Answers are given by Samplex unless indicated as “Tope”

FINALS 2011

1. Upon plaintiff’s application, an ex parte warrant of seizure on defendant’s car was issued before
service of summons. The sheriff’s return stated that the defendant left for the USA and that his
address in the Philippines is unknown. The car having been seized by the sheriff, the plaintiff moved
to have the summons served by publication which the court granted and a copy thereof together
with the complaint was sent by registered mail to defendant’s last known address. Thereafter, the
trial court issued a show cause order why the case should not be dismissed for lack of jurisdiction
over the person of the defendant.

a) How would you respond to the court’s show cause order? (5%) The case should not be dismissed
because the case was already converted from an action in personam to one in rem/quasi in rem. The
attachment and approval from the court to serve summons by publication and sending it by registered
mail to the defendant's last known address converted the action to one in rem/quasi in rem. Hence,
what is important is jurisdiction over the res.

(Rule 57) Section 1. Grounds upon which attachment may issue. — At the commencement of the
action or at any time before entry of judgment, a plaintiff or any proper party may have the property
of the adverse party attached as security for the satisfaction of any judgment that may be recovered
in the following cases:

(f) In an action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication.

Mode of Service Filing and Service of Pleadings Service of Summons

(Rule 13) (Rule 14)
Personal Service  (Person/Counsel/Representative) Whenever practicable, the
Court submissions may be served by summons shall be served by
personal delivery of a copy to the handing a copy thereof to the
party or to the party's counsel, or to defendant in person and informing
their authorized representative the defendant that he or she is
named in the appropriate pleading being served, or, if he or she
or motion, or refuses to receive and sign for it, by
 (Place of Office) by leaving it in his or leaving the summons within the
her office with his or her clerk, or view and in the presence of the
with a person having charge thereof. defendant.
 (Place of Residence) If no person is
found in his or her office, or his or her
office is not known, or he or she has
no office, then by leaving the copy,
between the hours of eight in the
morning and six in the evening, at
the party's or counsel's residence, if
known, with a person of sufficient
age and discretion residing therein.
Service by mail (Registered mail: Preferred) Service by
registered mail shall be made by
depositing the copy in the post office, in
a sealed envelope, plainly addressed:

 to the party at his or her office,

or
 to the party's counsel at his or
her office, if known,
 at his or her residence, if known,

with postage fully pre-paid, and with

instructions to the postmaster to return
the mail to the sender after ten (10)
calendar days if undelivered.

(Ordinary mail) If no registry service is

available in the locality of either the
sender or the addressee, service may be
done by ordinary mail.

Substituted Service may be made by delivering the
service copy to the clerk of court, with proof of
failure of both personal service and
service by mail.
The service is complete at the time of
such delivery.
If, for justifiable causes, the
defendant cannot be served
personally after at least three (3)
attempts on two (2) separate
dates, service may be effected:
(a) By leaving copies of the
summons at the defendant's
residence to a person at least
eighteen (18) years of age and of
sufficient discretion residing
therein;

(b) By leaving copies of the

summons at the defendant's office
or regular place of business with
some competent person in charge
thereof. A competent person
includes, but not limited to, one
who customarily receives
correspondences for the
defendant;

(c) By leaving copies of the

summons, if refused entry upon
making his or her authority and
purpose known, with any of the
 officers of the homeowners'
association or condominium
corporation, or its chief security
officer in charge of the community
or the building where the
defendant may be found; and

(d) By sending an electronic mail to

the defendant's electronic mail
address, if allowed by the court.

Service by Service by electronic means and

electronic means facsimile shall be made if the party
and facsimile concerned consents to such modes of
service.

 Service by electronic means shall be

made by sending an e-mail to the
party's or counsel's:
o electronic mail address, or
o through other electronic means
of transmission as the parties
may agree on, or upon direction
of the court.
 Service by facsimile shall be made by
sending a facsimile copy to the
party's or counsel's given facsimile
number.

Service upon Service may be effected upon all

entity without the defendants by serving upon
juridical any one of them, or upon the
personality 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 filed.

Service upon Service shall be effected upon him

prisoners or her by the officer having the
management of such jail or
institution who is deemed as a
special sheriff for said purpose. The
jail warden shall file a return within
five (5) calendar days from service
 of summons to the defendant.

Service upon Service of summons shall be made

minors and upon him or her personally and on
incompetents his or her legal guardian if he or she
has one, or if none, upon his or her
guardian ad litem whose
appointment shall be applied for by
the plaintiff. In the case of a minor,
service shall be made on his or her
parent or guardian.

Service upon When spouses are sued jointly,

spouses service of summons should be
made to each spouse individually.

Service upon Service may be made on the

domestic private president, managing partner,
juridical entity general manager, corporate
secretary, treasurer, or in-house
counsel of the corporation
wherever they may be found, or in
their absence or unavailability, on
their secretaries.

If such service cannot be made

upon any of the foregoing persons,
it shall be made upon the person
who customarily receives the
correspondence for the defendant
at its principal office.

In case the domestic juridical entity

is under receivership or liquidation,
service of summons shall be made
on the receiver or liquidator, as the
case may be.

Should there be a refusal on the

part of the persons above-
mentioned to receive summons
despite at least three (3) attempts
on two (2) separate dates, service
may be made electronically, if
allowed by the court.

Service upon Service may be made on its

foreign private resident agent designated in
juridical entities accordance with the 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, agents,
directors or trustees within the
Philippines.

If the foreign private juridical entity

is not registered in the Philippines,
or has no resident agent but has
transacted or is doing business in it,
as defined by law, such service
may, with leave of court, be
effected outside of the Philippines
through any of the following
means:

(a) By personal service coursed

through the appropriate court
in the foreign country with the
assistance of the department of
foreign affairs;
(b) By publication once in a
newspaper of general
circulation in the country where
the defendant may be found
and by serving a copy of the
summons and the court order
by registered mail at the last
known address of the
defendant;
(c) By facsimile;
(d) By electronic means with the
prescribed proof of service; or
(e) By such other means as the
court, in its discretion, may
direct.

Service upon Service may be effected on the

public Solicitor General; in case of a
corporations province, city or municipality, or
like public corporations, service
may be effected on its executive
head, or on such other officer or
officers as the law or the court may
 direct.

Service upon Service may, by leave of court, be

defendant whose effected upon him or her by
identity or publication in a newspaper of
whereabouts are general circulation and in such
unknown places and for such time as the
court may order.

Extraterritorial When the defendant does not

service 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 as provided
for in international conventions to
which the Philippines is a party; 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.

b) Was the warrant of seizure properly issued? (5%)

Tope: Yes, the warrant of seizure was properly issued because it may be issued with prior/simultaneous
service of summons.

(Rule 57) Section 5. Manner of attaching property. x x x x

The requirement of prior or contemporaneous service of summons shall not apply where the summons
could not be served personally or by substituted service despite diligent efforts, or the defendant is a
resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi in rem.

Yes, the warrant of seizure was properly issued because it may be issued with prior/simultaneous
service of summons.

(Rule 57) Section 5. Manner of attaching property. xxx No levy on attachment pursuant to the writ
issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the complaint, the application for
attachment the applicant's affidavit and bond, and the order and writ of attachment, on the
defendant within the Philippines.

c) Was the warrant of seizure properly implemented? (5%)

Yes, the levy on attachment was properly implemented. Rule 57, section 5 states that the requirement
of prior/simultaneous service of summons shall not apply if the action is one in rem or quasi in rem
or when summons could not be served personally or by substituted service.

(Rule 57) Section 5 (cont of provision above): The requirement of prior or contemporaneous service
of summons shall not apply where the summons could not be served personally or by substituted
service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi
in rem.

2. In a partition suit, the RTC on December 15 rendered judgment declaring that plaintiff and
defendant are co-owners only of Lot No. 1 but not Lot No. 2. In the same decision, the court
appointed 3 commissioners to hear and recommend physical partition of Lot No. 1. Defendant
received copy of the decision on January 5, while the plaintiff, on January 11.

a) If the defendant appeals, when and how should the appeal be taken? (5%)

The defendant may appeal by filing a notice of appeal and a record on appeal within 30 days from
notice of the judgment or final order. The defendant must likewise pay to the clerk of court which
rendered the judgment appealed from the appropriate docket and other lawful fees. The appeal shall
be by record on appeal because a partition suit is multi-tiered in nature, and once one aspect is
disposed of, that shall already be a subject of an appeal.

(Rule 41) Section 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 appellants shall file a notice of appeal and a record on appeal within
thirty (30) days from notice of the judgment or final order.

Section 4. 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 of said
fees shall be transmitted to the appellate court together with the original record or the record on
appeal. (n)
b) On Jan, 13, defendant filed notice of appeal but 5 days later on Jan. 18 he withdrew it and filed a
motion for reconsideration. Are the withdrawal of the appeal and the filing of the motion for
reconsideration proper? (5%)

Tope: No, the withdrawal of the appeal and the filing of the motion for reconsideration proper is
improper. The defendant, with its appeal already perfected, cannot withdraw the same for the purpose
of reviving the jurisdiction of the trial court and enabling it to take another course of action calling for
the exercise of that jurisdiction. This is because by filing the notice of appeal, defendant insofar as it is
concerned has perfected its appeal to the CA, and it should be in that court where he may pursue any
further remedy. The Court in the case of PNB-REPUBLIC BANK v. SPOUSES JOSE and SALVACION
CORDOVA held, thus:

Respondents want the Court to depart from the aforesaid rules because, in this case, petitioner, in
effect, abandoned its perfected appeal when it filed a motion for reconsideration of the order
modifying the decision. The Court does not agree. Petitioner's filing of the said motion does not have
the effect of a waiver of the appeal, and, like the second notice, is a pointless formality which does
not prejudice the already perfected appeal.

When the appeal is perfected as to petitioner's filing of the first notice in due time, the trial court,
insofar as the petitioner is concerned, loses its jurisdiction over the case except to issue orders for
the protection and preservation of the rights of the parties which do not involve any matter litigated
by the appeal. Obviously, the issue of the correctness of the decision is the subject of the perfected
appeal. The trial court no longer had jurisdiction to reverse the February 18, 2002 Decision, as modified
by the July 2, 2002 Order, which would have meant petitioner's abandonment of its appeal. In fact, to
paraphrase the words of remedial law expert Justice Florenz D. Regalado, petitioner, with its appeal
already perfected, cannot withdraw the same for the purpose of reviving the jurisdiction of the trial
court and enabling it to take another course of action calling for the exercise of that jurisdiction.
This is because by filing the notice of appeal, petitioner insofar as it is concerned has perfected its
appeal to the CA, and it should be in that court where he may pursue any further remedy.

The withdrawal of the appeal is proper, but the filing of the motion of reconsideration is not. The
court retains residual jurisdiction to allow withdrawal of an appeal as provided under the Rules of
Court. However, the filing of a motion for reconsideration is not proper since the court already loses
its jurisdiction as to the person filing a notice of appeal, signifying his preference to deal with the
appellate court this time, and not anymore with the lower court.

(Rule 41) Section 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 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 2 of Rule 39, and allow withdrawal of the appeal. (9a)

PNB vs Cordova - “In fact, to paraphrase the words of remedial law expert Justice Florenz D. Regalado,
petitioner, with its appeal already perfected, cannot withdraw the same for the purpose of reviving
the jurisdiction of the trial court and enabling it to take another course of action calling for the exercise
of that jurisdiction. This is because by filing the notice of appeal, petitioner insofar as it is concerned
has perfected its appeal to the CA, and it should be in that court where he may pursue any further
remedy.”

c) Assuming defendant’s appeal was not withdrawn, plaintiff on January 25 moved to reconsider
the Dec. 15 decision, may the court entertain the same despite perfection of defendant’s appeal?
(5%)

Tope: Yes. Under the present rules, the mere perfection of the appeal by one party does not necessarily
deprive the other party of seeking substantial changes in the judgment itself either by filing a motion
for new trial or motion for reconsideration. It is required, however, that (1) the trial court still has
retained jurisdiction over the case (di pa nag-expire yung period to appeal), and (2) the records are
still with it – or have not yet been forwarded or elevated to the appellate court.

Section 9 of Rule 41 provides, thus:

Section 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 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 2 of Rule 39, and allow withdrawal of the appeal.

Therefore, by filing appeal by notice of appeal in due time, the appeal is deemed perfected as the party
appealing only. It does not prevent the other party from seeking substantial changes in the judgment
itself either by filing a motion for new trial or motion for reconsideration.

Yes, the court may still entertain the same because a motion for reconsideration shall be filed within
the period of 15 days from the date of receipt of the judgment or final order. The period to file here
on the part of the plaintiff has not yet lapsed.

(Rule 37)
Section 1. Grounds of and period for filing motion for new trial or reconsideration. — Within the
period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment
or final order and grant a new trial for one or more of the following causes materially affecting the
substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has probably been impaired in his rights; or (b)
Newly discovered evidence, which he could not, with reasonable diligence, have discovered and
produced at the trial, and which if presented would probably alter the result.

Within the same period, the aggrieved party may also move for reconsideration upon the grounds
that the damages awarded are excessive, that the evidence is insufficient to justify the decision or
final order, or that the decision or final order is contrary to law. (1a)

d) Assuming again that there was no withdrawal of defendant’s appeal, the trial court granted
plaintiff’s motion for reconsideration ruling that Lot No. 2 is also co-owned by both parties, may the
defendant file a motion for reconsideration despite the perfection of his appeal? (5%)

Tope: No. Plaintiff’s filing of the said motion does not have the effect of a waiver of the appeal, and,
like the second notice, is a pointless formality which does not prejudice the already perfected appeal.
When the appeal is perfected as to defendant's filing of the notice in due time, the trial court, insofar
as the defendant is concerned, loses its jurisdiction over the case except to issue orders for the
protection and preservation of the rights of the parties which do not involve any matter litigated by
the appeal. Thus, by filing the notice of appeal, defendant insofar as it is concerned has perfected its
appeal to the CA, and it should be in that court where he may pursue any further remedy.

The Court in the case of PNB-REPUBLIC BANK v. SPOUSES JOSE and SALVACION CORDOVA held, thus:

Respondents want the Court to depart from the aforesaid rules because, in this case, petitioner, in
effect, abandoned its perfected appeal when it filed a motion for reconsideration of the order
modifying the decision. The Court does not agree. Petitioner's filing of the said motion does not have
the effect of a waiver of the appeal, and, like the second notice, is a pointless formality which does
not prejudice the already perfected appeal.

When the appeal is perfected as to petitioner's filing of the first notice in due time, the trial court,
insofar as the petitioner is concerned, loses its jurisdiction over the case except to issue orders for
the protection and preservation of the rights of the parties which do not involve any matter litigated
by the appeal. Obviously, the issue of the correctness of the decision is the subject of the perfected
appeal. The trial court no longer had jurisdiction to reverse the February 18, 2002 Decision, as modified
by the July 2, 2002 Order, which would have meant petitioner's abandonment of its appeal. In fact, to
paraphrase the words of remedial law expert Justice Florenz D. Regalado, petitioner, with its appeal
already perfected, cannot withdraw the same for the purpose of reviving the jurisdiction of the trial
court and enabling it to take another course of action calling for the exercise of that jurisdiction.
This is because by filing the notice of appeal, petitioner insofar as it is concerned has perfected its
appeal to the CA, and it should be in that court where he may pursue any further remedy.

Yes, the defendant may file another motion despite the perfection of his appeal. In the case of PNB
vs Cordova, the court allowed the filing of a motion for reconsideration on the revised decision. What
is not necessary to be filed is another notice of appeal, which will only be considered as mere
superfluity given the initial perfection of his appeal.

PNB v Cordova - x x x [S]ince the decision as modified substantially increased petitioner's liability, the
logical inference is that petitioner would all the more want to appeal from the decision as modified.
To deny petitioner's appeal on the sole ground that it failed to file another notice of appeal in order
to signify its objection to the modified decision would be to put a premium on technicalities at the
expense of a just resolution of the case. An essential and logical implication of the said rule is that the
filing of a second notice of appeal from the modified decision is a superfluity, if not a useless
ceremony. It, therefore, matters no longer whether that second notice is timely filed or not. Hence,
in this case, petitioner's filing of a belated second notice of appeal does not affect or foreclose its
already perfected appeal.

3. When should a party respond to the following pleadings: (a) amended pleading; (b) counterclaim;
(c) 3rd party complaint; (d) cross-claim subject to a motion to dismiss; and (e) reply. (5%)

(a) If the pleading is amended as a matter of right, the party shall respond within 30 calendar days
after being served with a copy thereof. If it is amended not as a matter of right, the party shall answer
within 15 calendar days from notice of the order admitting the same.

(Rule 11) Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint
as a matter of right, the defendant shall answer the same within thirty (30) calendar days after being
served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within
fifteen (15) calendar days from notice of the order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint if no new answer is filed.

This Rule shall apply to the answer to an amended counterclaim, amended cross- claim, amended third
(fourth, etc.)-party complaint, and amended complaint-in-intervention.

When is an amended complaint filed as a matter of right?

(Rule 10) Section 2. Amendments as a matter of right. — A party may amend his pleading once as a
matter of right at any time before a responsive pleading is served or, in the case of a reply, at any
time within ten (10) days after it is served.

When is an amended complaint filed NOT as a matter of right?

(Rule 10) Section 3. Amendments by leave of court. — Except as provided in the next preceding section,
substantial amendments may be made only upon leave of court. But such leave may be refused if it
appears to the court that the motion was made with intent to delay. Orders of the court upon the
matters provided in this section shall be made upon motion filed in court, and after notice to the
adverse party, and an opportunity to be heard.

(a) If the pleading is amended as a matter of right, the party shall respond within 30 calendar days
after being served with a copy thereof. If it is amended not as a matter of right, the party shall answer
within 15 calendar days from notice of the order admitting the same.

Rule 11, Section 3. Answer to amended complaint. — When the plaintiff files an amended complaint
as a matter of right, the defendant shall answer the same within thirty (30) calendar days after being
served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the
amended complaint within fifteen (15) calendar days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. This
Rule shall apply to the answer to an amended counterclaim, amended cross- claim, amended third
(fourth, etc.)-party complaint, and amended complaint-in-intervention. (3a)

(b) A party must respond to a counterclaim within 20 calendar days from service of the counterclaim.

(Rule 11) Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be

answered within twenty (20) calendar days from service.

(b) A party must respond to a counterclaim within 20 calendar days from service of the counterclaim.

Rule 11, Section 4. Answer to counterclaim or cross-claim. — A counterclaim or cross-claim must be

answered within twenty (20) calendar days from service. (4a)

(c) A party must respond to a 3rd party complaint within 30 calendar days after service of summons,
unless a different period is fixed by the court.

(Rule 11) Section 5. Answer to third (fourth, etc.)-party complaint. — The time to answer a third
(fourth, etc.)-party complaint shall be governed by the same rule as the answer to the complaint.

(Rule 11) Section 1. Answer to the complaint. — The defendant shall file his or her answer to the
complaint within thirty (30) calendar days after service of summons, unless a different period is fixed
by the court.

(c) A party must respond to a 3rd party complaint within 30 calendar days after service of summons,
unless a different period is fixed by the court.

Rule 11, Section 5. Answer to third (fourth, etc.)-party complaint. — The time to answer a third
(fourth, etc.)-party complaint shall be governed by the same rule as the answer to the complaint. (5)

Rule 11, Section 1. Answer to the complaint. — The defendant shall file his or her answer to the
complaint within thirty (30) calendar days after service of summons, unless a different period is fixed
by the court.

(d) The remainder of the 20 days period from service before serving his motion, but in no case less than
5 days.

NOTE:

Original Answer: (d) The balance of the period of 10 days from service before serving his motion but in
no case less than 5 days.

The above answer was based on Rule 16, Section 4, viz:

Section 4. Time to plead. — If the motion is denied, the movant shall file his answer within the balance
of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not
less than five (5) days in any event, computed from his 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 Rule 11 counted from
service of the amended pleading, unless the court provides a longer period.

Prior to 2019 Amended Rules of Court, the period to file an Answer to a Counterclaim is 10 days.
Regardless, Rule 16 of the ROC has been removed. Thus, this particular question may no longer be
relevant.

(d) The balance of the period of 10 days from service before serving his motion but in no case less
than 5 days.

(e) Since both a rejoinder (a response to a reply) and a reply are based on an actionable document,
the period of filing for the two should be the same? Hence, just as a reply can be filed within fifteen
(15) calendar days from service of the pleading responded to, a party should also respond to a reply
within 15 calendar days from service of the pleading responded to.

(Rule 11) Section 6. Reply. — A reply, if allowed under Section 10, Rule 6 hereof, may be filed within
fifteen (15) calendar days from service of the pleading responded to.

(e) Since both a rejoinder (a response to a reply) and a reply are based on an actionable document,
the period of filing for the two should be the same? Hence, just as a reply can be filed within fifteen
(15) calendar days from service of the pleading responded to, a party should also respond to a reply
within 15 calendar days from service of the pleading responded to.

Rule 11, Section 6. Reply. — A reply, if allowed under Section 10, Rule 6 hereof, may be filed within
fifteen (15) calendar days from service of the pleading responded to.

4. XYZ Co., a Philippine corporation, entered into a contract for the supply of materials with ABC
Co. a foreign corporation not domiciled nor licensed to do business in the Philippines. Pursuant to
the arbitration clause of the agreement and after XYZ Co. defaulted in its obligation, ABC Co. filed
and was able to obtain from the arbitral tribunal in Singapore an award against XYZ Co. To prevent
its impending enforcement, XYZ Co. filed a verified complaint against ABC Co. with RTC-Manila for
injunction with damages and prayed to nullify the arbitral award with prayer for TRO and
preliminary injunction. What is the proper mode of service so that the RTC-Manila will acquire
jurisdiction over the ABC Co.? (5%)

Tope: The action is injunction with damages and prayer to nullify the arbitral award in favor of ABC
Co., a foreign corporation not domiciled nor licensed to do business in the Philippines. Since the action
is in personam (in rem or quasi in rem is under Section 17 of the same Rule), where the foreign
corporation has no resident agent in the Philippines, service may, with leave of court, be effected
outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the foreign country with the
assistance of the department of foreign affairs; (b) By publication once in a newspaper of general
circulation in the country where the defendant may be found and by serving a copy of the summons
and the court order by registered mail at the last known address of the defendant; (c) By facsimile; (d)
By electronic means with the prescribed proof of service; or (e) By such other means as the court, in its
discretion, may direct.

(Rule 14) Section 14. Service upon foreign private juridical entities. — x x x x
If the foreign private juridical entity is not registered in the Philippines, or has no resident agent but
has transacted or is doing business in it, as defined by law, such service may, with leave of court, be
effected outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the foreign country with the
assistance of the department of foreign affairs;
(b) By publication once in a newspaper of general circulation in the country where the defendant may
be found and by serving a copy of the summons and the court order by registered mail at the last
known address of the defendant;
(c) By facsimile;
(d) By electronic means with the prescribed proof of service; or
(e) By such other means as the court, in its discretion, may direct.

Since an action for injunction is considered an action in personam, the court can only acquire
jurisdiction over the person by personal or substituted service of summons. However, if the defendant
is not residing and is not found in the Philippines, the Philippine courts cannot try any case against
him because of the impossibility of acquiring jurisdiction (making personal or substituted service) over
his person unless he voluntarily appears in court.

Hence, in this case, the RTC-Manila cannot serve the summons by personal or substituted service
since ABC Co. is not domiciled nor licensed to do business in the Philippines. The only way to acquire
jurisdiction over ABC Co. is when it voluntarily appears and submits to the authority of the court.

Dial Service Corporation v. Soriano

As a general rule, when the defendant is not residing and is not found in the Philippines, the Philippine
courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court

5. After a judgment was rendered ordering the defendant to surrender possession of the litigated
property to plaintiff, the former filed a notice of appeal. Twenty (20) days later, the court, on motion
of plaintiff, appointed a receiver to take possession the litigated property pending appeal.
Defendant moved for reconsideration arguing that the trial court lost jurisdiction to appoint a
receiver owing to the perfection of the appeal. Decide. (5%)

The trial court did not lose its jurisdiction to appoint a receiver just because of the perfection of the
appeal. In the case of Acuña v. Caluag, the Court held that although the perfection of an appeal
deprives the trial court of jurisdiction over the case, nevertheless, under Rule 41, Section 9 of the
Rules of court, said court retains jurisdiction as regards the preservation of the property under
litigation and involved in the appeal, including necessarily the authority to appoint a receiver who has
the power to take and keep possession of the property in controversy.

Hence, in this case, even if the party has perfected his appeal, the court retains its residual jurisdiction
to appoint a receiver.

Acuña v. Caluag

Although the perfection of an appeal deprives the trial court of jurisdiction over the case,
nevertheless, under the law, said court retains jurisdiction as regards the preservation of the property
under litigation and involved in the appeal, including necessarily the authority to appoint a receiver
who has the power to take and keep possession of the property in controversy.

Rule 41, Section 9. Perfection of appeal; effect thereof. — xxxxxx

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 2 of Rule 39, and allow withdrawal of the appeal. (9a)

6. When are motions for new trial considered pro forma? (10%)

Motions for new trial are considered pro forma when it does not comply with the formal and
substantial requirements of the said motion provided in the Rules of Court.

Rule 37, Section 2 of the Rules of Court provide that a motion for new trial shall be made in writing
stating the ground or grounds therefor, a written notice of which shall be served by the movant on
the adverse party. A motion for new trial on the ground of (FAME) shall be supported by affidavits of
merits which may be rebutted by affidavits. A motion on the ground of newly discovered evidence
shall be supported by affidavits of the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be introduced in evidence.

Failure to comply with any of the requirements mentioned will make the motion for new trial pro
forma. For example, if the ground for the said motion is newly discovered evidence and the applicant
only gave a general statement without specifying evidence or attaching copies, the said motion will
be considered as pro forma.

A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.

Rule 37, Section 2. Contents of motion for new trial or reconsideration and notice thereof. — The
motion shall be made in writing stating the ground or grounds therefor, a written notice of which shall
be served by the movant on the adverse party. A motion for new trial shall be proved in the manner
provided for proof of motion. A motion for the cause mentioned in paragraph (a) of the preceding
section (FAME) shall be supported by affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) (newly discovered evidence) shall be supported by
affidavits of the witnesses by whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.

A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.
(2a)

7. Landowner X appointed A agent to look for a buyer for his land. The latter designated A-1 as his
sub-agent for the same purpose without the knowledge and consent of X. A-1 found a purchase but
X withdrew from the transaction. Agent A and sub-agent A-1 joined as plaintiffs in one complaint
for recovery of the commission which they failed to realize because of landowner X’s withdrawal.
Is the joinder of plaintiffs proper? (5%)

Yes, the joinder is proper. For a joinder to be proper, the right of relief must arise out of the same
transaction or series of transaction and there is a question of law or fact common to the plaintiffs and
defendants. The agent and the sub-agent’s right of relief arose from the same series of transaction or
their right to be paid their commission. The lack of consent or privity between the landowner X and
sub-agent A-1 is immaterial because such is not a requisite for a proper joinder.

Rule 3, 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.

8. Pedro Realty Corp., with offices at Malolos, Bulacan, filed an ejectment suit against in Damaso in
the MTC of Bulacan. Trial commenced and terminated with a judgment ordering Damaso to vacate
and pay back rentals in the amount of P500,000. On appeal, Damaso moved for the reversal of the
judgment on the following grounds:

(a) non-referral of the dispute to the Lupon; and

(b) the award of back rentals in the amount of P500,000.00 is beyond the MTC’s jurisdiction. Decide.
(5%)

(a) non-referral of the dispute to the Lupon

Referral to the Lupon is required only where the parties are individuals or a single human being in
contrasted to a social group or institution. It does not apply to cases involving juridical persons. In this
case, one party is a corporation, a juridical entity, hence, referral to the Lupon is not required prior to
the filing of the case in Court.

Vda de Borromeo v. Pogoy

Referral of dispute to Barangay Lupon is required only where the parties are “individuals”: a single
human being as contrasted with a social group or institution." Obviously, the law applies only to cases
involving natural persons, and not where any of the parties is a juridical person (including estate of
deceased)

(b) the award of back rentals in the amount of P500,000 is beyond the MTC’s jurisdiction.

Tope: The amount of the award of bank rentals is immaterial as to the determination of jurisdiction.
The instant case is an ejectment suit which involves possession of real property. Section 33 of BP 129
provides, thus:

Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in civil cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts shall exercise:

xxxx
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That
when, in such cases, the defendant raises the question of ownership in his pleadings and the question
of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession.

xxxx

The ejectment suit is the main cause of action and thus is within the jurisdiction of the MTC of Bulacan.
The amount of the award is material where the main cause of action is collection or recovery of money.
The Court in Soliven vs. Fastforms held, thus:

Here, the main cause of action is for the recovery of sum of money amounting to only ₱195,155.00.
The damages being claimed by petitioner are merely the consequences of this main cause of action.
Hence, they are not included in determining the jurisdictional amount. It is plain from R.A. 7691 and
our Administrative Circular No. 09-94 that it is the Metropolitan Trial Court which has jurisdiction over
the instant case. As correctly stated by the Court of Appeals in its assailed Decision:

"Conformably, since the action is principally for the collection of a debt, and the prayer for damages
is not one of the main causes of action but merely a consequence thereto, it should not be considered
in determining the jurisdiction of the court."

The award in the amount of P500,000 is beyond the MTC’s jurisdiction. The MTC has jurisdiction over
civil actions where the value of the personal property, estate, or the amount demanded does not
exceed P100,000 (P200,000 in metro manila). In this case, the back rentals in the amount of P500,000
is way beyond the MTC’s jurisdiction of P100,000.

Sec. 33 Jurisdiction of MeTC, MC

9. In a case instituted by Pedro against Daniel, the RTC of Makati, Br. X, issued a writ of attachment.
When the sheriff attempted to attach a parcel of land allegedly belonging to Daniel, he was
confronted by Javier who, claiming ownership over the property, presented the sheriff with a 3rd
party claim. As the sheriff was still threatening to proceed with the attachment. Javier filed an
action in the RTC of Manila, Br. XXII, against the sheriff and Pedro for injunction and damages. The
defendants filed a motion to dismiss contending that the action constitutes undue interference on
the processes of a coequal court. Decide. (5%)

Tope: The motion to dismiss should be denied. The injunction in this case would not constitute an
interference with the process of a court of coordinate and co-equal jurisdiction, because Rules 39, Sec.
17 of the Rules of Court recognizes the right of a third-party claimant to vindicate his claim to the
properties levied upon by filing a separate and independent action to establish ownership to the
properties levied upon and to secure in said action an injunction to restrain the sale of the attached
property.

The Court in Arabay vs Salvador held, thus:

We hold that the Caloocan court can stop the execution of the Manila court's judgment against
properties not belonging to the judgment debtor. The injunction in that case would not constitute an
interference with the process of a court of coordinate and co-equal jurisdiction. As a third-party
claimant, Pascual has the right to vindicate his claim to the properties levied upon by means of a
proper action. That right is recognized in Rule 39 of the Rules of Court, which provides:
“SEC. 17. Proceedings where property claimed by third person. — If property levied on be claimed by
any other person than the judgment debtor or his agent, and such person make an affidavit of his title
thereto or right to the possession thereof, stating the grounds of such right or title, and serve the same
upon the officer making the levy, and a copy thereof upon the judgment creditor, the officer shall not
be bound to keep the property, unless such judgment creditor or his agent, on demand of the officer,
indemnify the officer against such claim by a bond in a sum not greater such 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.

The officer is not liable for damages, for the taking or keeping of the property, to any third-party
claimant unless a claim is made by the latter and unless an action for damages is brought by him
against the officer within one hundred twenty (120) days from the date of the filing of the bond. But
nothing herein contained shall prevent such claimant or any third person from vindicating his claim to
the property by any proper action.

The third-party claimant is to obligated to file an action for damages against the sheriff in case an
indemnity bond was filed by the judgment creditor. The third-party claimant may file a separate and
independent action to establish ownership to the property levied upon by the sheriff. In that action, he
may secure an injunction to restrain the sale of the attached property.”

When the sheriff, acting beyond the bound of his authority, seizes a stranger's property, the writ of
injunction, which is issued to stop the auction sale of that property, is not an interference with the
writ of execution issued by another court because the writ of execution issued by another court
because the writ of execution was improperly implemented by the sheriff. Under that writ, he could
attach the property of the judgment debtor. He is not authorized to levy upon the property of the third-
party claimant.

The motion to dismiss is not meritorious. A stranger to the action who claims interest in a property
being attached or levied may make a third party claim by filing an affidavit and serving the same on
the sheriff and the person in whose favor the attachment is being awarded to. The third-party
claimant may also file a separate independent action and the court hearing the same may issue an
injunction against the sheriff and damages against Pedro. This is not undue interference as such is
allowed by the law itself under the rules of court.

Rule 39, Sec. 16 Proceeding where property is claimed by third person

Exclusive original jurisdiction over 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 of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in
Metro Manila where such personal property, estate, or amount of the demand does not exceed Two
hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's
fees, litigation expenses, and costs.

10. Pedro was awarded a money judgment by the High Court of Hongkong in the amount of
HK$40,000.00 or the equivalent of Php240,000. In what court should the action for the enforcement
of the said foreign judgment be filed? (5%)

Tope: The action should be filed with the RTC. In the case of Mijares vs. Ranada the Court held, thus:
An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a
foreign judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the
Regional Trial Courts, thus negating the fears of the petitioners. Indeed, an examination of the
provision indicates that it can be relied upon as jurisdictional basis with respect to actions for
enforcement of foreign judgments, provided that no other court or office is vested jurisdiction over
such complaint:

“Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction:

xxx

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions.”

Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US District Court
judgment is one capable of pecuniary estimation. But at the same time, it is also an action based on
judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141.

Therefore, the money judgment having been rendered by a foreign court, High Court of Hongkong, the
filing for the enforcement of such judgment should be with the RTC.

The regional trial court has jurisdiction over cases seeking enforcement of foreign judgments

Mijares v Ranada

Atty: still file with RTC because not anymore litigating there the very liability upon which the judgment
was rendered. Only prove there is the existence of judgment by foreign court

11. Plaintiff, a Manila resident, sued the defendant, a resident of Malolos, Bulacan, in the RTC-
Manila for a sum of money. When the sheriff tried to serve the summons and the complaint on the
defendant at his Bulacan residence, the sheriff was told that the defendant had gone to Manila for
business and would not be back until the evening of that day. So, the sheriff served the summons,
together with a copy of the complaint, on the defendant’s 12-year-old daughter residing thereat.
For failure to answer the complaint, the trial court, on motion of plaintiff, declared defendant in
default and thereafter rendered default judgment ordering defendant to pay the entire amount
prayed for in the complaint. Six years after the entry of judgment, the plaintiff filed an action for
revival of judgment. May the defendant raise the defense and successfully oppose the revival action
on the ground that the judgment is null and void because the RTC-Manila never acquired jurisdiction
over his person due to improper substituted service of summons? (5%)

Tope: Yes, the defendant can raise the defense and successfully oppose the revival action on the
ground that the judgment is null and void because the RTC-Manila never acquired jurisdiction over his
person due to improper substituted service of summons. As a rule, the opposing party may raise all
defenses EXCEPT to challenge the ruling or the judgment in the first case, since such judgment is
already barred by res judicata. The opposing party can raise the issue of jurisdiction or venue except
to attack the judgment on its merits.

To annul a judgment, the party may raise the ground of either extrinsic fraud or lack of jurisdiction.
The ground of lack of jurisdiction may be raised until barred by laches or estoppel. Section 2 and 3 of
Rule 47 states, thus:
Section 2. Grounds for annulment. — The annulment may be based only on the grounds of extrinsic
fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion
for new trial or petition for relief.

Section 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.

Annulment under Rule 47 is proper since the no other remedy may further be availed on account of
the fact that the judgment was already entered 6 years ago which is way beyond the period of filing
for relief under Rule 38, viz:

Section 3. Time for filing petition; contents and verification. — A petition provided for in either of the
preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns
of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such proceeding was taken, and must be
accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied
upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as
the case may be.

On the point of lack of jurisdiction, in order for the court to enter a valid judgment, it must have
jurisdiction both over the subject matter and over the person of the parties. Improper service of
summon deprives the court of jurisdiction over the person of the defendant, hence, service with a minor
in the place of residence of the defendant did not confer upon the court jurisdiction over the person of
such defendant. Thus, Section 6(a) of Rule 15 provides, viz:

Section 6. Substituted service. — If, for justifiable causes, the defendant cannot be served personally
after at least three (3) attempts on two (2) separate dates, service may be effected:

(a) By leaving copies of the summons at the defendant's residence to a person at least eighteen (18)
years of age and of sufficient discretion residing therein;

In the instant case, the summon was served to the defendant’s 12-year-old daughter residing with her.
As such, the court failed to acquire jurisdiction over her person, and the resulting judgment over the
complaint is void for lack of jurisdiction. Therefore, the defendant can move for the annulment of such
judgment, or oppose the revival of such judgment upon motion of the plaintiff for such revival on the
ground of lack of jurisdiction.

12. Pedro filed a petition for declaration of the nullity of his marriage to Carmela because of the
alleged psychological incapacity of the latter. After trial, the court rendered judgment dismissing
the petition on the ground that Pedro failed to prove the psychological incapacity of his wife. The
judgment having become final, Pedro filed another petition, this time on the ground that his
marriage to Carmela had been celebrated without a license. Is the second action barred by the
judgment in the first? (5%)

No, the first action filed by Pedro based on psychological incapacity does not constitute a bar to the
second action based on the lack of a marriage license. Although res judicata is present in this case, it
is only in the second aspect of res judicata, which is conclusiveness of judgment since there is only
identity of parties and identity of subject matter but not identity of cause of action.

For res judicata in the aspect of bar by former judgment to take place, the three must all concur.

Rule 39:

Section 47. Effect of judgments or final orders. — The effect of a judgment or final order rendered by
a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as
follows:

(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 his relationship to another, the judgment or final
order is conclusive upon the title to the thing, the will or administration or the condition, status or
relationship of the person, however, the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate;

(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to
any other matter that could have been missed in relation thereto, conclusive between the parties and
their successors in interest, by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that only is deemed
to have been adjudged in a former judgment or final order which appears upon its face to have been
so adjudged, or which was actually and necessarily included therein or necessary thereto. (49a)

13. In putting up his new factory, Daniel acquired on credit certain heavy machineries from ABC Co
with chattel mortgage thereon. The machineries were imbedded in the ground inside Daniel’s
factory. When Daniel defaulted in his payment, ABC Co. brought an action for recovery the
machineries with application for writ of replevin. In his answer Daniel mainly alleged prematurity
in that ABC Co. had granted him an extension of time to settle his obligation. As the judge, would
you issue the replevin? (5%)

No, I would not issue the replevin. Replevin is a provisional remedy which allows for the plaintiff to
take possession of the personal property in an action for the recovery of the same.

In this case, the machineries have been firmly imbedded into the ground, thus making them form part
of the real property of Daniel. This is pursuant to the civil code of the Philippines which provides that
among those immovable or real properties are those which have been attached to immovable
property in such a way that they cannot be removed without breaking the property to which it is
attached.

Thus, since the machineries are real property and not personal property, they cannot be subject of a
writ of replevin.

Article 415. The following are immovable property:

(3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated
therefrom without breaking the material or deterioration of the object;
(5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for
an industry or works which may be carried on in a building or on a piece of land, and which tend
directly to meet the needs of the said industry or works;

RULE 60

Replevin

Section 1. Application. — A party praying for the recovery of possession of personal property may, at
the commencement of the action or at any time before answer, apply for an order for the delivery of
such property to him, in the manner hereinafter provided.

14. A judgment rendered by the trial court ordering defendant to pay plaintiff the unpaid loan of
Php500,000.00. Defendant appealed the judgment while plaintiff seasonably filed a motion for
execution pending appeal which the trial court granted after positing of a bond and upon good
reasons stated in the order. However, with the defendant’s filing of a sufficient supersedeas bond,
the trial court lifted the order of execution pending appeal. In due time the appellate court affirmed
the trial court’s decision. When the judgment became final and executory, Pedro moved to enforce
the money judgment against the supersedeas bond. Defendant’s bondsman opposed the motion
contending that the application for damages against the supersedeas bond should have been filed
with the appellate court before the judgment became executory pursuant procedure in Sec. 20,
Rule 57. Resolve. (5%)

Tope: Motion should be granted; the surety is liable on the counter bond. Section 20 of Rule 57
provides, thus:

Section 20. Claim for damages on account of improper, irregular or excessive attachment. —
An application for damages on account of improper, irregular or excessive attachment must
be filed before the trial or before appeal is perfected or before the judgment becomes
executory, with due notice to the attaching party and his surety or sureties setting forth the
facts showing his right to damages and the amount thereof. Such damages may be awarded
only after proper hearing and shall be included in the judgment on the main case.

If the judgment of the appellate court be favorable to the party against whom the
attachment was issued he must claim damages sustained during the pendency of the appeal
by filing an application in the appellate court, with notice to the party in whose favor the
attachment was issued or his surety or sureties, before the judgment of the appellate court
becomes executory. The appellate court may allow the application to be heard and decided
by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was issued
from recovering in the same action the damages awarded to him from any property of the
attaching party not exempt from execution should the bond or deposit given by the latter be
insufficient or fail to fully satisfy the award.

As held in the case of VANGUARD ASSURANCE CORPORATION vs. HON. COURT OF APPEALS,

Section 20 of Rule 57 . . . outlines the procedure to be followed in a claim for damages by

the party against whom attachment was issued. This rule provides that such damages may
be awarded only upon application and after proper hearing, and shall be included in the
 judgment; and that the application must be filed before the trial or before appeal is
perfected or before the judgment becomes executory, with due notice to the attaching
creditor or his surety or sureties, setting forth the facts showing his right to damages and the
amount thereof.

By its very terms, Section 20 of Rule 57 obviously refers to the recovery of damages by a party
against whom attachment was issued. This remedy is available only to the defendant not the
plaintiff (Dizon vs. Valdez, G.R. No. L-23920, April 25, 1968). Rule 57 of the Rules of Court,
particularly Sections 12 and 17 thereof, is the rule applicable to the case at bar. Section 12
provides that a counter-bond in an attachment is executed "to secure the payment of any
judgment that the attaching creditor may recover in the action". This legal precept should
be read together with Section 17 of the same Rule, which we quote:

When execution returned unsatisfied, recovery had upon bond. — If the execution be
returned unsatisfied in whole or in part, the surety or sureties on any counter-bond
given pursuant to the provisions of this rule to secure the payment of the judgment
shall become charged on such counter-bond, and bound to pay to the judgment
creditor upon demand, the amount due under the judgment, which amount may be
recovered from such surety or sureties after notice and summary hearing in the same
action.

The above-quoted provision of the pertinent Rule contemplates of proceedings on execution

after judgment when liability upon the surety's bond may be determined. The key term in
Section 17 is the phrase "if the execution be returned unsatisfied in whole or in part." (Dizon
vs. Valdez, supra). Hence, after the judgment for the plaintiff has become executory and the
execution is returned unsatisfied, as in the instant case, the liability of the bond automatically
attaches and, in case of failure of the surety to satisfy the judgment against the defendant
despite demand therefor, writ of execution may issue against the surety to enforce the
obligation of the bond.

Therefore, the surety’s reliance on Sec. 20 of Rule 57 in opposing liability on the counter bond, arguing
that the same should have been filed before the judgment became final and executory does not find
support from the rules applicable to the instant case. Hence, the surety is liable on the counter bond.

The provisions of Rule 57 regarding the collection of damages from the bond apply to other provisional
remedies. The rule provides that the damages must be claimed in the same action before the trial or
before the appeal is perfected or before the judgment becomes executory.

In this case, Pedro moved to enforce the money judgment on the supersedeas bond after the case
had already become final and executory. Thus, his motion must be denied.

Recovering damages on an applicant’s bond

Requirements

a. The defendant claimant has secured a favorable judgment the main action, meaning that the
plaintiff has no cause of action and was not entitled to the replevin;
b. The application for damages, showing claimant’s right thereto and the amount thereof, be
filed in the same action before trial or before appeal is perfected or before the judgment
becomes executory;
 c. Due notice be given to the other party and his surety or sureties, notice to the principal not
being sufficient;
d. A proper hearing and the award for damages should be included in the final judgment.

[DBP v. Carpio, G.R. No. 195450 (2017)]

Note: DBP v. Carpio states that the same requirements apply when recovering damages under other
provisional remedies, as provided in Sec. 20, Rule 57; Sec. 8, Rule 58 and Sec. 9, Rule 59.

Section 20. Claim for damages on account of improper, irregular or excessive attachment. — An
application for damages on account of improper, irregular or excessive attachment must be filed
before the trial or before appeal is perfected or before the judgment becomes executory, with due
notice to the attaching party and his surety or sureties setting forth the facts showing his right to
damages and the amount thereof. Such damages may be awarded only after proper hearing and shall
be included in the judgment on the main case.

If the judgment of the appellate court be favorable to the party against whom the attachment was
issued he must claim damages sustained during the pendency of the appeal by filing an application in
the appellate court, with notice to the party in whose favor the attachment was issued or his surety
or sureties, before the judgment of the appellate court becomes executory. The appellate court may
allow the application to be heard and decided by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was issued from
recovering in the same action the damages awarded to him from any property of the attaching party
not exempt from execution should the bond or deposit given by the latter be insufficient or fail to
fully satisfy the award. (20a)

18. All actions for annulment of judgment is within the exclusive original jurisdiction of the Court of
Appeals.

False. Actions to annul judgments of the Regional Trial Court are within the exclusive original
jurisdiction of the Court of Appeals. On other hand, actions to annul judgments of the Metropolitan
Trial Courts are within the exclusive jurisdiction of the Regional Trial Courts.

Rule 47, ROC:

Section 1. Coverage. — This Rule shall govern the annulment by the Court of Appeals of judgments or
final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are no longer available through no
fault of the petitioner. (n)

XXXXX

Section 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. (n)

19. If the parties to the dispute are not residents of the same city or municipality, there can be no
referral to the dispute to the Lupon for conciliation.

False. Even if the parties to the dispute are not residents of the same city or municipality, referral to
the lupon can still be had if the cities or municipalities in which they reside are adjoining and if they
agree to submit the dispute for conciliation with the appropriate lupon.

Section 408. Subject Matter for Amicable Settlement; Exception Thereto. - The lupon of each barangay
shall have authority to bring together the parties actually residing in the same city or municipality for
amicable settlement of all disputes except:

(a) Where one party is the government, or any subdivision or instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute relates to the performance of his
official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand
pesos (P5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or municipalities unless the
parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of different cities or municipalities,
except where such barangay units adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;

(g) Such other classes of disputes which the President may determine in the interest of Justice or upon
the recommendation of the Secretary of Justice.

The court in which non-criminal cases not falling within the authority of the lupon under this Code are
filed may, at any time before trial motu propio refer the case to the lupon concerned for amicable
settlement.

19. Referral to the Lupon for conciliation is not necessary if the parties to the dispute are not residents
of the same city or municipality.

True. Section 408 of the Local Government Code provides as an exception to the rule that all disputes
must be brought before the lupon that those disputes where parties are residents of barangays of
different municipalities or cities need not bring the matter before the lupon. The exception to this
exception is where the cities where the parties reside adjoin each other and the parties agree to bring
the matter to the lupon.

Section 408. Subject Matter for Amicable Settlement; Exception Thereto. - The lupon of each barangay
shall have authority to bring together the parties actually residing in the same city or municipality for
amicable settlement of all disputes except:

(a) Where one party is the government, or any subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee, and the dispute relates to the performance
 of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five
thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different cities or municipalities unless
the parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of different cities or municipalities,
except where such barangay units adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may determine in the interest of Justice or
upon the recommendation of the Secretary of Justice.

The court in which non-criminal cases not falling within the authority of the lupon under this Code are
filed may, at any time before trial motu propio refer the case to the lupon concerned for amicable
settlement.

20. No motion for reconsideration or a petition for certiorari are allowed in cases governed by Rules
on Summary Procedure.

Partially true. According to the Revised Rules on Summary Procedure, among the prohibited pleadings
and motions in cases governed by such rules are motions for reconsideration, new trial, or for
reopening of the case.

Furthermore, the rules provide that there can be no petition for certiorari, mandamus, or prohibition
based on the interlocutory orders of the court. However, there is no prohibition regarding certiorari
based on final orders of the court.

Sec. 19. Prohibited pleadings and motions. — The following pleadings, motions or petitions shall not
be allowed in the cases covered by this Rule:

(c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial; (OF A JUDGMENT,
NOT INTERLOCUTORY ORDER)

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court; (ONLY INTERLOCUTORY ORDER NOT FINAL ORDER)