the parties; merits.
3. The judgment or order must be
upon the merits; 4TH REQUISITE: IDENTITY OF PARTIES,
4. There must be, between the two SUBJECT MATTER AND CAUSE OF
cases, identity of the parties, ACTION
identity of subject matter, and  When 1st case filed by union then
identity of cause of action. 2nd case filed by employees, there
are identity of parties.
FIRST REQUISITE: JUDGMENT OR  Identity of SM;
ORDER MUST BE FINAL a. Action for recovery of large
 Judgment must be FINAL AND tract then subsequent case
EXECUTORY (which is after the involving a smaller parcel
lapse of 15 days) not final and included in the large tract
appealable. b. Accounting of certain funds
 Because if there is a judgment and then action for partition of
before it becomes executory, you same funds
filed another case, it is not res c. Case for recovery of property
judicata but litis pendentia because then recovery of the value of
1st case is still pending the property.
 Important thing is when you invoke  Identity of causes of action:
res judicata, 1st judgment is already a. Same evidence test
final. . b. Inconsistency test

2nd REQUISITE: JURIS OVER SM AND Rare instance wehre SC refuses to allow res
PARTIES judicata despite its existence: EQUITY
 Court must have acquired CASES.
jurisdiction over the SM and
parites. There must have been
proper service of summons or
voluntary appearance of the
parties.
 A voidable judgment can be

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 102

CIVIL PROCEDURE
ATTY MELISSA ROMANA SUAREZ
BAR BY CONCLUSIVENESS OF JUDGMENT
FORMER
JUDGMENT
Merger or bar; Collateral estoppels; issue preclusion
Claim preclusion
1st judgment Conclusive only on mattes actually litigated
constitute an and adjudged in the 1st action
absolute bar to all
matters directly
adjudged as well
as matters that
might have been
adjudged
There must be It is not necessary that there is identity of
identity of paties, causes of action.
SM and cause of
action
i.e. compulsory Payment of loan in 3 installments and debtor
counterclaim. sued on 1st installement, rasing the defense
of forgery of the PN. When the 2nd
installment falls due, issue of forgery already
ajudged as genuine and therefore res
judicata in the 2nd installment.
CARANDANG V. VENTURANZA
- When you sue the party with whom
you entered into a simulated sale;
1st case to annul the same was
dismissed but it was against
another party. co-defendants mo in
the 1st case
- SC: THERE IS NO RES
JUDICATA. First, there is no
identity of parties. RJ only
applicable between adverse parties
in the former suit and not between
parties. Co parties for the judgment
ttherein ordinarily settle claims as
to their relative rights and liabilities
as co-plaintifffs or co-defendants
perse. 2nd, cause of action is
completely differet and therefore,
the judgment in the 1st case is
conclusive only in so far as rights
of B1 is concerned. It cannot be
conclusive as to rights of B2 and X
because it is a separate cause of
action.
LAW OF THE that legal conclusions announced on a first
CASE appeal, whether on the general law or the
law as applied to the concrete facts, not only
prescribed the duty and limit the power of the
trial court to strict obedience and conformity
thereto, but they become and remain the law
of the case in all after steps below or above
on subsequent appeal.
Note: right or wrong, that will be the
controlling principle affecting the parites. It
cannot be thereafter changed or reopened.
STARE DECISIS Decision of a court should stand
precedents for future guidance.
RES JUDICATA STARE DECISIS
Operates between Refers to case between different parties
2 actions involving
same parties and
same cause of
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
action
Refer to all courts Refers only to decision of the SC
MTC-SC
Section 48. Effect The effect of a judgment or final order of a
of foreign tribunal of a foreign country, having
judgments or final jurisdiction to render the judgment or final
orders. order is as follows:
(a) In case of a judgment or final order upon
a specific thing, the judgment or final order,
is conclusive upon the title to the thing,
and
(b) In case of a judgment or final order
against a person, the judgment or final
order is presumptive evidence of a right as
between the parties and their successors in
interest by a subsequent title.
In either case, the judgment or final order
may be repelled by:
1. evidence of a want of jurisdiction,
2. want of notice to the party,
3. collusion, fraud, or clear mistake of
law or fact.
Notes:
1. in enforcing foreign judgment file
case v. defendant here and cuase
of action is the enforcement of the
foreign judgment. Philippine court
will render judgment enforcing it
and then you can execute.
2. Philippine court can declare a
decision of a foreign court under
section 48 on the ground of “clear
mistake of the law”
3. Foreign judgment need not comply
with the consti requirement of
stating the facts and law for so long
as such is a valid judgment in such
foreign court.
AMENDMENTS TO RULES 41 and 45 under A.M. No. 07-7-12-SC
(effective December 27, 2007) have already been incorporated.
Rules on Appeals; Legal Basis; BP 129.
Sec. 39. Appeals.
The period for appeal from final orders, resolutions, awards,
judgments or decisions of any court in all cases shall be fifteen
(15) days counted from the notice of the final order, resolution,
award, judgment or decision appealed from; Provided, however,
That in habeas corpus cases, the period for appeal shall be forty-
eight (48) hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In
lieu thereof, the entire original record shall be transmitted with all
as the pages prominently numbered consecutively, together with an
index of the contents thereof.
This section shall not apply in appeals in special proceedings
and in other cases wherein multiple appeals are allowed under
applicable provisions of the Rules of Court.
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 Requisites for appeal.
Period to appeal Requirements
Civil actions
15 days Notice of appeal
Special proceedings and civil actions which allow multiple
appeals
30 days Notice of appeal
Record on appeal
Habeas corpus cases
48 hours Notice of appeal
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
SECTION 1. Where to appeal.—An appeal from a judgment or
final order of a Municipal Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the area to which the former
pertains. The title of the case shall remain as it was in the court of
origin, but the party appealing the case shall be further referred to
as the appellant and the adverse party as the appellee.
1. RTC’s appellate jurisdiction; Legal basis; BP 129.
Sec. 22. Appellate jurisdiction. Regional Trial Courts shall
exercise appellate jurisdiction over all cases decided by the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts in their respective territorial jurisdictions. Such
cases shall be decided on the basis of the entire record of the
proceedings had in the court of origin such memoranda and/or
briefs as may be submitted by the parties or required by the
Regional Trial Courts. The decision of the Regional Trial Courts in
such cases shall be appealable by petition for review to the Court
of Appeals which may give it due course only when the petition
shows prima facie that the lower court has committed an error or
fact or law that will warrant a reversal or modification of the
decision or judgment sought to be reviewed.
2. Any MTC final order or decision is appealable to the RTC
which exercises territorial jurisdiction over the said MTC.
3. This is the reason why under BP 129, every RTC has a
designated territorial jurisdiction.
4. Indicate in the caption who the appellants and the appellees
are.
SEC. 2. When to appeal.—An appeal may be taken within
fifteen (15) days after notice to the appellant of the judgment
or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a record on
appeal within thirty (30) days after notice of the judgment or
final order.
The period of appeal shall be interrupted by a 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.
1. The 15-day period to appeal cannot be extended. BUT it can
be interrupted by a timely motion for—
a. New trial, or
b. Reconsideration
2. Note, however, that no extension to file either of those two
motions may be allowed.
3. Strict construction – the right to appeal is a statutory right
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
4. The 30-day period to submit a record on appeal is extendible
because the preparation takes a longer period of time.
a. The motion for extension must be filed within the original
30-day period though.
b. The movant has no right to expect that the motion for
extension will be granted.
5. Motion for extension of time to file MNT or MR is absolutely
prohibited. If MNT or MR is fied, appellant will have a FRESH
PERIOD OF 15 DAYS from receipt of denial to appeal.
(NEYPES V. CA) It is the denial of the MR of an order of
dismissal of a complaint which constitutes the final order as it
is what ends the issues raised in the action.
6. Fresh period rule can be applied retroactively. Cases where
period to appeal lapsed prior to sept. 14, 2005 can be given
retroactive effect.
SEC. 3. How to appeal—The appeal is taken by filing a
notice of appeal with the court that rendered the judgment or final
order appealed from. The notice of appeal shall indicate the parties
to the appeal, the judgment or final order or part thereof appealed
from, and state the material dates showing the timeliness of the
appeal.
A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal
where required, shall be served on the adverse party.
NOTICE OF APPEAL
1. Procedure.
a. File a notice of appeal
b. With the MTC which rendered the judgment or final order
appealed from
c. Serve copy upon the adverse party
2. Contents of the notice of appeal:
a. Parties to the appeal,
b. The judgment or final order or part thereof appealed
from, and
c. The material dates showing the timeliness of the appeal
(i.e. date of the decision/order and its receipt)
RECORD ON APPEAL
3. Required only in special proceedings and cases where
multiple appeals are allowed
SEC. 4. Perfection of appeal; effect thereof.—The
perfection of the appeal and the effect thereof shall be governed
by the provisions of section 9, Rule 41.
1. Rule 41, Sec. 9. Perfection of appeal; effect thereof—
A party’s appeal by notice of appeal is deemed perfected as
to him upon the filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as
to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction
over the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties.
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In appeals by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the time to
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the protection
and preservation of the rights of the parties which do not involve
any matter litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow withdrawal of the
appeal.
2. Summary
Notice of Appeal Record on appeal
How an appeal is perfected
As to the appellant, upon his As to the appellant with respect
filing of the notice of appeal to the subject matter thereof,
generally within 15 days upon the approval of the record
on appeal filed in due time
When jurisdiction over the case is lost
1.Upon the perfection of the 1.Upon the approval of the
appeals filed in due time, and records on appeal filed in due
2.Upon the expiration of the time, and
time to appeal of the other 2.Upon the expiration of the
parties time to appeal of the other
parties
By fiction of law, jurisdiction is automatically transferred to the
RTC.
Powers of the court prior to the transmittal of—
the original record the record on appeal
The court may:
1. Issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal,
2. Approve compromises,
3. Permit appeals of indigent litigants,
4. Order execution pending appeal (Rule 39, Sec. 2), and
5. Allow withdrawal of the appeal.
SEC. 5. Appellate court docket and other lawful fees.—
Within the period for taking an appeal, the appellant shall pay to
the clerk of the court which rendered the judgment or final order
appealed from the full amount of the appellate court docket and
other lawful fees. Proof of payment thereof shall be transmitted to
the appellate court together with the original record or the record
on appeal, as the case may be.
1. Failure to pay within the reglementary period will not
automatically cause the dismissal of the appeal since it is not
a requirement for appeal (although it is still an obligation).
 Exception: When the failure to pay affects jurisdiction
 Dismissal is discretionary upon the appellate court;
hence, it should be exercised wisely (Santos vs. CA
[1996])
2. BUT the clerk of court may refuse to transmit the records to
the RTC until the appeal fees are paid.
SEC. 6. Duty of the clerk of court.—Within fifteen (15) days
from the perfection of the appeal, the clerk of court or the branch
clerk of court of the lower court shall transmit the original record or
the record on appeal, together with the transcripts and exhibits,
which he shall certify as complete, to the proper Regional Trial
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Court. A copy of his letter of transmittal of the records to the
appellate court shall be furnished the parties.
 Duties of the COC within 15 days from perfection of the
appeal:
a. Transmit the original record or the record on appeal, as
the case may be
b. Transmit also the transcripts and exhibits
c. Certify that those documents are complete, to the proper
RTC
d. Furnish parties of the letter of transmittal of the records
SEC. 7. Procedure in the Regional Trial Court.—(a) Upon
receipt of the complete record or the record on appeal, the clerk of
court of the Regional Trial Court shall notify the parties of such
fact.
(b) Within fifteen (15) days from such notice, it shall be the
duty of the appellant to submit a memorandum which shall briefly
discuss the errors imputed to the lower court, a copy of which shall
be furnished by him to the adverse party. Within fifteen (15) days
from receipt of the appellant’s memorandum, the appellee may file
his memorandum. Failure of the appellant to file a memorandum
shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the
expiration of the period to do so, the case shall be considered
submitted for decision. The Regional Trial Court shall decide the
case on the basis of the entire record of the proceedings had in the
court of origin and such memoranda as are filed.
 Outline:
1. RTC clerk of court shall notify the parties of the receipt of
the records.
2. Appellant must file his appeal memorandum within 15
days from receipt of the notice
 Briefly discuss the errors imputed to the MTC
 Furnish adverse party a copy
 Failure to file shall warrant dismissal of the appeal
3. Appellee may file memorandum within 15 days from
receipt of the appellant’s memorandum
4. Upon submission of appellee’s memorandum or the
lapse of the 15-day period within which to file the same,
the case shall be deemed submitted for resolution
5. RTC to decide on the basis of—
 Entire record of the proceedings, and
 Memoranda filed
SEC. 8. Appeal from orders dismissing case without
trial; lack of jurisdiction.—If an appeal is taken from an order of
the lower court dismissing the case without a trial on the merits,
the Regional Trial Court may affirm or reverse it, as the case may
be. In case of affirmance and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court, if it
has jurisdiction thereover, shall try the case on the merits as if the
case was originally filed with it. In case of reversal, the case shall
be remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on
appeal shall not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance with the preceding
section, without prejudice to the admission of amended pleadings
and additional evidence in the interest of justice.
1. First situation: MTC dismisses a case on the ground of lack of
jurisdiction without trial on the merits, and the losing party
appeals to the RTC.
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 If the Order of Dismissal is correct, the RTC may either—
a. Affirm it, and order the dismissal of the case, or
b. Affirm it, but, if it has jurisdiction over the case, try the
case as if it was originally filed with it.
 If the Order of Dismissal is wrong, the RTC should order the
remand of the case to the MTC and order the latter to proceed
with the trial.
2. Second situation: MTC tries a case over which it has no
jurisdiction (over the subject matter) and the same is
appealed to the RTC.
 If the RTC has original jurisdiction, it should not dismiss the
case, and should decide the case as if it was originally filed
with it.
o In this case, the RTC shifts from its appellate to original
jurisdiction; instead of outrightly dismissing the appeal.
o The purpose is to prevent double payment of docket
fees.
 The RTC, in the interest of justice, may still allow the—
a. Admission of amended pleadings, and
b. Introduction of additional evidence
SEC. 9. Applicability of Rule 41.—The other provisions of
Rule 41 shall apply to appeals provided for herein insofar as they
are not inconsistent with or may serve to supplement the
provisions of this Rule.
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
This is already amended!
SECTION 1. Subject of appeal. An appeal may be taken
from a judgment or final order that completely disposes of the
case, or of a particular matter therein when declared by these
Rules to be appealable.
No appeal may be taken from:
a. An order denying a petition for relief or any similar motion
seeking relief from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an appeal;
d. An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
e. An order of execution;
f. A judgment or final order for or against one or more of
several parties or in separate claims, counterclaims, cross-
claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and
g. An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved party
may file an appropriate special civil action as provided in Rule 65.
1. Take note that Rule 41 also applies to appealed cases from
the MTC to the RTC, insofar as there are no conflicts.
2. Item (a) has been omitted by the latest amendment:
“xxx An order denying a motion for new trial or
reconsideration; xxx”
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
3. Only FINAL judgments or orders may be appealed, as
opposed to interlocutory judgments or orders (c), which may
not be appealed.
4. FINAL; meanings.
Concept
It is already executory, which It is not merely interlocutory,
happens if there is no appeal which happens if the final
taken order/judgment completely
disposes of the case OR a
particular matter therein and
there is nothing more for the
court to do with respect to its
merits
What rule to apply
Rule 39 Rule 41 (or rules on appeals)
5. Interlocutory order/judgment
– Something which does not completely dispose of the action
and there is still something for the court to do after its
rendition
 Examples:
a. A defendant files a motion to dismiss and it is denied. The
order denying the motion is interlocutory (hence, not
appealable) since, the said defendant thereafter is still
required to file his answer and so on. Meaning, the case
before the court will still proceed.
b. A defendant files a motion to dismiss and it is granted. The
order is already final and not merely interlocutory, since it has
already disposed of the case and there is nothing left for the
court to do. The plaintiff may appeal the case.
c. In a case between A and B, C files a motion to intervene,
which is denied by the court. The order is already final;
hence, appealable. As far as the rights of C are concerned,
the court has nothing left to do. Take note that in this case, it
is not the case which is appealed, but rather only a particular
matter therein (whether or not C should be allowed to
intervene).
– The law actually does not prohibit appeal of an interlocutory
order/judgment. Only, he Separate case for annulment of
judgment cannot appeal it immediately as he must wait for the
decision of the court respecting the case.
– Reasons for the prohibition:
o To avoid multiple appeals in one civil case
o To give the court time to realize its error and opportunity
to correct it
o The court still continues to try the case
6. Day vs. RTC of Zamboanga: “An order which decides an
issue or issues in a complaint is final and appealable,
although the other issue or issues have not been resolved, if
the latter issues are distinct and separate from the others.”
7. Republic vs. Tacloban City Ice Plant: “A court order is final
in character if it puts an end to the particular matter resolved
or settles definitely the matter therein disposed of, such that
no further question can come before the court except the
execution of the order. Such an order or judgment may validly
refer to the entire controversy or to some definite and
separate branch thereof.”
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appellate jurisdiction shall be by petition for review in accordance

with Rule 42.

8. The following are UNAPPEALABLE:
Order that cannot be
appealed
An order granting or denying a
petition for relief from judgment
An order denying any “similar
motion seeking relief from
judgment” (e.g. order denying a
motion to set aside the
judgment of default)
An order disallowing
dismissing an appeal
(c) Appeal by certiorari.—In all cases where only questions
Proper remedy of law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with Rule
45.
Rule 65 (choose CPM)
1. ORDINARY APPEAL
Appeal from the judgment of – Mode of appeal used if the case is decided by either the MTC
default or RTC pursuant to its original jurisdiction
– “first appeal” – the case is originally filed in the MTC or RTC
and the losing party wants to elevate the case on appeal for
the first time
– Governing rules are those under Rules 40 and 41
or Mandamus1 – if appeal is on – Record on appeal is required only in special proceedings or in
time cases where multiple appeals are allowed.

Petition for relief from 2. PETITION FOR REVIEW

judgment/order denying the – Mode used if the case is decided by the RTC pursuant to its
appeal – if there is FAME (rule appellate jurisdiction
38, section 2) – “second appeal” (MTC-RTC-CA)
An order denying a motion to Annulment of judgment (Rule – This is governed by Rule 42.
set aside a judgment by 47) alleging vice/s of consent
consent, confession or 3. APPEAL BY CERTIORARI
compromise Remedy against compromise – Mode used if only pure questions of law are raised
entered through vitiated – This is the only mode of appeal to the SC as the latter,
consent: generally, cannot review factual errors.
1. Motion to set aside
2. MR or MNT
3. Relief from judgment
4. Annulment of Direct route to
judgment Supreme Court SC is for purely
An order of execution Certiorari (Rule 65) – if the legal questions
only
order of execution changes the
tenor of the judgment upon Petition for review
which it is based on certiorari
RULE 45
x
Judgment or order where there General Rule: No remedy.
Petition for
are several claims/parties, Pag-hulat.  Court of Appeals review
counter/cross-claims and third- RULE 43
party complaints (partial Exception: Appeal may be
Petition for review Ordinary appeal
summary judgment) allowed if the court allows an RULE 42 RULE 41
appeal therefrom. Quasi-Judicial
Regional Trial Court Bodies and
An order dismissing an action Re-file VAs
without prejudice Ordinary appeal
RULE 40
Certiorari (Rule 65)
x
MTC/MTCC/MCTC
SEC. 2. Modes of appeal.—

(a) Ordinary appeal.—The appeal to the Court of Appeals in

cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order appealed from
and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other
cases of multiple or separate appeals where the law or these
Rules so require. In such cases, the record on appeal shall be filed
and served in like manner.
(b) Petition for review.—The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the exercise of its
1 The court has a ministerial duty to give due course to the appeal, if the
same is filed on time.
SEC. 3. Period of ordinary appeal, appeal in habeas
corpus cases.—The appeal shall be taken within fifteen (15)
days from notice of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a
notice of appeal and a record on appeal within thirty (30) days from
notice of the judgment or final order. However, an appeal in
habeas corpus cases shall be taken within forty-eight (48) hours
from notice of the judgment or final order appealed from.
The period of appeal shall be interrupted by a 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.

BY: RIZADA, Resci Angelli

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ATTY MELISSA ROMANA SUAREZ

Non-extendible Extendible for another 15 days

(file motion for extension with
the CA)

1. Interruption of the period to appeal; example. As to whether it may be entertained as a matter of right
So long as the docket fees are Even if the fees are paid, the
fully paid, the appeal is petition may still be dismissed
Consumed only 9 days, since
January 31 – receipt of Feb. 10 is excluded (the day of
entertained by the RTC or the (discretionary)
judgment interruption of the reglementary CA
period)
February 10 – filed MFR
4. Rubio vs. MTCC of CDO
February 20 – receipt of The 15-day period is Facts: The court issued an interlocutory order. Two months later,
order of SUSPENDED. the party aggrieved by it filed an MFR.
denial of MFR
The remaining 6 days is Issue: Can the MFR be opposed on the ground that the 15-day
counted from Feb. 21, which is period had already elapsed?
February 26 – last day to file the day after the notice of the
appeal cessation of the interruption.
Ruling: No. “The period subject to interruption by a motion for
reconsideration is the period to appeal. An interlocutory order is
not appealable. Accordingly, there is no period to suspend or
However: TAKE NOTE OF NEYPES CASE. PERIOD TO APPEAL interrupt.”
IS NOW RECKONED FORM THE RECEIPT OF THE ORDER
DENYING THE MNT OR MR! An interlocutory order cannot be appealed; hence, the 15-
day period does not apply. The MFR may be filed anytime for as
Civil Code long as the court still has jurisdiction over the case.
“Art. 13. xxx In computing a period, the first day shall be
excluded, and the last day included.” SEC. 4. Appellate court docket and other lawful fees.—
Within the period for taking an appeal, the appellant shall pay to
Rules of Court the clerk of the court which rendered the judgment or final order
“Rule 22, Sec. 2. Effect of interruption.—Should an act be appealed from, the full amount of the appellate court docket and
done which effectively interrupts the running of the period, the other lawful fees. Proof of payment of said fees shall be
allowable period after such interruption shall start to run on the day transmitted to the appellate court together with the original record
after notice of the cessation of the cause thereof. or the record on appeal.

The day of the act that caused the interruption shall be  Distinction.
excluded in the computation of the period.” Rule 40 Rule 41
MTC to RTC RTC to CA
2. Motion for extension of time to file a notice of appeal is NOT Effect of non-payment of appeal fees etc
allowed. The perfection of an appeal within the period and in during the appeal period
the manner prescribed by law is jurisdictional and non- Santos ruling: The appeal may Either the RTC or the CA can
compliance with such legal requirements is fatal and has the not be dismissed outrightly, dismiss the appeal, depending
effect of rendering judgment final and executory. unless the jurisdiction of the on who has custody of the
court is affected. The clerk, records.
3. Distinction. however, can refuse transmittal
Rule 40 and 41 Rule 42 of the records to the RTC.
Ordinary Appeal Petition for Review
(1 step) (2 steps)
Effect of the filing of a motion for new trial or reconsideration
Payment is not a requisite to It is a requisite under:
It shall interrupt the period There is no interruption. BUT perfect the appeal. - Rule 41, Sec. 13 and
within which to file the appeal. the reglementary period is re- - Rule 50, Sec. 1.
set.
NOTE:
When period to file appeal resumes 1. Court has no obligation to notify appellant to pay the
It commences to run again the Also the day after the order of docket fee.
day after the order of denial is denial is received. 2. Party’s failure to pay the appellate court the docket fee
received. within the reg. period confers only a DISCRETIONARY
and not mandatory power to dismiss the proposed
appeal.

Remaining period after denial of MFNT/MFR Material date rule

Remainder of the 15 days Fresh 15 days SEC. 5. Notice of appeal.—The notice of appeal shall
indicate the parties to the appeal, specify the judgment or
final order or part thereof appealed from, specify the court to
Extendibility

BY: RIZADA, Resci Angelli

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which the appeal is being taken, and state the material dates
showing the timeliness of the appeal2.
SEC. 6. Record on appeal; form and contents thereof.—
The full names of all the parties to the proceedings shall be stated
in the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions,
motions and all interlocutory orders as are related to the appealed
judgment or final order for the proper understanding of the issue
involved, together with such data as will show that the appeal was
perfected on time. If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all the evidence,
testimonial and documentary, taken upon the issue involved. The
reference shall specify the documentary evidence by the exhibit
numbers or letters by which it was identified when admitted or
offered at the hearing, and the testimonial evidence by the names
of the corresponding witnesses. If the whole testimonial and
documentary evidence in the case is to be included, a statement to
that effect will be sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits. Every record on
appeal exceeding twenty (20) pages must contain a subject index.
1. Record on appeal
– Practically a reproduction of all the pertinent pleadings
and motions filed by the parties, orders issued by the
court and the final judgment rendered by the court
– The filing of the record on appeal without a notice of
appeal will not warrant a dismissal of the case. The filing
of the record on appeal is more expressive of the desire
of the party to appeal. (Peralta vs. Solon)
2. Distinction.
Notice of Appeal Record on Appeal
The clerk of the court of origin The entirety of the records is
transmits all the records of the not elevated as what is
case to the appellate court transmitted is merely the record
upon perfection of the appeal. on appeal submitted by an
appellant.
Approval is not required It is required
3. Form and contents of the record on appeal
a. State the full names of all the parties in the caption
b. State the material dates
c. Include the following:
i. Judgment or final order appealed
ii. Copies of only such pleadings, petitions, motions
and all interlocutory orders as are related to the
appealed judgment or final order
 Arrange these in chronological order.
d. If factual issues are raised, include by reference all the
evidence taken upon the issue involved, to wit:
i. DOCUMENTARY EVIDENCE – specify the
exhibit numbers/letters used at the time of
admission or offer
ii. TESTIMONIAL EVIDENCE – specify the names
of the corresponding witnesses
 If the whole testimonial/documentary evidence will
be used, a statement to that effect will suffice,
without mentioning the names of the witnesses or
the number/letters of the exhibits.
2 If the date of receipt of the order/decision is not stated, it is presumed
that the date when it was handed down is the date of receipt.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
e. If the record on appeal exceeds 20 pages, there must be
a subject index.
4. Municipality of Biñan vs. Garcia
Facts: In an expropriation case against several landowners, A filed
a motion for separate trial. There was a judgment in that separate
trial.
Issue: Can A appeal? What are required?
Ruling: Yes, he may appeal as the order was already final as
against him. A notice of appeal and a record on appeal are
required in this case because the entire records of the case cannot
as yet be elevated on appeal pending hearing of the other cases.
Issue: Suppose there was only one trial and there was a decision.
Will a record on appeal be required?
Ruling: No need. A notice of appeal will suffice because there is
only one decision and there are no more proceedings in the trial
court.
5. Roman Catholic Archbishop of Manila vs. Court of
Appeals (1996): “Multiple appeals are allowed in:
a. Special proceedings;
b. Actions for recovery of property with accounting;
c. Actions for partition of property with accounting;
d. Special civil actions of eminent domain (expropriation);
e. Special civil actions for foreclosure of mortgage.”
Rationale behind allowing more than 1 appeal in same case:
enable the rest f the case to priceed in the event that a separate
and distinct case is resolved by the court and held to be final.
NTOE: If you filed a record of appeal without a notice of appeal,
appeal should NOT be dismissed because filing of the record on
appeal is harder to comply.
SEC. 7. Approval of record on appeal —Upon the filing of
the record on appeal for approval and if no objection is filed by the
appellee within five (5) days from receipt of a copy thereof, the trial
court may approve it as presented or upon its own motion or at the
instance of the appellee, may direct its amendment by the
inclusion of any omitted matters which are deemed essential to the
determination of the issue of law or fact involved in the appeal. If
the trial court orders the amendment of the record, the appellant,
within the time limited in the order, or such extension thereof as
may be granted, or if no time is fixed by the order within ten (10)
days from receipt thereof, shall redraft the record by including
therein, in their proper chronological sequence, such additional
matters as the court may have directed him to incorporate, and
shall thereupon submit the redrafted record for approval, upon
notice to the appellee, in like manner as the original draft.
1. The appellee is given 5 days from receipt of the copy of the
record on appeal to file his objections. Otherwise, the court
may approve the same as presented by the appellant.
2. The court may also motu propio direct its amendment by the
inclusion of any omitted matters which are deemed essential
to the determination of the issue of law or fact involved in the
appeal.
3. If the order to amend is silent, the appellant has 10 days to
amend or re-draft.
Note: if the law requires you to file a record of appeal, suchmust
be approved by the court because the other party is given the right
to object your record on appeal.
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Grounds for objections:
1. Necessary pleadings were not produced
2. ;ester the other party and just to block the approval
SEC. 8. Joint record on appeal.—Where both parties are
appellants, they may file a joint record on appeal within the time
fixed by section 3 of this Rule, or that fixed by the court.
 If both sides are appealing the case, they may file a joint
record on appeal. Hati sila sa gastos.
SEC. 9. Perfection of appeal; effect thereof—A party’s
appeal by notice of appeal is deemed perfected as to him upon the
filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as
to him with respect to the subject matter thereof upon the approval
of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction
over the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the time to
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the protection
and preservation of the rights of the parties which do not involve
any matter litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow withdrawal of the
appeal.
1. There is a marked distinction between the following
questions—
How do you perfect an When is the appeal deemed
appeal? perfected?
This is answered by Sec. 9, This is answered by Sec. 9,
paragraphs 1 and 2. paragraphs 3 and 4.
What “perfect” in the question means
It pertains to one party/side It pertains to all the parties to
only; hence, the use of the the case; hence, the use of
phrase “as to him” in the the phrases—
rules.  “upon the perfection of the
appeals filed in due time,”
and
 “the expiration of the time to
appeal of the other parties.”
Effect on jurisdiction of the court of origin
Perfection of appeal by one Perfection of appeals on both
party alone does not sides divests the court of
necessarily mean that the origin of its jurisdiction over
court now loses jurisdiction the case. Elevation of the
(or that the “appeal is already court records is now proper.
deemed perfected”). The Exception: In cases where a
appeal period also of the record on appeal is required,
other party has to lapse first approval of the court must
before case may be elevated. also be obtained before
elevation.
2. WHEN ONLY NOTICE OF APPEAL IS REQUIRED
a. How is the appeal perfected?
 As to the person filing, by his filing of a notice of
appeal within the 15-day period.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
b. When is the appeal deemed perfected?
 Upon the perfection of the appeals filed in due time
and upon the expiration of the time to appeal of the
other parties.
3. WHEN A RECORD OF APPEAL IS ALSO REQUIRED
a. How is the appeal perfected?
 As to the person filing, upon the approval of the record
on appeal.
b. When is the appeal deemed perfected?
 Upon the approval of the records on appeal filed in due
time and the expiration of the time to appeal of the
other parties.
 Look at the case from the viewpoint of both parties.
 Otherwise, if it is only one party who has perfected
his appeal (e.g. by filing his notice of appeal) and
the other party’s reglementary period has not yet
lapsed, the appeal can only be considered perfected
up to 50%; hence, it is not yet ripe for elevation.
 The 15-day reglementary period of parties is not the
same since the final order/judgment may not be
received by them on the same day.
4. Universal Far East Corp. vs. Court of Appeals
Facts: Both parties received the decision on the same date, March
31. A filed his notice of appeal on April 5. On April 13, B filed a
motion to execute pending appeal.
Issue: The court granted the motion to execute pending appeal
only on April 25 (way after the perfection of all the parties’
appeals), can this be done?
Ruling: Yes. The important point is the date of filing. Thus, even if
the court acts beyond the 15-day period, the order is still valid.
“It may be argued that the trial court should dispose of
the motion for execution within the reglementary fifteen-day period.
Such a rule would be difficult, if not impossible, to follow. It would
not be pragmatic and expedient and could cause injustice.
The motion for execution has to be set for hearing. The
judgment debtor has to be heard. The good reasons for execution
pending appeal have to be scrutinized. These things cannot be
done within the short period of fifteen days, or in this case, two
days.”
5. So long as the records have not been elevated yet, the
following are the things which an RTC can do even if
technically it has lost jurisdiction over the case:
a. To issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated in the appeal;
b. To approve compromises between the parties;
c. To permit appeals to indigent parties;
d. To order executions pending appeal in accordance with
Rule 39, Sec. 2;
e. To allow the withdrawal of the appeal; and
f. To order the dismissal of an appeal under Rule 41, Sec.
13.
6. Parties can settle the case amicably despite the fact that case
is already on appeal. To appove ti, trial court can still approve
the same. Suppose records are already transmitted to the CA,
submit the compromise agreement before the CA.
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Administrative provisions
SEC. 10. Duty of clerk of court of the lower court upon
perfection of appeal.—Within thirty (30) days after perfection of
all the appeals in accordance with the preceding section, it shall be
the duty of the clerk of court of the lower court:
(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 its 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 this purpose; and
(d) To 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 transcripts not included in the
records being transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that could be taken to
have them available.
The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court.
SEC. 11. Transcript.—Upon the perfection of the appeal,
the clerk shall immediately direct the stenographers concerned to
attach to the record of the case five (5) copies of the transcripts of
the testimonial evidence referred to in the record on appeal. The
stenographers concerned shall transcribe such testimonial
evidence and shall prepare and affix to their transcripts an index
containing the names of the witnesses and the pages wherein their
testimonies are found, and a list of the exhibits and the pages
wherein each of them appears to have been offered and admitted
or rejected by the trial court. The transcripts shall be transmitted to
the clerk of the trial court who shall thereupon arrange the same in
the order in which the witnesses testified at the trial, and shall
cause the pages to be numbered consecutively.
SEC. 12. Transmittal.—The clerk of the trial court shall
transmit to the appellate court the original record or the approved
record on appeal within thirty (30) days from the perfection of the
appeal, together with the proof of payment of the appellate court
docket and other lawful fees, a certified true copy of the minutes of
the proceedings, the order of approval, the certificate of
correctness, the original documentary evidence referred to therein,
and the original and three (3) copies of the transcripts. Copies of
the transcripts and certified true copies of the documentary
evidence shall remain in the lower court for the examination of the
parties.
SEC. 13. Dismissal of appeal.—Prior to the transmittal of
the original record or the record on appeal to the appellate court,
the trial court may motu proprio or on motion dismiss the appeal
for having been taken out of time, or for non-payment of the docket
and other lawful fees within the reglementary period.
1. Grounds for dismissal of an appeal by an RTC:
a. Filed out of time,
b. Non-payment of docket fees within the reglementary
period.
The only condition for the exercise of the foregoing power is that
the records should still be with the RTC. It may do so MOTU
PROPRIO, even without motion or on motion of the appelle.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
2. The trial court has no power to say that the appeal is dilatory.
Such question can only be passed upon by the appellate court.
Otherwise, trial courts can easily forestall review or reversal of
their decisions no matter how erroneous such decisions may
be. (Dasalla vs. Caluag, 1963)
On granting the motion for execution pending appeal:
 Also, when the RTC is asked to pass upon the question of
whether or not a motion for execution pending appeal
should be granted (Rule 39, Sec. 2) on the ground that the
“appeal is dilatory,” it cannot rule on the same.
 While it is not the appeal which is being questioned but
rather whether there is a ground for execution pending
appeal, still the RTC has no jurisdiction to rule over the
said issue as it touches upon the question of whether the
appeal indeed is dilatory or not. The power belongs to the
CA.
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL
COURTS TO THE COURT OF APPEALS (appellate jurisdiction)
SECTION 1. How appeal taken; time for filing.—A party
desiring to appeal from a decision of the Regional Trial Court
rendered in the exercise of its appellate jurisdiction may file a
verified petition for review with the Court of Appeals, paying at the
same time to the clerk of said court the corresponding docket and
other lawful fees, depositing the amount of P500.00 for costs, and
furnishing the Regional Trial Court and the adverse party with a
copy of the petition. The petition shall be filed and served within
fifteen (15) days from notice of the decision sought to be reviewed
or of the denial of petitioner’s motion for new trial or
reconsideration filed in due time after judgment. Upon proper
motion and the payment of the full amount of the docket and other
lawful fees and the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant an additional
period of fifteen (15) days only within which to file the petition for
review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days.
1. Do not presume that Rules 41 and 42 are identical. Rule 41 is
ordinary appeal from RTC to CA; notice of appeal only. Rule
42 RTC acted in its appellate jurisdiction. (MTC-RTC-CA).
In rule 41, file notice of appeal to RTC. In rule 42, file petition
for review with CA.
2. Petition for review
 This is the second mode of appeal to the CA.
 Availed of when the decision of the RTC was rendered
pursuant to the latter’s appellate jurisdiction (2 steps)
 This must be verified and filed directly to the CA. The
docket fees must also be paid to the CA.
 Furnish both the RTC and the adverse party with copies
of the petition.
 Period to file: 15 days from receipt of the decision or
order denying the MFR/MFNT. This period is extendible
for another 15 days, provided the docket fees are paid.
 After that, no further extension may be granted, EXCEPT
for the most compelling reasons.
 Failure to verify only a FORMAL defect. Cout may
order the correction of the pleading.
SEC. 2. Form and contents.—The petition shall be filed in
seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a) state
the full names of the parties to the case, without impleading the
lower courts or judges thereof either as petitioners or respondents;
(b) indicate the specific material dates showing that it was filed on
time; (c) set forth concisely a statement of the maters involved,
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the issues raised, the specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court, and the reasons
or arguments relied upon for the allowance of the appeal; (d) be
accompanied by clearly legible duplicate originals or true copies of
the judgments or final orders of both lower courts, certified correct
by the clerk of court of the Regional Trial Court, the requisite
number of plain copies thereof and of the pleadings and other
material portions of the record as would support the allegations of
the petition.
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced
any other action involving the same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or proceeding, he
must state the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.
1. Format:
a. The RTC judge is not to be impleaded as a party-
defendant. This is only done in certiorari cases.
b. State the full names of the parties either as petitioners or
respondents.
c. State the material dates showing timeliness of the
appeal.
d. State briefly the facts, issue/s, errors imputed to the RTC
(which may be both factual and legal3) and the
arguments therefor
2. Other requirements:
a. Legible duplicate originals or true copies of the
judgments or final orders of both the MTC and the RTC,
certified correct by the RTC clerk of court.
b. Certification against forum-shopping signed by the
petitioner himself (failure of which means DISMISSAL of
the case)
c. Proof of service of the petition
d. The petition should be filed in 7 legible copies, with the
original copy intended for the CA.
3. Errors of fact, law or both can be raised. Usually, if RTC
decided it pursuant to tis original jurisdiction, appeals on
errors of law can be filed directly with SC. But if appellate
jurisdiction already, appeal should be to the CA.
SEC. 3. Effect of failure to comply with requirements.—
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other lawful
fees, the deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
SEC. 4. Action on the petition.—The Court of Appeals may
require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss the
petition if it finds the same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
SEC. 5. Contents of comment.—The comment of the
respondent shall be filed in seven (7) legible copies, accompanied
3 Even if the question is purely of law, the petition should still be filed with
the CA because the RTC in this case decided the case based on its appellate
jurisdiction. Rule 45 is available only when the case is decided by the RTC based on its
original jurisdiction.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
by certified true copies of such material portions of the record
referred to therein together with other supporting papers and shall
(a) state whether or not he accepts the statement of matters
involved in the petition; (b) point out such insufficiencies or
inaccuracies as he believes exist in petitioner’s statement of
matters involved but without repetition; and (c) state the reasons
why the petition should not be given due course. A copy thereof
shall be served on the petitioner.
SEC. 6. Due course.—If upon the filing of the comment or
such other pleadings as the court may allow or require, or after the
expiration of the period for the filing thereof without such comment
or pleading having been submitted, the Court of Appeals finds
prima facie that the lower court has committed an error of fact or
law that will warrant a reversal or modification of the appealed
decision, it may accordingly give due course to the petition.
SEC. 9. Submission for decision.—If the petition is given
due course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall be deemed
submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court itself.
1. The CA may:
a. Require the respondent to file his comment (not a motion
to dismiss), within 10 days from notice, or
b. Dismiss the petition if—
i. Patently without merit,
ii. Prosecuted manifestly for delay, or
iii. The questions raised are too unsubstantial to
require consideration.
2. After receipt of the comment or if none is filed within the
period given, the CA may give due course to the petition if:
 It finds prima facie that the RTC has committed an error of
fact or law that will warrant a reversal or modification of the
appealed decision.
3. After the petition is given due course, the CA may—
a. Require the parties to submit their respective
memoranda within 15 days from notice, or
b. Set the case for oral argument
4. The case shall be deemed submitted for decision upon the
filing of the last pleading or memorandum required by these
Rules or by the court itself.
SEC. 7. Elevation of record.—Whenever the Court of
Appeals deems it necessary, it may order the clerk of court of the
Regional Trial Court to elevate the original record of the case
including the oral and documentary evidence within fifteen (15)
days from notice.
SEC. 8. Perfection of appeal; effect thereof. —
(a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to
the petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do not
involve any matter litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order execution pending
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appeal in accordance with section 2 of Rule 39, and allow
withdrawal of the appeal.
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final order unless
the Court of Appeals, the law, or these Rules shall provide
otherwise.
1. So long as the CA has not yet given due course to the
petition, the following are the things which an RTC can do
even if technically it has lost jurisdiction over the case:
c. To issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated in the appeal;
d. To approve compromises between the parties;
e. To permit appeals to indigent parties;
f. To order executions pending appeal in accordance with
Rule 39, Sec. 2; and
g. To allow the withdrawal of the appeal.
2. Take note that unlike in Rule 41, where the RTC may dismiss
an appeal on the ground of non-payment of docket fees, Rule
42 does not give the same power to the RTC. This is because
the docket and other lawful fees are paid directly to the CA
and not to the RTC.
3. General Rule: A petition for review shall stay the execution of
the decision.
Exceptions:
a. When the law, the ROC, or the CA provides otherwise,
and
b. When the civil case is decided under the Rule on
Summary Procedure (e.g. ejectment)
RULE 43
APPEALS FROM THE (COURT OF TAX APPEALS AND)
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
SECTION 1. Scope.—This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals4 and from
awards, judgments, final orders or resolutions of or authorized by
any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the 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 Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic Act
No. 6657, Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic Energy Commission,
Board of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law.
SEC. 2. Cases not covered.—This Rule shall not apply to
judgments or final orders issued under the Labor Code of the
Philippines.
 Sec. 2 is deemed modified by the ruling in St. Martin’s
Funeral Home vs. NLRC. Labor cases should now pass thru
CA; hence, Rule 43 applies.
4 Please note the recent amendment to the law creating the CTA. RA
9282. As it now stands, the CTA is a co-equal of the CA; hence, cases decided by the
CTA are no longer appealable to the CA. Follow Rule 45.  Moreover, Central board
of assessment appeals, now appealed to CTA first.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 SORIANO V. CABAIS remedy of aggrieved parties from
resolution of the offie of the ombudsmand:
1. Criminal cases or non-admin cases when tainted
with grave abuse of discretion original action for
certiorari with the SC under rule 65.
2. Administrative cases petition for review with CA
under rule 43
SEC. 3. Where to appeal.—An appeal under this Rule may
be taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves questions of
fact, of law, or mixed questions of fact and law.
1. Issues that may be raised on appeal under Rule 43—
a. Purely errors of fact,
b. Purely errors of law, or
c. Mixed.
2. If the case is decided by a quasi-judicial body, even purely
legal questions may not be raised directly to the Supreme
Court, since Rule 43 provides for the remedy.
3. This allowance for by-passing the CA (on purely legal
questions) applies only to decisions of RTCs, never to
decisions of MTCs and quasi-judicial bodies.
SEC. 4. Period of appeal.—The appeal shall be taken within
fifteen (15) days from notice of the award, judgment, final order or
resolution, or from the date of its last publication, if publication is
required by law for its effectivity, or of the denial of petitioner’s
motion for new trial or reconsideration duly filed in accordance with
the governing law of the court or agency a quo. Only one (1)
motion for reconsideration shall be allowed. Upon proper motion
and the payment of the full amount of the docket fee before the
expiration of the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only within which to
file the petition for review. No further extension shall be granted
except for the most compelling reason and in no case to exceed
fifteen (15) days.
 The appeal should be filed within 15 days—
a. From notice of the award, judgment, final order or
resolution, or
b. From the date of its last publication, if publication is
required by law for its effectivity, or
c. From the date of the denial of MFNT or MFR.
SEC. 5. How appeal taken.—Appeal shall be taken by filing
a verified petition for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the
adverse party and on the court or agency a quo. The original copy
of the petition intended for the Court of Appeals shall be indicated
as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00 for costs. Exemption
from payment of docketing and other lawful fees and the deposit
for costs may be granted by the Court of Appeals upon a verified
motion setting forth valid grounds therefor. If the Court of Appeals
denies the motion, the petitioner shall pay the docketing and other
lawful fees and deposit for costs within fifteen (15) days from
notice of the denial.
SEC. 6. Contents of the petition.—The petition for review
shall (a) state the full names of the parties to the case, without
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impleading the court or agencies either as petitioners or
respondents; (b) contain a concise statement of the facts and
issues involved and the grounds relied upon for the review; (c) be
accompanied by a clearly legible duplicate original or a certified
true copy of the award, judgment, final order or resolution
appealed from, together with certified true copies of such material
portions of the record referred to therein and other supporting
papers; and (d) contain a sworn certification against forum
shopping as provided in the last paragraph of section 2, Rule 42.
The petition shall state the specific material dates showing that it
was filed within the period fixed herein.
SEC. 7. Effect of failure to comply with requirements.—
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other lawful
fees, the deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
SEC. 8. Action on the petition.—The Court of Appeals may
require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss the
petition if it finds the same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
SEC. 9. Contents of comment.—The comment shall be
filed within ten (10) days from notice in seven (7) legible copies
and accompanied by clearly legible certified true copies of such
material portions of the record referred to therein together with
other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner’s statement of facts and
issues; and (b) state the reasons why the petition should be denied
or dismissed. A copy thereof shall be served on the petitioner, and
proof of such service shall be filed with the Court of Appeals.
SEC. 10. Due course.—If upon the filing of the comment or
such other pleadings or documents as may be required or allowed
by the Court of Appeals or upon the expiration of the period for the
filing thereof, and on the basis of the petition or the records the
Court of Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that would warrant
reversal or modification of the award, judgment, final order or
resolution sought to be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the same. The findings of fact
of the court or agency concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals.
 As a rule, the findings of fact of the court or agency
concerned, when supported by substantial evidence, shall
be binding on the CA. (Exceptions are found in your
Administrative Law)
 This provision does not appear in Rule 42, since Rule 43 does
not deal with civil cases.
SEC. 11. Transmittal of record.—Within fifteen (15) days
from notice that the petition has been given due course, the Court
of Appeals may require the court or agency concerned to transmit
the original or a legible certified true copy of the entire record of
the proceeding under review. The record to be transmitted may be
abridged by agreement of all parties to the proceeding. The Court
of Appeals may require or permit subsequent correction of or
addition to the record.
SEC. 12. Effect of appeal—The appeal shall not stay the
award, judgment, final order of resolution sought to be reviewed
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
unless the Court of Appeals shall direct otherwise upon such terms
as it may deem just.
 General Rule: The award, judgment, final order of resolution
of the quasi-judicial body is immediately executory.
Exception: If the CA shall direct stay of execution pending
appeal (upon such terms as it may deem just).
SEC. 13. Submission for decision.—If the petition is given
due course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall be deemed
submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the Court of Appeals.
PROCEDURE IN THE COURT OF APPEALS
RULE 44
ORDINARY APPEALED CASES
3. Procedure in the CA is likewise found in its Revised Internal
Rules of the Court of Appeals (RIRCA).
4. Rule 44 is merely a continuation of Rule 41 on ordinary
appeals (RTC to CA), where cases are decided based on
RTC’s original jurisdiction.
5. Recall that the last step under Rule 41 is—
SEC. 12. Transmittal.—The clerk of the trial court
shall transmit to the appellate court the original record or
the approved record on appeal within thirty (30) days from
the perfection of the appeal, together with the proof of
payment of the appellate court docket and other lawful
fees, a certified true copy of the minutes of the
proceedings, the order of approval, the certificate of
correctness, the original documentary evidence referred to
therein, and the original and three (3) copies of the
transcripts. Copies of the transcripts and certified true
copies of the documentary evidence shall remain in the
lower court for the examination of the parties.
SECTION 1. Title of cases.—In all cases appealed to the
Court of Appeals under Rule 41, the title of the case shall remain
as it was in the court of origin, but the party appealing the case
shall be further referred to as the appellant and the adverse party
as the appellee.
SEC. 2. Counsel and guardians.—The counsel and
guardians ad litem of the parties in the court of origin shall be
respectively considered as their counsel and guardians ad litem in
the Court of Appeals. When others appear or are appointed, notice
thereof shall be served immediately on the adverse party and filed
with the court.
SEC. 3. Order of transmittal of record.—If the original
record or the record on appeal is not transmitted to the Court of
Appeals within thirty (30) days after the perfection of the appeal,
either party may file a motion with the trial court, with notice to the
other, for the transmittal of such record or record on appeal.
 Remedy if within 30 days after the perfection of the appeal the
records have not been transmitted by the RTC:
o Either party may file a motion for the transmittal of the
original records or record on appeal
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o With notice to the adverse party.
SEC. 4. Docketing of case.—Upon receiving the original
record or the record on appeal and the accompanying documents
and exhibits transmitted by the lower court, as well as the proof of
payment of the docket and other lawful fees, the clerk of court of
the Court of Appeals shall docket the case and notify the parties
thereof.
Within ten (10) days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file with the clerk
of court seven (7) clearly legible copies of the approved record on
appeal, together with the proof of service of two (2) copies thereof
upon the appellee.
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of
the appeal.
 Procedure upon receipt of the record on appeal, etc. by the
CA clerk of court:
1. The clerk shall docket the case and notify the parties of such
receipt.
2. The appellant, within 10 days from notice, shall file with the
CA:
a. Seven (7) legible copies of the approved record on
appeal, and
b. Proof of service of 2 copies thereof upon the appellee.
3. The appellant shall also serve 2 copies of the approved
record on appeal upon the appellee.
 NOTE THAT THE ABOVE PROCEDURE APPLIES ONLY
IF THE APPEAL REQUIRES A RECORD ON APPEAL.
SEC. 5. Completion of record.—Where the record of the
docketed case is incomplete, the clerk of court of the Court of
Appeals shall so inform said court and recommended to it
measures necessary to complete the record. It shall be the duty of
said court to take appropriate action towards the completion of the
record within the shortest possible time.
SEC. 6. Dispensing with complete record.—Where the
completion of the record could not be accomplished within a
sufficient period allotted for said purpose due to insuperable or
extremely difficult causes, the court, on its own motion or on
motion of any of the parties, may declare that the record and its
accompanying transcripts and exhibits so far available are
sufficient to decide the issues raised in the appeal, and shall issue
an order explaining the reasons for such declaration.
SEC. 7. Appellant’s brief.—It shall be the duty of the
appellant to file with the court, within forty-five (45) days from
receipt of the notice of the clerk that all the evidence, oral and
documentary, are attached to the record, seven (7) copies of his
legibly typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellee.
SEC. 8. Appellee’s brief—Within forty-five (45) days from
receipt of the appellant’s brief, the appellee shall file with the court
seven (7) copies of his legibly typewritten, mimeographed or
printed brief, with proof of service of two (2) copies thereof upon
the appellant.
SEC. 9. Appellant’s reply brief.—Within twenty (20) days
from receipt of the appellee’s brief, the appellant may file a reply
brief answering points in the appellee’s brief not covered in his
main brief.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
SEC. 10. Time of filing memoranda in special cases.—In
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file, in lieu of briefs, their respective
memoranda within a non-extendible period of thirty (30) days from
receipt of the notice issued by the clerk that all the evidence, oral
and documentary, is already attached to the record.
The failure of the appellant to file his memorandum within the
period therefor may be a ground for dismissal of the appeal.
1. Ordinary appealed cases
 45 days to file appellant’s brief (extendible)
2. Special cases (certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases)
 30 days to file memorandum
SEC. 11. Several appellants or appellees or several
counsel for each party.—Where there are several appellants or
appellees, each counsel representing one or more but not all of
them shall be served with only one copy of the briefs. When
several counsel represent one appellant or appellee, copies of the
brief may be served upon any of them.
SEC. 12. Extension of time for filing briefs.—Extension of
time for the filing of briefs will not be allowed, except for good and
sufficient cause, and only if the motion for extension is filed before
the expiration of the time sought to be extended.
SEC. 13. Contents of appellant’s brief.—The appellant’s
brief shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading “Statement of the Case,” a clear and
concise statement of the nature of the action, a summary of the
proceedings, the appealed rulings and orders of the court, the
nature of the judgment and any other matters necessary to an
understanding of the nature of the controversy, with page
references to the record;
(d)Under the heading “Statement of Facts,” a clear and
concise statement in a narrative form of the facts admitted by both
parties and of those in controversy, together with the substance of
the proof relating thereto in sufficient detail to make it clearly
intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or law
to be submitted to the court for its judgment;
(f) Under the heading “Argument,” the appellant’s arguments
on each assignment of error with page references to the record.
The authorities relied upon shall be cited by the page of the report
at which the case begins and the page of the report on which the
citation is found:
(g) Under the heading “Relief,” a specification of the order or
judgment which the appellant seeks; and
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(h) In cases not brought up by record on appeal, the
appellant’s brief shall contain, as an appendix, a copy of the
judgment or final order appealed from.
SEC. 14. Contents of appellee’s brief.—The appellee’s
brief shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) Under the heading “Statement of Facts,” the appellee
shall state that he accepts the statement of facts in the appellant’s
brief, or under the heading “Counter-Statement of Facts,” he shall
point out such insufficiencies or inaccuracies as he believes exist
in the appellant’s statement of facts with references to the pages of
the record in support thereof, but without repetition of matters in
the appellant’s statement of facts; and
(c) Under the heading “Argument,” the appellee shall set
forth his arguments in the case on each assignment of error with
page references to the record. The authorities relied on shall be
cited by the page of the report at which the case begins and the
page of the report on which the citation is found.
Notes:
1. BRIEF derived form latin word “brevis” and French
workd “brefie” meaning short or condensed statement.
2. Purpose: to present to court in concise form the points
and questions in controversy, and by fair argument ont
eh facts and law of the case, to assist the corut to arrive
at a just and fair conclusion.
3. 45-day to file brief is EXTENDIBLE. File the moiton for
extension of time to file brief BEFORE the expriation fo
the time sought to be extended.
SEC. 15. Questions that may be raised on appeal.-
Whether or not the appellant has filed a motion for new trial in the
court below, he may include in his assignment of errors any
question of law or fact that has been raised in the court below and
which is within the issues framed by the parties.
1. General Rule: An appellant cannot raise on appeal any
question that has not been raised in the lower court and not
within the issues framed by the parties.
Exception: Lack of jurisdiction
Exception: When estoppel sets in
(Tijam vs. Sibonghanoy)
2. General Rule: When a winning party’s purpose is to seek
affirmation of the judgment on other grounds not stated in the
decision (Saenz vs. Mitchell), a mere assignment of errors
will suffice.
Exception: If a winning party thinks he is entitled for more
(e.g. when he seeks modification of the judgment), he must
appeal the decision as a mere assignment of errors is not
enough.
In other words:
GR: if winning party ka, appeal the decision if you think you are
entitled for more.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Exception: you may state assignment of errors ot support the
decision—to support, not to change the decision. If gusto mo ma-
change talaga APPEAL.
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
(CA-SC)
SECTION 1. Filing of petition with Supreme Court. A
party desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court or other courts, whenever
authorized by law, may file with the Supreme Court a verified
petition for review on certiorari. The petition may include an
application for a writ of preliminary injunction or other provisional
remedies and shall raise only questions of law, which must be
distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or
proceeding at any time during its pendency.
SEC. 2. Time for filing; extension.—The petition shall be
filed within fifteen (15) days from notice of the judgment or final
order or resolution appealed from, or of the denial of the
petitioner’s motion for new trial or reconsideration filed in due time
after notice of the judgment. On motion duly filed and served, with
full payment of the docket and other lawful fees and the deposit for
costs before the expiration of the reglementary period, the
Supreme Court may for justifiable reasons grant an extension of
thirty (30) days only within which to file the petition.
SEC. 3. Docket and other lawful fees; proof of service of
petition.—Unless he has theretofore done so, the petitioner shall
pay the corresponding docket and other lawful fees to the clerk of
court of the Supreme Court and deposit the amount of P500.00 for
costs at the time of the filing of the petition. Proof of service of a
copy thereof on the lower court concerned and on the adverse
party shall be submitted together with the petition.
1. Rule 45; names.
 Appeal by certiorari
 Petition for review on certiorari
2. This is the ONLY mode of appeal to the SC from—
a. Court of Appeals
b. Court of Tax Appeals (new)
c. Sandiganbayan
d. RTC
e. Other courts authorized by law
3. Distinction.
Question of Law Question of Fact
Issue
The law on a certain set of facts The truth or falsehood of
alleged facts
Review of evidence
The case can be decided The case has to be resolved by
without reviewing the evidence going over the evidence
4. Cunanan vs. Lazatin: The following are questions of law—
a. Construction or interpretation of documentary evidence,
b. The case submitted is based on an agreed statement of
facts,
c. All the facts are stated in the judgment and the only issue
is the correctness of the conclusion.
5. General Rule: Only questions of law may be raised (since the
CA’s findings of fact are final and conclusive upon the SC).
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Exceptions:
a. When the findings of fact are manifestly absurd, mistaken
or impossible (Luna vs. Linatoc)
b. When there is grave abuse of discretion in the
appreciation of facts (Buyco vs. People)
c. When the findings are not supported by substantial
evidence, but are based purely on speculations,
surmises and conjectures (Joaquin vs. Navarro)
d. When the judgment is premised on a misappreciation of
facts (Cruz vs. Sosing)
e. When the findings (of the lower courts) are conflicting
(Cosico vs. Villaseca)
f. When the findings go beyond the issues and are contrary
to the admission of the parties (Evangelista vs. Alto
Surety)
g. When the findings are without citation of specific
evidence in which they are based.
6. The petition must be verified.
7. General Rule: It must be filed within 15 days from receipt of
notice of the judgment/final order/resolution appealed from, or
of the denial of the petitioner’s MFNT or MFR.
Exception: Within 30 days, upon grant of extension and full
payment of the docket fees
 The motion for extension must be filed within the
reglementary period.
8. Additional provisions under the amendments:
a. The petition may include an application for a writ of
preliminary injunction or other provisional remedies.
b. The said provisional remedies may be sought by verified
motion at any time during the pendency of the petition.
Note; FRESH PERIOD RULE OF NEYPES V. CA applies to:
1. Rule 40—MTC to RTC
2. Rule 42—petitions for review from RTC to CA
3. Rule 45—appeals from quasi-judicial agencies to the CA
and
4. Rule 45—appeals by certiorari to SC
SEC. 4. Contents of petition—The petition shall be filed in
eighteen (18) copies, with the original copy intended for the court
being indicated as such by the petitioner, and shall (a) state the full
name of the appealing party as the petitioner and the adverse
party as respondent, without impleading the lower courts or judges
thereof either as petitioners or respondents; (b) indicate the
material dates showing when notice of the judgment or final order
or resolution subject thereof was received, when a motion for new
trial or reconsideration, if any, was filed and when notice of the
denial thereof was received; (c) set forth concisely a statement of
the matters involved, and the reasons or arguments relied on for
the allowance of the petition; (d) be accompanied by a clearly
legible duplicate original, or a certified true copy of the judgment or
final order or resolution certified by the clerk of court of the court a
quo and the requisite number of plain copies thereof, and such
material portions of the record as would support the petition; and
(e) contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42.
Notes:
1. Petition is filed with 18 copies because you do not know
whether your petition will be heard en banc
2. Under rule 45, you do NOT implead the SB or the CA.
you only do that under rule 65.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
3. Although courts not impleaded as respondents, they
must be furnished with a copy of the petition so that they
will not make an entry of judgment since their decision is
being appealed.
4. There must be a CERTICIATION OF NON-FORM
SHOPPING
5. A certification signed by counsel is Defective. It should
be the party who should sign it. (FAR EASTERN
SHIPPING V. CA)
SEC. 5. Dismissal or denial of petition.—The failure of the
petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees, deposit
for costs, proof of service of the petition, and the contents of and
the documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the
petition on the ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration.
 Grounds for dismissal of appeal
a. Under Rule 45, Sec. 5
 Failure to comply with the formal requirements and
non-payment of the appeal fees within the
reglementary period
 The appeal is without merit
 It is prosecuted manifestly for delay
 The questions raised therein are too unsubstantial to
require consideration
b. Under Rule 56, Sec. 5
 Failure to take the appeal within the reglementary
period
 Lack of merit in the petition
 Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs
 Failure to comply with the requirements regarding
proof of service and contents of and the documents
which should accompany the petition
 Failure to comply with any circular, directive or order
of the Supreme Court without justifiable cause
 Error in the choice or mode of appeal, and
 The case is not appealable to the Supreme Court.
SEC. 6. Review discretionary.—A review is not a matter of
right, but of sound judicial discretion, and will be granted only when
there are special and important reasons therefor. The following,
while neither controlling nor fully measuring the court’s discretion,
indicate the character of the reasons which will be considered:
(a)When the court a quo has decided a question of
substance, not theretofore determined by the Supreme Court, or
has decided it in a way probably not in accord with law or with the
applicable decisions of the Supreme Court; or
(b) 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.
1. Review by the Supreme Court is discretionary. Thus, even if
there are no grounds for dismissal, the Court is not obligated
to entertain the appeal.
2. Encarnacion vs. Court of Appeals (1993): “In a petition for
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review under Rule 45, Rules of Court, invoking the usual
reason, i.e., that the Court of Appeals had decided a question
of substance not in accord with law or with applicable
decisions of the Supreme Court, a mere statement of the
ceremonial phrase is not sufficient to confer merit on the
petition. The petition must specify the law or prevailing
jurisprudence on the matter and the particular ruling of the
appellate court violative of such law or previous doctrine laid
down by the Supreme Court.”
3. If the parties are asked to submit their memoranda, it means
that the Court is giving due course to the petition and is going
to deliberate on the case. Otherwise, the petition will just be
dismissed thru a minute resolution.
4. Minute resolution – considered a judgment on the merits;
hence, it constitutes res adjudicata
5. Smith Bell and Co. vs. Court of Appeals (1991): “This Court
has discretion to decide whether a ‘minute resolution’ should
be used in lieu of a full-blown decision in any particular case
and that a minute Resolution of dismissal of a Petition for
Review on Certiorari constitutes an adjudication on the merits
of the controversy or subject matter of the Petition.”
6. Under the present judicial system, a party is allowed one
appeal as a matter of right and the second appeal as a matter
of discretion. Example: From the MTC to RTC, it is a matter of
right. Then from the RTC to CA, under Rule 42, it is
discretionary.
SEC. 7. Pleadings and documents that may be required;
sanctions.—For purposes of determining whether the petition
should be dismissed or denied pursuant to section 5 of this Rule,
or where the petition is given due course under section 8 hereof,
the Supreme Court may require or allow the filing of such
pleadings, briefs, memoranda or documents as it may deem
necessary within such periods and under such conditions as it may
consider appropriate, and impose the corresponding sanctions in
case of non-filing or unauthorized filing of such pleadings and
documents or noncompliance with the conditions thereof.
1. The Court may require or allow the filing of such pleadings,
briefs, memoranda or documents as it may deem necessary
in order to determine whether to dismiss the petition or to give
the same due course.
2. Sanctions may be imposed on the following—
a. Non-filing and unauthorized filing of pleadings and
documents
b. Non-compliance with the conditions in the Court’s order
SEC. 8. Due course; elevation of records.—If the petition
is given due course, the Supreme Court may require the elevation
of the complete record of the case or specified parts thereof within
fifteen (15) days from notice.
SEC. 9. Rule applicable to both civil and criminal
cases.—The mode of appeal prescribed in this Rule shall be
applicable to both civil and criminal cases, except in criminal cases
where the penalty imposed is death, reclusion perpetua or life
imprisonment.
 General Rule: RTC/CA/Sandiganbayan to Supreme Court –
Rule 45 whether it is a civil or criminal case
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Exception: In a criminal case where the penalty imposed by
the RTC is—
- (Death,)
- Reclusion perpetua, or
- Life imprisonment,
where the mode of appeal is an Ordinary Appeal under Rule
41. This is a direct appeal to the SC by simply filing a notice
of appeal.
TIBLE AND TIBLE CO V. ROYAL SAVINGS AND LOAN ASSN
April 8, 2008
Appeal and Certiorari Distinguished
Between an appeal and a petition for certiorari, there are
substantial distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the
correction of errors of jurisdiction, not errors of judgment. In Pure
Foods Corporation v. NLRC, we explained the simple reason for
the rule in this light:
"When a court exercises its jurisdiction, an error committed while
so engaged does not deprive it of the jurisdiction being exercised
when the error is committed. If it did, every error committed by a
court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may commit in
the exercise of its jurisdiction is not correctable through the original
civil action of certiorari."
The supervisory jurisdiction of a court over the issuance of a writ
ofcertiorari cannot be exercised for the purpose of reviewing the
intrinsic correctness of a judgment of the lower court - on the basis
either of the law or the facts of the case, or of the wisdom or legal
soundness of the decision. Even if the findings of the court are
incorrect, as long as it has jurisdiction over the case, such
correction is normally beyond the province of certiorari. Where the
error is not one of jurisdiction, but of an error of law or fact - a
mistake of judgment - appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises its
appellate jurisdiction and power of review. Over a certiorari, the
higher court uses its original jurisdiction in accordance with its
power of control and supervision over the proceedings of lower
courts. An appeal is thus a continuation of the original suit, while a
petition for certiorari is an original and independent action that was
not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the
original parties to the action. In contrast, the parties to a petition
for certiorari are the aggrieved party (who thereby becomes the
petitioner) against the lower court or quasi-judicial agency, and the
prevailing parties (the public and the private respondents,
respectively).
As to the Subject Matter. Only judgments or final orders and
those that the Rules of Court so declare are appealable. Since the
issue is jurisdiction, an original action for certiorari may be directed
against an interlocutory order of the lower court prior to an appeal
from the judgment; or where there is no appeal or any plain,
speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed
within fifteen days from the notice of judgment or final order
appealed from. Where a record on appeal is required, the
appellant must file a notice of appeal and a record on appeal within
thirty days from the said notice of judgment or final order. A
petition for review should be filed and served within fifteen days
from the notice of denial of the decision, or of the petitioner's
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ATTY MELISSA ROMANA SUAREZ

timely filed motion for new trial or motion for reconsideration. In an (2) Exclusive original jurisdiction over actions for annulment
appeal by certiorari, the petition should be filed also within fifteen of judgments of Regional Trial Courts; xxx
days from the notice of judgment or final order, or of the denial of
the petitioner's motion for new trial or motion for reconsideration. The Court of Appeals shall have the power to try cases and
conduct hearings, receive evidence and perform any and all acts
On the other hand, a petition for certiorari should be filed not later necessary to resolve factual issues raised in cases falling within its
than sixty days from the notice of judgment, order, or resolution. If original and appellate jurisdiction, including the power to grant and
a motion for new trial or motion for reconsideration was timely filed, conduct new trials or further proceedings. Trials or hearings in the
the period shall be counted from the denial of the motion. Court of Appeals must be continuous and must be completed
within three (3) months, unless extended by the Chief Justice.”
As to the Need for a Motion for Reconsideration. A motion for
reconsideration is generally required prior to the filing of a petition 2. Distinction.
forcertiorari, in order to afford the tribunal an opportunity to correct Rule 44 Rule 46
the alleged errors. Note also that this motion is a plain and Exclusive appellate Concurrent original jurisdiction:
adequate remedy expressly available under the law. Such motion jurisdiction: - Extraordinary writs (c.ref. Rules
is not required before appealing a judgment or final order. [17]
- Cases decided by RTC 65-66)
With these distinctions, it is plainly discernible why a party is
Exclusive original jurisdiction:
precluded from filing a petition for certiorari when appeal is
- Annulment of RTC judgments
available, or why the two remedies of appeal andcertiorari are
(c.ref. Rule 47)
mutually exclusive and not alternative or successive. [18] Where
appeal is available, certiorari will not prosper, even if the ground
availed of is grave abuse of discretion.[
Appellant vs. Appellee Petitioner vs. Respondent
OUTLINE OF THE RULES

APPEALED A.TO THE CA:

CASES 1. Petition for review (rules 42 & 43) SEC. 3. Contents and filing of petition; effect of non-
2. Ordinary appeal (rule 44) compliance with requirements.—The petition shall contain the
full names and actual addresses of all the petitioners and
B.TO THE SC respondents, a concise statement of the matters involved, the
1. Appeal by certiorari (rule 45) factual background of the case, and the grounds relied upon for
the relief prayed for.
ORIGINAL CASES A.COURT OF APPEALS
2. Certiorari, prohibition, In actions filed under Rule 65, the petition shall further
mandamus, quo warranto (rule indicate the material dates showing when notice of the judgment or
46) final order or resolution subject thereof was received, when a
3. Annulment of judgment (rule 47) motion for new trial or reconsideration, if any, was filed and when
notice of the denial thereof was received.
B.SUPREME COURT
1. CPMQH, admin cases against It shall be filed in seven (7) clearly legible copies together
judges and lawyers, cases with proof of service thereof on the respondent with the original
against ambassadors. copy intended for the court indicated as such by the petitioner, and
shall be accompanied by a clearly legible duplicate original or
RULE 46 certified true copy of the judgment, order, resolution, or ruling
ORIGINAL CASES in the Court of Appeals subject thereof, such material portions of the record as are referred
to therein, and other documents relevant or pertinent thereto. The
SECTION 1. Title of cases.—In all cases originally filed in certification shall be accomplished by the proper clerk of court or
the Court of Appeals, the party instituting the action shall be called by his duly authorized representative, or by the proper officer of
the petitioner and the opposing party the respondent. the court, tribunal, agency or office involved or by his duly
authorized representative. The other requisite number of copies of
SEC. 2. To what actions applicable.—This Rule shall apply the petition shall be accompanied by clearly legible plain copies of
to original actions for certiorari, prohibition, mandamus and quo all documents attached to the original.
warranto.
The petitioner shall also submit together with the petition a
Except as otherwise provided, the actions for annulment of sworn certification that he has not theretofore commenced any
judgment shall be governed by Rule 47, for certiorari, prohibition other action involving the same issues in the Supreme Court, the
and mandamus by Rule 65, and for quo warranto by Rule 66. Court of Appeals or different divisions thereof, or any other tribunal
or agency; if there is such other action or proceeding, he must
1. CA’s original jurisdiction; Legal basis; BP 129. state the status of the same; and if he should thereafter learn that
a similar action or proceeding has been filed or is pending before
“Sec. 9. Jurisdiction.—The Court of Appeals shall exercise: the Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to promptly
(1) Original jurisdiction to issue writs of mandamus, inform the aforesaid courts and other tribunal or agency thereof
prohibition, certiorari, habeas corpus, and quo warranto, and within five (5) days therefrom.
auxiliary writs or processes, whether or not in aid of its appellate
jurisdiction; The petitioner shall pay the corresponding docket and other
lawful fees to the clerk of court and deposit the amount of P500.00
for costs at the time of the filing of the petition.

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ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND

The failure of the petitioner to comply with any of the RESOLUTIONS of the RTC
foregoing requirements shall be sufficient ground for the dismissal
of the petition. SECTION 1. Coverage.—This Rule shall govern the
annulment by the Court of Appeals of judgments or final orders
SEC. 4. Jurisdiction over person of respondent, how and resolutions in civil actions of Regional Trial Courts for which
acquired.—The court shall acquire jurisdiction over the person of the ordinary remedies of new trial, appeal, petition for relief or
the respondent by the service on him of its order or resolution other appropriate remedies are no longer available through no fault
indicating its initial action on the petition or by his voluntary of the petitioner.
submission to such jurisdiction.
1. Annulment of judgment – a remedy against a judgment which
SEC. 5. Action by the court.—The court may dismiss the is already final and executory, where the remedies of new
petition outright with specific reasons for such dismissal or require trial, appeal, petition for relief and other remedies are already
the respondent to file a comment on the same within ten (10) days lost
from notice. Only pleadings required by the court shall be allowed.
All other pleadings and papers, may be filed only with leave of 2. Distinction.
court. Appeal Annulment of judgment
The judgment appealed from The judgment is being asked
SEC. 7. Effect of failure to file comment.—When no is valid and the appellant is to be declared void.
comment is filed by any of the respondents, the case may be not asking its declaration of
decided on the basis of the record, without prejudice to any nullity.
disciplinary action which the court may take against the
disobedient party.

1. Normally, upon the filing of the action, the petitioner already 3. Requisites to avail of the remedy:
furnishes the respondent with a copy of the petition (re: proof a. There is a judgment/final order or resolution in a civil
of service). Then the CA may either— action,
b. Which was rendered by an RTC,
a. Dismiss the petition outright with specific reasons c. The ordinary remedies of new trial, appeal, petition for
therefor, or relief or other appropriate remedies are no longer
available, and
b. Issue a resolution requiring the respondent to comment d. The petitioner is without fault.
within 10 days.
4. PADUA V. CA Rule 47 may be availed of against final
2. Effects of failure to file comment: judgments and orders either by RTC in civil actions or MTC.
a. The case will be decided based on the record, and Hwoever, final judgments of quasi-judicial tribunals such as
b. There may be disciplinary sanctions against the NLRC, Ombudsman, CSC , OP, order of the DAR secretary
disobedient party. are beyond the reach of Rule 47.

3. Except in the case of annulment of judgment, there is no more SEC. 2. Grounds for annulment.—The annulment may be
need of summons because the copy of the petition has based only on the grounds of extrinsic fraud and lack of
already been served. So, the CA acquires jurisdiction over the jurisdiction.
respondent—
a. By serving upon him a copy of the order/resolution Extrinsic fraud shall not be a valid ground if it was availed of,
indicating its initial action, or or could have been availed of, in a motion for new trial or petition
for relief.
b. By his voluntary submission to such jurisdiction.
1. Grounds; The judgment is void because of—
4. General Rule: Only pleadings required by the CA may be
filed. a. EXTRINSIC FRAUD
Exception: With leave of court  This ground cannot be used if, it was availed of or could have
been availed of, in a MFNT or petition for relief.

SEC. 6. Determination of factual issues—Whenever

necessary to resolve factual issues, the court itself may conduct
hearings thereon or delegate the reception of the evidence on  Distinction.
such issues to any of its members or to an appropriate court, Extrinsic Fraud Intrinsic Fraud
agency or office.

 Determination of factual issues is done by the CA itself.

 But reception of evidence may be delegated to—

o Any of its members,
o An appropriate court, agency or office.

RULE 47

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Fraud done by the adverse Fraud which was an issue in

party which prevented a party the litigation, e.g. perjury, false  Distinction.
from having a trial or from testimony, concealment of Rule 47 Rule 65
presenting his case fully. evidentiary facts, but did not Annulment of Judgment Certiorari
prevent the party from While both are methods of attacking a void judgment, they differ in
presenting his case the following aspects—
Grounds
Extrinsic fraud, lack of Lack of jurisdiction, excess of
jurisdiction jurisdiction, grave abuse of
discretion
A ground for annulment of Not so
judgment
Time within which to file
Fraud – 4 years 60 days only
 Cosmic Lumber Corp. vs. Court of Appeals (1996)
Facts: An agent was tasked to evict the squatters in the principal’s Lack of jurisdiction – anytime
before laches/estoppel sets in
land by filing an ejectment case. While pending, the agent
concluded a compromise agreement with the squatters, without
the principal’s knowledge. It was approved by the court. What are attacked
Final judgments Normally, interlocutory orders
Issue: Can the judgment based on the compromise agreement be
annulled by the CA, where the fraud was inflicted by the agent and
not by the adverse parties?
BAYOG V. NATINO: it is a settled rule that a final and executory
Ruling: Yes. “Emanating as it did from a void compromise judgment may be set aside in 3 ways:
agreement, the trial court had no jurisdiction to render a judgment 1. By petition for relief from judgment under urle 38
based thereon. 2. When judgment is void for want of jurisdiction, by direct
attack, certiorari, annulment of judgment or by collateral
The highly reprehensible conduct of attorney-in-fact in attack and
the civil case constituted an extrinsic or collateral fraud by reason 3. When judgment obtained by fraud and rule 38 cannot be
of which the judgment rendered thereon should have been struck applied anymore.
down.
 Islamic Davao Counsel vs. Court of Appeals: “A person
Thus, completely unaware of its agent’s artifice, who is not a part of the judgment may sue for its annulment,
petitioner was not accorded even a fighting chance to repudiate provided he can prove that—
the settlement so much so that the judgment based thereon o The judgment was obtained thru fraud and collusion, and
became final and executory. o He would be adversely affected thereby.”

Fraud may assume different shapes and be committed in - If the judgment had been fully executed 5 and
as many different ways and here lies the danger of attempting to implemented, the execution may also be annulled.
define fraud. For man, in his ingenuity and fertile imagination, will
always contrive new schemes to fool the unwary.” - If no execution yet, the proper remedy normally is to file
an action for annulment with prayer for the issuance of a
b. JUDGMENT IS VOID FOR LACK OF JURISDICTION writ of preliminary injunction.
 Note that where there is lack of due process, lack of
jurisdiction also results; hence, the judgment is void. 2. SUMMARY OF REMEDIES OF A DEFENDANT DECLARED
IN DEFAULT
 Manner of attacking a void judgment: Remedy Ground/s
1. DIRECT ATTACK Pending trial
- this is done where the judgment is void, whether on its Motion to lift order of default FAME
face or not [Rule 9, Sec. 3(b)]
- file an action to declare the nullity of the judgment (e.g. Judgment not yet final
Rule 47) Motion for new trial [Rule 37] FAME
2. COLLATERAL ATTACK
- this may be done only if the judgment is void on its face Appeal [Rules 40-41] Default judgment is contrary to
- there is no need to file a case because the nullity may be law or evidence
invoked anytime

notes: Judgment final

1. when judgment N/v on its fce, file a direct action to annul Petition for relief [Rule 38] FAME
under rule 447 or attack collaterally. On the latter,
hayaan mo lang; raise the issue during execution. If you Annulment of judgment [Rule Extrinsic fraud
move for execution, I will oppose raising lack of 47]
jurisdiction. Certiorari [Rule 65] Lack or excess of jurisdiction or
2. But if judgment’s nullity is INTRINSIC file a direct grave abuse of discretion
action for its annulment which must be done BEFORE
the action is barred by laches or estoppel.
3. Certiorari is also a ground for attacking a judgment.
5 See Rule 47, Sec. 9.

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SEC. 3. Period for filing action.—If based on extrinsic
fraud, the action must be filed within four (4) years from its
discovery; and if based on lack of jurisdiction, before it is barred by
laches or estoppel.
 Note that under Art. 1144 of the Civil Code: The period is
really 10 years for any action on a judgment, but that could be
barred by laches or estoppel.
SEC. 4. Filing and contents of petition.—The action shall
be commenced by filing a verified petition alleging therein with
particularity the facts and the law relied upon for annulment, as
well as those supporting the petitioner’s good and substantial
cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies,
together with sufficient copies corresponding to the number of
respondents. A certified true copy of the judgment or final order or
resolution shall be attached to the original copy of the petition
intended for the court and indicated as such by the petitioner.
The petitioner shall also submit together with the petition
affidavits of witnesses6 or documents supporting the cause of
action or defense and a sworn certification that he has not
theretofore commenced any other action involving the same issues
in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same, and if
he should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefrom.
SEC. 5. Action by the court.—Should the court find no
substantial merit in the petition, the same may be dismissed
outright with specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same
shall be given due course and summons shall be served on the
respondent.
 Upon receipt, the CA may—
a. DISMISS the petition outright with specific reasons
therefor (if there is no substantial merit), or
b. GIVE DUE COURSE to the petition and summons shall
be served upon the respondent (if there is prima facie
merit).
Note: under rule 47, summons will be served. Unlike in rule 46, no
summons duon.
SEC. 6. Procedure.—The procedure in ordinary civil cases
shall be observed. Should a trial be necessary, the reception of the
evidence may be referred to a member of the court or a judge of a
Regional Trial Court.
SEC. 7. Effect of judgment.—A judgment of annulment
shall set aside the questioned judgment or final order or resolution
and render the same null and void, without prejudice to the original
action being re-filed in the proper court. However, where the
judgment or final order or resolution is set aside on the ground of
6 Affidavit of merits (c.ref. Rule 37, Sec. 2 and Rule 38, Sec.3)
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
extrinsic fraud, the court may on motion order the trial court to try
the case as if a timely motion for new trial had been granted
therein.
 Effects of judgment of annulment:
1. If based on lack of jurisdiction—
a. Questioned judgment, final order, or resolution is
SET ASIDE and declared null and void
b. The original action may be re-filed in the proper
court.
2. If based on extrinsic fraud—
a. The court, on motion, may order the trial court to try
the case as if a timely MFNT had been granted.
SEC. 8. Suspension of prescriptive period.—The
prescriptive period for the re-filing of the aforesaid original action
shall be deemed suspended from the filing of said original action
until the finality of the judgment of annulment. However, the
prescriptive period shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the original action.
 General Rule: The prescriptive period for re-filing the
original action is deemed SUSPENDED from the filing of the
suit for annulment of judgment until the finality of the
judgment of annulment.
Exception:
It is not suspended if the extrinsic fraud is attributable to the
plaintiff in the original action.
SEC. 9. Relief available.—The judgment of annulment may
include the award of damages, attorney’s fees and other relief.
If the questioned judgment or final order or resolution had
already been executed, the court may issue such orders of
restitution or other relief as justice and equity may warrant under
the circumstances.
SEC. 10. Annulment of judgments or final orders of
Municipal Trial Courts.—An action to annul a judgment or final
order of a Municipal Trial Court shall be filed in the Regional Trial
Court having jurisdiction over the former. It shall be treated as an
ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule
shall be applicable thereto.
 Annulment of judgment of MTC fall under the jurisdiction of
the RTC.
 This provision finds basis in Sec. 19 [1] and [6] of B.P. 129.
They provide—
Sec. 19. Jurisdiction in Civil Cases.—Regional Trial Courts
shall exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigation is
incapable of pecuniary estimation;
xxx
(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial
functions; xxx”
GRANDE V. UP Rule 47 does not govern jurisdiction to annul
judgment of the CA by the supreme court. It does not pertain to
nullification of decisions of CA but only in civil actions of RTC.
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RULE 48 allowed for each party, the sequence of the argumentation, and all
PRELIMINARY CONFERENCE other related matters shall be as directed by the court.

This is like a pre-trial in the CA. purpose is the same with rule 18
on pre-trial.
SECTION 1. Preliminary conference.—At any time during
the pendency of a case, the court may call the parties and their
counsel to a preliminary conference.
SEC. 3. No hearing or oral argument for motions.—
Motions shall not be set for hearing and, unless the court
otherwise directs, no hearing or oral argument shall be allowed in
support thereof. The adverse party may file objections to the
motion within five (5) days from service, upon the expiration of
which such motion shall be deemed submitted for resolution.

(a) To consider the possibility of an amicable settlement,  Distinction between Motions filed in the RTC and CA
except when the case is not allowed by law to be compromised; In the trial courts In the CA
Rule 15 Rule 49
(b) To define, simplify and clarify the issues for Requires a notice of hearing No need
determination; attached to the moiton;
otherwise, it will be denied
(c) To formulate stipulations of facts and admissions of As a rule, a written motion is Heard only when the court
documentary exhibits, limit the number of witnesses to be required to be heard directs it
presented in cases falling within the original jurisdiction of the
court, or those within its appellate jurisdiction where a motion for
new trial is granted on the ground of newly discovered evidence; GENERAL CREDIT V. ALSONS DEVELOPMENT CA may
and deny a motion for oral argument. It is not a violation of appellant’s
right to due process.
(d) To take up such other matters which may aid the court in
the prompt disposition of the case. (Rule 7, CA Internal Rules) Basis; CA INTERNAL RULES; appellate corut may tap any of the
3 alternatives provided to aid corut in resolving appealed cases
SEC. 2. Record of the conference.—The proceedings at before it:
such conference shall be recorded and, upon the conclusion 1. It may rely on available records alone
thereof, a resolution shall be issued embodying all the actions 2. Require the submission of memoranda or
taken therein, the stipulations and admissions made, and the 3. Set the case for oral argument.
issues defined.
RULE 50
SEC. 3. Binding effect of the results of the conference.— DISMISSAL OF APPEAL in the CA
Subject to such modifications which may be made to prevent
manifest injustice, the resolution in the preceding section shall SECTION 1. Grounds for dismissal of appeal—An appeal
control the subsequent proceedings in the case unless, within five may be dismissed by the Court of Appeals, on its own motion or
(5) days from notice thereof, any party shall satisfactorily show on that of the appellee, on the following grounds:
valid cause why the same should not be followed.
(a) Failure of the record on appeal to show on its face that
 Distinction. the appeal was taken within the period fixed by these Rules;
Pre-trial conference Preliminary conference
Rule 18 Rule 48 (b) Failure to file the notice of appeal or the record on appeal
within the period prescribed by these Rules;
Trial courts CA
Mandatory Optional (c) Failure of the appellant to pay the docket and other lawful
It is the plaintiff who has the It is discretionary upon the court fees as provided in section 4 of Rule 41;
duty to move ex parte that the to call for a conference at any
conference be set prior to the time during the pendency of the (d) Unauthorized alterations, omissions or additions in the
trial. case. approved record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required

Failure to appear shall cause Failure to appear shall cause number of copies of his brief or memorandum within the time
the dismissal of the case with the dismissal of the appeal or provided by these Rules;
prejudice, unless otherwise original action.
directed by the court. (f) Absence of specific assignment of errors in the appellant’s
brief, or of page references to the record as required in section 13,
RULE 49 paragraphs (a), (c), (d) and (f) of Rule 44;
ORAL ARGUMENT
(g) Failure of the appellant to take the necessary steps for
the correction or completion of the record within the time limited by
SECTION 1. When allowed.—At its own instance or upon
the court in its order;
motion of a party, the court may hear the parties in oral argument
on the merits of a case, or on any material incident in connection
(h) Failure of the appellant to appear at the preliminary
therewith.
conference under Rule 48 or to comply with orders, circulars, or
directives of the court without justifiable cause; and
The oral argument shall be limited to such matters as the
court may specify in its order of resolution.
(i) The fact that order or judgment appealed from is not
appealable.
SEC. 2. Conduct of oral argument—Unless authorized by
the court, only one counsel may argue for a party. The duration

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4. Material date rule (appeal filed on time but record on appeal
does nto show that it was filed on time)
- The record on appeal must show on its face that the
appeal was filed on time.
- State the date of the decision and the date of the receipt
thereof; otherwise, it will be presumed that the date of the
decision is the date of receipt.
- It is possible that the appeal was filed on time but it was
not stated explicitly; thus, dismissible.
5. Filed out of time
- This ground may be raised even in the trial court level.
- Failure to raise this ground in the trial court level will not
even put the appellee in estoppel. When raised in the
CA, this becomes a jurisdictional challenge because at
that point, the lower court decision shall have become
final and executory. A decision that has become final can
no longer be changed by the CA; hence, the latter has no
jurisdiction to entertain the appeal.
6. Failure to pay the docket and other fees
- If RTC to CA within the 15 day period, pay the docket
fee in the rTC clerk of court. If not, it is a ground for
dismissal. (Rule 41, section 4)
- Rule 40, section 5 failure to pay appeal fee in the MTC
before transmitting to the RTC not a ground for
dismissal by the CA. wala man ang kaso sa kanila!
7. Unauthorized alterations in the approved record on
appeal
- When record on appeal is approved, you have to
reproduce it and you are not allowed to make alterations,
etc.
8. Failure to file and serve the required number of copies of
appellant’s brief or memorandum
- Failure to file brief of APPELLEEcase will NOT be
dismissed but the case be submitted for decision without
the appellee’s brief. CA will make resolution that case
was submitted without the appellee’s brief.
9. Failure to comply with the formal requirements (e.g.
assignment of errors, page references etc.)
 Del Rosario vs. Court of Appeals(1995): “Petitioner’s plea
for liberality in applying these rules in preparing Appellant’s
brief does not deserve any sympathy. Long ingrained in our
jurisprudence is the rule that the right to appeal is a statutory
right and a party who seeks to avail of the right must faithfully
comply with the rules. Deviations from the rules cannot be
tolerated. The rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate the orderly
disposition of appealed cases. In an age where courts are
bedevilled by clogged dockets, these rules need to be
followed by appellants with greater fidelity. Their observance
cannot be left to the whims and caprices of appellants.”
10. Failure to make the necessary corrections on the record
within the required period
11. Failure to appear at the preliminary conference and to
comply with the court’s orders without justifiable cause
12. The order/judgment appealed from is not appealable.
“Rule 41, Sec. 1. Subject of appeal. xxx
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
No appeal may be taken from:
(a) An order denying a petition for relief or any similar motion
seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and
third-party complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice. xxx"
 A default judgment is appealable because it is a final
judgment and not merely interlocutory.
 MINDANAO SAVIGNS V. VDA DE FLORES:
1. Failure to file notice of appeal on time court has
no jurisdiction over appeal
2. Failure to file brief abandonment of appeal
leading to dismissal.
SEC. 2. Dismissal of improper appeal to the Court of
Appeals.—An appeal under Rule 41 taken from the Regional Trial
Court to the Court of Appeals raising only questions of law shall be
dismissed, issues purely of law not being reviewable by said court.
Similarly, an appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional Trial Court shall
be dismissed.
An appeal erroneously taken to the Court of Appeals shall
not be transferred to the appropriate court but shall be dismissed
outright.
1. Appeal to the right court and using the correct mode of
appeal; otherwise, it shall be dismissed.
2. Under the old rules, when an appeal appears to be only
concerned with pure questions of law, the CA will not dismiss
the appeal but rather just transfer it to the SC. But in the case
of Morillo vs. Consul, it was ruled—
“There is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals.”
SEC. 3. Withdrawal of appeal.—An appeal may be
withdrawn as of right at any time before the filing of the appellee’s
brief. Thereafter, the withdrawal may be allowed in the discretion
of the court.
1. You can withdraw the appeal in the RTC level prior to
transmittal of the original record or the record on appeal.
2. Where to file:
a. RTC if records are still in the RTC
b. CA if records already with CA.
File it at ANYTIME BEFORE FILING OF APPELLEE’S
BRIEF withdrawal is a matter of right. If may appellee’s
brief na, it can be allowed in the discretion of the court.
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RULE 51
JUDGMENT
SECTION 1. When case deemed submitted for
judgment.—A case shall be deemed submitted for judgment:
A. In ordinary appeals.—
1) Where no hearing on the merits of the main case is held,
upon the filing of the last pleading, brief, or memorandum required
by the Rules or by the court itself, or the expiration of the period for
its filing.
2) Where such a hearing is held, upon its termination or upon
the filing of the last pleading or memorandum as may be required
or permitted to be filed by the court, or the expiration of the period
for its filing.
B. In original actions and petitions for review.—
1) Where no comment is filed, upon the expiration of the
period to comment.
2) Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the court, or the
expiration of the period for its filing.
3) Where a hearing on the merits of the main case is held,
upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
SEC. 2. By whom rendered.—The judgment shall be
rendered by the members of the court who participated in the
deliberation on the merits of the case before its assignment to a
member for the writing of the decision.
SEC. 3. Quorum and voting in the court—The participation
of all three Justices of a division shall be necessary at the
deliberation and the unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or final resolution. If
the three Justices do not reach a unanimous vote, the clerk shall
enter the votes of the dissenting Justices in the record. Thereafter,
the Chairman of the division shall refer the case, together with the
minutes of the deliberation, to the Presiding Justice who shall
designate two Justices chosen by raffle from among all the other
members of the court to sit temporarily with them, forming a
special division of five Justices. The participation of all the five
members of the special division shall be necessary for the
deliberation required in section 2 of this Rule and the concurrence
of a majority of such division shall be required for the
pronouncement of a judgment or final resolution.
 Procedure
1. The case will be assigned to a division of 3 justices.
2. The 3 will deliberate on the merits on the case.
3. A unanimous vote is required to arrive at a decision.
4. If unanimity is not reached, the clerk shall enter the dissenting
votes in the record.
5. The division chairman shall refer the case and the minutes of
the deliberation to the Presiding Justice.
6. The Presiding Justice shall choose 2 other justices by raffling
to sit temporarily with the 3; hence, forming a special division
of 5.
7. A majority of the 5 shall be required to arrive at a decision.
8. After the deliberation, the writing of the decision shall be
assigned to a member therein.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
SEC. 4. Disposition of a case.—The Court of Appeals, in
the exercise of its appellate jurisdiction, may affirm, reverse, or
modify the judgment or final order appealed from, AND may direct
a new trial or further proceedings to be had.
SEC. 5. Form of decision.—Every decision or final
resolution of the court in appealed cases shall clearly and distinctly
state the findings of fact and the conclusions of law on which it is
based, which may be contained in the decision or final resolution
itself, or adopted from those set forth in the decision, order, or
resolution appealed from.
1. Every decision or resolution of a court shall clearly and
distinctly state the facts and the law upon which it is based.
This rule applies to all courts.
2. Effect of failure to follow the rule: The judgment is called a
SIN PERJUICIO JUDGMENT, which is void.
3. Manner of compliance with the rule:
a. The CA may state the facts and the law in the
decision/resolution itself, or
b. It may adopt those set forth in the
decision/order/resolution appealed from
(MEMORANDUM DECISION).
4. On memorandum decisions, the SC said in the case of
Francisco vs. Permskul—
“The Court finds it necessary to emphasize that the
memorandum decision should be sparingly used lest it
becomes an addictive excuse for judicial sloth. It is an
additional condition for its validity that this kind of decision
may be resorted to only in cases where the facts are in the
main accepted by both parties or easily determinable by the
judge and there are no doctrinal complications involved that
will require an extended discussion of the laws involved. The
memorandum decision may be employed in simple litigations
only, such as ordinary collection cases, where the appeal is
obviously groundless and deserves no more than the time
needed to dismiss it.”
SEC. 6. Harmless error.—No error in either the admission
or the exclusion of evidence and no error or defect in any ruling or
order or in anything done or omitted by the trial court or by any of
the parties is ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding
must disregard any error or defect which does not affect the
substantial rights of the parties.
 General Rule: The CA must DISREGARD any error or defect
in the appealed decision/order, which does not affect the
substantial rights of the parties. (HARMLESS ERRORS)
 Non-correctible errors of the trial court:
a. Admission or the exclusion of evidence, and
b. Error or defect in any ruling/order or in anything
done or omitted by the trial court or by any of the
parties
Exception: Where the refusal to take such action appears to
the court inconsistent with substantial justice
SEC. 7. Judgment where there are several parties.—In all
actions or proceedings, an appealed judgment may be affirmed as
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to some of the appellants, and reversed as to others, and the case
shall thereafter be proceeded with, so far as necessary, as if
separate actions had been begun and prosecuted; and execution
of the judgment of affirmance may be had accordingly, and costs
may be adjudged in such cases, as the court shall deem proper.
1. General Rule: An appeal by one party will not benefit his co-
parties, and the judgment becomes final as to his co-parties
who did not join the appeal (even if the appealed judgment is
wrong).
Exception: When the liabilities of the parties are so
intertwined that it would be absurd that one of them will win
and the other/s will lose
2. Universal Motors Corp. vs. Court of Appeals (1992): “It is
erroneous to rule that the decision of the trial court could be
reversed as to the appealing private respondent and continue
in force against the other private respondents. The latter could
not remain bound after the former had been released;
although the other private respondents had not joined in the
appeal, the decision rendered by the respondent court inured
to their benefit. When the obligation of the other solidary
debtors is so dependent on that of their co-solidary debtor, the
release of the one who appealed, provided it be not on
grounds personal to such appealing private respondent,
operates as well as to the others who did not appeal. It is for
this reason, that a decision or judgment in favor of the private
respondent who appealed can be invoked as res judicata by
the other private respondents.”
3. Cayaba vs. Court of Appeals (1993): “A reversal of a
judgment on appeal is binding on the parties to the suit but
does not inure to the benefit of the parties who did not join in
the appeal (as a general rule). The recognized exception is
when their rights and liabilities and those of the parties
appealing are so interwoven and dependent so as to be
inseparable, in which case a reversal as to one operates as a
reversal to all.”
SEC. 8. Questions that may be decided.—No error which
does not affect the jurisdiction over the subject matter or the
validity of the judgment appealed from or the proceedings therein
will be considered unless stated in the assignment of errors, or
closely related to or dependent on an assigned error and properly
argued in the brief, save as the court may pass upon plain errors
and clerical errors.
 General Rule: Only errors which are stated in the appellant’s
brief should be considered.7
Exceptions:
a. Jurisdiction over the subject matter of the case
 Casa Filipino Royalty Corp. vs. Office of the President
(1995): “While the rule is that no error which does not affect
jurisdiction will be considered unless stated in the assignment
of errors, the trend in modern-day procedure is to accord the
courts broad discretionary power such that the appellate court
may consider matters bearing on the issues submitted for
resolution which the parties failed to raise or which the lower
court ignored.
7 This is just an extension of the rule that objections and defenses not
pleaded are deemed waived.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
Technicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations
of the parties.”
b. Plain errors
 PRINCIPLES
1. It is the appellant who assigns errors.
2. The appellee does not assign errors EXCEPT if his
purpose is to sustain or defend the decision on another
ground8.
3. Otherwise, if the appellee also wants to change the
decision, then he must also appeal and make his own
assignment of errors.
 Santos vs. Court of Appeals (1993):
Issue: Can an appellate court pass upon a matter which is neither
raised by the parties?
Ruling: Yes. It is true that the rule is well-settled that a party cannot
impugn the correctness of a judgment not appealed from by him,
and while he may make counter-assignment of errors, he can do
so only to sustain the judgment on other grounds but not to seek
modification or reversal thereof for in such a case he must appeal.
A party who does not appeal from the decision may not obtain any
affirmative relief from the appellate court other than what he has
obtained from the lower court, if any, whose decision is brought up
on appeal. HOWEVER, the Rules of Court and jurisprudence
authorize a tribunal to consider errors, although unassigned, if they
involve
(1) errors affecting the lower court's jurisdiction over the
subject matter,
(2) plain errors not specified, and
(3) clerical errors.”
c. Clerical errors
d. Unassigned errors but which are closely related to or
dependent on an assigned error
 Abejaron vs. Court of Appeals(1992): “An unassigned error
closely related to the error properly assigned, or upon which
the determination of the question raised by the error properly
assigned is dependent, will be considered by the appellate
court notwithstanding the failure to assign it as error.
While an assignment of error which is required by law or rules
of court has been held essential to appellate review, and only
those assigned will be considered, there are a number of
cases which appear to accord to the appellate court a broad
discretionary power to waive this lack of proper assignment of
errors and consider errors not assigned.”
SEC. 9. Promulgation and notice of judgment.—After the
judgment or final resolution and dissenting or separate opinions, if
any, are signed by the Justices taking part, they shall be delivered
for filing to the clerk who shall indicate thereon the date of
promulgation and cause true copies thereof to be served upon the
parties or their counsel.
SEC. 10. Entry of judgments and final resolutions.—If no
appeal or motion for new trial or reconsideration is filed within the
time provided in these Rules, the judgment or final resolution shall
forthwith be entered by the clerk in the book of entries of
judgments. The date when the judgment or final resolution
8 This happens when a party agrees with a decision, but not with its
reason. In which case, he also makes a counter-assignment of errors.
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becomes executory shall be deemed as the date of its entry.
The record shall contain the dispositive part of the judgment or
final resolution and shall be signed by the clerk, with a certificate
that such judgment or final resolution has become final and
executory.
SEC. 11. Execution of judgment.— Except where the
judgment or final order or resolution, or a portion thereof, is
ordered to be immediately executory, the motion for its execution
may only be filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of
execution shall be accompanied by a certified true copy of the
entry of judgment or final resolution and addressed to any
appropriate officer for its enforcement.
In appealed cases, where the motion for execution pending
appeal is filed in the Court of Appeals at a time that it is in
possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the lower
court from which the case originated, together with a certified true
copy of the judgment or final order to be executed, with a directive
for such court of origin to issue the proper writ for its enforcement.
1. Original actions in the CA
- The writ of execution shall be accompanied by a certified
true copy of the entry of judgment or final resolution and
addressed to any appropriate officer for its enforcement.
2. Appealed cases
a. Executions pending appeal
- If the motion for execution pending appeal is filed with
the court of origin (even prior to the end of the
reglementary period to appeal), the said court may grant
the same and issue the writ. (Rule 39, Sec. 2)
- If the motion for execution pending appeal is filed with
the CA, the Resolution granting it shall be transmitted to
the court of origin. Then the lower court issues the writ.
- NOTE THAT IN THESE CASES THE CA NEVER
ISSUES THE WRIT.
b. Execution after finality of judgment
- General Rule: The motion for its execution may only be
filed in the proper court after its entry (not in the CA).
*There is no need to wait for the records to be returned to
the court of origin. The basis is—
Rule 39, Sec. 1, par. 2. “xxx If the appeal has been duly
perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment or
judgments or final order or orders sought to be enforced and of the
entry thereof, with notice to the adverse party.
Exception: Where the judgment or final order or
resolution, or a portion thereof, is ordered to be
immediately executory
RULE 52
MOTION FOR RECONSIDERATION in the CA
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
SECTION 1. Period for filing.—A party may file a motion for
reconsideration of a judgment or final resolution within fifteen (15)
days from notice thereof, with proof of service on the adverse
party. (you can file MR of a CA decision)
SEC. 2. Second motion for reconsideration.—No second
motion for reconsideration of a judgment or final resolution by the
same party shall be entertained.
SEC. 3. Resolution of motion.—In the Court of Appeals, a
motion for reconsideration shall be resolved within ninety (90)
days from, the date when the court declares it submitted for
resolution.
SEC. 4. Stay of execution.—The pendency of a motion for
reconsideration filed on time and by the proper party shall stay the
execution of the judgment or final resolution sought to be
reconsidered unless the court, for good reasons, shall otherwise
direct.
RULE 53
NEW TRIAL in the CA
SECTION 1. Period for filing; ground.—At any time after
the appeal from the lower court has been perfected and before the
Court of Appeals loses jurisdiction over the case, a party may file a
motion for a new trial on the ground of newly discovered evidence
which could not have been discovered prior to the trial in the court
below by the exercise of due diligence and which is of such a
character as would probably change the result. The motion shall
be accompanied by affidavits showing the facts constituting the
grounds therefor and the newly discovered evidence.
1. Distinction.
Rule 37: In the trial courts Rule 53: In the CA
Grounds
FAME; newly discovered Newly discovered evidence
evidence
Period for resolution
30 days from the time it is 90 days from the time it is
submitted for resolution submitted for resolution
2. Navarra vs. Court of Appeals: The Rules of Court allows
only two (2) occasions where a party may file a motion for
new trial on the ground of newly discovered evidence. That
motion may be filed only with the trial court under Rule 37 or
with the CA under Rule 52 but never with the SC.
“Time and again, We have stressed that the SC is not a trier
of facts. It is not a function of the SC to analyze or weigh all
over again the evidence already considered in the
proceedings below. Its jurisdiction is limited to reviewing only
errors of law that may have been committed by the lower
courts.”
SEC. 2. Hearing and order.—The Court of Appeals shall
consider the new evidence together with that adduced at the trial
below, and may grant or refuse a new trial, or may make such
order, with notice to both parties, as to the taking of further
testimony, either orally in court, or by depositions, or render such
other judgment as ought to be rendered upon such terms as it may
deem just.
SEC. 3. Resolution of motion—In the Court of Appeals, a
motion for new trial shall be resolved within ninety (90) days from
the date when the court declares it submitted for resolution.
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3. DISCIPLINE
SEC. 4. Procedure in new trial—Unless the court otherwise a. Judges/court employees
directs, the procedure in the new trial shall be the same as that b. Lawyers (disbarment)
granted by a Regional Trial Court.
4. RULE-MAKING
Under section 4, CA can receive evidence and act as a trial court. a. Rules of court
It can conduct the new trial itself. b. Others: circulars/directives

RULE 54 PROCEDURE IN THE SUPREME COURT

INTERNAL BUSINESS
RULE 56
SECTION 1. Distribution of cases among divisions.—All ORIGINAL AND APPEALED CASES
the cases of the Court of Appeals shall be allotted among the
different divisions thereof for hearing and decision. The Court of A. Original Cases
Appeals, sitting en banc, shall make proper orders or rules to
govern the allotment of cases among the different divisions, the SECTION 1. Original cases cognizable.—Only petitions for
constitution of such divisions, the regular rotation of Justices certiorari, prohibition, mandamus, quo warranto, habeas corpus,
among them, the filing of vacancies occurring therein, and other disciplinary proceedings against members of the judiciary and
matters relating to the business of the court; and such rules shall attorneys, and cases affecting ambassadors, other public ministers
continue in force until repealed or altered by it or by the Supreme and consuls may be filed originally in the Supreme Court.
Court.
SUPREME CORUT ORIGINAL JURISDICTION:
SEC. 2. Quorum of the court.—A majority of the actual A. Concurrent original
members of the court shall constitute a quorum for its sessions en a. Certiorari
banc. Three members shall constitute a quorum for the sessions b. Prohibition
of a division. The affirmative votes of the majority of the members c. Mandamus
present shall be necessary to pass a resolution of the court en d. Quo warranto
banc. The affirmative votes of three members of a division shall e. Habeas corpus
be necessary for the pronouncement of a judgment or final f. Cases affecting ambassadors and consuls
resolution, which shall be reached in consultation before the (RTC)
writing of the opinion by any member of the division. g. (writ of amparo)

RULE 55 B. EXCLUSIVE ORIGINAL

PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS
SECTION 1. Publication.—The judgments and final
resolutions of the court shall be published in the Official Gazette
and in the Reports officially authorized by the court in the language
in which they have been originally written, together with the syllabi
therefor prepared by the reporter in consultation with the writers
thereof. Memoranda of all other judgments and final resolutions
not so published shall be made by the reporter and published in
the Official Gazette and the authorized reports.
SEC. 2. Preparation of opinions for publication.—The
reporter shall prepare and publish with each reported judgment
and final resolution a concise synopsis of the facts necessary for a
clear understanding of the case, the names of counsel, the
material and controverted points involved, the authorities cited
therein, and a syllabus which shall be confined to points of law.
SEC. 3. General make-up of volumes.—The published
decisions and final resolutions of the Supreme Court shall be
called “Philippine Reports,” while those of the Court of Appeals
shall be known as the “Court of Appeals Reports.” Each volume
thereof shall contain a table of the cases reported and the cases
cited in the opinions, with a complete alphabetical index of the
subject matters of the volume. It shall consist of not less than
seven hundred, pages printed upon good paper, well bound and
numbered consecutively in the order of the volumes published.
Powers of the functions of the SC:
1. ADJUDICATION
a. Action
1.1. Civil—ordinary or special
1.2. Criminal
b. Special proceeding
c. Discipline of court personnel
d. Discipline of lawyers
e. As electoral tribunal, Prsidential and VP
election contests
f. Challenges to declaration of martial law and
suspension of the privilege of habeas corpus
SEC. 2. Rules applicable.—The procedure in original cases
for certiorari, prohibition, mandamus, quo warranto and habeas
corpus shall be in accordance with the applicable provisions of the
Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule,
subject to the following provisions:
a) All references in said Rules to the Court of Appeals shall
be understood to also apply to the Supreme Court;
b) The portions of said Rules dealing strictly with and
specifically intended for appealed cases in the Court of Appeals
shall not be applicable; and
c) Eighteen (18) clearly legible copies of the petition shall be
filed, together with proof of service on all adverse parties.
The proceedings for disciplinary action against members of
the judiciary shall be governed by the laws and Rules prescribed
therefor, and those against attorneys by Rule 139-B, as amended.
1. First filing – 18 copies (minimum)
2. Subsequent pleadings – depending on whether the case is
heard en banc (18 copies) or by division (9 copies)
B. Appealed Cases
SEC. 3. Mode of appeal—An appeal to the Supreme Court
may be taken only by a petition for review on certiorari, except in

BY: RIZADA, Resci Angelli

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criminal cases where the penalty imposed is death, reclusion
perpetua or life imprisonment.
 A petition for review on certiorari under Rule 45 is the only
mode of appeal to the SC.
SEC. 4. Procedure.—The appeal shall be governed by and
disposed of in accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1, 2, and 5 to 11 of Rule
51, 52 and this Rule.
SEC. 5. Grounds for dismissal of appeal.—The appeal
may be dismissed motu proprio or on motion of the respondent on
the following grounds:
(a)Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c)Failure to pay the requisite docket fee and other lawful
fees or to make a deposit for costs;
(d)Failure to comply with the requirements regarding proof of
service and contents of and the documents which should
accompany the petition;
(e)Failure to comply with any circular, directive or order of
the Supreme Court without justifiable cause;
(f)Error in the choice or mode of appeal; and
(g)The fact that the case is not appealable to the Supreme
Court.
SEC. 6. Disposition of improper appeal.—Except as
provided in section 3, Rule 122 regarding appeals in criminal
cases where the penalty imposed is death, reclusion perpetua or
life imprisonment, an appeal taken to the Supreme Court by notice
of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the
Regional Trial Court submitting issues of fact may be referred to
the Court of Appeals for decision or appropriate action. The
determination of the Supreme Court on whether or not issues
of fact are involved shall be final.
 Distinction.
Rule 50, Sec. 2 Rule 56, Sec. 6
CA SC
Effect of appeal erroneously taken
If only legal questions are If there are factual questions
raised, it is dismissed outright. raised in the petition for review
(on certiorari), the SC may or
may not dismiss the appeal.
It will not be endorsed to the If not dismissed, it may be
SC. referred to the CA.
SEC. 7. Procedure if opinion is equally divided.—Where
the court en banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall again be deliberated on,
and if after such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in appealed
cases, the judgment or order appealed from shall stand affirmed;
and on all incidental matters, the petition or motion shall be denied.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
1. Sec. 7 applies to either hearing by division or en banc, where
the majority/necessary vote cannot be reached.
2. Original cases
a. First deliberation – re-deliberate
b. Second deliberation – if still no majority vote is reached,
the case is DISMISSED
3. Appealed cases
a. First deliberation – re-deliberate
b. Second deliberation – if still no majority vote is reached,
the appealed case is AFFIRMED
4. All other incidental matters
a. First deliberation – re-deliberate
b. Second deliberation – if still no majority vote is reached,
the petition/motion is DENIED
5. The following are the cases that are heard en banc:
a. Cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
executive order, presidential decree, proclamation, order,
instruction, ordinance or regulation is in question
b. Criminal cases where the penalty imposed is death9,
where a change of venue is required to avoid miscarriage
of justice
c. Cases raising novel questions of law
d. Cases affecting ambassadors, other public ministers or
consuls
e. Decisions, resolutions or orders of the COMELEC, COA,
Ombudsman, Sandiganbayan in administrative
disciplinary cases
f. Cases in which the penalty involved is dismissal of the
judge, officer or employee of the judiciary; disbarment of
a lawyer; or even suspension of any of them for a period
of more than 1 year or fine exceeding P10,000
g. Cases where a doctrine laid down by the Court
(division/en banc) may be modified or reversed
h. Cases assigned in a division which, in the opinion of at
least 3 members thereof, merit the attention of the Court
en banc, and which is acceptable to the majority of the
actual members of the Court en banc
i. All other cases as the Court en banc, by its majority of
actual members, may deem of sufficient importance to
merit its attention
6. BAR QUESTION: A lost in an appealed decision. He filed an
MFR insisting that the same be heard by the Court en banc.
Can he insist that his MFR be heard en banc, when he lost in
a division?
NO. The SC en banc is not a separate court from any of
its divisions. The proper remedy is to convince the division
to refer the matter to the Court en banc and to convince the
majority of the latter to accept it. 
1991 Revised Rule on
Summary Procedure for
Municipal Trial Courts
9 Reclusion perpetua is not heard en banc.
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 The cases covered are no longer governed by the ROC. The
latter only applies in a suppletory capacity insofar as they are
not inconsistent with each other.
 This Rule (no “s” ) took effect on November 15, 1991.
RULE I
APPLICABILITY
Section 1. Scope.—This rule shall govern the summary
procedure in the Metropolitan Trial courts, the Municipal Trial
Courts in Cities, the Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling within their
jurisdiction :
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals sought to
be recovered. Where attorney’s fees are awarded, the same shall
not exceed twenty thousand pesos (P20,000.00).
(2) All other cases, except probate proceedings, where the
total amount of the plaintiff’s claim does not exceed One hundred
thousand pesos (P100,000.00) or Two hundred thousand pesos
(P200,000.00) in Metropolitan Manila, exclusive of interest and
costs (as of 2002). xxx
This Rule shall not apply to a civil case where the plaintiff’s
cause of action is pleaded in the same complaint with another
cause of action subject to the ordinary procedure; xxx”
1. The ROSP applies only to MTC, MCTC, MTCC and MeTCs,
never to the RTC.
2. It applies only to certain types of cases in the MTC etc. So,
some cases in the MTC are still governed by the regular rules.
3. Cases covered:
a. All forcible entry and unlawful detainer cases, no exceptions.
b. All other civil cases where the claim does not exceed
P100,00.00 or P200,00.00, as the case may be, except
probate proceedings.
4. The ROSP shall not apply where the plaintiff’s cause of action
is pleaded with another cause of action covered by the regular
rules.
Rule 2, SEC. 5. Joinder of causes of action.—A party may
in one pleading assert, in the alternative or otherwise, as many
causes of action as he may have against an opposing party,
subject to the following conditions: xxx
(b)The joinder shall not include special civil actions or
actions governed by special rules;
(c)Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies
therein xxx”
Sec. 2. Determination of applicability.—Upon the filing of a
civil or criminal action, the court shall issue an order declaring
whether or not the case shall be governed by this Rule.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
A patently erroneous determination to avoid the application
of the Rule of Summary Procedure is a ground for disciplinary
action.
 Procedure:
a. Upon the filing of the complaint, the court shall determine
whether it is covered by the ROSP or not.
b. It shall then issue an order indicating its determination.
Sec. 3. Pleadings.—
A. Pleadings, allowed.—The only pleadings allowed to be
filed are the complaints, compulsory counterclaims and cross-
claims pleaded in the answer, and the answers thereto.
B. Verification.—All pleadings shall be verified.
 Permissive counter-claim, reply, third-party complaint,
intervention, etc. are prohibited.
Sec. 4. Duty of court.—After the court determines that the
case falls under summary procedure, it may, from an examination
of the allegations therein and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds apparent
therefrom for the dismissal of a civil action.
If no ground for dismissal is found it shall forthwith issue
summons which shall state that the summary procedure under this
Rule shall apply.
Sec. 5. Answer.—Within ten (10) days from service of
summons, the defendant shall file his answer to the complaint and
serve a copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived, except for
lack of jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or cross-claims
shall be filed and served within ten (10) days from service of the
answer in which they are pleaded.
Sec. 6. Effect of Failure to answer.—Should the defendant
fail to answer the complaint within the period above provided, the
court, motu propio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein: Provided,
however, That the court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or
otherwise unconscionable. This is without prejudice to the
applicability of Section 4, Rule 18 of the Rules of Court, if there are
two or more defendants.
1. Distinction.
ROSP Regular Rules
It is the court’s duty to look for There is no such duty.
grounds for dismissal at the
onset.
Hence, the court may dismiss As a rule, the court cannot
the complaint outright even dismiss the case without a
without any motion from the motion to dismiss from the
defendant. defendant.
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Summons is served only
when it cannot find any
ground for dismissing the
complaint.
10 days to answer
If no answer, the plaintiff
should not move that the
defendant be declared in
default. Rather, he should file
a motion for immediate
decision.
Summons is served e) Such other matters intended to expedite the disposition of
immediately upon the filing of the case.
the complaint and upon
payment of the filing fees. 2. A preliminary conference is similar to a pre-trial, and
thereafter, the court also issues a pre-trial order.
15 days to answer
If there is no answer, the Sec. 9. Submission of affidavits and position papers.—
defendant may be declared in Within ten (10) days from receipt of the order mentioned in the
default. next preceding section, the parties shall submit the affidavits of
their witnesses and other evidence on the factual issues defined in
the order, together with their position papers setting forth the law
and the facts relied upon by them.

However, in case there are several defendants, the answer of Sec. 10. Rendition of judgment.—Within thirty (30) days
one benefits all. (Rule 9, Sec. 3(c)) In effect, there can be no after receipt of the last affidavits and position papers, or the
partial default. expiration of the period for filing the same, the court shall render
If there is no answer, there is no presentation of evidence ex judgment.
parte. The court shall decide based on the complaint.
However should the court find it necessary to clarify certain
However, under the ROC, the court may still require the material facts, it may, during the said period, issue an order
presentation of evidence ex parte. (optional) specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within ten
(10) days from receipt of said order. Judgment shall be rendered
The court may award Award of damages shall not within fifteen (15) days after the receipt of the last clarificatory
damages even without trial, exceed the amount or be affidavits, or the expiration of the period for filing the same.
but it may reduce whatever is different from that prayed for.
pleaded for being excessive The court shall not resort to the clarificatory procedure to
or unconscionable. gain time for the rendition of the judgment.

1. This is the deviation from the ordinary rules. After receipt of

Sec. 7. Preliminary conference; appearance of parties.—
Not later than thirty (30) days after the last answer is filed, a
preliminary conference shall be held. The rules on pre-trial in
ordinary cases shall be applicable to the preliminary conference
unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be a cause for the dismissal of his complaint. The
defendant who appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in accordance with
Section 6 hereof. All cross-claims shall be dismissed.
the pre-trial order, the parties are required to submit within 10
days their respective position papers.
2. There is no more trial and the case shall be decided based on
affidavits (similar to Summary Judgment under Rule 35).
3. If the affidavits are not clear, clarificatory affidavits shall be
required.
4. Bayubay vs. Court of Appeals (1993)
Issue: After the preliminary conference, the judge immediately
rendered judgment. In effect, he skipped Sections 8 and 9 of the
Rule. Can this be done?

If a sole defendant shall fail to appear, the plaintiff shall be
entitled to judgment in accordance with Section 6 hereof. This Rule
shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense
shall appear at the preliminary conference.
Sec. 8. Record of preliminary conference.—Within five (5)
days after the termination of the preliminary conference, the court
shall issue an order stating the matters taken up therein, including
but not limited to:
a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
Ruling: NO. The order is an important part of the summary
procedure because it is its receipt by the parties that begins the
ten-day period to submit the affidavits and other evidence
mentioned in Section 9.
In this case, there was no order to this effect nor was
there an indication of when the position papers were to be
submitted for the purpose of discussing the factual questions
raised. While the municipal judge may be commended for his zeal
in speeding up the resolution of the case, he nevertheless cannot
be sustained for his non-observance of the Rule on Summary
Procedure.

b) The stipulations or admissions entered into by the parties;
c) Whether, on the basis of the pleadings and the stipulations
and admissions made by the parties, judgment may be rendered
without the need of further proceedings, in which event the
judgment shall be rendered within thirty (30) days from issuance of
the order;
5. Rural Bank of Malalag vs. Maniwang (1994)
Facts: The plaintiff filed its position paper, while the defendants did
not.
The judge denied the plaintiff's motion to resolve arguing that
there was a need to conduct “a hearing’ in order to resolve the
factual issues.

d) A clear specification of material facts which remain Ruling: Section 10 cannot be applied without complying with
controverted; Section 9.

BY: RIZADA, Resci Angelli

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ATTY MELISSA ROMANA SUAREZ
“It is clear from said provisions, that a court cannot resort to
"clarificatory procedure," when the parties fail to submit their
affidavits and position paper as required by Section 9 of the Rule.
It is only after evaluating the affidavits and position papers
submitted by the parties that the court can determine whether he
should resort to the "clarificatory procedure" provided in Section 10
of the Rule.
If any of the parties fail to submit their evidence and position
paper within the reglementary period, the court cannot thereby set
the "clarificatory procedure" into motion. Otherwise, a party can
derail the proceedings and defeat the purpose of the summary
procedure by not filing the affidavits of his witnesses and his
position paper, thus forcing the court to resort to said procedure.”
There is nothing to clarify under Section 10, if there are no
affidavits filed by the parties. 
Sec.18 Referral to Lupon.—Cases requiring referral to the
Lupon for conciliation under the provisions of Presidential Decree
No. 1508 (now, RA 7160) where there is no showing of compliance
with such requirement, shall be dismissed without prejudice and
may be revived only after such requirement shall have been
complied with. This provision shall not apply to criminal cases
where the accused was arrested without a warrant.
1. Effects of non-referral to Lupon:
a. Case shall be dismissed without prejudice
b. May be re-filed only after compliance thereto
2. This covers only those which require referral to the Lupon
under RA 7160.
Sec. 19. Prohibited pleadings and motions.—The
following pleadings, motions or petitions shall not be allowed in the
cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the
complaint or information except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with the preceding
section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment,
or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or
any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against
any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l) Interventions.
1. Motion to dismiss
 As a rule, the grounds for dismissal should be invoked as
affirmative defenses in the answer, and not in a motion to
dismiss.
Exceptions:
i. Lack of jurisdiction over the subject matter,
ii. Failure to refer case to the Lupon.
BY: RIZADA, Resci Angelli
Ateneo de Davao University - College of Law
EXCLUSIVE COPY OF
 Heirs of Ricardo Olivas vs. Flor (1988)
Issue: The defendant filed his answer. Then later, he filed a motion
to dismiss, in the guise of a position paper. Can this be done?
Ruling: Yes. “While this is, indeed, a prohibited pleading it should
be noted that the Motion was filed after an Answer had already
been submitted within the reglementary period.
In essence, therefore, it is not the pleading prohibited by the
Rule on Summary Procedure. What the Rule proscribes is a
Motion to Dismiss, which would stop the running of the period to
file an Answer and cause undue delay.”
The motion to dismiss prohibited under the ROSP is one
which is filed in lieu of an answer because with that the defendant
succeeds in delaying the filing of an answer.
2. Motion for a bill of particulars – the proper remedy is to file an
unclear answer..hehe 
3. Motion for new trial/reconsideration of a judgment, or for
reopening of trial, or petition for relief from judgment
 The proper remedy is to appeal immediately.
 If the court issues an interlocutory order, an MFR may be
filed. The Rule only prohibits MFR on judgments, not orders.
4. Motion for extension of time to file pleadings, affidavits or
papers – periods are non-extendible
5. Memoranda – state the arguments in the position paper
6. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court
7. Motion to declare the defendant in default – the proper
remedy is to file a motion for immediate judgment
8. Dilatory motions for postponement
9. Reply, third-party complaints, interventions
Sec. 20. Affidavits.—The affidavits required to be submitted
under this Rule shall state only facts of direct personal knowledge
of the affiants which are admissible in evidence, and shall show
their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the
counsel who submits the same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit or portion thereof from
the record.
Sec. 21. Appeal.—The judgment or final order shall be
appealable to the appropriate Regional Trial Court which shall
decide the same in accordance with Section 22 of Batas
Pambansa Blg. 129. The decision of the Regional Trial Court in
civil cases governed by this Rule, including forcible entry and
unlawful detainer, shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom. Section
10 of Rule 70 shall be deemed repealed.
1. The decision of the MTC is appealable to the RTC.
2. The RTC decision is immediately executory, without prejudice
to any appeal that may be taken therefrom.
3. Remedy to stay the execution of the RTC decision: File a
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ATTY MELISSA ROMANA SUAREZ

TRO or injunction with the CA, not a motion to stay the

execution

BY: RIZADA, Resci Angelli

Ateneo de Davao University - College of Law | 133