REMEDIAL LAW REVIEWER

(2) Land registration cases,

Civil Procedure (3)
(4)
Cadastral cases,
Naturalization cases,
REMEDIAL LAW (5) Insolvency proceedings 77
Criminal Procedure General Principles (6) Other cases not herein provided for
Civil Procedure Jurisdiction
Evidence Except by analogy or in a suppletory character and
Special Proceedings I. Actions whenever practicable and convenient [Rule 4, Sec.
II. Cause of Action 4]
III. Parties to Civil Actions
Prospectivity/Retroactivity
IV. Venue The Rules of Court are not penal statutes and cannot
V. Pleadings be given retroactive effect [Bermejo v Barrios
VI. Summons (1970)].
VII. Motions
VIII. Dismissal of Actions Rules of procedure may be made applicable to
IX. Pre-Trial actions pending and undetermined at the time of
X. Intervention their passage, and are deemed retroactive in that
XI. Subpoena sense and to that extent. [In the Matter to Declare
in Contempt of Court Hon. Simeon Datumanong
XII. Modes of Discovery
(2006)].
XIII. Trial
XIV. Demurrer to Evidence
B. Substantive Law as Distinguished
XV. Judgments and Final Orders
XVI. Post-Judgment Remedies from Remedial Law
XVII. Execution, Satisfaction and
Remedial law or Procedural law
Effect of Judgments
ƒ provides a method of enforcing the rights
XVIII. Provisional Remedies established by substantive law;
XIX. Special Civil Actions ƒ prescribes the method of enforcing rights or
obtaining redress for their invasion. [Bustos v
GENERAL PRINCIPLES Lucero (1948)]
ƒ Judicial process for enforcing rights and duties
A. Concept of Remedial Law recognized by substantive law and for justly
B. Substantive Law as Distinguished from administering remedy and redress for a disregard
Remedial Law or infraction of them. [Fabian v Desierto (1998)]
C. Rule-making Power of the Supreme Court
D. Nature of Philippine Courts Substantive law
ƒ is that part of the law which creates, defines and
regulates rights concerning life, liberty, or
A. Concept of Remedial Law property, or the powers of agencies or
instrumentalities for the administration of public
Concept affairs [Bustos v Lucero (1948)]
Remedial statute or statutes:
(1) relating to remedies or modes of procedure;
(2) do not take away or create vested rights;
C. Rule-making Power of the Supreme
(3) BUT operate in furtherance of rights already Court
existing. [Riano citing Systems Factor
Corporation v NLRC (2000)] ƒ The Rules of Court was adopted and
promulgated by the Supreme Court pursuant to
The Rules of Court, promulgated by authority of law, the provisions of Sec 5(5) of Art. VIII of the
have the force and effect of law, if not in conflict Constitution, vesting in it the power to:
with positive law [Inchausti & Co v de Leon (1913)]. - Promulgate rules concerning the protection
The rule is subordinate to the statute, and in case of and enforcement of constitutional rights,
conflict, the statute will prevail. [Shioji v Harvey pleading, practice and procedure in all
(1922)]. courts, the admission to the practice of
law, the Integrated Bar, and legal
Applicability assistance to the underprivileged.
The Rules of Court is applicable in ALL COURTS, ƒ The power to promulgate rules of pleading,
except as otherwise provided by the SC [Rule 1, Sec. practice, and procedure is no longer shared by
2]. the Supreme Court with Congress, more so with
the executive… [Riano citing Echegaray v
It governs the procedure to be observed in civil or Secretary of Justice (1999)]
criminal actions and special proceedings [Rule 1,
Sec. 3]. It does not apply to the following cases:
[ELCINO]
(1) Election cases,
 REMEDIAL LAW REVIEWER

1. Limitations on the rule-making power then pending, EXCEPT to the extent that in the
of the Supreme Court opinion of the Court their application would not be
78 feasible or would work injustice. [Riano citing Rule
114]
ƒ Sec 5(5) of Art. VIII of the Constitution sets forth
the limitations to the power: [SUS]
- that the rules shall provide a simplified and D. Nature of Philippine Courts
inexpensive procedure for speedy disposition
of cases; 1. Meaning of a court
- that the rules shall be uniform for courts of
the same grade; and Definition
- that the rules shall not diminish, increase or ƒ A court is an organ of the government belonging to
modify substantive rights. the judicial department, the function of which is
the application of the laws to controversies
2. Power of the Supreme Court to amend brought before it (and) as well as the public
and suspend procedural rules administration of justice.
ƒ Generally, the term describes an organ of the
Power to amend remedial laws government consisting of one person or of several
ƒ The constitutional faculty of the Court to persons, called upon and authorized to administer
promulgate rules of practice and procedure justice. It is also the place where justice is
necessarily carries with it the power to overturn administered. [Riano citing Black’s and Am. Jur.
judicial precedents on points of remedial law and C. J. S.]
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)]. 2. Court as distinguished from a judge
ƒ The SC has the sole prerogative to amend, repeal, Court Judge
or even establish new rules for a more simplified Tribunal officially Simply an officer of such
and inexpensive process, and the speedy assembled under tribunal
disposition of case [Neypes v CA (2005)] authority of law
An organ of the Person who sits in court
Power to suspend remedial laws government with a
ƒ It is within the inherent power of the Supreme personality separate and
Court to suspend its own rules in a particular case distinct from judge
in order to do justice [De Guia v De Guia (2001)]. An office A public officer [Riano]
ƒ When the operation of rules will lead to an
injustice or if their application tends to subvert
The circumstances of the court are not affected by
and defeat instead of promote and enhance
the circumstance that would affect the judge. The
justice, their suspension is justified [Republic v CA
continuity of a court and the efficacy of its
(1978)].
proceedings are not affected by the death,
ƒ There is no absolute rule as to what constitutes
resignation, or cessation from the service of the
good and sufficient cause that will merit
judge presiding over it. In other words, the judge
suspension of the rules. The matter is
may resign, become incapacitated, or be disqualified
discretionary upon the Court [Republic v Imperial
to hold office, but the court remains. The death of
Jr. (1999)].
the judge does not mean the death of the court
[Riano citing ABC Davao Auto Supply v. CA (1998)].
ƒ The bare invocation of "the interest of substantial
justice" is not a magic wand that will
automatically compel this Court to suspend 3. Classification of Philippine courts
procedural rules [Ramos v Sps Lavendia (2008)].
NOTE: Please see succeeding subsections for
ƒ Procedural rules are not to be belittled or discussions on a to d.
dismissed simply because their non-observance a. Courts of law and equity
may have resulted in prejudice to a party's
substantive rights. Like all rules, they are required b. Courts of Original and Appellate jurisdiction
to be followed except only for the most persuasive
of reasons when they may be relaxed to relieve a c. Courts of General and Special jurisdiction
litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying d. Constitutional and statutory courts
with the procedure prescribed. [Polanco v Cruz
(2009)]. e. Superior and Inferior courts
ƒ Superior courts – Courts which have the power
NOTE: Although not laws in the technical sense of of review or supervision over another and lower
the term, Rules of Court, promulgated by authority court.
of law, have the force and effect of law. [Riano ƒ Inferior courts – Those which, in relation to
citing Shioji v Harvey (1922)] another court, are lower in rank and subject to
review and supervision by the latter. [Regalado]
Applicability: Prospective
The Rules of Court shall govern cases brought after f. Courts of record and not of record
they take effect, and also all further proceedings

ƒ Courts of record – Those whose proceedings are
enrolled and which are bound to keep a written
record of all trials and proceedings handled by
them. [Regalado] One attribute of a court of
record is the strong presumption as to the
veracity of its records that cannot be
collaterally attacked except for fraud. All
Philippine courts, including inferior courts, are
now courts of record. [Riano]
ƒ Courts not of record – Courts which are not
required to keep a written record or transcript
of proceedings held therein.
4. Courts of original and appellate
jurisdiction
ƒ Courts of original jurisdiction – Those courts in
which, under the law, actions or proceedings
may be originally commenced.
ƒ Courts of appellate jurisdiction – Courts which
have the power to review on appeal the
decisions or orders of a lower court. [Regalado]
5. Courts of general and special
jurisdiction
ƒ Courts of general jurisdiction – Those competent
to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.
ƒ Courts of special or limited jurisdiction – Those
which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Regalado]
6. Constitutional and statutory courts
ƒ Constitutional courts – Those which owe their
creation and existence to the Constitution and,
therefore cannot be legislated out of existence
or deprived by law of the jurisdiction and
powers unqualifiedly vested in them by the
Constitution. e.g. Supreme Court;
Sandiganbayan is a constitutionally-mandated
court but created by statute.
ƒ Statutory courts – Those created, organized and
with jurisdiction exclusively determined by law.
[Regalado]
7. Courts of law and equity
Philippine courts are both courts of law and equity.
Hence, both legal and equitable jurisdiction is
dispensed with in the same tribunal [U.S. v.
Tamparong (1998)]
8. Principle of judicial hierarchy
ƒ The judicial system follows a ladderized scheme
which in essence requires that lower courts
initially decide on a case before it is considered
by a higher court. Specifically, under the
judicial policy recognizing hierarchy of courts, a
higher court will not entertain direct resort to it
unless the redress cannot be obtained in the
REMEDIAL LAW REVIEWER
appropriate courts. [Riano citing Santiago v.
Vasquez]
ƒ The principle is an established policy necessary
to avoid inordinate demands upon the Court’s 79
time and attention which are better devoted to
those matters within its exclusive jurisdiction,
and to preclude the further clogging of the
Court’s docket [Lim v. Vianzon (2006)].
ƒ When the doctrine/principle may be
disregarded: A direct recourse of the Supreme
Court’s original jurisdiction to issue writs
(referring to the writs of certiorari, prohibition,
or mandamus) should be allowed only when
there are special and important reasons
therefor, clearly and specifically set out in the
petition. [Mangahas v. Paredes (2007)]. The
Supreme Court may disregard the principle of
hierarchy of courts if warranted by the nature
and importance of the issues raised in the
interest of speedy justice and avoid future
litigations [Riano].
9. Doctrine of non-interference or
doctrine of judicial stability
ƒ The principle holds that courts of equal and
coordinate jurisdiction cannot interfere with
each other’s orders [Lapu-lapu Development
and Housing Corp. v. Group Management Corp.]
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal
court over which it has no appellate jurisdiction
or power of review [Villamor v. Salas].
ƒ The doctrine of non-interference applies with
equal force to administrative bodies. When the
law provides for an appeal from the decision of
an administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the
control of the latter [Phil Spinster Corp. v.
Cagayan Electric Power].
JURISDICTION
A. Jurisdiction over the parties
B. Jurisdiction over the subject matter
C. Jurisdiction over the issues
D. Jurisdiction over the res or property in
litigation
E. Jurisdiction of Courts
F. Jurisdiction over small claims, cases
covered by the rules on Summary
Procedure and Barangay Conciliation
G. Totality Rule
Jurisdiction
Jurisdiction is defined as the authority to try, hear
and decide a case [Tolentino v. Leviste (2004)].
Judicial power includes the duty of the courts of
justice: [Art 8, Sec. 1, Consti]
ƒ To settle actual controversies involving rights
which are legally demandable and enforceable;
 REMEDIAL LAW REVIEWER
ƒ To determine WON there has been a grave abuse
of discretion amounting to lack or excess of
80 jurisdiction on the part of any government
branch/ instrumentality.
All courts exercise judicial power. Only the Supreme
Court is the court created by the Constitution [Art 8,
Sec. 1, Consti]. The Sandiganbayan is a
Constitutionally mandated court, but it is created by
statute. [PD 1486]
Jurisdiction in general
A. Jurisdiction over the parties
NOTE: The mode of acquisition of jurisdiction over
the plaintiff and the defendant applies both to
ordinary and special civil actions.
1. How jurisdiction over the plaintiff is
acquired
Jurisdiction over the plaintiff is acquired by filing of
the complaint or petition. By doing so, he submits
himself to the jurisdiction of the court [Davao Light
& Power Co., Inc. v CA].
2. How jurisdiction over the defendant is
acquired
ƒ Acquired by the (1) voluntary appearance or
submission by the defendant or respondent to
the court or (2) by coercive process issued by
the court to him, generally by the service of
summons [de Joya v Marquez (2006), citing
Regalado]
ƒ 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 [Alba v. CA].
B. Jurisdiction over the subject
matter
1. Meaning of jurisdiction over the
subject matter
Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action,
and means not simply jurisdiction of the particular
case then occupying the attention of the court but
jurisdiction of the class of cases to which the
particular case belongs (Riano citing CJS).
It is the power to hear and determine cases of the
general class to which the proceedings in question
belong [Reyes v. Diaz (1941)]
How conferred and determined
ƒ It is conferred only by the Constitution or the
law.
ƒ Jurisdiction CANNOT be:
- fixed by agreement of the parties;
- cannot be acquired through, or waived,
enlarged or diminished by, any act or omission
of the parties;
- neither can it be conferred by the
acquiescence of the court [Regalado citing De
Jesus v Garcia (1967)].
- cannot be subject to compromise (Civil Code,
Art 2035)
ƒ Jurisdiction over the subject matter is
determined by the allegations of the complaint.
It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].
ƒ Once attached to a court, it cannot be ousted
by subsequent statute.
- Exception: The statute itself conferring new
jurisdiction expressly provides for retroactive
effect. [Southern Food v. Salas (1992)]
ƒ The filing of the complaint or appropriate
initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the
nature of the action [CB v. CA (1992)](2008 Bar
Exam).
- Exception: Non-payment of docket fee does
not automatically cause the dismissal of the
case on the ground of lack of jurisdiction as
long as the fee is paid within the applicable
prescriptive or reglementary period, more so
when the party involved demonstrates a
willingness to abide by the rules prescribing
such payment. [Go v. Tong (2003)]
2. Jurisdiction versus the exercise of
jurisdiction
ƒ Jurisdiction: the authority to hear and
determine a cause — the right to act in a case.
[Arranza v. BF Homes (2000)].
- ‘Exercise of Jurisdiction.’: the exercise of this
power or authority
ƒ Jurisdiction is distinct from the exercise
thereof. Jurisdiction is the authority to decide a
case and not the decision rendered therein.
When there is jurisdiction over the subject
matter, the decision on all other questions
arising in the case is but an exercise of
jurisdiction. [Herrera v Baretto et al (1913)]
3. Error of jurisdiction as distinguished
from error of judgment
Error of jurisdiction Error of judgment
It is one where the act It is one which the court
complained of was issued may commit in the
by the court without or in exercise of its
excess of jurisdiction jurisdiction [Cabrera v.
[Cabrera v. Lapid Lapid].
(2006)].
It includes errors of
procedure or mistakes in
the court’s mistakes in
the court’s findings
[Banco Filipino Savings
v. CA (2000)]

Correctible only by the Correctible by appeal
extraordinary writ of [Cabrera v Lapid]
certiorari [Cabrera v
Lapid]
Renders a judgment void Ground for reversal only
or voidable [Rule 16 Sec. if it is shown that
1, Rule 65] prejudice has been
caused [Banco Español-
Filipino v Palanca
(1918)]
4. How jurisdiction is conferred and
determined
Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement
of the action determines the jurisdiction of the
court.
5. Doctrine of primary jurisdiction
ƒ Courts cannot and will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal,
especially where the question demands the
exercise of sound administrative discretion
requiring the special knowledge, experience and
services of the administrative tribunal to
determine technical and intricate matters of
fact [Paloma v. Mora (2005)].
ƒ Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect of
some question arising in the proceeding before
the court [Riano citing Omictin v. CA (2007)]
6. Doctrine of adherence of jurisdiction
ƒ Also known as doctrine of continuity of
jurisdiction
ƒ The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes
of the case [Bantua v. Mercader (2001)].
ƒ As a consequence, jurisdiction is not affected by
a new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
- where there is an express provision in the
statute
- the statute is clearly intended to apply to
actions pending before its enactment [Riano
citing People v. Cawaling].
ƒ Jurisdiction being a matter of substantive law,
the statute in force at the time of the
commencement of the action determines the
jurisdiction of the court. [Municipality of
Kananga v Madrona (2003)]
7. Objections to jurisdiction over the
subject matter
ƒ The Court may ex mero motu, or on its own
initiative take cognizance of lack of jurisdiction
[Fabian v. Desierto (1998)].
REMEDIAL LAW REVIEWER
ƒ Earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed
before the filing or service of an answer. Lack of
jurisdiction over subject matter is a ground for a 81
motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised as
an affirmative defense in the answer. [Riano
citing Sec. 1(b) and 6 of Rule 16].
ƒ Jurisdiction over subject matter may be raised
at any stage of proceedings, even for the first
time on appeal [Calimlim v. Ramirez (1982)]
8. Effect of estoppel on objections to
jurisdiction
Jurisdiction by estoppel
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause
of action. Jurisdiction is conferred by law. Where
there is none, no agreement of the parties can
provide one. Settled is the rule that the decision of a
tribunal not vested with appropriate jurisdiction is
null and void. [SEAFDEC-AQD v. NLRC (1992)]
Exception: Participation in all stages of the case
before the trial court, that included invoking its
authority in asking for affirmative relief, effectively
barred petitioner by estoppel from challenging the
court’s jurisdiction. [Soliven v. Fastforms (2004)]
C. Jurisdiction over the issues
ƒ The power of the court to try and decide issues
raised in the pleadings of the parties [Reyes v.
Diaz (1941)]
ƒ How conferred & determined:
- Pleadings filed by the parties,
- Agreement in a pre-trial order or stipulation
[Rule 18, Sec. 2], or
- Implied consent as by the failure of a party to
object to evidence on an issue not covered by
the pleadings in Rule 10, Sec. 5. [Regalado]
D. Jurisdiction over the res or
property in litigation
ƒ Refers to the court’s jurisdiction over the thing
or the property which is the subject of the
litigation.
ƒ Acquired either by
- actual or constructive seizure by the court of
the thing in question, thus placing it in
custodia legis (e.g.attachment or
garnishment) or
- by provision of law which recognizes in the
court the power to deal with the property or
subject-matter within its territorial
jurisdiction (e.g. land registration) [Regalado]
 REMEDIAL LAW REVIEWER
Specific jurisdiction
82
E. Jurisdiction of Courts
1. Supreme Court
The judicial power shall be vested in one SC and in
such lower courts as may be established by law.
[Art. 8, Sec. 1, Consti]
Powers of the Supreme Court [Art. 8, Sec. 5,
Consti]
a. EXERCISE original jurisdiction over:
ƒ Cases affecting ambassadors and other public
ministers and consuls;
- RTC also has concurrent jurisdiction
ƒ Petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.
b. Review/revise/reverse/modify/affirm on appeal
or certiorari, final judgments/orders of lower
courts In:
ƒ All cases in which the constitutionality/validity
of any treaty, international or executive
agreement, law, presidential
decree/proclamation/order/ instruction,
ordinance or regulation is in question;
- NOTE: power of review contemplates the ff
courts: CA, Sandiganbayan, CTA, RTC, and
other courts authorized by law.
ƒ All cases involving the legality of any tax
/impost /assessment /toll, or any penalty
imposed in relation thereto;
ƒ All cases in which the jurisdiction of any lower
court is in issue;
ƒ All criminal cases in which the penalty imposed
is reclusion perpetua or higher;
ƒ All cases in which only errors/questions of law
are involved.
Exceptions: [Josefa v. Zhandong (2003)]
- The conclusion is grounded on speculations/
surmises /conjectures;
- The inference is manifestly
mistaken/absurd/impossible;
- There is grave abuse of discretion;
- The judgment is based on a misapprehension
of facts;
- The findings of fact are conflicting;
- There is no citation of specific evidence on
which the factual findings are based;
- The finding of absence of facts is contradicted
by the presence of evidence on record;
- The findings of the CA are contrary to those of
the trial court;
- The CA manifestly overlooked certain relevant
and undisputed facts that, if properly
considered, would justify a different
conclusion;
- The findings of the CA are beyond the issues
of the case;
- Such findings are contrary to the admissions
of both parties.
Distinction between Questions of Law and Fact
[Mendoza vs Salinas (2007)]
ƒ Question of law—exists when the doubt or
controversy concerns the correct application of
law or jurisprudence to a certain set of facts;
when the issue does not call for an examination
of the probative value of the evidence
presented, the truth or falsehood of facts being
admitted.
ƒ Question of fact—exists when the doubt or query
invites calibration of the whole evidence
considering mainly the credibility of the
witnesses, and the existence and relevancy of
specific surrounding circumstances, as well as
their relation to each other and to the whole,
and the probability of the situation
c. Assign temporarily judges of lower courts to
other stations as public interest may require,
which shall not last 6 six months without the
consent of the judge concerned.
d. Order a change of venue or place of trial to
avoid a miscarriage of justice.
e. Promulgate rules on:
ƒ Protection and enforcement of constitutional
rights;
ƒ Pleading/practice/procedure in all courts;
ƒ Admission to the practice of law;
ƒ The Integrated Bar;
ƒ Legal assistance to the under-privileged.
Guidelines on the rules:
- Provide a simplified and inexpensive
procedure for the speedy disposition of cases;
- Uniform for all courts of the same grade;
- Not diminish/increase/modify substantive
rights.
- Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the SC.
f. Appoint all Judiciary officials/employees in
accordance with the Civil Service Law.
Constitutional commissions
ƒ COMELEC and COA – Unless otherwise provided
by this Constitution or by law, any
decision/order /ruling of each Commission may
be brought to the SC on certiorari by the
aggrieved party, within 30 days from receipt of
a copy thereof. [Art. 9-A, Sec. 7, Consti]
ƒ CSC - Judgments/decisions/orders are within
the exclusive appellate jurisdiction of the CA
through Rule 43. [BP 129, as amended by RA
7902]
ƒ Sandiganbayan
- Decisions and final orders of the
Sandiganbayan shall be subject to review on
certiorari by the SC in accordance with Rule
45 of the Rules.
- Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for
review and judgment. [PD 1606 Sec 7]

2. Court of Appeals [Sec. 9, BP 129]
a. ORIGINAL JURISDICTION
To issue writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and auxiliary
writs/processes, whether or not in aid of its
appellate jurisdiction.
Note: former rule only allowed the CA to issue
auxiliary writs and processes in aid of jurisdiction.
- The power is concurrent with the SC.
b. EXCLUSIVE ORIGINAL JURISDICTION
Annulment of RTC judgments.
c. EXCLUSIVE APPELLATE JURISDICTION
ƒ Final
judgments/decisions/resolutions/orders/awards
of:
- RTCs;
- Quasi-judicial agencies/instrumentalities/
boards/commissions including:
o SEC;
o Social Security Commission;
o ECC;
o CSC.
ƒ Exception: Those falling within the SC’s
appellate jurisdiction of the Supreme Court in
accordance with:
- The Constitution;
- Labor Code;
- BP 129;
- Sec. 17, Par. 3(1) and Par. 4(4) of the
Judiciary Act of 1948.
Review of decisions by the NLRC: [St. Martin’s
Funeral Home vs NLRC (1998)]
ƒ Supposed appeals from the NLRC to the SC are
interpreted and hereby declared to mean and
refer to Petitioners for Certiorari under Rule 65.
ƒ All such petitions should be initially filed in the
CA in strict observance of the doctrine on the
hierarchy of courts.
ƒ All special civil actions arising out of any
decision or final resolution or order of the NLRC
filed with the SC after June 1, 1999 shall not
longer be referred to the CA, but shall forthwith
be dismissed.
Powers of the Court of Appeals
ƒ Try cases and conduct hearings;
ƒ Receive evidence
ƒ Perform any and all acts necessary to resolve
factual issues raised, including the power to
grant and conduct new trials or further
proceedings.
Trials or hearings must be continuous and must be
completed within 3 months, unless extended by the
Chief Justice.
REMEDIAL LAW REVIEWER
3. Court of Tax Appeals [Sec. 7, RA 1125,
as amended by RA 9282]
83
a. Exclusive appellate jurisdiction to review
by appeal
ƒ Decisions of the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relation
thereto, or other matters arising under the
National Internal Revenue or other laws
administered by the BIR;
ƒ Inaction by the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relations
thereto, or other matters arising under the
National Internal Revenue Code or other laws
administered by the BIR, where the National
Internal Revenue Code provides a specific period
of action, in which case the inaction shall be
deemed a denial;
ƒ Decisions, orders or resolutions of the RTCS in
local tax cases originally decided or resolved by
them in the exercise of their original or
appellate jurisdiction;
ƒ Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees
or other money charges, seizure, detention or
release of property affected, fines, forfeitures
or other penalties in relation thereto, or other
matters arising under the Customs Law or other
laws administered by the Bureau of Customs;
ƒ Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment
and taxation of real property originally decided
by the provincial or city board of assessment
appeals;
ƒ Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review
from decisions of the Commissioner of Customs
which are adverse to the Government under
Section 2315 of the Tariff and Customs Code;
ƒ Decisions of the Secretary of Trade and Industry,
in the case of nonagricultural product,
commodity or article, and the Secretary of
Agriculture in the case of agricultural product,
commodity or article, involving dumping and
countervailing duties under Sec 301 and 302,
respectively, of the Tariff and Customs Code,
and safeguard measures under RA 8800, where
either party may appeal the decision to impose
or not to impose said duties.
b. Jurisdiction over cases involving criminal
offenses:
General rule: Exclusive original jurisdiction over all
criminal offenses arising from violations of the
National Internal Revenue Code or Tariff and
Customs Code and other laws administered by the
BIR or the Bureau of Customs
 REMEDIAL LAW REVIEWER
BUT! Offenses or felonies where the principal
amount of taxes and fees, exclusive of charges and
84 penalties, claimed is less than P1,000,000.00 or
where there is no specified amount claimed shall be
tried by the regular Courts and the jurisdiction of
the CTA shall be appellate.
a. Original Exclusive Jurisdiction
Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of
civil liability for taxes and penalties shall at all times
be simultaneously instituted with, and jointly
determined in the same proceeding by the CTA, the
filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action,
and no right to reserve the filling of such civil action
separately from the criminal action will be
recognized.
c. Exclusive appellate jurisdiction in criminal
offenses:
ƒ Over appeals from the judgments, resolutions or
orders of the RTCs in tax cases originally
decided by them, in their respected territorial
jurisdiction.
ƒ Over petitions for review of the judgments,
resolutions or orders of the RTCs in the exercise
of their appellate jurisdiction over tax cases
originally decided by the MeTCs, MTCs and
MCTCs in their respective jurisdiction.
d. Jurisdiction over tax collection cases as
herein provided:
General rule: Exclusive original jurisdiction in tax
collection cases involving final and executory
assessments for taxes, fees, charges and penalties:
BUT! collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties,
claimed is less than P1,000,000.00 shall be tried by
the proper MTC, MeTC and RTC
e. Exclusive appellate jurisdiction in tax
collection cases:
Over appeals from the judgments, resolutions or
orders of the RTCs in tax collection cases originally
decided by them, in their respective territorial
jurisdiction.
Over petitions for review of the judgments,
resolutions or orders of the RTCs in the Exercise of
their appellate jurisdiction over tax collection cases
originally decided by the MeTCs, MTCs and MCTCs, in
their respective jurisdiction."
NOTE: RA9282 elevated CTA’s rank to the level of
the Court of Appeals with special jurisdiction.
4. Sandiganbayan [Sec.4 of RA 8249]
ƒ Decisions and final orders of the Sandiganbayan
shall be subject to review on certiorari by the
Supreme Court in accordance with Rule 45 of
the Rules.
ƒ Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for review
and judgment. [PD 1606 Sec 7]
ƒ Violations of RA 3019 (Anti-graft and Corrupt
Practices Law);
ƒ RA 1379 (Forfeiture of Illegally Acquired
Wealth);
ƒ Crimes by public officers or employees
embraced in Ch. II, Sec.2 Title VII, Bk. II of the
RPC (Crimes committed by Public Officers)
namely:
- Direct Bribery under Art. 210 as amended by
BP 871, May 29, 1985;
- Indirect Bribery under Art. 211 as amended by
BP 871, May 29, 1985;
- Qualified Bribery under Art. 211-A as
amended by RA 7659, Dec. 13, 1993;
- Corruption of public officials under Art. 212
where one or more of the accused are
officials occupying the following positions in
the government whether in a permanent,
acting or interim capacity, at the time of the
commission of the offense:
o Officials of the executive branch occupying
the positions of regional director and
higher, otherwise classified as Grade 27 and
higher, of the Compensation and Position
Classification Act of 1989 Republic Act No.
6758) specifically including:
o Provincial governors, vice-governors,
members of the sangguniang panlalawigan,
provincial treasurers, assessors, engineers
and other provincial department heads;
o City mayors, vice-mayors, members of the
sangguniang panglungsod, city treasurers,
assessors, engineers and other department
heads;
o Officials of the diplomatic service occupying
the position of consul and higher;
o Philippine Army and Air force colonels,
naval captains and all officers of higher
rank;
o Officers of the PNP while occupying the
position of Provincial Director and those
holding the rank of Senior Superintendent
or higher;
o City and provincial prosecutors and their
assistants; officials and the prosecutors in
the Office of the Ombudsman and special
prosecutor ;
o President, directors or trustees or managers
of government owned or controlled
corporations, state universities or
educational institutions or foundations;
- Members of Congress and Officials thereof
classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
- Members of the Judiciary without prejudice to
the provision of the Constitution;
- Chairmen and members of Constitutional
Commissions, without prejudice to the
provision of the Constitution;

- All other national and local officials classified
as Grade 27 and higher under the
Compensation and Position Classification Act
of 1989.
ƒ Other offenses or felonies whether simple or
complexed with other crimes committed in
relation to their office by the public officials
and employees mentioned above;
ƒ Civil and Criminal Cases filed pursuant to and in
connection with EO 1, 2, 14 & 14-A issued in
1986
ƒ Petitions for issuance of Writ of mandamus,
prohibition, certiorari, habeas corpus,
injunction and other ancillary writs and
processes in aid of its appellate jurisdiction;
- Provided, jurisdiction is not exclusive of the
Supreme Court
ƒ Petitions for Quo Warranto arising or that may
arise in cases filed or that may be filed under
EO 1, 2, 14 & 14- A
ƒ OTHERS provided the accused belongs to Salary
Grade 27 or higher:
- Violation of RA 6713 - Code of Conduct and
Ethical Standards
- Violation of RA 7080 – The Plunder Law
- Violation of RA 7659 - The Heinous Crime Law
- RA 9160 - Violation of The Anti-Money
Laundering Law when committed by a public
officer
- PD 46 referred to as the gift-giving decree
which makes it punishable for any official or
employee to receive directly or indirectly and
for the private person to give or offer to give
any gift, present or other valuable thing on
any occasion including Christmas, when such
gift, present or valuable thing is given by
reason of his official position, regardless of
whether or not the same is for past favors or
the giver hopes or expects to receive a favor
or better treatment in the future from the
public official or employee concerned in the
discharge of his official functions. Included
within the prohibition is the throwing of
parties or entertainment in honor of the
official or employee or his immediate
relatives.
- PD 749 which grants immunity from
prosecution to any person who voluntarily
gives information about any violation of
Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the Customs
and Tariff Code and other provisions of the
said Codes penalizing abuse or dishonesty on
the part of the public officials concerned and
other laws, rules and regulations penalizing
graft, corruption and other forms of official
abuse and who willingly testifies against the
public official or employee subject to certain
conditions.
NOTE: Private individuals can be sued in cases
before the Sandiganbayan if they are alleged to be in
conspiracy with the public officer.
REMEDIAL LAW REVIEWER
b. Appellate Jurisdiction
Over final judgments, resolutions or orders of the
RTC whether in the exercise of their original or 85
appellate jurisdiction
ƒ over crimes and civil cases falling within the
original exclusive jurisdiction of the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.
5. Regional Trial Courts
a. Exclusive Original Jurisdiction in Civil
Cases [Sec. 19, BP 129, Asked in the 2002
Bar Examinations]
ƒ Incapable of pecuniary estimation (2000 Bar
Exam);
- If the action is primarily for the recovery of a
sum of money, the claim is considered
capable of pecuniary estimation, and
jurisdiction over the action will depend on the
amount of the claim. [RCPI v. CA (2002)]
- If the basic issue is something other than the
right to recover a sum of money, if the money
claim is purely incidental to, or a
consequence of, the principal relief sought,
the action is one where the subject of the
litigation may not be estimated in terms of
money. [Soliven v. Fastforms (1992)]
- If the thing sought to be deposited or
consigned is a sum of money, the amount of
the debt due is determinable and capable of
pecuniary estimation. [Ascue v. CA (1991)]
- Action for support is incapable of pecuniary
estimation because the court is asked to
determine first WON the plaintiff is indeed
entitled to support. [Baito v. Sarmiento
(1960)]
- Action for specific performance is incapable
of pecuniary estimation. [Manufacturer’s
Distributor’s v. Yu Siu Liong (1966)]
- The jurisdiction of the respective courts is
determined by the value of the demand and
not the value of the transaction out of which
the demand arose.
- The alternative prayer for specific
performance is also of the same value, for the
alternative prayer would not have been made
in the complaint if one was more valuable
than the other.[Cruz v. Tan (1950)]
- Rescission is a counterpart of specific
performance therefore also incapable of
pecuniary estimation. [Lapitan v. Scandia
(1968)]
- Action for declaration of nullity of a deed of
partition is incapable of pecuniary estimation.
[Russel v. Vestil (1999)]
- An action for expropriation is incapable of
pecuniary estimation. [Bardillon v. Masili
(2003)]
ƒ Title to, or possession of, real property (or any
interest therein) where the property’s assessed
 REMEDIAL LAW REVIEWER
value exceeds P20K or P50K (for civil actions in
Metro Manila);
86 Exception: Forcible entry into and unlawful
detainer of lands/buildings
ƒ Admiralty and maritime jurisdiction where the
demand/claim exceeds P300K or P400K (in
Metro Manila);
- Maritime and admiralty cases involve trade
and transactions in the sea. Maritime
jurisdiction includes maritime tort. [Negre v.
Cabahug (1966)]
ƒ Probate (testate and intestate) where the gross
value of the estate exceeds P300K or P400K (in
Metro Manila);
ƒ Marriage contract and marital relations;
b. General Original Jurisdiction
ƒ All cases not within the exclusive jurisdiction of
any court/tribunal/person/ body exercising
judicial or quasi-judicial functions;
ƒ Within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of
the Court of Agrarian Relations;
ƒ All other cases where the demand (exclusive of
interest, damages of whatever kind, attorney's
fees, litigation expenses and costs) or the value
of the property in controversy exceeds P300K or
P400K in Metro Manila.
- The exclusion of the term “damages of
whatever kind” in determining the
jurisdictional amount under Sec. 19(8) and
Sec. 33 (1) of BP 129, as amended by RA7691,
applies to cases where the damages are
merely incidental to or a consequence of the
main cause of action. However, if the claim
for damages is the main cause of action, or
one of the causes of action, the amount of
such claim shall be considered in determining
the jurisdiction of the court.[Admin Circ. 09-
94]
- Actions for damages based on quasi-delicts
are primarily and effectively actions for the
recovery of a sum of money for the damages
suffered because of the defendant’s alleged
tortious acts. This money claim is the
principal relief sought, and is not merely
incidental thereto or a consequence thereof.
[Iniego v. Purganan (2006)]
c. Original Jurisdiction [Sec. 21, BP 129]
ƒ Certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which
may be enforced in any part of their respective
regions;
- CONCURRENT jurisdiction with SC and CA
ƒ Actions affecting ambassadors and other public
ministers and consuls.
- CONCURRENT jurisdiction with SC
d. Exclusive Appellate Jurisdiction [Sec. 22,
BP 129]
All cases decided by MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions. Metropolitan,
Municipal and Municipal Circuit Trial Courts
6. Family Courts
a. Exclusive Original Jurisdiction
ƒ Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
ƒ Petitions for adoption of children and revocation
thereof;
ƒ Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital 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;
ƒ Petitions for support and/ or acknowledgement;
ƒ Summary judicial proceedings brought under the
Family Code;
ƒ Petitions for declaration of status of children as
abandoned, dependent or neglected children,
for voluntary or involuntary commitment of
children, and for suspension, termination or
restoration of parental authority under PD 603,
EO 56 s. 1986 and other related laws;
ƒ Cases for domestic violence against women and
children, as defined therein but which do not
constitute criminal offenses subject to criminal
prosecution and penalties.
7. Metropolitan Trial Courts/Municipal
Trial Courts
a. Exclusive Original Jurisdiction [Sec. 33, BP
129]
ƒ Civil actions and probate proceedings (testate
and intestate), including the grant of provisional
remedies, where the value of the personal
property, estate or amount of the demand does
not exceed P300K or P400K (in Metro Manila)
(value excludes of interest, damages of
whatever kind, attorney’s fees, litigation
expenses, and costs);
- Interest, damages of whatever kind,
attorney's fees, litigation expenses and costs
shall be included in the determination of the
filing fees.
- If there are several claims or causes of actions
between the same/different parties in the
same complaint, the amount of the demand
shall be the totality of the claims in all the
causes of action, WON the causes of action
arose out of the same/different transactions.
ƒ Forcible entry and unlawful detainer
- If 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.
- That the MeTC has jurisdiction even in cases
where the issue of possession is closely
intertwined with the issue of ownership is now
a settled doctrine in ejectment proceedings.
[Heirs of B. Hernandez v. Vergara (2006)]
ƒ All civil actions that 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
P20K or P50K (in civil actions in Metro Manila).
- Value excludes interest, damages of whatever
kind, attorney’s fees, litigation expenses and
costs
- If land is not declared for taxation purposes,
the value of such property shall be
determined by the assessed value of the
adjacent lots.
ƒ All civil cases subject to summary procedure.
b. Delegated Jurisdiction in Cadastral and
Land Registration Cases [Sec. 34, BP 129]
ƒ Lots where there is no controversy/ opposition;
or
ƒ Contested lots the value of which does not
exceed P100K.
- The value is to be ascertained:
o By the claimant’s affidavit;
o By agreement of the respective claimants,
if there are more than one;
o From the corresponding tax declaration of
the real property.
- MTC decisions in cadastral and land
registration cases are appealable in the same
manner as RTC decisions.
8. Shariah Courts
a. Original Jurisdiction (Article 143, CMPL)
ƒ All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
ƒ All cases involving disposition, distribution and
settlement of estate of deceased Muslims,
probate of wills, issuance of letters of
administration or appointment of administrators
or executors regardless of the nature or
aggregate value of the property;
ƒ Petitions for the declaration of absence and
death for the cancellation or correction of
entries in the Muslim Registries mentioned in
Title VI, Book Two of the Code of Muslim
Personal Laws;
ƒ All actions arising from the customary contracts
in which the parties are Muslims, if they have
not specified which law shall govern their
relations; and
ƒ All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all
REMEDIAL LAW REVIEWER
other auxiliary writs and processes in aid of its
appellate jurisdiction.
b. Concurrent Jurisdiction with Civil Courts 87
ƒ Petitions by Muslim for the constitution of a
family home, change of name and commitment
of an insane person to an asylum;
ƒ All other personal and legal actions not
mentioned in paragraph 1 (d) wherein the
parties involved are Muslims except those for
forcible entry and unlawful detainer, which shall
fall under the exclusive jurisdiction of the
Municipal Circuit Court; and
ƒ All special civic actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims
Shari’a Circuit Courts are courts where Muslims can
file cases involving the following:
ƒ Offenses defined and punished under PD 1083
ƒ Disputes relating to :
- Marriage
- Divorce
- betrothal or breach of contract to marry
- customary dower (mahr)
- disposition and distribution of property upon
divorce
- maintenance and support and consolatory
gifts (mut’a)
- restitution of marital right
- Disputes relative to communal properties
NOTE: The Shari’a District Court or the Shari’a
Circuit Court may constitute an Agama Arbitration
Council to settle certain cases amicably and without
formal trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.
F. Jurisdiction over small claims,
cases covered by the rules on
Summary Procedure and Barangay
Conciliation
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small
Claims Cases effective October 1, 2008]
1. Definition
Small claims courts are courts of limited jurisdiction
that hear civil cases between private litigants
[Rationale of Proposed Rule].
2. Purpose
The purpose of small claims process is to provide an
inexpensive and expeditious means to settle disputes
over small amounts [Riano].
 REMEDIAL LAW REVIEWER

3. Scope
88 This rule governs the procedure in actions before the
Metropolitan trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts for payment of money where the value
of the claim does not exceed One Hundred Thousand
Pesos (P100,000.00) exclusive of interest and costs.
[Sec. 2, Scope]
4. Applicability
G. Totality Rule
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 causes of
action, irrespective of whether the causes of action
arose out of the same or different transaction [Riano
citing Pantranco North Express v Standard Insurance
(2005)]

The Metropolitan Trial Courts, Municipal Trial Courts

CIVIL PROCEDURE
in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions I. ACTIONS
which are:
ƒ Actions, in general: An ordinary suit in a court of
ƒ purely civil in nature where the claim or relief justice by which one party prosecutes another
prayed for by the plaintiff is solely for payment for the enforcement/ protection of a right or
or reimbursement of sum of money, and the prevention/redress of a wrong [Santos vs.
ƒ the civil aspect of criminal action, or reserved Vda. De Caparas, (1959)]
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of Action vs Cause of action
Criminal Procedure. (Asked in the 1999 Bar Exam)
These claims or demands may be: Cause of action Action
ƒ For money owed under any of the following; ƒ A cause of action is Ordinary suit in a court
- Contract of Lease; the basis of the action of justice, by which one
- Contract of Loan; filed [Rule 2, Sec.1] party prosecutes another
- Contract of Services; ƒ Fact or combination of for the enforcement or
- Contract of Sale; or facts which affords a protection of a right, or
- Contract of Mortgage; party a right to the prosecution or
judicial interference in redress of a wrong
ƒ For damages arising from any of the following; his behalf. [Into vs.
- Fault or negligence; Valle (2005)]
- Quasi-contract; or
- Contract; 1. Meaning of ordinary civil actions
ƒ The enforcement of a barangay amicable An ordinary civil action is one that is governed by
settlement or an arbitration award involving a the rules for ordinary civil actions [Rule 1, Sec. 3(a)
money claim covered by this Rule pursuant to par 2]
Sec. 417 of Republic Act 7160, otherwise known
as the Local Government Code of 1991. [Sec. 4, 2. Meaning of special civil actions
Applicability]
A special civil action is one that is subject to the
5. Prohibited Pleadings specific rules prescribed for a special civil action; it
is also governed by the rules for ordinary civil
The following pleadings, motions, and petitions shall actions [Rule 1, Sec. 3(a) par 2]
not be allowed in the cases covered by this Rule:
ƒ Motion to dismiss the compliant except on the 3. Meaning of criminal actions
ground of lack of jurisdiction;
ƒ Motion for a bill of particulars; A criminal action is one by which the State
ƒ Motion for new trial, or for reconsideration of a prosecutes a person for an act or omission
judgment, or for reopening of trial; punishable by law. [Rule 1, Sec. 3(b)]
ƒ Petition for relief from judgment;
ƒ Motion for extension of time to file pleadings,
4. Civil actions versus special
affidavits, or any other paper;
ƒ Memoranda; proceedings
ƒ Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the A civil action is one by which a party sues another
court; for the enforcement or protection of a right, or the
ƒ Motion to declare the defendant in default; prevention or redress of a wrong. [Rule 1, Sec. 3(a)
ƒ Dilatory motions for postponement; par 1]
ƒ Reply;
ƒ Third-party complaints; and A special proceeding is a remedy by which a party
ƒ Interventions. [Sec. 14, Prohibited pleadings and seeks to establish a status, a right, or a particular
motions] fact. [Rule 1, Sec. 3 (c)]
 REMEDIAL LAW REVIEWER

matter in litigation must also involve any of the

Distinctions between Civil Actions and Special following issues: title to, ownership, possession,
Proceedings paritition, foreclosure or mortgage or any interest in
(Asked in the 1998 Bar Exam) real property. (Riano) 89
Action Special
Proceeding Real action Personal Mixed action
As to parties Involves 2 or more Involves at action
parties least 1 party or Ownership or Personal Both real and
2 or more possession of property is personal
parties in real property is sought to be properties are
proper cases involved recovered or involved
As to cause Involves a right May involve a damages for
of action and a violation of right, but there breach of
such right by the need not be a Contract or the
defendant which violation of this enforcement of
causes some right a contract are
damage/prejudice sought
upon the plaintiff Founded on Founded on Founded on
As to Requires the Requires no privity of real privity of both
formalities application of such estate contract
legal remedies in formalities, as Filed in the Filed in the The rules on
accordance with it court where the court where the venue of real
the prescribed may be granted property (or any plaintiff or any actions govern
rules upon portion thereof) of the
application is situated defendants
resides, at the
As to Ordinary rules of Special rules of plaintiff’s
governing procedure procedure option
rules
As to appeal Cannot be Can be 6. Local and transitory actions
from an directly and immediately
interlocutory immediately and directly Local action Transitory action
order appealed to the appealed to
appellate court the appellate ƒ One that could be ƒ One that could be
until after final court instituted in one prosecuted in any one
judgment on the specific place [2011 of several places
merits Reviewer] [2011 Reviewer]
ƒ Venue depends upon ƒ Its venue depends
the location of the upon the residence of
5. Personal actions and real actions
property involved in the plaintiff or the
the litigation (Riano) defendant at the
ƒ Real Actions: Actions affecting title to or
option of the plaintiff
possession of real property, or interest therein.
(Riano)
[Rule 4, Sec. 1 par 1]

ƒ Personal Actions: All other actions are personal 7. Actions in rem, in personam and quasi
actions. [Rule 4, Sec.2] in rem
Importance of Distinction: for purposes of [Riano citing Domagas v. Jensen, (2005) and Biaco v.
determining the venue of the action (Riano) Philippine Countryside Rural Bank, (2007)]
ƒ Real actions shall be commenced and tried n the
proper court which has jurisdiction over the Action in rem Action in Action
area wherein the real property involved, or a personam quasi in rem
portion thereof, is situated. [Rule 4, Sec.1] Directed Directed Directed
ƒ Personal actions may be commenced and tried against the against against
where the plaintiff or any of the principal thing itself particular particular
plaintiffs resides, or where the defendant or any persons persons
of the principal defendants resides, or in the Jurisdiction Jurisdiction Jurisdiction
case of a non-resident defendant, where he may over the person over the person over the person
be found, at the election of the plaintiff. [Rule of the of the of the
4, Sec.2] defendant is defendant is defendant is
NOT required required not required as
NOTE: Not every action involving a real property is a long as
real action because the realty may only be jurisdiction
incidental to the subject matter of the suit. To be a over the res is
real action, it is not enough that the action must acquired
deal with real property. It is important that the
 REMEDIAL LAW REVIEWER

Action in rem Action in Action

personam quasi in rem II. CAUSE OF ACTION
90 A proceeding to An action to ƒ A proceeding
determine the impose to subject
state/condition responsibility the interest 1. Meaning of cause of action
of a thing or liability upon of a named
a person defendant A cause of action is the act or omission by which a
directly over a party violates a right of another. [Rule 2, Sec.2]
particular
property to Elements of a Cause of Action [cited in Riano]
an ƒ Plaintiff’s legal right;
obligation/lie ƒ Defendant’s correlative obligation to respect
n burdening plaintiff’s right;
it ƒ Defendant’s act/omission in violation of
ƒ Deal with the plaintiff’s right [Ma-ao Sugar Central v. Barrios
status, (1947)] (Asked in the 1997 Bar Exam).
ownership or
liability of a Every ordinary civil action must be based on a cause
particular of action [Rule 2, Sec. 1]
property but
which are A cause of action stems from the sources of
intended to obligations under Art. 1156, CC - Law, Contract,
operate on Quasi-contract, Acts and omissions punishable by law
these and Quasi-delict. [Sagrada Orden etc v. National
questions Coconut Corporation (1952)]
only as
between the 2. Right of action versus cause of
particular
parties to the
action [Regalado]
proceedings
and not to Right of action Cause of action
ascertain or The remedial right or The delict or wrongful
cut-off the right to relief granted by act or omission
rights or law to a party to committed by the
interest of all institute an action defendant in violation of
possible against a person who has the primary rights of the
claimants committed a delict or plaintiff
[Domagas v. wrong against him
Jensen Right to sue as a The delict or wrong
(2005)] consequence of the
Judgment is Judgment is Judgment is delict
binding on the binding only binding upon Whether such acts give Determined by the
whole world upon parties particular him right of action averments in the
impleaded or persons determined by pleading regarding the
their successors substantive law acts committed by the
in interest defendant
Ex: Accion Ex: Action for Ex: Action for
reivindicatoria; specific partition; NOTE: There can be no right of action without a
annulment of performance; action to cause of action being first established [Regalado
marriage; action to foreclose real citing Español v. The Chairman of PVA (1985)]
naturalization recover money estate
proceedings or property mortgage 3. Failure to state a cause of action
(real or
personal) ƒ There is a failure to state a cause of action if
the pleading asserting the claim states no cause
The question of whether the trial court has of action. This is a ground for a motion to
jurisdiction depends on the nature of the action, dismiss. [Rule 16, Sec.1(g)]
i.e., whether the action is in personam, in rem, or ƒ It is submitted that the failure to state a cause
quasi in rem. [Riano citing Biaco v. Philippine of action dos not mean that the plaintiff has “no
Countryside Rural Bank (2007)] cause of action.” It only means that the
plaintiff’s allegations are insufficient for the
The distinction is important to determine whether or court to know that the rights of the plaintiff
not jurisdiction over the person of the defendant is were violated by the defendant. (Riano)
required and consequently to determine the type of ƒ There is a failure to state a cause of action if
summons to be employed. [Riano citing Gomez v. allegations in the complaint taken together, do
Court of Appeals (2004)] not completely spell out the elements of a
particular cause of action. (Riano)

ƒ A failure to state a cause of action is not the
same as an absence or a lack of cause of action.
The former refers to an insufficiency in the
allegations of the complaint while the latter
refers to the failure to prove or to establish by
evidence one’s stated cause of action. (Riano)
4. Test of the sufficiency of a cause
of action
Whether or not admitting the facts alleged, the
court could render a valid verdict in accordance with
the prayer of the complaint [Santos v. de Leo (2005)]
5. Splitting a single cause of action
and its effects
Definition: The act of instituting two or more suits
on the basis of the same cause of action. [Rule 2,
Sec.4]
The act of dividing a single or indivisible cause of
action into several parts or claims and bringing
several actions thereon. (Regalado)
Effects of splitting a cause of action: [Taken from
2011 Reviewer]
ƒ The filing of one or a judgment upon the merits
in any one is available as a ground for the
dismissal of the others. [Rule 2, Sec.4]
ƒ Filing of the 1st complaint may be pleaded in
abatement of the 2nd complaint, on the ground
of litis pendentia; or
ƒ A judgment upon the merits in any of the
complaints is available as ground for dismissal of
the others based on res judicata.
ƒ A MTD under Rule 16 Sec. 1(e) or (f) may be
filed in order that the complaint may be
dismissed.
Basis: A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3]
Purpose [City of Bacolod v. SM Brewery (1969)]
ƒ To prevent repeated litigation between the
same parties in regard to the same subject or
controversy;
ƒ To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et eadem
causa (No man shall be twice vexed for one and
the same cause);
ƒ To avoid the costs and expenses incident to
numerous suits.
A single act/omission can be violative of various
rights at the same time, as when the act constitutes
juridically a violation of several separate and
distinct legal obligations. However, where there is
only one delict/wrong, there is but a single cause of
action regardless of the number of rights that may
have been violated belonging to one person. The
singleness of a cause of action lies in the singleness
of the delict/wrong violating the rights of a person.
If only 1 injury resulted from several wrongful acts,
REMEDIAL LAW REVIEWER
only 1 cause of action arises. [Joseph v. Bautista
(1989)]
For a single cause of action or violation of a right, 91
the plaintiff may be entitled to several reliefs. It is
the filing of separate complaints for these several
reliefs that constitutes splitting up of the cause of
action which is proscribed by Rule 2, Sec. 3 and 4.
[City of Bacolod v. SM Brewery (1969)]
6. Joinder and misjoinder of causes of
action
Joinder of Cause of Action: It is the assertion of as
many causes of action as a party may have against
another in one pleading alone. It is also the process
of uniting 2 or more demands or rights of action in
one action. [Riano citing Rule 2, Sec. 5 and CJS]
Purpose: promote the policy on avoiding multiplicity
of suits.
The rule however is purely permissive as the plaintiff
can always file separate actions for each cause of
action. [Baldovir vs. Sarte, 36 Phil. 550]
Requisites [Rule 2, Sec. 5]:
ƒ The party joining the causes of action must
comply with the rules on joinder of parties;
ƒ The joinder shall not include special civil actions
or actions governed by special rules;
ƒ Where causes of action are between the same
parties but pertain to different
venues/jurisdictions, the joinder may be
allowed in the RTC provided one of the causes
of action are within the RTC’s jurisdiction and
the venue lies therein;
ƒ TOTALITY RULE - 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.
Misjoinder of causes of action [Rule 2, Sec. 6]
ƒ Misjoinder of causes of action is not a ground for
dismissal of an action.
ƒ A misjoined cause of action may, on motion or
motu propio, be severed and proceeded with
separately.
ƒ There is no sanction against non-joinder of
separate causes of action since a plaintiff needs
only a single cause of action to maintain an
action (Regalado).
III. PARTIES TO CIVIL ACTIONS
Requirements for a person to be a party to a civil
action:
ƒ HE MUST BE EITHER [Rule 1, Sec.3]:
- A natural person;
- A juridical person;
o The State and its political subdivisions;
o Other corporations, institutions and entities
for public interest or purpose, created by
law; and
 REMEDIAL LAW REVIEWER
o Corporations, partnerships and associations
for private interest or purpose to which the
92 law grants a juridical personality, separate
and distinct from that of each shareholder,
partner or member [Art. 44, CC]
- An entity authorized by law.
o The estate of a deceased person [Limjoco
vs. Intestate Estate of Fragante (1948)];
o A political party incorporated under Act
1459 [now BP 68 (Corporation Code)];
o A corporation by estoppel is precluded
from denying its existence and the
members thereof can be sued and be held
liable as general partners. [Riano citing
Sec. 21, BP68, The Corporation Code of
the Philippines]
o A contract of partnership having a capital
of P3,000.00 or more but which fails to
comply with the registration
requirements is nevertheless liable as a
partnership to third persons. [Riano citing
Art. 1772 in rel. to Art. 1768, Civil Code]
o A registered labor union [Sec. 243, PD 442
(Labor Code)], with respect to its
property.
o A legitimate labor organization may sue
and be sued in its registered name.
[Riano citing Art. 2429(e), Labor Code]
o The Roman Catholic Church has legal
capacity to sue. As to its properties, the
archbishop or diocese to which they
belong may be a party. [Barlin v. Ramirez
(1906); Riano citing Barlin v. Ramirez and
Versoza v. Fernandez(49 Phil. 627)].
o A dissolved corporation may prosecute
and defend suits by or gainst it provided
that the suits (i) occur within three years
after its dissolution, and (ii) the suits are
in connection with the settlement and
closure of its affairs. [Riano citing Sec.
122, Corporation Code]
ƒ HE MUST HAVE THE LEGAL CAPACITY TO SUE;
ƒ HE MUST BE THE REAL PARTY IN INTEREST.
[Berman v. Cheng (2005)]
- Only natural or juridical persons or entities
authorized by law may be parties in a civil
case.
- A sole proprietorship is not vested with
juridical personality and cannot sue or file or
defend an action.
- There is no law authorizing sole proprietorship
to file a suit.
- A sole proprietorship does not possess a
judicial personality separate and distinct from
the personality of the owner of the
enterprise. [Rimbunan v. Oriental (2005)]
- An unlicensed foreign corporation is
nonetheless permitted to bring suit in the
Philippines if it is suing on an isolated
transaction.
- Thus, the ascertainment of whether a foreign
corporation is merely suing on an isolated
transaction or is actually doing business in the
Philippines requires the elicitation of at least
a preponderant set of facts.
Note: A foreign corporation may be party to an
action in Philippine courts:
ƒ If licensed to engage in business in the
Philippines, it may sue or be sued in our courts;
ƒ If not licensed, it cannot sue, but it may be sued
in our courts;
ƒ If not engaged in business in the Philippines, it
may sue in courts on a single isolated
transaction, but it cannot be sued in our courts
on such transaction.
Lack of legal capacity to Lack of legal
sue personality to sue
The plaintiff’s general The plaintiff is not the
disability to sue, such as real party in interest
on account of minority,
insanity, incompetence,
lack of juridical
personality or any other
general disqualifications
It can be a ground for a It can be used as ground
MTD [Rule 16 (1) (d)] for a MTD based on the
failure of complaint to
state a cause of action.
[Rule 16 (1) (g)]
Parties to a civil action
ƒ PLAINTIFF – One having interest in the matter
of the action or in obtaining the relief
demanded; the claiming party or the original
claiming party and is the one who files the
complaint [Riano]; does not exclusively apply to
the original plaintiff [Rinao]; may refer to the
claiming party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.)-party
plaintiff [Rule 3, Sec.1]
ƒ DEFENDANT – One claiming an interest in the
controversy or the subject thereof adverse to
the plaintiff. The term may also include [Rule 3,
Sec 1):
- UNWILLING CO-PLAINTIFF – A party who
should be joined as plaintiff but whose
consent cannot be obtained. He may be made
a defendant and the reason therefore shall be
stated in the complaint. [Rule 3, Sec. 10]
- The original plaintiff becoming a defendant to
the original defendant’s counterclaim; also
refers to the corss-defendant, or the third
(fourth, etc.)-party defendant. [Rule 3, Sec 1]
1. Real parties in interest;
indispensable parties; representatives
as parties; necessary parties; indigent
parties; alternative defendants
ƒ Real party in interest [Rule 3, Sec.2]
- The party who stands to be benefited/injured
by the judgment in the suit;
- The party entitled to the avails of the suit.
Rules:
o Every action must be prosecuted or
defended in the name of the real party in
interest. [Rule 3, Sec.2]
 REMEDIAL LAW REVIEWER

o The party’s interest must be direct,

substantial and material [Sumalo v. Litton Indispensable parties Necessary parties [Rule
(2006)]. [Rule 3, Sec. 7] 3, Sec. 8]
o Husband and wife shall sue and be sued Must be joined under Should be joined 93
jointly, except as provided by law [Rule 3, any and all conditions, whenever possible; the
Sec. 4] his presence being a action can proceed even
o A minor or a person alleged to be sine qua non for the in their absence because
incompetent may sue or be sued, with the exercise of judicial their interest is separable
assistance of his father, mother, guardian, power from that of the
or if he has none, a guardian ad litem. [Rule indispensable party
3, Sec. 5] No valid judgment if The case may be
o Minors (represented by their parents) are indispensable party is determined in court but
real parties in interest under the principle not joined. the judgment therein will
of intergenerational responsibility. [Oposa not resolve the entire
v. Factoran (1993)] Note: This doctrine is controversy if a necessary
inconsistent with Rule 3, Sec. 1 which party is not joined
provides that only natural or juridical They are those with They are those whose
persons may be parties in a civil action. such an interest in the presence is necessary to
o If a party becomes incompetent/ controversy that a final adjudicate the whole
incapacitated during the pendency of the decree would controversy but whose
action, the action survives and may be necessarily affect their interests are so far
continued by/against the incompetent/ rights so that the court separable that a final
incapacitated assisted by his legal guardian cannot proceed without decree can be made in
or guardian ad litem [Rule 3, Sec. 18] their presence. their absence without
affecting them.
ƒ Indispensable parties
- An indispensable party is a real party-in- - Whenever in any pleading in which a claim is
interest without whom no final determination asserted a necessary party is not joined, the
can be had of an action. [Rule 3, Sec.7] pleader is under obligation to: (i) set forth the
- A party who has such an interest in the name of the necessary party, if known, and
controversy or subject matter that a final (ii) state the reason why the necessary party
adjudication cannot be made, in his absence, is omitted. [Riano citing Rule 3, Sec. 9 par 1]
without injuring or affecting that interest. - The non-inclusion of a necessary party does
(Riano) not prevent the court from proceeding in the
- The joinder of a party becomes compulsory action, and the judgment rendered therein
when the one involved is an indispensable shall be without prejudice to the rights of
party. [Riano citing Rule 3, Sec.7] such necessary party [Rule 3, Sec. 9 par 3]
- A person is NOT an indispensable party if his
interest in the controversy or subject matter ƒ Indigent Party [Rule 3, Sec. 21]
is separable from the interest of the other - INDIGENT – One who has no money or
parties, so that it will not necessarily be property sufficient and available for food,
directly or injuriously affected by a decree shelter and basic necessities.
which does not complrete justice between - While the authority to litigate as an indigent
them. (Riano) party may be granted upon an ex parte
application and hearing, it may be contested
ƒ Representative as parties [Rule 3, Sec. 3] by the adverse party at any time before
- Those acting in fiduciary capacity, such as a judgment is rendered.
trustee/guardian/executor/administrator or a o If the court determines after hearing that
party authorized by law or ROC. the party declared indigent has sufficient
- The beneficiary shall be included in the title income or property, the proper docket and
of the case and shall be deemed to be the other lawful fees shall be assessed and
real party in interest. collected by the clerk of court.
- An agent acting in his own name and for the - The authority to litigate as an indigent shall
benefit of an undisclosed principal may sue or include an exemption from:
be sued without joining the principal. o Payment of docket fees and other lawful
fees;
Exception: If the contract involves things o Payment of TSN.
belonging to the principal. [Art. 1883, CC] - The amount of docket and other lawful fees is
a lien on any judgment rendered in favor of
ƒ Necessary Party [Rule 3, Sec. 8] indigent party, unless court otherwise
- One who is not indispensable but ought to be provides.
joined as a party if complete relief is to be
accorded as to those already parties, or for a ƒ Alternative Defendants [Rule 3, Sec. 13]
complete determination or settlement of the - Where the plaintiff is uncertain against whom
claim subject of the action of several persons he is entitled to relief, he
- Indispensable parties v. Necessary parties may join any or all of them in the alternative,
[taken from 2011 Reviewer and Riano]
 REMEDIAL LAW REVIEWER
although a right to relief against one may be
inconsistent with a right to relief against the
94 other.
2. Compulsory and permissive joinder
of parties
ƒ Compulsory joinder of indispensable parties
[Rule 3, Sec 7]
- Parties in interest without whom no final
determination can be had of an action shall
be joined either as plaintiffs or defendants
ƒ Permissive joinder [Rule 3, Sec. 6]
- Parties can be joined, as plaintiffs or
defendants, in one single complaint or may
themselves maintain or be sued in separate
suits.
Requisites (Regalado):
- Right to relief arises out of the same
transaction or series of transactions;
Note: SERIES OF TRANSACTIONS – Transactions
connected with the same subject matter of
the suit.
- There is a question of law or fact common to
all the plaintiffs or defendants;
- Such joinder is not otherwise proscribed by
the rules on jurisdiction and venue.
3. Misjoinder and non-joinder of
parties
ƒ A party is misjoined when he is made a party to
the action although he should not be impleaded.
A party is not joined when he is supposed to be
joined but is not impleaded in the action.
(Riano)
ƒ Neither misjoinder nor non-joinder of parties is
a ground for dismissal of an action. [Rule 3, Sec.
11]
ƒ 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. [Rule 3, Sec.11]
ƒ Any claim against a misjoined party may be
severed and proceeded with separately. [Rule 3,
Sec. 11]
ƒ Non-joinder of an indispensable party is not a
ground for outright dismissal. Reasonable
opportunity must be given for his inclusion by
amendment of the complaint [Cortez v Avila
(1957)].
ƒ Objections to defects in parties should be made
at the earliest opportunity.
ƒ The moment such defect becomes apparent, a
motion to strike the names of the parties must
be made.
ƒ Objections to misjoinder cannot be raised for
the first time on appeal [Regalado citing Garcia
v Chua].
ƒ The rule on misjoinder or non-joinder of parties
does not comprehend whimsical and irrational
dropping or adding of parties in a complaint.
What it really contemplates is erroneous or
mistaken non-joinder and misjoinder or parties.
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 has turned out that such
inclusion was a mistake. [Riano citing Lim Tan
Hua v. Ramolete(1975)]
4. Class suit
ƒ Requisites [Rule 3, Sec. 12]
- Subject matter of the controversy is one of
common/general interest to many persons;
- The persons are so numerous that it is
impracticable to join them all as parties (i.e.
impracticable to bring them all before the
court);
- Parties bringing the class suit are sufficiently
numerous and representative of the class and
can fully protect the interests of all
concerned;
- The representative sues/defends for the
benefit of all.
ƒ Any party in interest shall have the right to
intervene to protect his individual interest.
[Rule 3, Sec. 12]
ƒ If a class suit is improperly brought, the action
is subject to dismissal regardless of the cause of
action [Rule 16, Sec 1 (d)].
ƒ A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]
ƒ There is no class suit in an action filed by
associations of sugar planters to recover
damages in behalf of individual sugar planters
for an allegedly libelous article in an
international magazine. There is no common or
general interest in reputation of a specific
individual. Each of the sugar planters has a
separate and distinct reputation in the
community not shared by the others. [Riano
citing Newsweek, Inc. v. Intermediate Appellate
court (1986)]
ƒ A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Riano citing Mathay v. Consolidated
Bank &Trust Company (1974)]
Class Suit Permissive Joinder of
Parties
There is a single cause of There are multiple
action pertaining to causes of action
numerous persons. separately belonging to
several persons.
CLASS SUIT AND DERIVATIVE SUIT, COMPARED
(Asked in the 2005 Bar Examination)
CLASS SUIT DERIVATIVE SUIT
 REMEDIAL LAW REVIEWER

When the subject matter An action brought by
of the controversy is one minority shareholders in
of common or general the name of the
interest to many corporation to redress
persons, and the parties wrongs committed
are so numerous that it against it, for which the
is impracticable to bring directors refuse to sue.
them all before the
court, one or more may It is a remedy designed
sue or defend for the by equity and has been
benefit of all. [Rule 3, the principal defense of
Sec. 12] the minority
shareholders against
abuses by the majority.
In a derivative action,
the real party in interest
is the corporation itself,
not the shareholders who
actually instituted it
[Lim vs. Lim Yu (2001))
5. Suits against entities without
juridical personality
Requisites [Rule 3, Sec.15]
ƒ There are 2 or more persons not organized as a
juridical entity;
ƒ They enter into a transaction;
ƒ A wrong is committed against a 3rd person in
the course of such transaction.
Effect: Persons associated in an entity without
juridical personality may be sued under the name by
which they are generally/commonly known, but they
cannot sue under such name. [Rule 3, Sec. 15]
- The court may appoint a guardian ad litem for
the minor heirs.
- The court shall order the legal 95
representative(s) to appear and be
substituted within 30 days from notice.
- If no legal representative is named or if the
one so name shall fail to appear within the
specified period, the court may order the
opposing party to procure the appointment of
an executor or administrator for the estate.
- The substitute defendant need not be
summoned. The order of substitution shall be
served upon the parties substituted for the
court to acquire jurisdiction over the
substitute party [Ferreria v Vda de Gonzales
(1986].
ƒ Death or separation of a party who is a public
officer [Rule 3, Sec. 17]
Requisites:
- Public officer is a party to an action in his
official capacity;
- During the pendency of the action, he either
dies/resigns or otherwise ceases to hold
office;
- It is satisfactorily shown to the court by any
party, within 30 days after the successor takes
office,
o that there is a substantial need to
continue/maintain the action and
o The successor adopts/continues (or
threatens to do so) his predecessor’s action
- The party or officer affected was given
reasonable notice of the application therefore
and accorded an opportunity to be heard.

The service of summons may be effected upon all
the defendants by serving upon any of them, or upon
the person in charge of the office or place of
business maintained under such name. [Rule 14, Sec.
8]
6. Effect of death of party litigant [this
section is taken from the 2011 Reviewer]
Substitution of parties
ƒ Death of a party, where the claim is not
extinguished by the death of the party (e.g.
cases involving property and property rights
[Bonilla v Barcena (1976)]); [Rule 3, Sec. 16]
(Asked in the 1998 and 1999 Bar Exams)
- Counsel’s duty:
o Inform court within 30 days after such
death of the fact thereof;
o Give the name and address of the legal
representatives.
Note: Failure to comply with this duty is a
ground for disciplinary action.
- The heirs may be substituted for the deceased
without requiring the appointment of an
executor or administrator.
Action on contractual money claims [Rule 3, Sec.
20]
ƒ Requisites:
- The action must primarily be for recovery of
money/debt or interest thereon;
- The claim arose from express/implied
contract;
- Defendant dies before the entry of final
judgment in the court in which the action was
pending.
ƒ The defendant’s death will not result in the
dismissal of the action.
ƒ The deceased shall be substituted by his legal
representatives in the manner provided for in
Rule 3, Sec. 16, and the action will continue
until the entry of final judgment (Asked in the
2000 Bar Exam)
ƒ However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedent’s estate without
need of proving the claim.
Transfer of interest during the pendency of the
action [Rule 3, Sec. 19]
ƒ General rule: The rule does not consider the
transferee an indispensable party. Hence, the
action may proceed without the need to
implead him.
 REMEDIAL LAW REVIEWER
ƒ Exception: When the substitution by or joinder
of the transferee is ordered by court.
96 - The case will be dismissed if the plaintiff’s
interest is transferred to defendant unless
there are several plaintiffs, in which case the
remaining plaintiffs can proceed with their
own cause of action.
IV. VENUE
Venue is the place, or the geographical are 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. [Riano citing Manila
Railroad Company v. Attorney General, (1911)]
1. Venue versus jurisdiction [Riano]
Distinctions between Venue and Jurisdiction
(Asked in the 2006 and 2008 Bar Exams)
Venue Jurisdiction
Place where the action is Power of the court to
instituted hear and decide a case
May be waived Jurisdiction over the
subject matter and over
the nature of the action
is conferred by law and
cannot-be waived
Procedural Substantive
May be changed by the Is fixed by law and
written agreement of the cannot be the subject of
parties the agreement of the
parties
Establishes a relation Establishes a relation
between plaintiff and between the court and
defendant, or petitioner the subject matter
and respondent
Not a ground for a motu Lack of jurisdiction over
propio dismissal (except the subject matter is a
in cases of summary ground for a motu
procedure; Rule 4, Rule proprio dismissal.
on Summary Procedure)
2. Venue of real actions
ƒ 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. [Rule 4, Sec. 1, par 1]
ƒ Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
the municipality or city wherein the real
property involved, or a portion thereof, is
situated. [Rule 4, Sec. 1 par 2]
ƒ If the property is located at the boundaries of 2
places, file the case in either place (at the
plaintiff’s option).
ƒ If the case involves 2 properties located in 2
different places:
- If the properties are the object of the same
transaction, file it in any of the 2 places;
- If they are the objects of 2 distinct
transactions, separate actions should be filed
in each place unless properly joined.
3. Venue of personal actions
At the plaintiff’s election: [Rule 4, Sec. 2]
ƒ Where the plaintiff or any of the principal
plaintiffs resides;
ƒ Where the defendant or any of the principal
defendants resides;
ƒ In case of a non-resident-defendant, where he
may be found.
4. Venue of actions against non-
residents [Rule 5, Sec. 3] [also taken
from 2011 Reviewer]
ƒ Non-resident found in the Philippines –
- For personal actions – Where the plaintiff
resides;
- For real actions – Where the property is
located.
ƒ Non-resident not found in the Philippines – An
action may be filed only when the case involves:
- Personal status of plaintiff - Where plaintiff
resides;
- Any property of said defendant located in the
Phil. - Where the property (or any portion
thereof) is situated/found.
5. When the rules on venue do not
apply [Rule 4, Sec. 4]
ƒ If a specific rule/law provides otherwise (e.g.
action for damages arising from libel);
ƒ Stipulations as to Venue is permitted if the
parties have validly agreed
- in writing
- before the filing of the action
- on the exclusive venue
In the absence of qualifying restrictive words (e.g.
“only/solely/exclusively in such court”), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue provided
for in the rules. [Polytrade Corp. v. Blanco (1969)]
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. [Riano citing Spouse
Lantin v. Lantion, (2006)]
6. Effects of stipulations on venue
ƒ To be binding, the parties must have agreed on
the exclusive nature of the venue of any
prospective action between them. The
agreement of parties must be restrictive and not
permissive. [Regalado]
ƒ In the absence of qualifying restrictive words
(e.g. “only/solely/exclusively in such court”),
venue stipulation is merely permissive; that is,
 REMEDIAL LAW REVIEWER

the stipulated venue is in addition to the venue court.

provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
ƒ The court may declare agreements on venue as Always filed before May be filed even after
97
contrary to public policy if such stipulation judgment judgment
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres 1. Kinds of Pleadings
(1978)].
Pleadings allowed [RULE 6, SEC. 2]
Other rules on venue 1) Complaint;
2) Answer;
ƒ IMPROPER VENUE: The Court may not motu 3) Counterclaim;
propio dismiss an action on the ground of 4) Cross-claim;
improper venue. [Dacoycoy v. IAC (1991)] 5) 3rd-party Complaint,
- Exception: In summary procedures. 6) Complaint-in-intervention;
ƒ CHANGE OF VENUE: The SC has the power to 7) Reply;
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti] a. Complaint [Rule 6, Sec. 3]
ƒ WAIVER OF VENUE:
- Until and unless the defendant objects to the Definition
venue in a motion to dismiss prior to a The pleading alleging the plaintiff’s cause/s of
responsive pleading, the venue cannot truly action. It should contain a concise statement of the
be said to have been improperly laid since for ultimate facts constituting the plaintiff’s cause/s of
all intents and purposes, the venue though action, not evidentiary facts or legal conclusions.
technically wrong may yet be considered
acceptable to the parties for whose It shall contain:
convenience the rules on venue had been ƒ in a methodical and logical form
devised. Although venue is mandatory, it is ƒ a plain, concise and direct statement of
waivable. [Diaz v. Adiong (1993)] ultimate facts on which the plaintiff relies for
- Means of waiving venue: his claim,
o Where parties validly agreed in writing ƒ omitting statement of mere evidentiary facts.
before the filing of the action on the [Rule 8, Sec 1]
exclusive venue thereof [Rule 4, Sec 4 (b)];
and Its function is to inform the defendant clearly and
o Failure to raise improper venue as definitely of claims made against him so that he may
affirmative defense or in motion to dismiss be prepared to meet the issues at trial.

It should inform the defendant of all material facts

V. PLEADINGS on which the plaintiff relies to support his demand.

1. Kinds of Pleadings It should state the theory of a cause of action which

2. Pleadings allowed in small claim cases and forms the bases of plaintiff’s claim of liability.
cases covered by the rules on summary [Tantuico v. Republic (1991)]
procedure
3. Parts of a pleading ULTIMATE FACTS – Essential facts constituting the
4. Allegations in a pleading plaintiff’s cause of action. A fact is essential if it
5. Effect of failure to plead cannot be stricken out without leaving the
statement of the cause of action insufficient.
6. Default [Remitere v. Montinola (1966)]
7. Filing and Service of pleadings
8. Amendment Not ultimate facts:
ƒ Evidentiary or immaterial facts;
Definition ƒ Legal conclusions, conclusions or inferences of
Pleadings are the written statements of the facts from facts not stated, or incorrect
respective claims and defenses of the parties, inferences or conclusions from facts stated;
submitted to the court for appropriate judgment ƒ Conclusions of law alleged in the complaint are
[Rule 6, Sec. 1] not binding on the court.
ƒ The details of probative matter or particulars of
Pleading Motion evidence, statements of law, inferences and
Purpose: To submit a Purpose: To apply for an arguments.
claim/defense for order not included in the
appropriate judgment judgment TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE
May be initiatory Cannot be initiatory as COMPLAINT: WON upon the averment of facts, a
they are always made in valid judgment may be properly rendered [Pamintan
a case already filed in v. Costales (1914)].
 REMEDIAL LAW REVIEWER

ƒ In an original action before the RTC, the

b. Answer [Rule 6, Sec. 4] counterclaim may be considered compulsory
98 regardless of the amount. [Rule 6, Sec. 7]
Definition ƒ In the case of Agustin v. Bacalan, if a
The pleading where the defendant sets forth his counterclaim is filed in the MTC in excess of its
affirmative/negative defenses. It may also be the jurisdictional amount, the excess is considered
response to a counterclaim or a cross-claim. waived.
ƒ But in Calo v. Ajax, the remedy where a
Two kinds of defenses that may be set forth in the counterclaim is beyond the jurisdiction of the
answer [Rule 6, Sec 5] MTC is to set off the claims and file a separate
ƒ Negative Defenses – Specific denials of the action to collect the balance.
material facts alleged in the pleading of the
claimant essential to his cause of action. Kinds of counterclaims
- Negative Pregnant - Denial pregnant with an Compulsory Permissive
admission. It is a denial pregnant with the counterclaim counterclaim
admission of the substantial facts in the One which arises out of It does not arise out of
pleading responded to which are not squarely or is necessarily nor is it necessarily
denied. It is in effect an admission of the connected with the connected with the
averment it is directed to. [Philamgen v. transaction or subject matter of the
Sweet Lines (1993)] occurrence -that is the opposing party's claim.
ƒ Affirmative Defenses – Allegations of new subject matter of the
matters which, while hypothetically admitting opposing party's claim.
the material allegations in the claimant’s Does not require for its May require for its
pleading, would nevertheless prevent/bar adjudication the adjudication the
recovery by him. It includes fraud, prescription, presence of third parties presence of third parties
release, payment and any other matter by way of whom the court over whom the court
of confession and avoidance. cannot acquire cannot acquire
jurisdiction. jurisdiction.
c. Counterclaims [Rule 6, Sec. 6] Barred if not set up in Not barred even if not
the action. set up in the action.
Definition Need not be answered; Must be answered,
Any claim which a defending party may have against no default. otherwise, the
an opposing party. defendant can be
declared in default.
ƒ A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the ƒ A permissive counterclaim requires the payment
answer, it is not part of the answer. of docket fees. [Sun Insurance v. Asuncion
ƒ Upon its filing, the same proceedings are had as (1989)]
in the original complaint. ƒ A plaintiff who fails or chooses not to answer a
ƒ For this reason, it must be answered 10 days compulsory counterclaim may not be declared in
from service [Rule 11, Sec 4] (Asked in the 2002 default, principally because the issues raised in
and 2008 Bar Exams). the counterclaim are deemed automatically
joined by the allegations in the complaint. [Gojo
How to raise counterclaims v. Goyala (1970)]
ƒ Included in the answer:
- A compulsory counterclaim or a cross-claim i. Compulsory counterclaim
that a defending party has at the time he
files his answer shall be contained therein. Requisites of a compulsory counterclaim [Rule 6,
[Rule 11, Sec. 8] Sec 7] (Asked in the 1998 bar exam)
ƒ Exception: Pleadings may be amended under ƒ It must arise out of, or be necessarily connected
Rule 11, Sec. 10: with, the transaction/occurrence that is the
- By leave of court; subject matter of the opposing party's claim;
- Before judgment; ƒ It does not require for its adjudication the
- On the grounds of: presence of 3rd parties of whom the court
o Oversight; cannot acquire jurisdiction;
o Inadvertence; ƒ It must be within the court’s jurisdiction both as
o Excusable neglect; to the amount and the nature. [Regalado, citing
o When justice requires. Quintanilla v CA (1997)]

After the answer [Rule 11, Sec. 9]
ƒ Counterclaims/cross-claims arising after the
answer,
ƒ with the court’s permission,
ƒ may be presented as a counterclaim/cross-claim
by supplemental pleading before judgment.
Rules on counterclaims
General rule: A compulsory counterclaim not set up
in the answer is deemed barred.
Exception: If it is a counterclaim which either
matured or was acquired by a party after serving his
answer. In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment.
[Rule 11, Sec. 9]
 REMEDIAL LAW REVIEWER

adjudication of said cross-claim. In this case,

Note: the cross-claim is considered permissive.
ƒ The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible The dismissal of the complaint carries with it the 99
remedies. dismissal of a cross-claim which is purely defensive,
ƒ In the event that a defending party has a ground but not a cross-claim seeking an affirmative relief.
for dismissal and a compulsory counterclaim at [Torres v. CA (1973)]
the same time, he must choose only one
remedy. Cross Claim, Counterclaim and Third Party
ƒ If he decides to file a MTD, he will lose his Complaint
counterclaim. But if he opts to set up his (Asked in the 1997 and 1999 Bar Exams)
counterclaim, he may still plead his ground for Cross-claim Counterclaim 3rd Party
dismissal as an affirmative defense in his complaint
answer. Against a co- Against an Against a
ƒ If any of the grounds to dismiss under Rule 17, party opposing party person not a
Sec. 3 arise, the proper recourse for a party to the
defendant who desires to pursue his compulsory action
counterclaim in the same proceeding is not a Must arise May arise out of or Must be in
MTD. out of the be necessarily respect of the
ƒ Instead, he should only move to have the transaction connected with opponent’s
plaintiff declared non-suited on the complaint that is the the transaction or (plaintiff’s)
so that the latter can no longer present his subject the subject matter claim
evidence thereon, and simultaneously move that matter of the of the opposing
he be declared as in default on the compulsory original party’s claim
counterclaim, and reserve the right to present action or of a (compulsory
evidence ex parte on his compulsory counterclaim counterclaim), or
counterclaim. [BA Finance v. Co (1993)] therein it may not
(permissive
ii. Permissive counterclaim counterclaim)

[NOTE: Please also refer to table comparing Counter-counterclaims and counter-cross-claims

compulsory and permissive counterclaims]
Test to determine whether a counterclaim is
compulsory or permissive
LOGICAL RELATIONSHIP TEST: Where conducting
separate trials of the respective claims would entail
substantial duplication of effort and time and
involves many of the same factual and legal issues.
[Meliton v. CA (1992)]
iii. Effect on the Counterclaim when the
complaint is dismissed
Under Section 3, Rule 17, dismissal of action due to
plaintiff’s fault shall be without prejudice to the
defendant’s right to prosecute his counterclaim in
the same/separate action.
[Rule 6, Sec. 9]
ƒ Counter-Counterclaim - A claim asserted against
an original counter-claimant.
ƒ Counter-Cross-claim - A claim filed against an
original cross-claimant.
e. Third (fourth, etc.) party complaints [Rule
6, Sec. 11]
[NOTE: See also table in immediately preceding
subsection]
Definition: It is a claim that a defending party may,
with leave of court, file against a person not a party
to the action for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.

d. Cross-claims [Rule 6, Sec. 8] There could also be a 4th/etc.-party complaint with

the same purpose and function.
Requisites for cross-claim
ƒ A claim by one party against a co-party; 3rd-party complaint Complaint in
ƒ It must arise out of the subject matter of the intervention
complaint or of the counterclaim; Brings into the action a Same
ƒ The cross-claimant is prejudiced by the claim 3rd person who was not
against him by the opposing party. originally a party
Initiative is with the Initiative is with a non-
General rule: A cross-claim is always compulsory. A person already a party to party who seeks to join
cross-claim not set up shall be barred. [Rule 9, Sec. the action the action
2]
3rd-party complaint Counterclaim
Exceptions: Need not be within the Must be within the
ƒ When it is outside the court’s jurisdiction; jurisdiction of the court jurisdiction of the court
ƒ If the court cannot acquire jurisdiction over 3rd trying the main case trying the main case
parties whose presence is necessary for the Diminishes/defeats the Need not
 REMEDIAL LAW REVIEWER
recovery sought by the diminish/defeat the
opposing party recovery sought by the
100 opposing party
Cannot exceed the May exceed in amount
amount stated in the or be different in kind
original complaint from that sought in the
original complaint
Tests to determine whether the 3rd-party
complaint is in respect of plaintiff's claim [Capayas
v. CFI (1946)]
ƒ WON it arises out of the same transaction on
which the plaintiff's claim is based, or although
arising out of another/different transaction, is
connected with the plaintiff’s claim;
ƒ WON the 3rd-party defendant would be liable to
the plaintiff or to the defendant for all/part of
the plaintiff’s claim against the original
defendant;
ƒ WON the 3rd-party defendant may assert any
defenses which the 3rd-party plaintiff has or
may have to the plaintiff’s claim.
NOTE:
ƒ Leave of court to file a 3rd-party complaint may
be obtained by motion under Rule 15.
ƒ Summons on 3rd (4th/etc.) – party defendant
must be served for the court to obtain
jurisdiction over his person, since he is not an
original party.
ƒ Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the 3rd-
party complaint, regardless of the amount
involved as a 3rd-party complaint is merely
auxiliary to and is a continuation of the main
action. [Republic v. Central Surety (1968)]
ƒ A 3rd-party complaint is not proper in an action
for declaratory relief.
f. Complaint-in-intervention
Pleadings in intervention [Rule 19, Sec. 3]
ƒ COMPLAINT-IN-INTERVENTION – If intervenor
asserts a claim against either or all of the
original parties.
ƒ ANSWER-IN-INTERVENTION – If intervenor
unites with the defending party in resisting a
claim against the latter.
Definition
INTERVENTION is a remedy by which a third party,
not originally impleaded in a proceeding, becomes a
litigant therein to enable him to protect or preserve
a right or interest which may be affected by such
proceeding.
Its purpose is "to settle in one action and by a single
judgment the whole controversy (among) the
persons involved." [First Philippine Holdings v.
Sandiganbayan (1996); Rule 19]
When allowed
Intervention shall be allowed when a person has:
ƒ a legal interest in the matter in litigation;
ƒ or in the success of any of the parties;
ƒ or an interest against the parties; and
ƒ when he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or of an
officer thereof.
Not an independent action
Intervention is not an independent action, but is
ancillary and supplemental to an existing litigation.
[Republic v. Sandiganbayan]
ƒ It is neither compulsory nor mandatory but only
optional and permissive. [Mabayo v. CA (2002)]
ƒ The Court has full discretion in permitting or
disallowing intervention, which must be
exercised judiciously and only after
consideration of all the circumstances obtaining
in the case. [Mago v. CA (1999)]
ƒ It is not an absolute right as it can be secured
only in accordance with the terms of applicable
statute or rule. [Office of Ombudsman v.
Samaniego (2010)]
Requisites for valid intervention
ƒ There must be a motion for intervention filed
before rendition of judgment by the trial court.
ƒ Movant must show in his motion that he has a:
- legal interest in (1) the matter of litigation,
(2) the success of either of the parties in the
action or (3) against both parties.
- that the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or an officer thereof
- that the intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties and that the intervenor’s
rights may not be fully protected in a
separate proceeding.
Meaning of legal interest
The legal interest must be one that is actual and
material, direct and of an immediate character, not
merely contingent or expectant so that the
intervenor will either gain or lose by the direct legal
operation of the judgment.
Remedy for denial of motion for intervention
ƒ The movant may file a motion for
reconsideration since the denial of a motion for
intervention is an interlocutory order.
ƒ Alleging grave abuse of discretion, movant can
also file a certiorari case.
g. Reply [Rule 6, Sec. 10]
Definition: The plaintiff’s response to the
defendant's answer,
ƒ the function of which is to deny or allege facts
in denial or in avoidance of new matters alleged
by way of defense in the answer and
ƒ thereby join or make issue as to such new
matters.

Effect of failure to reply (Asked in the 2000 bar
exam)
General rule: Filing a reply is merely optional. New
facts that were alleged in the answer are deemed
controverted should a party fail to reply thereto.
Exception: Reply is required:
ƒ Where the answer is based on an actionable
document. [Rule 8, Sec. 8]
ƒ Where the answer alleges the defense of usury.
[Rule 8, Sec. 11]
2. Pleadings allowed in small claim
cases and cases covered by the rules
on summary procedure
Under the Revised Rules on Summary Procedure
the only pleadings allowed to be filed are:
ƒ complaints;
ƒ compulsory counterclaims and cross-claims
pleaded in the answer; and
ƒ the answers thereto. [Sec. 3]
Prohibited pleadings, motions or petitions:
ƒ 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 required barangay
conciliation proceedings;
ƒ Motion for a bill of particulars;
ƒ Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
ƒ Petition for relief from judgment;
ƒ Motion for extension of time to file pleadings,
affidavits or any other paper;
ƒ Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
ƒ Motion to declare the defendant in default;
ƒ Dilatory motions for postponement;
ƒ Reply;
ƒ Third party complaints; and
ƒ Interventions. [Sec. 19]
Forms used under the Rule of Procedure under
Small Claims Cases:
ƒ Instead of filing complaint, a Statement of
Claim using Form 1-SCC shall be filed [Sec. 5]
ƒ Answer shall be filed by way of a Response using
Form 3-SCC [Sec. 10]
ƒ Defendant may file counterclaim if he possesses
a claim against the plaintiff that (a) is within
the coverage of this Rule, exclusive of interest
and costs; (b) arises out of the same transaction
or event that is the subject matter of the
plaintiff’s claim; (c) does not require for its
adjudication the joinder of third parties; and (d)
is not the subject of another pending action, the
claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be
barred from suit on the counterclaim.
The defendant may also elect to file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
REMEDIAL LAW REVIEWER
provided that the amount and nature thereof
are within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
101
NOTE: Courts decision shall be contained in Form 13-
SCC
Prohibited Pleadings and Motions:
ƒ Motion to dismiss the complaint except on the
ground of lack of jurisdiction;
ƒ Motion for a bill of particulars;
ƒ Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
ƒ Petition for relief from judgment;
ƒ Motion for extension of time to file pleadings,
affidavits, or any other paper;
ƒ Memoranda;
ƒ Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
ƒ Motion to declare the defendant in default;
ƒ Dilatory motions for postponement;
ƒ Reply;
ƒ Third-party complaints; and
ƒ Interventions.
3. Parts of a pleading [Rule 7, Secs. 1
to 3]
a. Caption
ƒ Caption - Court’s name, action’s title (i.e.
parties’ names) and docket number.
ƒ Body - Pleading’s designation, allegations of
party's claims/defenses, relief prayed for and
pleading’s date.
- Paragraphs must be numbered, and each
paragraph number must contain a single
set of circumstances
- Headings: if more than one cause of
action, use "1st cause of action," 2nd
cause of action," etc.
- Specify relief sought, but it may add a
general prayer for such further/other
relief as may be deemed just/equitable.
- Every pleading shall be dated.
b. Signature and address
Pleading must be signed by the party/counsel. State
address (not PO box) in either case.
c. Verification and certification against forum
shopping [Rule 7, Sec 4]
Verification
Pleadings need not be verified, unless otherwise
provided by the law/rules.
How a Pleading is Verified [Rule 7, Sec 4]
By an affidavit:
ƒ That the affiant read the pleading;
ƒ That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.
 REMEDIAL LAW REVIEWER

Certification of Non-Forum Shopping (CNFS) [Rule ƒ Counsel’s signature is a certification that:

102 7, Sec. 5] - He has read the pleading;
Definition: The filing of multiple suits in different - To the best of his knowledge, information and
courts, simultaneously or successively, involving the belief there is good ground to support it;
same parties, to ask the courts to rule on the - It is not interposed for delay.
same/related causes and/or to grant the same or ƒ An unsigned pleading produces no legal effect.
substantially the same relief. [T'Boli Agro-Industrial ƒ However, the court may allow such deficiency
Development, Inc. (TADI) v. Solidapsi (2002)] (Asked to be remedied if it shall appear that the same
in the 2006 Bar Exam) was due to inadvertence and not intended for
delay.
Test to Determine WON there is Forum Shopping
(ASKED IN THE 2002 BAR EXAM) - WON in the 2 or 4. Allegations in a pleading
more cases pending, there is identity of:
ƒ Parties;
a. Manner of making allegations
ƒ Rights or causes of action;
ƒ Relief sought.
In general [RULE 8, SEC. 1]
ƒ In a methodical and logical form.
The CNFS is to be executed by the petitioner, not by
ƒ Plain, concise and direct statement of the
the counsel.
ultimate facts on which the party pleading relies
for his claim/defense.
CNFS is required only for complaints or initiatory
ƒ Omit evidentiary facts.
pleadings (e.g. permissive counterclaim, cross-claim
ƒ If defense relied on is based on law, cite the
etc.).
provisions and their applicability.
CNFS is not required in a compulsory counterclaim. A
Condition precedent - a general averment of the
counterclaim is not an initiatory pleading. [UST
performance or occurrence of all conditions
Hospital v. Surla (1998)]
precedent shall be sufficient [RULE 8, SEC. 3]
Failure to comply is not curable by mere amendment
Fraud, mistake, malice, intent, knowledge and
of the pleading but shall be cause for the dismissal
other condition of the mind, judgments, official
of the case, without prejudice and upon motion and
documents or acts - Circumstances constituting
after hearing, unless otherwise provided.
fraud or mistake must be stated with particularity
while malice, intent, knowledge or other condition
Effect of Submission of False CNFS or Non-
of the mind of a person may be averred generally
Submission of CNFS
[RULE 8, SEC. 5]
ƒ Indirect contempt;
ƒ Administrative and criminal actions.
Facts that may be Averred Generally
ƒ Conditions precedent; but there must still be
Effect of Willful and Deliberate Forum Shopping
an allegation that the specific condition
(Asked in the 2006 and 2007 Bar Exams)
precedent has been complied with, otherwise it
ƒ Ground for summary dismissal of the case with
will be dismissed for lack of cause of action;
prejudice;
[Rule 8, Sec 3]
ƒ Direct contempt and administrative sanctions.
ƒ Capacity to sue or be sued;
- Pleadings as well as remedial laws should be
ƒ Capacity to sue or be sued in a representative
liberally construed
capacity; [Rule 8, Sec 4]
- in order that the litigant may have ample
ƒ Legal existence of an organization;
opportunity to prove their respective claims,
- A party desiring to raise an issue as to the
and possible denial of substantial justice, due
legal existence or capacity of any party to sue
to technicalities, may be avoided. [Gerales v.
or be sued in a representative capacity shall
CA (1993)]
do so by specific denial which shall include
supporting particulars within the pleader's
Requirements of a corporation executing the
knowledge. [Rule 8, Sec 4]
verification/certification of non-forum shopping
ƒ Malice/intent/knowledge or other condition of
Only individuals vested with authority by a valid
the mind; [Rule 8, sec 5]
board resolution may sign the certificate of non-
ƒ Judgments of domestic/foreign courts,
forum shopping in behalf of a corporation. In
tribunals, boards or officers (without need to
addition, the Court has required that proof of said
show jurisdiction); [Rule 8, Sec 6]
authority must be attached. Failure to provide a
ƒ Official documents/acts. [Rule 8, Sec 9]
certificate of non-forum shopping is sufficient
ground to dismiss the petition. Likewise, the petition
Facts that must be Averred Particularly
is subject to dismissal if a certification was
Circumstances showing fraud/mistake in all
submitted unaccompanied by proof of the
averments of fraud/mistake [Rule 8, Sec 5]
signatory’s authority. [PAL v. FASAP (2006)]

d. Effect of the signature of counsel in a

pleading

b. Pleading an actionable document
Actionable document
A document which is really the basis of the cause of
action (or defense), and not merely evidentiary
thereof. [Rule 8, Sec. 7]
Genuineness and due execution of an actionable
instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts. [Rule
8, Sec. 8]
Exception to the requirement of an oath: when the
adverse party does not appear to be a party to the
instrument. [Donato v. CA (1993)]
How an action or defense may be based on a
document:
ƒ By copying a substantial portion of the
document into the pleading;
ƒ By annexing /incorporating the document into
the pleading;
ƒ By both copying and annexing document into the
pleading.
c. Specific denials
Three Ways of Making a Specific Denial
ƒ SPECIFIC ABSOLUTE DENIAL – by specifically
denying the averment and, whenever
practicable, setting forth the substance of the
matters relied upon for such denial.
ƒ PARTIAL SPECIFIC DENIAL – part admission and
part denial;
ƒ DISAVOWAL OF KNOWLEDGE – by an allegation of
lack of knowledge or information sufficient to
form a belief as to the truth of the averment in
the opposing party's pleading. This does not
apply where the fact as to which want of
knowledge is asserted is, to the knowledge of
the court, so plain and necessarily within the
defendant's knowledge that his averment of
ignorance must be palpably untrue.
NOTE:
General rule: Allegations not specifically denied are
deemed admitted [Rule 8, Sec. 11]
Exceptions:
ƒ Allegations as to the amount of unliquidated
damages;
ƒ Allegations immaterial to the cause of action;
ƒ Allegations of merely evidentiary or immaterial
facts may be expunged from the pleading or
may be stricken out on motion. [Rule 8, Sec. 12]
ƒ Conclusion of law.
Kinds of denial (Asked in the 2004 Bar Exam)
ƒ SPECIFIC DENIAL – Specifies each material
allegation of fact the truth of which he does not
admit, and sets forth the substance of the
matters upon which he relies to support his
denial. [Rule 8, Sec. 10]
REMEDIAL LAW REVIEWER
ƒ DENIAL WITH QUALIFICATION - Specifies so
much of it as is true and material, and deny the
remainder.
ƒ SPECIFIC DENIAL FOR LACK OF 103
KNOWLEDGE/INFORMATION sufficient to form
as belief as to the truth of a material averment
made in the complaint.
ƒ SPECIFIC DENIAL UNDER OATH - Contests the
authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]
Disciplinary Action on Counsel Regarding Pleadings
[Rule 7, Sec. 3]
ƒ Deliberately filing an unsigned pleading;
ƒ Deliberately signing a pleading in violation of
the Rules;
ƒ Alleging scandalous/Indecent matter in the
pleading;
ƒ Failing to promptly report a change of his
address.
Effect of failure to make specific denials
ƒ General rule: Defenses and objections not
pleaded either in a MTD or in the answer, are
deemed waived. [Rule 9, Sec. 1]
ƒ Exceptions:
- Lack of jurisdiction over the subject matter;
- Litis pendentia;
- Res judicata;
- Prescription
When a specific denial requires an oath - Contests
the authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]
5. Effect of failure to plead
a. Failure to plead defenses and objections
ƒ General rule: Defenses and objections not
pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule) [Rule 9]
ƒ Exceptions:
- Lack of jurisdiction over the subject matter;
- Litis pendentia between same parties for the
same cause
- Res judicata
- Action barred by statute of limitations.
b. Failure to plead a compulsory
counterclaim and cross-claim
Compulsory counterclaim
ƒ General Rule: A compulsory counterclaim not
set up is considered barred. [Rule 9, Sec. 2]
ƒ Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set
up by amendment before judgment. [Rule 11,
Sec. 10]
Cross-claim
A cross-claim is always compulsory. A cross-claim not
set up shall be barred. [Rule 9, Sec. 2]
 REMEDIAL LAW REVIEWER
6. Default [Rule 9, Sec. 3]
104 Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
appear nor his failure to present evidence (Asked in
the 2000 and 2001 Bar Exams)
Order of default Judgment by default
Issued by the court on Rendered by the court
plaintiff’s motion, for following a default order
failure of the defendant or after it received ex
to file his responsive parte plaintiff’s
pleading seasonably evidence
Interlocutory -Not Final – Appealable
appealable
a. When a declaration of default is proper
ƒ Court validly acquired jurisdiction over the
defendant’s person, either by service of
summons or voluntary appearance;
ƒ Defendant fails to answer within the time
allowed therefor;
ƒ Motion to declare the defendant in default;
ƒ Notice to the defendant by serving upon him a
copy of such motion;
ƒ Proof of such failure to answer.
b. Effect of an order of default (Asked in the
1999 Bar Exam) [Rule 9, Sec 3(a)]
ƒ Party in default loses standing in court as a
party litigant. His failure to answer operates as
a waiver of right to take part in the trial, of
being heard, and of presenting evidence in his
favor.
- If the defendant was declared in default upon
an original complaint, the filing of the
amended complaint resulted in the
withdrawal of the original complaint.
- Hence, the defendant was entitled to file
answer to the amended complaint as to which
he was not in default.
ƒ The court shall proceed to render judgment
granting the claimant relief as his pleading may
warrant, unless the court in its discretion
requires the claimant to submit evidence. Such
reception of evidence may be delegated to the
clerk of court.
ƒ The party in default shall be entitled to notice
of subsequent proceedings but not to take part
in the trial.
- A defendant declared in default cannot take
part in the trial, but he cannot be disqualified
from testifying as a witness in favor of non-
defaulting defendants. [Cavili v. Florendo
(1987)]
- A party in default is entitled to notice of:
o Motion to declare him in default;
o Order declaring him in default;
o Subsequent proceedings;
o Service of final orders and judgments.
c. Relief from an order of default [Rule 9, Sec
3(b)]
ƒ Before judgment, a party declared in default
may file a motion under oath to set aside the
order of default upon proper showing that:
- His failure to answer was due to fraud,
accident, mistake or excusable negligence;
and that
- He has a meritorious defense.
ƒ In such case, the order of default may be set
aside on terms and conditions as justice
requires.
Remedies of a party declared in default
ƒ Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
have ample opportunity to prove their
respective claims, and possible denial of
substantial justice. [Gerales v. CA (1993)]
ƒ Dulos v. CA (1990)
MOTION TO SET At any time after the discovery
ASIDE ORDER OF of default and before
DEFAULT [RULE 9, judgment, defendant may file a
SEC. 3(B)] motion under oath to set aside
order of default on the ground
that his failure to file an
answer or appear on the date
set for the pre-trial was due to
fraud, accident mistake of law,
and excusable negligence and
that he has a meritorious
defense
MOTION FOR NEW ƒ If the judgment has already
TRIAL [RULE 37, been rendered when the
SEC. 1(A)] defendant discovered the
default, but before the same
became final and executory.
ƒ It should be filed within the
period for perfecting an
appeal. Timely filing thereof
interrupts the 15-day
reglementary period for an
appeal.
ƒ It is required that defendant
file first a motion to lift
order of default to regain his
standing. [Tan v. CA (1997)]
PETITION FOR If the defendant discovered the
RELIEF FROM default after the judgment has
ORDER, become final and executory
JUDGMENT OR
OTHER
PROCEEDINGS
[RULE 38, SEC. 1
AND 2]
APPEAL FROM THE The defendant may also appeal
RTC [RULE 41, from the judgment rendered
SEC. 1] against him as contrary to the
evidence or the law, even if he
did not present a petition to
set aside the order of default
ƒ An order of default is an interlocutory order
which is not appealable. A judgment by default
is a final disposition of the case and is
 REMEDIAL LAW REVIEWER

appealable. [MERALCO v. La Campana Food was filed but defendant did not appear at the
Products (1995)] hearing, the award may exceed the amount or be
ƒ A petition for certiorari under Rule 65, although different in kind from that prayed for.
not a substitute for an available or lost appeal, 105
may be invoked while the orders of the lower f. Actions where default are not allowed
court are issued without or in excess of
jurisdiction. Cases where no defaults are allowed [Rule 9, Sec
ƒ Judgment by default being appealable, appeal 3(e)]
should be perfected within 15 days from receipt ƒ Annulment of marriage; Declaration of nullity of
of copy of order denying MFR of default marriage; Legal Separation;
judgment. [Oriental Media v. CA (1995)] 1) Here, the court shall order the prosecuting
ƒ A satisfactory showing by the movant of the attorney to investigate WON parties are
existence of fraud, accident, mistake or colluding and, if there is no collusion, to
excusable neglect is an indispensable intervene from the State to ensure that
requirement for the setting aside of a judgment evidence is not fabricated.
of default or an order of default. ƒ Special civil actions of certiorari, prohibition
ƒ A meritorious defense is only one of the two and mandamus, where comment (instead of an
conditions. The meritorious defense must concur answer) is required to be filed.
with the satisfactory reason for the non-
appearance of the defaulted party. If there is no Failure to appear at pre-trial
such reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2. [Ramnani Who fails to Effect
v. CA (1993)] appear
ƒ The jurisdiction was properly acquired by the TC Plaintiff Cause for dismissal of the
over the defendant’s person; he was therefore action which will be with
properly declared in default for not having filed prejudice, unless otherwise
any answer. ordered by the court
ƒ Despite his failure to file a motion to set aside Defendant Cause to allow plaintiff to
the declaration of default, he has the right to present evidence ex parte, and
appeal the default judgment. court to render judgment on
ƒ But in the appeal, only the evidence of the the basis thereof
petitioner may be considered, respondent not
having adduced any defense evidence. [Boticano
Default by defendant As in default
v. Chu (1987)]
(Rule 9, Sec. 3) (failure to appear by
plaintiff) (Rule 18, Sec.
d. Effect of a partial default [Rule 9, Sec 3(c)] 5)
Upon motion and notice Not required
If the pleading asserting a claim states a common to defendant.
cause of action against several defending parties, Requires proof of failure Not required
and some of the defending parties answer while the to answer
others fail, the court shall try the case against all
Court to render Court to allow plaintiff
defendants upon the answers filed and render
judgment, unless it to present evidence ex
judgment upon the evidence presented.
requires submission of parte, then the court
evidence shall render judgment
Exception: If the defense is personal to the one who
Relief awarded must be Relief awarded may be
answered; in which case, it will not benefit those
the same in nature and of different nature and
who did not answer.
amount as prayed for in amount from the relief
the complaint prayed for
e. Extent of relief
Lesaca v. CA (1992): A defendant who already filed
Extent of relief to be awarded
an answer cannot be declared in default. Only when
The award shall not exceed the amount or be
the defendant fails to file an answer to the
different in kind from that prayed for; nor award
complaint may the court proceed to render
unliquidated damages.
judgment.
Bayog v. Natino (1996): The Revised Rules on
Rationale: It is presumed that where the relief
Summary Procedure does not provide that an answer
demanded is greater or different in kind, defendant
filed after the reglementary period should be
would not have allowed himself to be declared in
expunged from the records.
default.
As a matter of fact, there is no provision for an entry
Datu Samad Mangelen v. CA (1992): In a judgment
of default if a defendant fails to file his answer.
based on evidence presented ex parte, judgment
should not exceed the amount or be different in kind
The defense of LOJ may have even been raised by
from that prayed for.
the defendant in a MTD as an exception to the rule
on prohibited pleadings in the Revised Rule on
On the other hand, in a judgment where an answer
Summary Procedure. Such a motion is allowed under
 REMEDIAL LAW REVIEWER

Sec. 19(a) thereof. always be within the prescriptive period of the

106 Malanyaon v. Sunga (1992): Where the failure to
appear at the pre-trial hearing was uncontrovertedly
due to illness, the default order may be set aside on
the ground of accident over which petitioner had no
control.
Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order.
Acquisition of jurisdiction
action filed. [Sun Insurance v. Asuncion]
ƒ Further Modification by Heirs of Hinog v.
Melicor (2005): FEES AS LIEN. Where the trial
court acquires jurisdiction over a claim by the
filing of the pleading and the payment of the
prescribed filing fee, BUT SUBSEQUENTLY, the
judgment awards a claim not specified in the
pleading, or cannot then be estimated, or a
claim left for determination by the court, then
the additional filing fee shall constitute a lien
on the judgment.

Note: Appellate docket and other lawful fees must

7. Filing and Service of pleadings be paid within the same period for taking an appeal.
Non-payment is a valid ground for dismissal of an
Definition appeal. [M.A. Santander v. Villanueva (2004)]
ƒ FILING – The act of presenting the pleading or However, delay in the payment of docket fees
other paper to the clerk of court. [Rule 13, Sec. confers upon the court discretionary and not
2] mandatory power to dismiss an appeal. [Villamor v.
ƒ SERVICE – The act of providing a party or his CA (2004)]
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
b. Filing versus service of pleadings
Papers Required to be Filed and Served [RULE 13,
Filing is the act of presenting the pleading or other
SEC. 4]
papers to the clerk of court. [RULE, 13, SEC. 2]
ƒ Pleading subsequent to the complaint;
ƒ Appearance;
Service is the act of providing a party with a copy of
ƒ Written Motion;
the pleading or paper concerned. [RULE, 13, SEC. 2]
ƒ Notice;
ƒ Order;
ƒ Judgment;
c. Periods of filing of pleadings
ƒ Demand;
ƒ Offer of Judgment; ƒ Answer to the complaint - The defendant shall
ƒ Resolution; file his answer to the complaint within fifteen
ƒ Similar papers. (15) days after service of summons, unless a
different period is fixed by the court. [Rule
11.1]
a. Payment of docket fees
within thirty (30) days after receipt of summons
As a rule, the court acquires jurisdiction over the
of the foreign entity where the defendant is a
case only upon payment of prescribed fees
foreign private juridical entity and service of
summons is made on the government official
General rule: Without payment, case is considered
designated by law to receive the same, the
not filed. Payment of docket fees is mandatory and
answer shall be filed [Rule 11.2]
jurisdictional.
ƒ Answer to amended complaint - Where the
It is not simply the filing of the complaint or
plaintiff files an amended complaint as a matter
appropriate initiatory pleading but the payment of
of right, the defendant shall answer the same
the prescribed docket fee, that vests a trial court
within fifteen (15) days after being served with
with jurisdiction over the subject matter or nature
a copy thereof.
of the action [Proton Pilipinas v. Banque National de
Paris]
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
Effect of Failure to Pay Docket Fees at Filing
within ten (10) days from notice of the order
admitting the same. An answer earlier filed may
ƒ Manchester v. CA (1987) [Old Rule]: AUTOMATIC
serve as the answer to the amended complaint
DISMISSAL. Any defect in the original pleading
if no new answer is filed.
resulting in underpayment of the docket fees
cannot be cured by amendment, such as by the
Note that this Rule shall apply to the answer to
reduction of the claim as, for all legal purposes,
an amended counterclaim, amended cross-
there is no original complaint over which the
claim, amended third (fourth, etc.) party
court has acquired jurisdiction
complaint, and amended complaint-in-
intervention. [Rule 11.3]
ƒ Modification by Sun Insurance v. Asuncion
(1989): NOT AUTOMATIC DISMISSAL BUT Court
may allow payment of fees within reasonable
period of time. Note that payment should
 REMEDIAL LAW REVIEWER

ƒ Answer to counterclaim or cross-claim - A ƒ Service by (registered) mail [Rule 13, Sec. 7]

counterclaim or cross-claim must be answered - By depositing the copy in the office, in a
within ten (10) days from service. [Rule 11.4] sealed envelope, plainly addressed to the
party or his counsel at his office or at his 107
ƒ Answer to third (fourth, etc.)- party complaint residence (if known), with postage fully pre-
- Same rule as the answer to the complaint. paid, and with instructions to the postmaster
[Rule 11.5] to return the mail to the sender after 10 days
if undelivered.
ƒ Reply - within ten (10) days from service of the - If no registry service is available in the
pleading responded to. [Rule 11.6] locality of either sender or addressee, service
may be done by ordinary mail.
ƒ Answer to supplemental complaint - within ten
(10) days from notice of the order admitting the ƒ Substituted service [Rule 13, Sec. 8]
same, unless a different period is fixed by the By delivering the copy to the clerk of court, with
court. proof of failure of both personal service and service
by mail
Note that the answer to the complaint shall
serve as the answer to the supplemental Completeness Proof of service
complaint if no new or supplemental answer is of service (Rule (Rule 13 Sec. 13)
filed. 13 Sec. 10)
Personal Upon actual Written admission
NOTE: Upon motion and on such terms as may be service delivery of the party served,
just, the court may extend the time to plead OR
provided in these Rules. The court may also, upon Official return of
like terms, allow an answer or other pleading to be the server OR
filed after the time fixed by these Rules. [Rule Affidavit of the
11.11] party serving, with
a full statement of
d. Manner of filing the
date/place/manner
Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 of service.
Bar particularly in comparison with filing in criminal Service by 10 days after Affidavit of the
actions) ordinary mailing, unless person mailing of
ƒ Personally. mail otherwise facts showing
- By personally presenting the original to the provided by the compliance with
clerk of court. court Sec. 7 of Rule 13.
- The pleading is deemed filed upon the receipt Service by Whichever is Affidavit of the
of the same by the clerk of court who shall registered earlier: person mailing of
endorse on it the date and hour of filing. mail ƒ Actual facts showing
- If a party avails of a private carrier, the date receipt by compliance with
of the court’s actual receipt of the pleading the Sec. 7 of Rule 13
(not the date of delivery to the private addressee
carrier) is deemed to be the date of the filing ƒ 5 days after AND
of that pleading. [Benguet Electric the
Cooperative v. NLRC (1992]] addressee Registry receipt
ƒ By registered mail. received 1st issued by the post
- Filing by mail should be through the registry postmaster's office
service (i.e. by depositing the pleading in the notice
post office).
- The pleading is deemed filed on the date it
Service of judgments, final orders or resolutions
was deposited with the post office.
[Rule 13, Sec. 9]
ƒ By personal service;
e. Modes of service [Rule 13, Sec. 5] ƒ By registered mail;
ƒ By publication at the expense of the prevailing
ƒ Personal service [Rule 13, Sec. 6] party if party was summoned by publication and
- Delivering personally a copy to the party or has failed to appear in the action.
his counsel.
- Leaving a copy in counsel's office with his Priorities in modes of service and filing [Rule 13,
clerk or with a person having charge thereof. Sec. 11]
- If no person is found in his office, or if his
office is unknown, or if he has no office – General rule: Personal filing and service. Resort to
Leaving the copy between 8am and 6pm at other modes of filing and service must be
the party's or counsel's residence (if known) accompanied by an explanation why the
with a person of sufficient age and discretion service/filing was not done personally. If there is no
then residing therein. written explanation, the paper is considered not
filed.
 REMEDIAL LAW REVIEWER

- an affidavit of the person mailing containing

Exception: Papers emanating from the court. the facts showing compliance with Rule 13,
108 Sec. 7, AND
When service is deemed complete - the registry receipt issued by the mailing
ƒ Personal service is deemed complete upon office.
actual delivery [Rule 13, Sec. 10] - the registry return card which shall be filed
ƒ Service by registered mail is complete upon immediately upon its receipt by the sender,
actual receipt by the addressee or after 5 days or in lieu thereof of the unclaimed letter
from the date he received the first notice of the together with the certified or sworn copy of
postmaster, whichever date is earlier. [Rule 13, the notice given by the postmaster to the
Sec. 10] addressee.
ƒ Service by ordinary mail is complete upon the
expiration of 10 days after mailing, unless the Notice of lis pendens [Rule 13, Sec. 14]
court otherwise provides [Rule 13, Sec. 10] LIS PENDENS - Notice of a pendency of the action
ƒ Substituted service is complete at the time of between the parties involving title to or right of
delivery of the copy to the clerk of court possession over real property.
together with the proof of failure of both
personal service and service by mail. [Rule 13, Requisites: [AFP Mutual Benefit Association v. CA
Sec. 8] (2001)]
ƒ Action affects the title or the right of possession
Proof of filing and service of the real property;
ƒ Affirmative relief is claimed;
Proof of filing ƒ Notice shall contain the name of the parties and
ƒ Filing is proved by its existence in the record of the object of the action/defense and a
the case [Rule 13, Sec. 12]. description of the property affected thereby;
ƒ If it is not in the record [Rule 13, Sec. 12]. ƒ Action in rem.
- The notice serves as a warning to all persons,
When Proof of filing prospective purchasers or encumbrancers of
pleading is the property in litigation to keep their hands
deemed off the property in litigation unless they are
filed prepared to gamble on the result of the
Personally Upon receipt Written/stamped proceedings.
of the acknowledgment by - The defendant may also record a notice of lis
pleading by the clerk of court pendens when he claims an affirmative relief
the clerk of in his answer.
court - The notice of cannot be cancelled on an ex
By On the date Registry receipt, and parte motion or upon the mere filing of a
registered the pleading affidavit of the person bond by the party on whose title the notice is
mail was who did the mailing annotated, as Sec. 14 provides that such
deposited with: cancellation may be authorized only upon
with the ƒ Full statement of order of court, after proper showing that:
post office the date/place of [Roxas v. CA (1993)]
depositing the mail - The notice is for the purpose of molesting the
in the post office in adverse party; or
a sealed envelope - It is not necessary to protect the rights of the
addressed to the party who caused it to be recorded
court
ƒ Postage fully paid Amended and supplemental pleadings
ƒ Instructions to the
postmaster to 8. Amendment
return the mail to
the sender after 10 How to amend pleadings [Rule 10, Sec. 1]
days if undelivered ƒ Adding an allegation of a party;
ƒ Adding the name of a party;
Proof of Service [Rule 13, Sec. 13] ƒ Striking out an allegation of a party;
ƒ Proof of personal service shall consist of: ƒ Striking out the name of a party;
- a written admission of the party served, or ƒ Correcting a mistake in the name of a party; and
the official return of the server, OR ƒ Correcting a mistaken or inadequate allegation
- the affidavit of the party serving, or description in any other respect.
- Content: full statement of the date, place
and manner of service. Purpose: That the actual merits of the controversy
ƒ Proof of service by ordinary mail: may speedily be determined, without regard to
- an affidavit of the person mailing technicalities, and in the most expeditious and
- Content: facts showing compliance with Rule inexpensive manner.
13, Sec. 7
ƒ Proof of service by registered mail

Barfel Development v. CA (1993): As a general
policy, liberality in allowing amendments is greatest
in the early stages of a law suit, decreases as it
progresses and changes at times to a strictness
amounting to a prohibition.
This is further restricted by the condition that the
amendment should not prejudice the adverse party
or place him at a disadvantage.
Form [Rule 10, Sec. 7]
A new copy of the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed.
a. Amendment as a matter of right
SUBSTANTIAL AMENDMENTS – once, made at any
time before a responsive pleading is served. If it is a
reply, once, made at any time within l0 days after it
is served. [Rule 10, Sec. 2] (Asked in the 2003 Bar
Exam)
If as a matter of discretion – Amendment requires
leave of court if:
ƒ It is substantial; and
ƒ A responsive pleading has already been served.
[Rule 10, Sec. 3]
b. Amendments by leave of court
SUBSTANTIAL AMENDMENTS - If as a matter of
discretion, requires leave of court if:
ƒ It is substantial; and
ƒ A responsive pleading has already been served.
[Rule 10, Sec. 3]
Requisites for amendments by leave of court
ƒ Motion filed in court;
ƒ Notice to the adverse party;
ƒ Opportunity to be heard afforded to the adverse
party.
(NOTE: In the 2008 Bar Exam, a question was asked
on amendment of complaint to implead additional
parties)
When amendment by leave of court may not be
allowed
ƒ If the cause of action, defense or theory of the
case is changed.
ƒ If amendment is intended to confer jurisdiction
to the court.
- If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property.
[PNB v. Florendo (1992)]
ƒ If amendment is for curing a premature or non-
existing cause of action.
ƒ If amendment is for purposes of delay.
Note:
ƒ Admitting an amended complaint in intervention
is a matter addressed to the court’s discretion,
REMEDIAL LAW REVIEWER
subject only to the limitations that amendments
should not substantially change the cause of
action or alter the theory of the case or made to
delay the action. 109
ƒ Once exercised, it cannot be disturbed on
appeal, except in case of abuse thereof.
[Metropolitan Bank v. Presiding Judge (1990)]
c. Formal amendment [Rule 10, Sec. 4]
ƒ A defect in the designation of the parties and
other clearly clerical errors may be summarily
corrected by the court motu proprio or by
motion at any stage of the action.
ƒ Provided that no prejudice is caused to the
adverse party.
d. Amendments to conform to or authorize
presentation of evidence [Rule 10, Sec. 5]
(Asked in the 2004 Bar Exam)
ƒ If issues not raised by the pleadings are tried
with the express/implied consent of the parties,
they shall be treated in all respects as if they
had been raised in the pleadings.
ƒ Amendment of pleadings as may be necessary to
cause them to conform to the evidence and to
raise these issues, may be made upon motion of
any party, any time (even after judgment).
- But failure to amend does not affect the
result of the trial of these issues.
ƒ If evidence is objected to at the trial on the
ground that it is not within the issues made by
the pleadings, the court may allow the pleadings
to be amended and shall do so with liberality if
the presentation of the merits of the action and
the ends of substantial justice will be subserved
thereby. The court may grant a continuance to
enable the amendment to be made.
Amendments vis-à-vis supplemental
pleadings
e. Different from supplemental pleadings
Supplemental pleadings (ASKED IN THE 2000 BAR
EXAM)
Definition: One which sets forth transactions,
occurrences or events which have happened since
the date of the pleading sought to be supplemented.
[Rule 10, Sec. 6]
It is made upon motion of a party with reasonable
notice and upon terms as are just.
The cause of action stated in the supplemental
complaint must be the same as that stated in the
original complaint. Otherwise, the court should not
admit the supplemental complaint. [Asset
Privatization Trust v. CA (1998)]
A supplemental complaint/pleading supplies
deficiencies in aid of an original pleading, not to
entirely substitute the latter.
 REMEDIAL LAW REVIEWER

Unlike in an amended complaint, the original corresponding summons to the defendants. [Rule 14,
complaint exists side by side with the supplemental Sec. 1]
110 complaint. [Shoemart v. CA (1990)]
Contents of summons [Rule 14, Sec. 2]
Amendments Supplemental pleadings Summons must be directed to the defendant, signed
Reason for the Grounds for the by the clerk of the court under seal, and contain:
amendment is available supplemental pleading (1) Name of the court and names of the parties;
at time of the 1st arose after the 1st (2) Direction that the defendant answer within the
pleading pleading was filed time fixed;
Either as a matter of Always a matter of (3) Notice that unless the defendant so answers,
right or a matter of discretion plaintiff will take judgment by default and may
discretion be granted the relief applied for.
Supersedes the pleading Supplements the
pleading (i.e. Exists side A copy of the complaint and order for appointment
by side with the original of guardian ad litem (if any) shall be attached to the
pleading) original and each copy of the summons.
When an amended A supplemental pleading
pleading is filed, a new does not require the NOTE that jurisdiction over person of defendant may
copy of the entire filing of a new copy of also be acquired through voluntary appearance.
pleading must be filed the entire pleading
2. Voluntary appearance
f. Effect of amended pleading
General rule: Defendant's voluntary appearance in
Effect [Rule 10, Sec. 8] the action shall be equivalent to service of
ƒ Amended pleading supersedes the pleading that summons;
it amends.
ƒ Claims and defenses in superseded pleading Exception: Special appearance to file a MTD.
which are not incorporated in the amended
pleading are deemed waived. BUT inclusion in the MTD of grounds other than LOJ
ƒ Admissions made in the superseded pleading over the defendant’s person, is not deemed a
may still be received in evidence against the voluntary appearance.
pleader.
Any mode of appearance in court by a defendant or
his lawyer is equivalent to service of summons,
absent any indication that the appearance of counsel
VI. SUMMONS for petitioner is precisely to protest the jurisdiction
1. Nature and purpose of summons in of the court over the person of the defendant.
relation to actions in personam, in rem [Delos Santos v. Montesa (1993)]
and quasi in rem
2. Voluntary appearance Who serves the summons [rule 14, sec. 3]
(1) The sheriff or his deputy;
3. Personal service (2) Other proper court officers;
4. Substituted service (3) For justifiable reasons, any suitable person
5. Constructive service (by publication) authorized by the court issuing the summons.
6. Extra-territorial service, when allowed (4) Officer having management of a jail or
7. Service upon prisoners and minors institution deputized as special sheriff when
8. Proof of service defendant is a prisoner [rule 14, sec. 9]

Definition: A coercive force issued by the court to
acquire jurisdiction over the person of the defendant
(asked in the 1999 Bar Exam)
1. Nature and purpose of summons in
relation to actions in personam, in
rem and quasi in rem
Purpose
(1) To acquire jurisdiction over the person of the
defendant in a civil case;
(2) To give notice to the defendant that an action
has been commenced against him.
Return of summons [rule 14, sec. 4]
When the service has been completed, the server
shall, within 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.
Alias summons [rule 14, sec. 5]
Upon plaintiff’s demand, the clerk may issue an alias
summons if either:
(1) Summons is returned without being served on
any/all of the defendants.
(2) Summons was lost.

Issuance of summons The server shall also serve a copy of the return on
Upon the filing of the complaint and the payment of the plaintiff's counsel within 5 days therefrom,
legal fees, the clerk of court shall issue the stating the reasons for the failure of service.

Modes of service of summons
Any application to the court under Rule 14 for leave
to effect service in any manner for which leave of
court is necessary shall be made by:
(1) motion in writing,
(2) supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds
for the application. [Rule 14, Sec. 17]
3. Personal service
Service in person on defendant
(1) By handing a copy of summons to him;
(2) By tendering it to him, if he refuses to receive
and sign for it. [Rule 14, Sec. 6]
4. Substituted service [Rule 14, Sec. 7]
(asked in the 2004 Bar Exam)
Rationale: Enjoyment of the privileges of residence
within the state, and the attendant right to invoke
the protection of its laws, are inseparable from the
various incidences of state citizenship.
One such incident of domicile is amenability to suit
within the state even during sojourns without the
state, where the state has provided and employed a
reasonable method for apprising such an absent
party of the proceedings against him. [Northwest v.
CA (1995)]
For a valid substituted service of summons, the
following must be established in the proof of service:
[Sps. Ventura v. CA (1987)]
(1) Impossibility of the personal service of summons
within a reasonable time;
(2) Efforts made to find the defendant personally
and the fact that such efforts failed; [Laus v. CA
(1993)]
(3) Service by leaving copy of summons either:
(a) With some person of suitable age and
discretion then residing in the defendant’s
residence;
(b) With some competent person in charge of
the defendant’s office or regular place of
business.
For a substituted service to be valid, summons
served at the defendant's residence must be served
at his residence at the time of such service and not
at his former place of residence.
"Dwelling house" or "residence" refer to the place
where the person named in the summons is living at
the time when the service is made, even though he
may be temporarily out of the country at the time.
[Sps. Ventura v. CA (1987)]
Substituted service must be used only as prescribed
and in the circumstances authorized by statute.
Statutes prescribing modes other than personal
service of summons must be strictly complied with
to give the court jurisdiction, and such compliance
must appear affirmatively in the return. [Laus v. CA
(1993)]
REMEDIAL LAW REVIEWER
Absence in the sheriff's return of a statement about
the impossibility of personal service does not
conclusively prove that the service is invalid.
111
Proof of prior attempts at personal service may be
submitted by the plaintiff during the hearing of any
incident assailing the validity of the substituted
service.
While the sheriff's return carries with it the
disputable presumption of regularity in the sense
that the entries therein are deemed correct, it does
not necessarily follow that an act done in relation to
the official duty for which the return is made was
not done simply because it is not disclosed therein.
[Mapa v. CA (1992)]
5. Constructive service (by
publication) [Rule 14, Sec. 14]
Requisites
(1) The action is in rem or quasi in rem;
(2) Defendant's identity or whereabouts are
unknown and cannot be ascertained by diligent
inquiry;
(3) There must be leave of court.
Summons by publication in a personal action cannot
confer upon the court jurisdiction over the person of
the defendant, who does not voluntarily submit
himself to the authority of the court.
The proper recourse for the plaintiff is to locate
properties of the defendant whose address is
unknown and cause them to be attached.
[Consolidated Plywood vs. Breve (1988)]
Service of summons upon different entities
See Annex A.
a. Service upon a defendant where his
identity is unknown or where his
whereabouts are unknown [Rule 14, Sec. 14]
With leave of court, by publication in a newspaper of
general circulation
b. Service upon residents temporarily outside
the Philippines [Rule 14, Sec. 16]
With leave of court, may serve extraterritorially
Service of summons upon different entities
Summons is validly served if it is left with some
person of suitable age and discretion then residing in
the defendant's residence, even if defendant was
abroad at that time. The fact that the defendant did
not actually receive the summons did not invalidate
the service of such summons. [Montalban v. Maximo
1963]
 REMEDIAL LAW REVIEWER
6. Extra-territorial service, when
allowed [Rule 14, Sec. 15]
112
Requisites: (Asked in the 1997 and 2008 Bar Exam)
(1) Defendant does not reside or is not found in the
Philippines;
(2) Action either:
(a) Affects the plaintiff’s personal status;
(b) Relates to or the subject matter of which is
property within the Philippines in which
defendant has a lien/interest;
(c) Demands a relief which consists
wholly/partially in excluding the defendant
from any interest in any property within the
Philippines;
(d) Has defendant’s property in the Philippines,
attached.
Modes of service
(1) With leave of court, serve outside the
Philippines by personal service; or
(2) With leave of court, serve by publication in a
newspaper of general circulation, in which case
copy of the summons and order of the court
must also be sent by registered mail to the
defendant’s last known address;
(3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall
specify a period of at least 60 days within which the
defendant must answer.
7. Service upon prisoners and minors
Service upon prisoner [Rule 14, Sec. 9]
Serve upon the officer having management of the
jail/prison
Service upon minors and incompetents [Rule 14,
Sec. 10]
Serve upon the minor/incompetent and on his legal
guardian.
ƒ If there is no guardian, plaintiff may apply for
the appointment of a guardian ad litem.
ƒ If minor, may serve on his parents.
8. Proof of service
Return of service [Rule 14, Sec. 4]
When service has been completed, the server shall
serve a copy of the return within 5 days (personally
or by registered mail) to the plaintiff's counsel, and
shall return the summons to the clerk who issued it,
accompanied with the proof of service.
General rule: Return of service of summons
immediately shifts burden of evidence from plaintiff
to defendant since there is a presumption of
regularity.
ƒ Without return of service: Burden is on plaintiff.
ƒ In the Mapa case though, while there was a
return, return was patently irregular, thus no
presumption of regularity could be had.
Exception: Doctrine of substantial compliance– If
defendant actually received summons and complaint
despite all these technicalities.
Proof of service
If personal or substituted service: In writing by the
server and shall: [Rule 14, Sec. 18]
(1) Set forth the manner/place/date of service;
(2) Specify any papers which have been served with
the process and the name of the person who
received the same;
(3) Be sworn to when made by a person other than
a sheriff or his deputy.
If by publication: [Rule 14, Sec. 19]
(1) Affidavit of the printer, his foreman, principal
clerk, or the editor, business/advertising
manager, with a copy of the publication
attached, AND
(2) Affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid, directed to the
defendant by registered mail to his last known
address.
Effect of non-service of summons (asked in the
2006 Bar Exam)
Unless the defendant voluntarily submits to the
jurisdiction of the court,non-service or irregular
service of summons renders null and void all
subsequent proceedings and issuances in the action
from the order of default up to and including the
judgment by default and the order of execution.
If the defendant has already been served with
summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new causes of action. [Ong Peng
v. Custodio 1961]
But if the defendant was declared in default on the
original complaint and the plaintiff subsequently
filed an amended complaint, new summons must be
served on the defendant on the amended complaint,
as the original complaint was deemed withdrawn
upon such amendment. [Atkins v. Domingo 1923]
Waiver of service of summons [Rule 14, Sec. 20]
ƒ General rule: Defendant's voluntary appearance
in the action shall be equivalent to service of
summons;
ƒ Exception: Special appearance to file a MTD.
ƒ Inclusion in the MTD of grounds other than LOJ
over the defendant’s person, is not deemed a
voluntary appearance. Any mode of appearance
in court by a defendant or his lawyer is
equivalent to service of summons, absent any
indication that the appearance of counsel for
petitioner is precisely to protest the jurisdiction
of the court over the person of the defendant.
[Delos Santos v. Montesa (1993)]
Service of summons upon different entities
See Annex A.
 REMEDIAL LAW REVIEWER

VII. MOTIONS ƒ Exception: Oral motions:

(1) Made in open court;
1. Motions in general (2) In the course of a hearing/trial.
2. Motions for Bill of Particulars 113
3. Motion to Dismiss d. Notice of hearing and hearing of motions

Requisites of motions (not made in open court or

1. Motions in general in the course of hearing/trial)
(1) In writing; [Rule 15, Sec. 2]
a. Definition of a motion
(2) Hearing on the motion set by the applicant
An application for relief other than by a pleading Notice of hearing shall be addressed to all
[Rule 15, Sec. 1] parties, and shall specify the time and date of
the hearing which shall not be later than 10 days
Motion day [Rule 15, Sec. 7] from the filing of the motion. [Rule 15, Sec. 5]
Except for urgent motions, motions are scheduled
for hearing: Notice must be addressed to the counsels. A
(1) On Friday afternoons; notice of hearing addressed to the clerk of
(2) Afternoon of the next working day, if Friday is a court, and not to the parties, is no notice at all.
non-working day. Accordingly, a motion that does not contain a
notice of hearing to the adverse party is nothing
Motion for leave to file a pleading/motion [Rule 15, but a mere scrap of paper, as if it were not
Sec. 9] filed; hence, it did not suspend the running of
Must be accompanied by the pleading/motion sought the period to appeal. [Provident International
to be admitted Resources v. CA (1996)]

(3) Motion and notice of hearing must be served at

Motions not acted upon least 3 days before the date of hearing; [Rule
Parties and counsel should not assume that courts 15, Sec. 4]
are bound to grant the time they pray for. After all,
a motion that is not acted upon in due time is Purpose: To prevent surprise upon the adverse party
deemed denied. [Orosa v. CA (1996)] and to enable the latter to study and meet the
arguments of the motion.
b. Motions versus pleadings
Exceptions:
Motion Pleading (1) Ex parte motions;
Contains allegations of Contains allegations of (2) Urgent motions;
facts the ultimate facts (3) Motions agreed upon by the parties to be heard
Prays for a relief Prays for a relief on shorter notice, or jointly submitted by the
Grant of the relief does Grant of relief parties;
not extinguish the action extinguishes the action (4) Motions for summary judgment which must be
(interlocutory relief) (final relief) served at least 10 days before its hearing.
Generally in writing Always in writing
(with some exceptions) Proof of service [Rule 15, Sec. 6]
General rule: A written motion set for hearing will
General rule: A motion cannot pray for judgment. not be acted upon by the court if there is no proof of
service thereof.
Exception:
(1) Motion for judgment on the pleadings. What may be proof:
(2) Motion for summary judgment. (1) If by registered mail: Affidavit or registry
(3) Motion for judgment on demurrer to evidence. receipt or postmark on envelope or return card,
with an explanation.
c. Contents and form of motions (2) If by personal service: Affidavit or
acknowledgment of receipt by the other party.
Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained Exceptions:
(2) Grounds upon which it is based (1) If the motion is one which the court can hear ex
(3) If it is required/necessary to prove facts alleged parte.
in a motion, it shall be accompanied by (2) If the court is satisfied that the rights of the
supporting affidavits and other papers. adverse parties are not affected by the motion.
(4) Motions raising factual issues must be supported (3) If the party is in default because such a party is
by affidavits. not entitled to notice.

Form of motions [Rule 15, Sec. 2]

ƒ General rule: In writing.
 REMEDIAL LAW REVIEWER

e. Omnibus motion rule [Rule 15, Sec. 8] The purpose of a BOP is to define/
clarify/particularize/limit/circumscribe the issues in
114 Definition: A motion attacking a pleading/order/ the case to expedite the trial and assist the court.
judgment/proceeding must include all objections
then available. All objections not included in the The only question to be resolved in a motion for a
motion are deemed waived. BOP is WON the allegations in the complaint are
averred with sufficient definiteness/particularity to
Exception: When the court’s jurisdiction is in issue: enable the movant to properly prepare his
(1) LOJ over subject-matter; responsive pleading and to prepare for trial.
(2) Litis pendentia; [Tantuico, Jr. v. Republic (1991)]
(3) Res judicata;
(4) Prescription. A BOP becomes part of the pleading for which it was
intended. [Rule 12, Sec. 6]
f. Litigated and ex parte motions
When applied for [Rule 12, Sec. 1]
Kinds of Motion (1) Before responding to a pleading
(1) MOTION EX PARTE - Made without notification (2) If the pleading is a reply, within 10 days from
to the other party because the question service thereof
generally presented is not debatable.
(2) LITIGATED MOTION - Made with notice to the What a motion for bill of particulars should point
adverse party so that an opposition thereto may out [Rule 12, Sec. 1]
be made. (1) The defects complained of;
(3) MOTION OF COURSE - Motion for a kind of (2) The paragraph wherein they are contained;
relief/remedy to which the movant is entitled to (3) The details desired.
as a matter of right, Allegations contained in
such motion do not have to be b. Actions of the court [Rule 12, Sec. 2]
investigated/verified.
(4) SPECIAL MOTION - Discretion of the court is (1) Deny;
involved. An investigation of the facts alleged is (2) Grant the motion outright;
required. (3) Allow the parties the opportunity to be heard.

g. Pro-forma motions c. Compliance with the order and effect of

non-compliance
PRO FORMA MOTION – A motion failing to indicate
time and date of the hearing Compliance with order [Rule 12, Sec. 3]
If motion for BOP is granted wholly/partially:
2. Motions for Bill of Particulars (1) Within 10 days from notice of order, BOP or a
more definite statement should be submitted
(unless court fixes a different period).
Bill of particulars (ASKED IN THE 2003 BAR EXAM)
(2) BOP or definite statement filed either as a
Definition: It is a detailed explanation respecting
separate pleading or as an amended pleading, a
any matter which is not averred with sufficient
copy of which must be served on the adverse
definiteness/particularity in the complaint as to
party.
enable a party to properly prepare his responsive
pleading or to prepare for trial. [Rule 12, Sec. 1]
Effect of non-compliance [Rule 12, Sec. 4]
In case of non-compliance or insufficient compliance
a. Purpose and when applied for
with the order for BOP, the court:
(1) May order the striking out of the pleading (or
It is filed by the plaintiff pursuant to a court order
portion thereof) to which the order is directed;
issued upon granting a motion for BOP filed by the
OR
defendant before the latter files an answer.
(2) Make such order as it may deem just.
In said motion, the defendant prays for a more
If the plaintiff fails to obey, his complaint may be
definite statement of matters which are not averred
dismissed with prejudice unless otherwise ordered
with sufficient definiteness in the complaint.
by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
An action cannot be dismissed on the ground that
If defendant fails to obey, his answer will be
the complaint is vague/indefinite. The remedy of
stricken off and his counterclaim dismissed, and he
the defendant is to move for a BOP or avail of the
will be declared in default upon motion of the
proper mode of discovery. [Galeon v. Galeon (1973)]
plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17,
Sec. 4]
Purpose
To inform the adverse party more specifically of the
precise nature and character of the cause of action
d. Effect on the period to file a responsive
or defense alleged in the pleading, with the view of pleading [Rule 12, Sec. 5]
enabling him to prepare properly his responsive
pleading or to prepare for trial. A Motion for BOP interrupts the period to file a
responsive pleading.
 REMEDIAL LAW REVIEWER

(a) Upon notice by plaintiff;

The period to which the movant is entitled at the (b) Upon motion by plaintiff;
time of filing of the motion, which shall not be less (c) Due to fault of plaintiff.
than 5 days in any event. (3) Demurrer to evidence after plaintiff has 115
completed the presentation of his evidence
NOTE the following distinctions: under Rule 33;
(4) Dismissal of an appeal.
Bill of Particulars (BOP) Intervention
Purpose is to enable a Purpose is to enable a Note:
party bound to respond person not yet a party to A MTD shall be proved/disproved according to the
to a pleading to get an action, yet having a rules of evidence.
more details about certain right or interest
matters which are in such action, the The hearing shall be conducted as an ordinary
alleged generally or opportunity to appear hearing and the parties shall be allowed to present
which are indefinite and and be joined evidence, except when the motion is based upon
vague, failure of the complaint to state a cause of action.
so he could assert or
so as to properly guide protect such right or When the MTD is based on facts not appearing of
such party in answering interest record, the court may hear the matter on
the pleading and to affidavits/depositions.
avoid surprise in the trial
of the case a. Grounds [Rule 16, Sec. 1] (Asked in the 2008
Available to the Available to any person Bar Exam)
defendant before he not yet a party to the
files his responsive action at any time after i. LOJ over the defendant’s person
pleading the commencement of ii. LOJ over the subject matter of the claim
an action, even during iii. Improper venue
the proceeding, but not iv. Plaintiff’s lack of legal capacity to sue
after the trial has been v. Litie pendentia
concluded vi. Res judicata
vii. Prescription
Terminating the action before trial viii. Failure to state a cause of action
ix. Extinguished claim
3. Motion to Dismiss x. Unenforceable claim under the Statute of Frauds
xi. Non-compliance with a condition precedent for
Definition filing claim
A remedy of the defendant, or the responding party
in general, which attacks the entire pleading and i. LOJ over the defendant’s person
seeks its dismissal based on: The objection of LOJ over the person on account of
(1) Grounds which are patent on the face of the lack of service or defective service of summons,
complaint; must be raised:
(2) Defenses available to the defendant at the time (1) At the very first opportunity;
of the filing of the complaint (2) Before any voluntary appearance is made.

It hypothetically admits the facts stated in the
complaint.
It is not a responsive pleading. It is not a pleading at
all. It is subject to the omnibus motion rule since it
is a motion that attacks a pleading. Hence, it must
raise all objections available at the time of the filing
thereof.
General rule: A court may not motu propio dismiss a
case, unless a motion to that effect is filed by a
party.
Exception:
(1) Cases where the court may dismiss a case motu
propio; [Rule 9, Sec. 1]
(2) Failure to prosecute; [Rule 17, Sec. 3]
(3) Sec. 4, Revised Rule on Summary Procedure.
Types of dismissal of action
(1) MTD before answer under Rule 16;
(2) MTD under Rule 17:
If a defendant had not been properly summoned, the
period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
jurisdiction of the court. [Laus v. CA (1993)]
Appearance of counsel is equivalent to summons,
unless such is made to protest the jurisdiction of the
court over the person of the defendant. If grounds
other than invalid service of summons are raised, it
cannot be considered as a special appearance. [De
los Santos v. Montesa (1993)]
ii. LOJ over the subject matter of the claim
If the complaint shows on its face LOJ, the court
may dismiss the case outright instead of hearing the
motion.
A MTD on the ground of LOJover the subject matter
may be raised either:
(1) Before answer;
(2) After answer is filed;
(3) After hearing had commenced;
 REMEDIAL LAW REVIEWER
(4) At any stage of the proceeding, even for the
first time on appeal and even if no such defense
116 is raised in the answer.
iii. Improper venue
Unless and until the defendant objects to the venue
in a MTD prior to a responsive pleading, the venue
cannot truly be said to have been improperly laid
since, for all practical intents and purposes, the
venue though technically wrong may yet be
considered acceptable to the parties for whose
convenience the rules on venue had been devised.
Improper venue may be waived and such waiver may
occur by laches. [Diaz v. Adiong (1993)]
A stipulation between the parties as to venue does
not preclude the filing of suits in the residence of
plaintiff/defendant under Rule 4, Sec. 2(b). In the
absence of qualifying/restrictive words which would
indicate that a specific place alone is the venue, an
agreement as to venue is merely permissive and
there is no waiver of right to pursue remedy in other
courts. [HSBC v. Sherman (1989)]
If the court erroneously denies the MTD, the remedy
is prohibition.
iv. Plaintiff’s lack of legal capacity to sue
The plaintiff lacks legal capacity to sue:
(1) When he does not possess the necessary
qualification to appear at the trial (e.g. when
he plaintiff is not in the full exercise of his civil
rights);
(2) When he does not have the character which he
claims, which is a matter of evidence (e.g. when
he is not really a duly appointed administrator
of an estate).
Lack of legal capacity to sue refers to plaintiff’s
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real party
in interest, in which case the ground for dismissal
would be that the complaint states no cause of
action.
v. Litis pendentia
Requisites: [Anderson Group v. CA (1997) Asked in
the 2007 Bar Exam]
(1) Identity of parties;
(2) identity of rights asserted and relief prayed for;
(3) Relief founded on the same facts and the same
basis;
(4) Identity in the 2 proceedings should be such that
any judgment which may be rendered in the
other action will amount to res judicata on the
action under consideration.
It is not required to allege that there be a prior
pending case. It is sufficient to allege and prove the
pendency of another case, even if same had been
brought later.
It does not require that the later case be dismissed
in favor of the earlier case. To determine which case
should be abated, apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into
account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court to
the parties;
(c) Other similar factors.
In both tests, the parties’ good faith shall be taken
into consideration.
The 1st case shall be abated if it is merely an
anticipatory action or defense against an expected
suit. The 2nd case will not be abated if it is not
brought to harass. [Vitrionics Computers v. RTC
(1993)]
vi. Res judicata
Requisites (Asked in the 2000 Bar Exam):
(1) Former judgment rendered by a court having
jurisdiction over the subject matter and over
the parties;
(2) Judgment must be a final judgment;
(3) Judgment must be on the merits;
There can be res judicata without a trial, such
as in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
(4) There must be identity of parties, of subject
matter and of the causes of action.
For res judicata to apply, absolute identity of parties
is not required because substantial identity is
sufficient. Inclusion of additional parties will not
affect the application of the principle of res
judicata.
The test of identity of cause of action lies not in the
form of the action but on WON the same evidence
would support and establish the former and the
present causes of action. [DBP v. Pundogar (1993)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided is
finally decided because of:
(1) Public policy and necessity makes it the interest
of the State that there should be an end to
litigation;
(2) The hardship on the individual that he should be
vexed twice for the same cause. [Nabus v. CA
(1991)]
Two concepts of res judicata [ABALOS V. CA 1993,
ASKED IN THE 1997 BAR EXAM)]
(1) BAR BY PRIOR JUDGMENT – Judgment on the
merits in the 1st case constitutes an absolute
bar to the subsequent action not only as to
every matter which was offered and received to
sustain or defeat the claim/demand, but also to
any other admissible matter which might have
been offered for that purpose and to all matters
that could have been adjudged in that case.
(Asked in the 2002 Bar Exam)
(2) CONCLUSIVENESS OF JUDGMENT – Where the
2nd action between the parties is upon a
different claim/demand, the judgment in the
1st case operates as an estoppel only with
regard to those issues directly controverted,
upon the determination of which the judgment
was rendered.

vii. Statute of limitations
Prescription applies only when the complaint on its
face shows that indeed the action has already
prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be brought
out later, the court must defer decision on the
motion until such time as proof may be presented on
such fact of prescription.
Prescription Laches
Concerned with the fact Concerned with the
of delay effect of delay
A matter of time A matter of equity
Statutory Not statutory
Applies in law Applies in equity
Based on fixed time Not based on fixed time
viii. Complaint states no cause of action
Failure to state a cause of action (not lack of cause
of action) is the ground for a MTD. The former
means there is insufficiency in the allegations in the
pleading. The latter means that there is
insufficiency in the factual basis of the action.
The failure to state a cause of action must be
evident on the face of the complaint itself.
Test: Assuming the allegations and statements to be
true, does the plaintiff have a valid cause of action?
A MTD based upon the ground of failure to state a
cause of action imports a hypothetical admission by
the defendant of the facts alleged in the complaint.
If the court finds the allegations of the complaint to
be sufficient but doubts their veracity, it must deny
the MTD and require the defendant to answer and
then proceed to try the case on its merits.
A complaint containing a premature cause of action
may be dismissed for failure to state a cause of
action.
If the suit is not brought against the real party-in-
interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.
[Tanpinco v. IAC (1992)]
viii. Extinguished claim
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or
otherwise extinguished.
ix. Unenforceable claim under the statute of
frauds
Article 1403 (2) CC requires certain contracts to be
evidenced by some note or memorandum in order to
be enforceable, to wit:
(a) An agreement that by its terms is not to be
performed within a year from the making
thereof;
REMEDIAL LAW REVIEWER
(b) A special promise to answer for the debt,
default, or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to 117
marry;
(d) An agreement for the sale of goods, chattels or
things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in
action, or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in
his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale,
price, names of the purchasers and person on
whose account the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing for a longer period
than one year, or for the sale of real property or
of an interest therein;
(f) A representation as to the credit of a third
person.
x. Non-compliance with a condition precedent
Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the
case on the ground of non-compliance with a
condition precedent.
b. Resolution of Motion
During the hearing of the motion, parties shall
submit: [Rule 16, Sec. 2]
(1) Their arguments on questions of law;
(2) Their evidence on questions of fact.
Exception: Those not available at that time.
If the case goes to trial, such evidence presented
shall automatically be part of the evidence of the
party presenting the same.
After the hearing, the court may either: [Rule 16,
Sec. 3]
(1) Dismiss the action/claim;
(2) Deny the MTD;
(3) Order the amendment of pleadings.
The court cannot defer the resolution of the MTD for
the reason that the ground relied upon is not
indubitable.
The court’s resolution on the MTD must clearly and
distinctly state the reasons therefor.
c. Remedies of plaintiff when the complaint
is dismissed
Remedies of plaintiff when motion to dismiss is
granted
If the motion is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in
character, the plaintiff has several options:
(1) Depending upon the ground for the dismissal of
the action, the plaintiff may refile the
 REMEDIAL LAW REVIEWER

complaint, e.g when ground for dismissal is in a separate action) of a counterclaim pleaded in
anchored on improper venue. the answer.
118 (2) He may appeal from the order of dismissal
where the ground relied upon is one which bars f. When grounds pleaded as affirmative
refilling of complaint e.g. defenses [Rule 16, Sec. 6]
(a) Res judicata
(b) Prescription If no MTD was filed, the grounds in Rule 16, Sec. 1
(c) Extinguishment of the obligation may be pleaded as an affirmative defense and the
(d) Violation of Statutes of Fraud court may conduct a preliminary hearing thereon as
(3) The plaintiff may also avail of a petition for if a MTD was filed.
certiorari, alleging grave abuse of discretion.
[Riano] g. Bar by dismissal
d. Remedies of the defendant when the Subject to the right of appeal, an order granting a
motion is denied motion to dismiss based on paragraphs:
ƒ (f) – That the cause of action is barred by a prior
1. The movant shall file his answer within the judgment or by the statute of limitations;
balance of the period described in Rule 11 to which ƒ (h) – That the claim or demand set forth in the
he was entitled at the time of serving his motion, plaintiff’s pleading has been paid, waived,
but not less than 5 days in any event. abandoned, or otherwise extinguished; and
ƒ (i) - That the claim on which the action is
Appeal is not a remedy since denial of a motion to founded is enforceable under the provisions of
dismiss is an interlocutory order. As a general rule, the statute of frauds
defendant files his answer and then may appeal an
adverse judgment. shall bar the refiling of the same action or claim.
[Rule 16, Sec. 5]
2. Another remedy is to file a certiorari, case under
Rule 65 alleging grave abuse of discretion. [Riano] h. Distinguished from demurrer to evidence
under Rule 33
e. Effect of dismissal of complaint on certain
grounds MTD under Rule 16 MTD under Rule 33
(Demurrer to
i. Of dismissal: [Rule 16, Sec.5] evidence)
General rule: The action/claim may be re-filed. Based on preliminary Based on insufficiency
objections of evidence
Exception: The action cannot be re-filed (although May be filed by any May be filed only by the
subject to appeal) if it was dismissed on any of the defending party against defendant against the
following grounds: whom a claim is asserted complaint of the
(1) Res judicata; in the action plaintiff
(2) Prescription; Should be filed within May be filed only after
(3) Extinguishment of the claim/demand; the time for, but prior the plaintiff has
(4) Unenforceability under the Statute of Frauds. to, the filing of the completed the
[Rule 16, Sec. 1 (f),(h),(i)] defending party’s presentation of his
answer to the pleading evidence
ii. On periods for pleading: [Rule 16, Sec.4] asserting the claim
If MTD is denied – Movant must file his answer within against him
the balance of the period under Rule 11 to which he If denied, defendant If denied, defendant
was entitled at the time of serving his MTD (but not answers; else, he may may present evidence.
less than 5 days) computed from the his receipt of be declared in default. If granted, plaintiff
notice of the denial. If granted, plaintiff may appeals and the order
appeal or if a of the dismissal is
If pleading is ordered to be amended – movant must subsequent reversed; the defendant
file his answer within the period under Rule 11, case is not barred, he loses his right to
counted from service of the amended pleading may re-file the case present evidence.
(unless the court gives a longer period).

iii. On other grounds and omnibus motion rule:

MTD based on the following grounds may be filed
even after filing an answer: [Rule 9, Sec. 1]
(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
Dismissal of the complaint under Rule 16, Sec. 6 is
without prejudice to the prosecution (in the same or
VIII. DISMISSAL OF ACTIONS
1. Dismissal upon notice by plaintiff; Two-
dismissal rule
2. Dismissal upon motion by plaintiff; effect
on existing counterclaim
3. Dismissal due to the fault of plaintiff
4. Dismissal of counterclaim, cross-claim or
third-party complaint
 REMEDIAL LAW REVIEWER

The case may be dismissed motu proprio or upon the

1. Dismissal upon notice by plaintiff; defendant’s motion if, without justifiable cause,
plaintiff fails either:
Two-dismissal rule (1) To appear on the date of the presentation of his 119
evidence-in-chief on the complaint;
Dismissal upon plaintiff’s notice [Rule 17, Sec. 1] ƒ The plaintiff’s failure to appear at the trial
Dismissal here is effected not by motion but by mere after he has presented his evidence and
notice before the service of either: rested his case does not warrant the dismissal
(1) The answer; of the case on the ground of failure to
(2) A motion for summary judgment. prosecute.
ƒ It is merely a waiver of his right to cross-
Upon plaintiff’s filing of notice, the court shall issue examine and to object to the admissibility of
an order dismissing the case. (i.e. the court has no evidence. [Jalover v. Ytoriaga (1977)]
discretion on WON to dismiss the case). (2) To prosecute his action for an unreasonable
length of time (nolle prosequi);
General rule: The dismissal is without prejudice. The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the
Exceptions: plaintiff is chargeable with want of due
(1) If the notice of dismissal provides that it is diligence in failing to proceed with reasonable
with prejudice. promptitude. [Calalang v. CA (1993)]
The dismissal is still with prejudice even it the (3) To comply with the ROC or any court order.
notice of dismissal does not so provide, where
such notice is premised on the fact of payment The dismissal has the effect of an adjudication on
by the defendant of the claim involved. the merits, unless the court declares otherwise,
[Serrano v. Cabrera (1953)] without prejudice to the right of the defendant to
prosecute his counter-claim in the same or separate
(2) TWO-DISMISSAL RULE – action.
If the plaintiff has previously dismissed an
action based on or including the same claim, the Rule 17, Sec. 2 Rule 17, Sec. 3
notice operates as an adjudication upon the Dismissal is at the Dismissal is not procured
merits.
plaintiff’s instance by plaintiff, although
justified by causes
2. Dismissal upon motion by plaintiff; imputable to him
effect on existing counterclaim Dismissal is a matter of Dismissal is a matter of
procedure, without evidence, an
Dismissal upon plaintiff’s motion [Rule 17, Sec. 2] prejudice unless adjudication on the
Here, dismissal of the complaint is subject to the otherwise stated in the merits
court’s discretion and upon such terms and court order or on
conditions as may be deemed proper by court plaintiff’s motion for
dismissal of his own
Leave of court for the dismissal is necessary because complaint.
the motion is made after a responsive pleading or a Dismissal is without Dismissal is without
motion for summary judgment has been served. prejudice to the prejudice to the
defendant’s right to defendant’s right to
If defendant pleaded a counterclaim prior to the prosecute his prosecute his
service upon him of the plaintiff’s motion for counterclaim in a counterclaim in the
dismissal, the dismissal shall be without prejudice to separate action (unless same or in a separate
the defendant’s right to either: within 15 days from action
(1) Prosecute his counterclaim in a separate action; notice of the motion he
(2) Have the counterclaim resolved in the same manifests his intention
action, by manifesting such preference within to have his counterclaim
15 days from being notified of plaintiff’s motion resolved in the same
for dismissal. action).

Dismissal here is without prejudice, unless otherwise 4. Dismissal of counterclaim, cross-

provided in the order.
Court approval of the court is necessary in the
dismissal/compromise of a class suit.
3. Dismissal due to the fault of
plaintiff
Dismissal due to plaintiff’s fault [Rule 17, Sec. 3]
claim or third-party complaint [Rule
17, Sec. 4]
This Rule applies to the dismissal of counterclaims,
cross-claims or 3rd-party complaints.
Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of auter
action pendentia and/or dismissal on the ground of
res judicata. Res judicata, however, is not
 REMEDIAL LAW REVIEWER
applicable since the court held that it did not
acquire jurisdiction due to non-payment of docket
120 fees.
Dismissal on the ground of LOJ does not constitute
res judicata, there being no consideration and
adjudication of the case on the merits. Neither is
there litis pendentia. [Meliton v. CA (1992)]
IX. PRE-TRIAL
1. Concept of pre-trial
2. Nature and purpose
3. Notice of pre-trial
4. Appearance of parties; effect of failure to
appear
5. Pre-trial brief; effect of failure to appear
6. Distinction between pre-trial in civil case
and pre-trial in criminal case
7. Alternative Dispute Resolution (ADR)
1. Concept of pre-trial
Definition
A mandatory conference and personal confrontation
before the judge between the parties litigant and
their representative counsels, called by the court
after the joinder of issues in a case or after the last
pleading has been filed and before trial, for the
purpose of settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice (Asked in the 1999 Bar
Examination, Examiner asked to compare this with
proceedings in the Katarungang Pambarangay).
2. Nature and purpose
Purpose
To consider: [Rule 18, Sec. 2]
ƒ Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
ƒ Simplification of the issues;
ƒ Necessity/desirability of amendments to the
pleadings;
ƒ Possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary
proof;
ƒ Limitation of the number of witnesses;
ƒ Advisability of a preliminary reference of issues
to a commissioner;
ƒ Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
ƒ Advisability/necessity of suspending the
proceedings; and
ƒ Other matters that may aid in the prompt
disposition of the action.
Note:
ƒ Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
ƒ Thus, to obviate the element of surprise, parties
are expected to disclose at a pre-trial
conference (PTC) all issues of law and fact
which they intend to raise at the trial, except
such as may involve privileged or impeaching
matters. The determination of issues at a pre-
trial conference bars the consideration of other
questions on appeal. [Caltex v. CA (1992)]
ƒ When conducted: After the last pleading has
been served and filed, it shall be the plaintiff’s
duty to move ex parte that the case be set for
pre-trial. [Rule 18, Sec. 1]
ƒ A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading may
be the plaintiff's reply, except where the period
to file the last pleading has lapsed.
ƒ Discretion to declare a party non-suited in PTC
must not be abused. Unless a party is so
negligent, irresponsible, contumacious, or
dilatory as to provide substantial grounds for
dismissal for non-appearance, the court should
consider lesser sanctions which would still
amount to achieving the end desired. [Calalang
v. CA (1993)]
3. Notice of pre-trial [Rule 18, Sec. 3]
Notice of pre-trial shall be served on counsel, or on
the party who has no counsel.
Counsel served with such notice has a duty to notify
the party he represents.
At the start of the preliminary conference, the judge
is mandated to refer the parties and/or their
counsels to the mediation unit of the Philippine
Mediation Center (PMC) for purposes of mediation. If
the mediation fails, the judge will schedule the
continuance of the preliminary conference. This rule
applies to Metro Manila, Cebu Davao City, and other
place where PMC Units may be further organized and
designated. [Admin, Circular No. 20-2002; Admin.
Circular No. 50-2005, April 26, 2005]
4. Appearance of parties; effect of
failure to appear
Appearance of parties [Rule 18, Sec. 4]
It is the duty of the parties and their counsel to
appear at the pre-trial.
A party’s non-appearance may be excused only if
either:
ƒ Valid cause is shown for it;
ƒ A representative appears in his behalf, fully
authorized in writing:
- To enter into an amicable settlement;
- To submit to alternative modes of dispute
resolution;
- To enter into stipulations/admissions of facts
and of documents.
Citibank v. Chua (1993): SC admonishes the courts
against precipitate orders of default as they have
the effect of denying the party the chance to be
heard.
 REMEDIAL LAW REVIEWER

5. Pre-trial brief; effect of failure to

There are instances when parties may properly be
defaulted, but such is the exception rather than the
appear
rule and should be used only in clear cases of 121
obstinate refusal or inordinate neglect to comply Pre-trial brief [Rule 18, Sec. 6]
with court orders. ƒ Parties shall file and serve their respective pre-
trial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
Failure to appear at pre-trial
ƒ Pre-trial brief’s contents (Asked in the 2001 Bar
Exam):
Who fails to Effect
- Statement of their willingness to enter into
appear
amicable settlement or alternative modes of
Plaintiff Cause for dismissal of the
dispute resolution, indicating the desired
action which will be with
terms thereof;
prejudice, unless otherwise
- Summary of admitted facts and proposed
ordered by the court
stipulation of facts;
Defendant Cause to allow plaintiff to
- Issues to be tried/resolved;
present evidence ex parte, and
- Documents/exhibits to be presented, stating
court to render judgment on
the purpose thereof;
the basis thereof
- Manifestation of their having availed or their
intention to avail themselves of discovery
Default by defendant As in default procedures or referral to commissioners;
(Rule 9, Sec. 3) (failure to appear by - Number and names of the witnesses, and the
plaintiff) (Rule 18, Sec. substance of their respective testimonies.
Upon motion and notice Not required
to defendant. NOTE: Failure to file the pre-trial brief shall have
Requires proof of failure Not required the same effect as failure to appear at the pre-trial.
to answer
Court to render Court to allow plaintiff Record of pre-trial [Rule 18, Sec. 6]
judgment, unless it to present evidence ex ƒ The pre-trial proceedings shall be recorded.
requires submission of parte, then the court Upon termination of such proceedings, the court
evidence shall render judgment shall issue the pre-trial order.
Relief awarded must be Relief awarded may be ƒ Pre-trial order’s contents:
the same in nature and of different nature and - Matters taken up in the conference;
amount as prayed for in amount from the relief - Action taken thereon;
the complaint prayed for - Amendments allowed on the pleadings;
- Agreements/admissions made by the parties
ƒ A defendant who already filed an answer cannot as to any matters considered;
be declared in default. Only when the - Should the action proceed to trial, the
defendant fails to file an answer to the explicit definition and limit of the issues to be
complaint may the court proceed to render tried.
judgment. [Lesaca v. CA (1992)] ƒ Consequence: The contents of the order shall
ƒ The Revised Rules on Summary Procedure does control the subsequent course of the action,
not provide that an answer filed after the unless modified before trial to prevent manifest
reglementary period should be expunged from injustice.
the records. ƒ Upon manifestation of the parties of their
ƒ As a matter of fact, there is no provision for an willingness to discuss a compromise, the TC
entry of default if a defendant fails to file his should order the suspension of the proceedings
answer. to allow them reasonable time to discuss and
ƒ The defense of LOJ may have even been raised conclude an amicable settlement.
by the defendant in a MTD as an exception to ƒ If despite all efforts exerted by the TC and the
the rule on prohibited pleadings in the Revised parties the settlement conference still fails,
Rule on Summary Procedure. then the action should have continued as if no
ƒ Such a motion is allowed under Sec. 19(a) suspension had taken place. [Goldloop
thereof. [Bayog v. Natino (1996)] Properties v. CA (1992)]
ƒ Where the failure to appear at the pre-trial
hearing was uncontrovertedly due to illness, the Note: AM 03-1-09-SC (No termination of pre-trial for
default order may be set aside on the ground of failure to settle)
accident over which petitioner had no control.
ƒ Also, the order of arrest was illegal as there is Calendar of Cases
nothing in the ROC which authorizes such a ƒ Under the direct supervision of the judge, the
consequence of a default order. [Malanyaon v. clerk of court shall keep a calendar of cases for
Sunga (1992)] pre-trial, for trial, those whose trials were
adjourned/postponed, and those with motions
to set for hearing. [Rule 20, Sec. 1]
 REMEDIAL LAW REVIEWER

ƒ Preference shall be given to habeas corpus Civil Case Criminal Case

cases, election cases, special civil actions, and A pre-trial brief is A pre-trial brief is not
122 those so required by law. [Rule 20, Sec. 1] specifically required to specifically required.
ƒ The assignment of cases to the different be submitted [Rule 18,
branches of a court shall be done exclusively by Sec. 6]
raffle. The assignment shall be done in open
session of which adequate notice shall be given
so as to afford interested parties the
opportunity to be present. [Rule 20, Sec. 2] 7. Alternative Dispute Resolution
(ADR)
6. Distinction between pre-trial in X. INTERVENTION
civil case and pre-trial in criminal 1. Requisites for intervention
case (Bar 1997, Riano) 2. Time to intervene
3. Remedy for the denial of motion to
Civil Case Criminal Case
intervene
Set when the plaintiff Ordered by the court and
moves ex parte to set no motion to set the
Definition of intervention (Asked in the 2003 Bar
the case for pre-trial case for pre-trial is
[Rule 18, Sec. 1] required from either the Exam)
prosecution or the A legal remedy whereby a person is permitted to
defense [Rule 118, Sec. become a party in a case, by either:
1] ƒ Joining the plaintiff;
ƒ Joining the defendant;
Made after the pleading Ordered by the court
ƒ Asserting his right against both plaintiff and
has been served and after arraignment and
defendant, considering that either:
filed [Rule 18, Sec. 1] within 30 days from the
- He has a legal interest in the subject matter
sate the court acquired
of the action;
jurisdiction over the
- He is going to be adversely affected by the
person of the accused
disposition of the property in the custody of
[Rule 118, Sec. 1]
the court
Considered the Does not include the
possibility of an considering of the
Metropolitan Bank v. Presiding Judge (1990):
amicable settlement as possibility of amicable
Intervention is a proceeding in a suit/action by
an important objective settlement of one’s
which a 3rd person is permitted by the court to
[Rule 118, Sec. 2(a)] criminal liability as one
make himself a party, either joining plaintiff in
of its purposes [Rule
claiming what is sought by the complaint, or uniting
118, Sec. 1]
with defendant in resisting the claims of plaintiff, or
The arrangements and (Stricter procedure)
demanding something adversely to both of them.
admissions in the pre- All agreements or
trial are not required to admissions made or
Cariño vs. Ofilada (1993): It is the act/proceeding
be signed by both parties entered during the pre-
by which a 3rd person becomes a party in a suit
and their counsels. trial conference shall be
pending between others.
Under the Rules, they reduced in writing and
are instead to be signed by both the
It is the admission, by leave of court, of a person not
contained in the record accused and counsel;
an original party to pending legal proceedings, by
of pre-trial and pre-trial otherwise, they cannot
which such person becomes a party thereto for the
order [Rule 18, Sec. 7] be used against the
protection of some right of interest alleged by him
accused. [Rule 118, Sec.
to be affected by such proceedings.
[AM No. 03-1-09] - 2]
requires the proceedings
An intervenor is a party to the action as the original
during the preliminary
parties are, and to make his right effectual he must
conference to be
necessarily have the same powers as the original
recorded in the “Minutes
parties. He is entitled to have the issues raised
of Preliminary
between him and the original parties tried and
Conference” to be
determined.
signed by both parties
and/or counsel.
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation.
(Note: either party or his
Its purpose is to afford one not an original party, yet
counsel is allowed to
having a certain right/interest in the pending case,
sign)
the opportunity to appear and be joined so he could
The sanctions for non- Sanctions are imposed
assert or protect such right/interest.
appearance are imposed upon the counsel for the
upon the plaintiff and accused or the
Hence, the final dismissal of the principal action
the defendant [Rule 18, prosecutor [Rule 118,
results into the dismissal of said ancillary action.
Sec. 4] Sec. 3]
Who may intervene [Rule 19, Sec. 1]
 REMEDIAL LAW REVIEWER

ƒ One who has a legal interest in the matter in
litigation;
ƒ One who has a legal interest in the success of
either of the parties;
ƒ One who has an interest against both parties;
ƒ One who is so situated as to be adversely
affected by a distribution/disposition of
property in the court’s custody.
Meaning of legal interest
ƒ One that is actual and material, direct and of an
immediate character, not merely contingent or
expectant so that that intervenor will either
gain or lose by the direct legal operation of the
judgment.
ƒ When the title to the property if declared void
by final judgment, intervention will not revive
or reinstate the movant’s title derived from the
title declared void. [Firestone Ceramics vs. CA
(1999)]
Magsaysay-Labrador v. CA (1989): Interest in the
subject means a direct interest in the cause of
action as pleaded and which would put the
intervenor in a legal position to litigate a fact 123
alleged in the complaint, without the establishment
of which plaintiff could not recover.
Pleadings in intervention [Rule 19, Sec. 3]
ƒ COMPLAINT-IN-INTERVENTION – If intervenor
asserts a claim against either or all of the
original parties.
ƒ ANSWER-IN-INTERVENTION – If intervenor
unites with the defending party in resisting a
claim against the latter.
Answer to complaint-in-intervention [Rule 19, Sec.
4]
It must be filed within 15 days from notice of the
order admitting the complaint-in-intervention,
unless a different period is fixed by the court.

ƒ The assignee of a property who assumed Intervention Interpleader

payment of whatever amount may be finally An ancillary action An original action
adjudged against the assignor, may intervene in Proper in any of the four Presupposes that the
a proceeding involving the execution of the situations mentioned in plaintiff has no interest
property pursuant to a judgment. [Robles vs. Rule 19 in the subject matter of
Timario (1962)] the action or has an
interest therein, which
ƒ In an action for foreclosure of mortgage, the in whole or in part is not
alleged owners of the land sought ot be disputed by the other
foreclosed may intervene. [Roxas vs. Dinglasan parties to the action
(1969)] There is already a Defendants are being
defendant among the sued precisely to
1. Requisites for intervention original parties to the implead them
pending suit
How intervention is done
By a motion to intervene, with the pleading-in- 2. Time to intervene
intervention attached. Must also serve copy of the ƒ Intervention is allowed any time before TC
pleading-in-intervention on the original parties. renders judgment. [Rule 19, Sec. 2]
[Rule 19, Sec. 2] ƒ After rendition of judgment, a motion to
intervene is barred, even if the judgment itself
General rule: Allowance of intervention is recognizes the movant’s right. The movant’s
discretionary with the court. remedy is to file a separate action.
Exception: When the intervenor is an indispensable
party. 3. Remedy for the denial of motion to
intervene
Factors considered in allowing intervention
ƒ WON intervention will unduly delay or prejudice Remedies
the adjudication of the rights of the original ƒ For denial of intervention:
parties. - Appeal.
- Mandamus, if there is GAD.
ƒ WON the intervenor's rights may be fully ƒ For improper granting of intervention:
protected in a separate proceeding. Certiorari.

Carino vs Ofilada (1993): The interest must be

actual and material, direct and immediate; not
XI. SUBPOENA
simply contingent or expectant. 1. Subpoena duces tecum
2. Subpoena ad testificandum
It must be in the matter in litigation and of such 3. Service of subpoena
direct and immediate character that the intervenor 4. Compelling attendance of witnesses;
will either gain or lose by the direct legal operation Contempt
and effect of the judgment.
5. Quashing of subpoena
 REMEDIAL LAW REVIEWER
Subpoena is a process issued by court which is
either:
124 Types (and definition) of subpoena [Rule 21, Sec.
1]
ƒ Subpoena duces tecum
ƒ Subpoena ad testificandum
By whom issued [Rule 21, Sec. 2]
ƒ The court before whom the witness is required
to attend;
ƒ The court of the place where the deposition is
to be taken;
ƒ The officer/body authorized by law to do so in
connection with investigations conducted by
said officer/body;
ƒ Any SC/CA Justice in any case or investigation
pending within the Philippines.
Form and contents of subpoena [Rule 21, Sec. 3]
ƒ Name of court;
ƒ Title of action/investigation;
ƒ Directed to a person whose attendance is
required
ƒ If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court
prima facie relevant.
Subpoena for depositions [Rule 21, Sec. 5]
ƒ Proof of service of a notice to take a deposition
is sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
ƒ Issued by the clerk of court of the place in
which the deposition is to be taken.
ƒ However, subpoena duces tecum for depositions
cannot be issued without court order.
1. Subpoena duces tecum
Process directed to a person, requiring him to bring
with him any books/documents/things under his
control. (Asked in the 1997 Bar Exam)
Subpoena duces tecum distinguished from Order
for production or inspection
See Annex B.
2. Subpoena ad testificandum
Process directed to a person, requiring him to attend
and to testify at the hearing/trial of an action or at
any investigation conducted by competent authority,
or for the taking of his deposition.
3. Service of subpoena [Rule 21, Sec.
6]
ƒ Same manner as personal or substituted service
of summons.
ƒ The original shall be exhibited and a copy
delivered to person on whom it is served, with
tender of fees for one day’s attendance and
kilometrage.
ƒ Exception: Tender not required if subpoena is
issued by or on behalf of the Republic or an
officer/agency thereof.
ƒ For subpoena duces tecum, also tender the
reasonable cost of producing the
books/documents/things demanded.
ƒ Service must be made so as to allow the witness
reasonable time for preparation and travel to
the place of attendance
4. Compelling attendance of
witnesses; Contempt
Personal appearance in court [Rule 21, Sec. 7]
A person present in court before a judicial officer
may be required to testify as if he were in
attendance upon a subpoena issued by such
court/officer.
Application for subpoena to prisoner [Rule 21, Sec.
2]
ƒ The judge/officer shall examine and study the
application carefully to determine WON it is
made for a valid purpose.
ƒ However, no prisoner sentenced to death,
reclusion perpetua or life imprisonment and who
is confined in a penal institution shall be
brought outside for appearance/attendance in
any court unless authorized by the SC.
Remedy in case of witness’ failure to attend
Upon proof of service of subpoena and of witness’
failure to attend, the court/judge issuing the
subpoena may issue a warrant to the sheriff to arrest
the witness and bring him before the court/officer
where his attendance is required. [Rule 21, Sec. 8]
The cost of warrant and seizure shall be paid by the
witness if the court determines that the failure to
attend was willful and without just excuse.
Such failure shall be deemed a contempt of the
court which issued the subpoena. [Rule 21, Sec. 9]
If subpoena was not issued by a court, the
disobedience shall be punished by applicable law or
ROC.
Exception: Arrest warrant and contempt not
applicable to: [Rule 21, Sec. 10]
ƒ A witness who resides more than 100km from his
residence to the place where he is to testify.
ƒ A detention prisoner, if there is no permission
from the court in which his case is pending.
5. Quashing of subpoena [Rule 21,
Sec. 4]
Upon motion promptly made, at/before the time
specified in the subpoena.
Grounds for quashing:
ƒ Subpoena duces tecum:
- It is unreasonable and oppressive;
- The relevancy of the books/documents/
things does not appear;

- The person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
production;
- Witness fees and kilometrage were not
tendered when subpoena was served.
ƒ Subpoena ad testificandum:
- That the witness is not bound thereby;
- That witness fees and kilometrage were not
tendered when the subpoena was served.
XII. MODES OF DISCOVERY
1. Depositions pending action; Depositions
before action or pending appeal
2. Written interrogatories to adverse parties
3. Request for Admission
4. Production or inspection of documents or
things
5. Physical and mental examination of
persons
6. Consequences of refusal to comply with
modes of discovery
1. Depositions pending action;
Depositions before action or pending
appeal [RULES 23 and 24]
Depositions Under Rule 23
a. Meaning and purpose of deposition
ƒ Deposition is chiefly a mode of discovery, the
primary function of which is to supplement the
pleadings for the purpose of disclosing the real
points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial.
ƒ The liberty of a party to avail of such modes of
discovery is unrestricted if the matters inquired
into are relevant and not privileged, and the
inquiry is made in good faith and within the
bounds of the law.
ƒ Limitations would arise if the examination is
conducted in bad faith; or in such a manner as
to annoy, embarrass or oppress the person under
examination; or when the inquiry touches upon
the irrelevant or encroaches upon the
recognized domains of privilege.
ƒ Under certain conditions and for certain limited
purposes, it may be taken even after trial has
commenced and may be used without the
deponent being actually called to the witness
stand. [Jonathan Landoil v Mangudadatu (2006)]
b. Scope of examination
Unless otherwise provided by the court, the
deponent may be examined regarding any matter not
privileged, which is relevant to the pending action,
whether relating to the claim or defense of any
party
ƒ including the existence, description, nature,
custody, condition and location of any books,
REMEDIAL LAW REVIEWER
documents, or other tangible things and the
identity of any persons having knowledge of
relevant facts. [Rule 23, sec. 2]
125
c. Uses of deposition pending action
Dasmariñas Garments,Inc. v. Reyes (1993):
General Rule: A deposition is not generally supposed
to be a substitute for the actual testimony in open
court of a party or witness. If the witness is available
to testify, he should be presented in court to testify.
If available to testify, a party’s or witness’
deposition is inadmissible in evidence for being
hearsay.
Exception: [Rule 23, Section 4]
ƒ Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
ƒ The deposition of a party or of any one who at
the time of taking the deposition was an officer,
director, or managing agent of a public or
private corporation, partnership, or association
which is a party may be used by an adverse
party for any purpose;
ƒ The deposition of a witness, whether or not a
party, may be used by any party for any purpose
if the court finds:
- that the witness is dead; or
- that the witness resides at a distance more
than one hundred (100) kilometers from the
place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
was procured by the party offering the
deposition; or
- that the witness is unable to attend to testify
because of age, sickness, infirmity, or
imprisonment; or
- that the party offering the deposition has
been unable to procure the attendance of the
witness by subpoena; or
- upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with
due regard to the importance of presenting
the testimony of witnesses orally in open
court, to allow the deposition to be used; and
ƒ If only part of a deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of it which is
relevant to the part introduced, and any party
may introduce any other parts.
d. Before whom taken
General Rule: Depositions may be taken before any
judge, notary public, or the person referred to in
section 14 (which refers to any person authorized to
administer oaths designated by the parties by
stipulation).
Exceptions: In our jurisdiction, depositions in
foreign countries may be taken:
ƒ on notice before a secretary of embassy or
legation, consul general, consul, vice consul, or
 REMEDIAL LAW REVIEWER

consular agent of the Republic of the
Philippines;
126 ƒ before such person or officer as may be
appointed by commission or under letters
rogatory; or
ƒ before any person authorized to administer
oaths as stipulated in writing by the parties.
interposed during the course of the deposition
although any objections shall be noted by him upon
the deposition. Any evidence that is objected to
shall still be taken but subject to the objection.
[Rule 23, Section 17]
f. When may taking of deposition be
terminated or its scope limited

The court in which the action is pending or the RTC

of the place where the deposition is being taken may
COMMISSION LETTERS order the officer conducting the examination to
ROGATORY cease from taking the deposition, or may limit the
Addressed Any authority in a A judicial scope and manner of taking the deposition
to whom foreign country authority in the
authorized therein foreign country WHEN: At any time during the taking of the
to take down deposition, on the motion or petition of any party or
depositions of the deponent
Rules that Rules laid down by Rules laid down by
govern the court issuing such foreign GROUND: that the examination is being conducted in
the the commission judicial authority bad faith or in such a manner as unreasonably to
deposition annoy, embarrass or oppress the deponent or party
When Preferred over Generally resorted [Rule 23, sec. 18]
issued letters rogatory to when there is
since the process difficulty or If the order made terminates the examination, it
is simpler impossibility of shall be resumed only upon the order of the court in
(generally, no obtaining the which the action is pending.
need to resort to deposition by
diplomatic commission g. When may objections to errors and
channels unlike in (Regalado) irregularities be made [Rule 23, sec. 29]
letters rogatory)
Objection When Made
No deposition shall be taken before a person who is: As to notice to Waived, unless written objection
[Rule 23, sec. 13] parties is promptly served upon party
ƒ a relative within the sixth degree of giving notice
consanguinity or affinity, or
Deposition Waived, unless made before the
ƒ employee or counsel of any of the parties, or
officer is taking of the deposition or as
who is a relative within the same degree, or
disqualified soon as the disqualification
employee of such counsel; or
becomes known or could be
ƒ who is financially interested in the action.
discovered with reasonable
certainty
e. Procedure Lack of NOT waived by failure to make
relevance, them before or during the taking
A party desiring to take the deposition of any person materiality and of the deposition, unless the
upon oral examination shall give reasonable notice in competence of ground for the objection is one
writing to every party to the action stating the time the deposition which might have been obviated
and place for taking the deposition and the name to the action or removed if presented at that
and address of each person to be examined. [Rule time
23, Section 15] Error in the Waived, unless reasonable
p manner of objection is made at the taking
After the notice is served, the court may make any taking the of the deposition
order for the protection of the parties and the deposition
deponent. [Rule 23, Section 16] Error in the Waived, unless served in writing
p form of written upon the party propounding them
The attendance of the witnesses may be compelled interrogatories within the time allowed for
by the use of subpoenas. [Rule 23, Section 1] serving succeeding cross or other
p interrogatories and within 3 days
The deponent may be examined or cross examined after service of the last
following the procedures for witnesses in a trial. He interrogatories
may be asked questions on direct, cross, re-direct or Error in the Waived, unless a motion to
re-cross. He has the same rights as a witness and manner of suppress the deposition or some
may be impeached like a court witness because preparing the part thereof is made with
Sections 3 to 18 of Rule 132 apply to deponent. [Rule deposition reasonable promptness after such
23, Section 3] defect is, or with reasonable
p diligence might have been,
The officer before whom the deposition is being ascertained
taken has no authority to rule on objections

h. Other rules
Effect of substitution of parties [Rule 23, Sec. 5]
ƒ Substitution of parties does not affect the right
to use depositions previously taken;
ƒ and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
ƒ all depositions lawfully taken and duly filed in
the former action MAY BE USED IN THE LATTER
AS IF ORIGINALLY TAKEN THEREFOR.
Effect of taking deposition [Rule 23, Sec. 7]
ƒ A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition.
Effect of using deposition [Rule 23, Sec. 8]
ƒ General Rule: Introduction in evidence of
deposition or any part thereof for any purpose
makes the deponent the witness of the party
introducing the deposition.
ƒ Exception: if the purpose is to contradict or
impeach the deponent.
Leave of court [Rule 23, Sec. 1]
ƒ Leave of court is NOT required after an answer
has been served.
ƒ It is required before the service of an answer
but after jurisdiction has been acquired over the
defendant or over the property subject of the
action.
ƒ ONLY INSTANCE WHEN ONE ALWAYS NEEDS
LEAVE OF COURT BEFORE TAKING DEPOSITIONS:
Where the deponent is in jail.
Written Interrogatories under Rule 23
ƒ A deposition need not be conducted through an
oral examination. It may be conducted through
written interrogatories which shall be served
upon every other party.
ƒ The party served may also serve cross-
interrogatories upon the party proposing to take
the deposition within 10 days from service of
the written interrogatories. The latter may,
within 5 days serve re-direct interrogatories and
within 3 days the other party may serve re-cross
interrogatories [Rule 23, Sec. 25]
ƒ Copies of all these interrogatories shall be
delivered to the officer before whom the
deposition is taken and who shall take the
responses and prepare the record. [Rule 23, Sec.
26]
People v. Hubert Webb (1999): DEPOSITION, WHEN
AVAILABLE IN CRIMINAL CASES: A deposition, in
keeping with its nature as a mode of discovery,
should be taken BEFORE AND NOT DURING TRIAL.
In fact, rules on criminal practice - particularly on
the defense of alibi, which is respondent’s main
defense in the criminal proceedings against him in
the court below - states that when a person intends
REMEDIAL LAW REVIEWER
to rely on such a defense, that person must move for
the taking of the deposition of his witnesses within
the time provided for filing a pre-trial motion.
127
The use of discovery procedure in criminal cases is
directed to the sound discretion of the trial judge.
The deposition taking cannot be based nor can it be
denied on flimsy reasons. Discretion has to be
exercised in a reasonable manner and in consonance
with the spirit of the law.
Dasmariñas Garments v. Reyes (1993): Any
deposition offered to prove the facts therein at the
trial of the case, in lieu of actual testimony of the
deponent in court, may be opposed and excluded for
being hearsay save in specific instances under the
Rules.
Depositions Before Action Under Rule 24
Purpose
To perpetuate the testimony of witnesses for
probable use in the event of further proceedings in
said court.
Procedure
FILE A VERIFIED PETITION IN THE COURT OF THE
PLACE OF THE RESIDENCE OF ANY EXPECTED
ADVERSE PARTY.
The petition shall be entitled in the name of the
petitioner and shall show:
ƒ that the petitioner expects to be a party to an
action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
ƒ the subject matter of the expected action and
his interest therein;
ƒ the facts which he desires to establish by the
proposed testimony and his reasons for desiring
to perpetuate it;
ƒ the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
ƒ the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to
take the depositions of the persons to be
examined named in the petition for the purpose
of perpetuating their testimony.
p
NOTICE AND SERVICE to each person named in the
petition as an expected adverse party, together with
a copy of the petition, stating that the petitioner
will apply to the court, at a time and place named
therein, for the order described in the petition.
p
At least twenty (20) days before the date of the
hearing, the court shall cause notice thereof to be
served on the parties and prospective deponents in
the manner provided for service of summons.
p
 REMEDIAL LAW REVIEWER
ORDER AND EXAMINATION: If the court is satisfied
that the perpetuation of the testimony may prevent
128 a failure or delay of justice, it shall make an order
designating or describing the persons whose
deposition may be taken and specifying the subject
matter of the examination and whether the
depositions shall be taken upon oral examination or
written interrogatories.
Note: Procedure for taking deposition by oral
examination or written interrogatories will be
governed by Rule 23 on depositions de bene esse.
Depositions Pending Appeal Under Rule 24
J. Regalado believes that the following procedure is
applicable to civil and criminal cases.
Procedure:
DURING THE PENDENCY OF AN APPEAL, the court in
which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate
their testimony in the event of further proceedings
in the said court.
p 25, Sec. 3]
The party who desires to perpetuate the testimony
may make a motion in the said court for leave to
take the depositions, upon the same notice and
service thereof as if the action was pending therein.
The motion shall state:
ƒ the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
ƒ the reason for perpetuating their testimony.
p Any matter
ORDER ALLOWING THE DEPOSITION: If the court finds
that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an
order allowing the deposition to be taken.
2. Written interrogatories to adverse
parties [RULE 25]
a. Purpose
This mode of discovery is availed of by the party to
the action for the purpose of eliciting material and
relevant facts from any of the adverse party. [Rule
25, Sec. 1]
b. Procedure
ƒ By leave of court after jurisdiction has been
obtained over any defendant or over property
which is the subject of the action, or
ƒ Without such leave after an answer has been
served, any party desiring to elicit material and
relevant facts from any adverse parties shall file
and serve upon the latter written
interrogatories to be answered by the party
served, or if the party served is a public or
private corporation or a partnership or
association, by any officer thereof competent to
testify in its behalf.
NOTE: Interrogatories under RULE 25 are served
directly upon the adverse party unlike written
interrogatories under RULE 23 which are delivered to
the officer before whom the deposition is to be
taken.
c. Answer
ƒ The interrogatories shall be ANSWERED FULLY IN
WRITING and shall be SIGNED AND SWORN TO BY
THE PERSON MAKING THEM.
ƒ The party upon whom the interrogatories have
been served shall file and serve a copy of the
answers on the party submitting the
interrogatories within fifteen (15) days after
service thereof unless the court on motion and
for good cause shown, extends or shortens the
time. [Rule 25, Sec. 2]
d. Effect of objections to interrogatories
When objections to any interrogatories is presented
to the court within 10 days after service thereof,
with notice as in case of a motion, the answer shall
be deferred until the objections are resolved [Rule
e. Number of interrogatories
No party may, without leave of court, serve more
than one set of interrogatories to be answered by
the same party. [Rule 23, Sec. 4]
f. Scope of interrogatories
ƒ not privileged, and
ƒ relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence,
description, nature, custody, condition, and
location of any books, documents, or other
tangible things and the identity and location of
persons having knowledge of relevant facts.
g. Use of interrogatories
Same as Rule 23, Sec. 4 mutatis mutandis.
h. Failure to file written interrogatories
A party not served with written interrogatories may
not be compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal, UNLESS allowed by the court for
good cause shown and to prevent failure of justice.
i. Consequences of refusal to answer
ƒ The party serving the interrogatories may apply
to the court for an order to compel an answer.
ƒ If court also finds that the refusal to answer was
without substantial justification, it may require
the refusing party or deponent or the counsel
advising the refusal, or both of them, TO PAY
THE PROPONENT THE AMOUNT OF THE
REASONABLE EXPENSES INCURRED IN OBTAINING

THE ORDER, INCLUDING ATTORNEY'S FEES (Rule
29, Sec. 1).
ƒ Refusal to comply with an order of the court to
compel an answer may be considered CONTEMPT
of that court (Rule 29, Sec. 2)
ƒ The subject of discovery shall be DEEMED
ADMITTED OR ESTABLISHED (Rule 29 Sec. 3a).
ƒ The disobedient party shall be prohibited from
introducing CONTRADICTORY EVIDENCE (Rule 29,
Sec. 3b)
ƒ STRIKING OUT OF PLEADINGS OR PARTS
THEREOF (RULE 29, SECTION 3c)
ƒ STAYING FURTHER PROCEEDINGS UNTIL THE
ORDER IS OBEYED (RULE 29, SECTION 3c)
ƒ DISMISSING THE ACTION OR PROCEEDING OR ANY
PART THEREOF(RULE 29, SECTION 3c)
ƒ RENDERING A JUDGMENT BY DEFAULT AGAINST
THE DISOBEDIENT PARTY; AND (RULE 29,
SECTION 3c)
ƒ In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest
of any party or agent of a party for disobeying
any of such orders [RULE 29, Sec. 3c]
3. Request for Admission [RULE 26]
a. Purpose
ƒ To allow one party to request the adverse in
writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial.
ƒ To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the other
to:
- admit the genuineness of any material
and relevant document described in and
exhibited with the request; or
- admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]
b. When may request be made
At any time after issues have been joined.
Duque v. CA (2002): The request for admission
MUST BE SERVED ON THE PARTY and NOT ON THE
COUNSEL. This is an exception to the general rule
that notices shall be served upon counsel and not
upon the party.
c. Implied admission by adverse party
EACH OF THE MATTERS OF WHICH AN ADMISSION IS
REQUESTED SHALL BE DEEMED ADMITTED unless,
ƒ within a period designated in the request, which
shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion,
ƒ the party to whom the request is directed files
and serves upon the party requesting the
admission a SWORN STATEMENT either
- denying specifically the matters of which an
admission is requested, or
REMEDIAL LAW REVIEWER
- setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.
129
d. Deferment of compliance
To avoid the implied admission, the party requested
may have the compliance of the filing and service of
the sworn statement be deferred by filing with court
objections to the request for admission.
Compliance shall be deferred until such objections
are resolved by the court. [Rule 26, Sec. 2 par. 2]
e. Effect of admission
Any admission made by a party pursuant to such
request is for the purpose of the pending action only
and shall not constitute an admission by him for any
other purpose nor may the same be used against him
in any other proceeding. [Rule 26, Sec. 3]
f. Withdrawal
The court may allow the party making an admission,
whether express or implied under the Rule to
withdraw or amend it upon such terms as may be
just.
The admitting party must file a motion to be
relieved of the effects of his admissions.
g. Effect of failure to file and serve request
for admission
General rule: The party who fails to file a request
shall not be permitted to present evidence on such
facts.
Exception: Unless otherwise allowed by the court
for:
- good cause shown and
- to prevent a failure of justice,
a party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts at issue which ARE, OR OUGHT TO BE,
WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER
[Rule 26, Sec. 5]
4. Production or inspection of
documents or things [RULE 27]
a. Procedure
A motion must be filed by the party seeking the
production or inspection of documents and things
and the motion must show good cause supporting the
same. [Rule 27, Sec. 1]
p
The court in which the action is pending shall issue
an order:
ƒ which shall specify the time, place and manner
 REMEDIAL LAW REVIEWER
of making the inspection and taking copies and
photographs, and
130 ƒ which may prescribe such terms and conditions
as are just. [Rule 27, Sec. 1]
b. What the court may order
ƒ To PRODUCE and PERMIT THE INSPECTION and
copying or photographing, by or on behalf of the
moving party, of any documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
involved in the action and which are in the
possession, custody or control of the party to
whom the order is addressed.
ƒ To PERMIT ENTRY upon designated land or other
property in the position or control of the party
to whom the order is addressed for the purpose
of inspecting, measuring, surveying, or
photographing the property or any designated
relevant object or operation thereon.
[Rule 27, Sec. 1]
NOTE: This mode of discovery does not mean that
the person who is required to produce the document
or the thing will be deprived of its possession even
temporarily. It is enough that the requesting party
be given the opportunity to inspect or copy or
photograph the document or take a look at the
thing. (Regalado) (Asked in the 2002 Bar Exam)
5. Physical and mental examination of
persons [Rule 28]
a. Motion requesting Examination
Requisites
ƒ The physical or mental condition of a party (NOT
A WITNESS!) is in controversy
ƒ Motion must be filed showing good cause
ƒ Notice given to the party to be examined and to
all other parties
ƒ Notice must specify the time, place, manner,
conditions and scope of examination
ƒ Notice must also specify person/s who will make
the examination
b. Court to issue the order for examination in
its discretion.
c. Report of findings
ƒ If requested by the party examined, the party
causing the examination to be made shall
deliver to him a copy of a detailed written
report of the examining physician setting out his
findings and conclusions.
ƒ After such request and delivery, the party
causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination,
previously or thereafter made, of the same
mental or physical condition.
ƒ If the party examined refuses to deliver such
report, the court on motion and notice may
make an order requiring delivery on such terms
as are just
ƒ If it is the physician who fails or refuses to make
such a report the court may exclude his
testimony if offered at the trial. [Rule 28, Sec.
3]
d. Waiver or privilege
By requesting and obtaining a report of the
examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him in respect of the
same mental or physical examination.
e. Physician-Patient Privilege
ƒ Inapplicable because the results of the
examination are intended to be made public.
ƒ Such examination is not necessary to treat or
cure the patient but to assess the extent of
injury or to evaluate his physic al or mental
condition.
6. Consequences of refusal to comply
with modes of discovery
See Annex C.
XIII. TRIAL
1. Adjournments and postponements
2. Requisites of motion to postpone trial
a. For absence of evidence
b. For illness of party or counsel
3. Agreed statement of facts
4. Order of trial; reversal of order
5. Consolidation or Severance of hearing or
trial
6. Delegation of reception of evidence
7. Trial by commissioners
a. Reference by consent or ordered on
motion
b. Powers of the commissioner
c. Commissioner’s report; notice to
parties and hearing on the report
Trial, defined
A trial is the judicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plaintiff and
ending with his closing arguments [Acosta v. People].
A hearing is a broader term. It is not confined to the
trial and presentation of the evidence because it
actually embraces several stages in the litigation. It

includes the pre-trial and the determination of
granting or denying a motion. [Trocio v Labayo]
Notice of trial [Rule 30, Sec. 1]
Upon entry of a case in the trial calendar, the clerk
shall notify parties the date of its trial, ensuring
receipt of the notice at least 5 days before the trial
date.
1. Adjournments and postponements
[Rule 30, Sec. 2]
General rule: The court may adjourn a trial from
day to day to any stated time, as the expeditious
and convenient transaction of business may require.
Exception: Court may not adjourn for longer than 1
month for each adjournment, nor more than 3
months in all.
Exception to exception: When authorized in writing
by the SC Court Administrator.
Note: Postponement is not a matter of right. It is
addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela]
2. Requisites of motion to postpone
trial
a. for absence of evidence
b. for illness of party or counsel
Ground for Requisite for motion to postpone
postponement
of trial
For absence of Affidavit showing:
evidence [Rule ƒ The materiality/relevancy of
30, Sec. 3] such evidence;
ƒ That due diligence has been
used to procure the evidence
But if the adverse party admits the
facts to be given in evidence, trial
shall not be postponed even if he
objects or reserves the right to
object to their admissibility.
For illness of Affidavit or sworn certification:
party/counsel ƒ That the presence of such
[Rule 30, Sec. party/counsel at the trial is
4] indispensable;
ƒ That the character of his illness
is such as to render his non-
attendance excusable.
Subpoena
See separate part for Subpoena BUT please take
note that Subpoenas are issued within the context
of a Trial and taking depositions under Modes of
Discovery.
3. Agreed statement of facts [Rule 30,
Sec. 6]
REMEDIAL LAW REVIEWER
ƒ Parties may agree in writing upon the facts
involved in the litigation, and submit the case
for judgment without introduction of evidence. 131
ƒ If the parties agree to only some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
4. Order of trial; reversal of order
Conduct of trial [Rule 30, Sec. 5]
General rule: Trial shall be limited to the issues
stated in the pre-trial order.
Exception:
ƒ Provisions on separate trials in Rule 31, Sec. 2
ƒ When for special reasons the court directs
otherwise.
General order of trial
Plaintiff shall adduce evidence in support of his
claim;
p
Defendant shall adduce evidence in support of his
defense, counterclaim, cross-claim and 3rd-party
complaint;
p
3rd-party defendant (if any) shall adduce evidence
of his defense, counterclaim, cross-claim and 4th-
party complaint;
p
4th-party (and so forth) shall adduce evidence of the
material facts pleaded by them;
p
Parties whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of
their defense, in the order prescribed by the court.
p
Parties may respectively adduce rebutting evidence
only.
Exception: When the court permits them to adduce
evidence upon their original case, for good reasons
and in furtherance of justice.
p
Upon admission of evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or 3rd-party defendants having
separate defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence.
5. Consolidation or Severance of
hearing or trial
Consolidation of trial [Rule 31, Sec. 1]
When actions involving common question of law/fact
are pending before the court, it may:
ƒ Order a joint hearing/trial of any/all the
matters in issue in the actions;
ƒ Order all the actions consolidated;
 REMEDIAL LAW REVIEWER
ƒ Make such orders concerning the proceedings as
to avoid unnecessary costs or delay.
132
Where a case has been partially tried before one
judge, the consolidation of the same with another
related case pending before another judge who had
no opportunity to observe the demeanor of the
witness during trial makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]
Severance of trial [Rule 31, Sec. 2]
The court may issue separate trials for convenience
or to avoid prejudice:
ƒ Of any claim, cross-claim, counterclaim or 3rd-
party complaint;
ƒ Of any separate issue;
ƒ Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues.
Statement of judge [Rule 30, Sec. 7]
During the hearing/trial of the case, any statement
made by the judge shall be made of record in the
TSN if made with reference to the
case/parties/witnesses/ counsels.
Suspension of actions [Rule 30, Sec. 8]
Governed by the CC provisions
6. Delegation of reception of
evidence [Rule 30, Sec. 9]
General rule: The judge of the court where the case
is pending shall personally receive the evidence to
be adduced by the parties.
Exception: The court may delegate the reception of
evidence to its clerk of court who is a member of the
bar in:
ƒ Default hearings;
ƒ Ex parte hearings;
ƒ Cases where parties agree in writing.
However, the clerk of court has no power to rule on
objections to any question/admission of exhibits.
Objections shall be resolved by the court upon
submission of the clerk’s report and TSN within 10
days from termination of the hearing.
7. Trial by commissioners
COMMISSIONER – Includes a referee, an auditor or an
examiner. [Rule 32, Sec. 1]
Kinds of trial by commissioner [Rule 32, Secs. 1 &
2]
ƒ Reference by consent of both parties.
ƒ Reference ordered on motion when:
- Trial of an issue of fact requires the
examination of a long account on either side
- Taking of an account is necessary for the
court’s information before judgment, or for
carrying judgment/order into effect.
- A question of fact, other than upon the
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect.
a. Reference by consent or ordered
on motion
Order of reference [Rule 32, Sec. 2 to 12]
ORDER OF REFERENCE: When a reference is made,
the clerk shall furnish the commissioner with a copy
of the order of reference.
MEETING: The commissioner shall set a time/place
for the first meeting and shall notify
parties/counsels.
REPORT: Upon completion of the trial/hearing, the
commissioner shall file a written report with the
court.
NOTICE: The clerk shall notify parties of the filing of
the report. The parties 10 days to object to the
report’s findings.
HEARING: After the 10 days, the report shall be set
for hearing. The court may issue an order
adopting/modifying/rejecting the report or part of
it.
When parties stipulate that the Commissioner's
findings of fact are final, only questions of law shall
thereafter be considered.
b. Powers of the commissioner
[Rule 32, Sec. 3]
When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
reference. The order may:
ƒ Specify/limit the commissioner’s power
ƒ Direct him to report only upon particular issues,
to do/perform particular acts, or direct him to
receive and report evidence only
ƒ May fix the date for beginning and closing the
hearings and for the filing of his report.
Powers of the Commissioner:
ƒ Regulate the proceedings in every hearing
before him [subject to other specifications &
limitations in the order]
ƒ Power to do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order
[subject to other specifications & limitations in
the order]
ƒ He may issue subpoenas and subpoenas duces
tecum, swear witnesses.
ƒ He may rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference.
The trial or hearing before him shall proceed in all
respects as it would if held before the court.
c. Commissioner’s report; notice
to parties and hearing on the
report
Report of commissioner [Rule 32, Sec. 9]
 REMEDIAL LAW REVIEWER

Upon the completion of the trial or hearing or Grant of demurrer Denial of demurrer
proceeding before the commissioner, he shall file
The case shall be The defendant shall have
with the court his report in writing upon the matters
dismissed the right to present 133
submitted to him by the order of reference.
evidence
The court should set the
When his powers are not specified or limited, he
date for the reception of
shall set forth his findings of fact and conclusions of
the defendant’s
law in his report.
evidence-in-chief
[Northwest Airlines v.
He shall attach thereto all exhibits, affidavits,
CA]
depositions, papers and the transcript, if any, of the
Plaintiff's remedy would xxx
testimonial evidence presented before him.
be to appeal.
Notice to parties of the filing of report [Rule 32,
However, if the order
Sec. 10]
granting the demurrer is
Upon the filing of the report, the parties shall be
reversed on appeal, the
notified by the clerk, and they shall be allowed 10
defendant loses his right
days within which to signify grounds of objections to
to present evidence.
the findings of the report, if they so desire.
[Rule 33, Sec 1; Republic
v. Tuvera]
Objections to the report based upon grounds which
were available to the parties during the proceedings
The appellate court
before the commissioner, other than objections to
should render judgment
the findings and conclusions therein, set forth, shall
on the basis of the
not be considered by the court unless they were
evidence submitted by
made before the commissioner.
the plaintiff.
Hearing on the report [Rule 32, Sec. 11]
[Radiowealth Finance v.
Upon the expiration of the 10-day period in Rule 32,
Del Rosario]
Sec. 10, the report shall be set for HEARING.
Equivalent to judgment An interlocutory order
After which the court shall issue an ORDER: (i.e. based on the merits and not appealable.
ƒ Adopting (in whole or in part), of the evidence However, it may be the
ƒ Modifying (in whole or in part) presented so far) subject of a petition for
ƒ Rejecting the report (in whole or in part), certiorari for GAD under
ƒ Recommitting the report with instructions, or Rule 65 [Katigbak v.
ƒ Requiring the parties to present further Sandiganbayan]
evidence before the commissioner or the court.
MTD Demurrer
When to Before the service After the plaintiff
File and filing of the rests his case
XIV. DEMURRER TO EVIDENCE answer
1. Ground Ground Those enumerated Only ground: The
2. Effect of denial in Rule 16 plaintiff has
shown no right to
3. Effect of grant
relief (i.e.
4. Waiver of right to present evidence evidence is
5. Demurrer to evidence in a civil case insufficient)
versus demurrer to evidence in a criminal Effect If a MTD is granted,
case the complaint is
likewise dismissed.
1. Ground But, depending on
the ground, the
complaint may be
Definition: A species of MTD that may be invoked
re-filed
based on insufficiency of evidence (i.e. upon the
facts and the law the plaintiff has shown no right to
If the MTD is denied,
relief). [Rule 33, Sec. 1]
the defendant shall
file his responsive
It is invoked after the plaintiff has presented all the
pleading
evidence available to him.

2. Effect of denial 4. Waiver of right to present evidence

3. Effect of grant If the order granting the demurrer is reversed on
appeal, the defendant loses his right to present
Grant of demurrer Denial of demurrer evidence. [Rule 33, Sec .1; Republic v. Tuvera]
 REMEDIAL LAW REVIEWER

ƒ Judgment must be in writing, personally and

directly prepared by the judge;
134 ƒ Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan]
ƒ Judgment must state clearly the facts and the
law upon which the decision is based, signed by
the judge and filed with the clerk of court.
5. Demurrer to evidence in a civil [Rule 35, Sec. 1]
case versus demurrer to A decision need not be a complete recital of the
evidence in a criminal case evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND judgment is valid. [Chan v. CA]
CRIMINAL CASES
(Asked in the 2003 and 2007 Bar Exams) Kinds of judgment
Demurrer in civil cases Demurrer in criminal ƒ JUDGMENT UPON COMPROMISE - It is one
cases conferred on the basis of a compromise
Defendant need not ask May be filed with or agreement entered into between the parties. It
for leave of court without leave of court. is immediately executory in the absence of a
motion to set aside on the ground of FAME.
Note: Leave of court is
necessary so that the ƒ JUDGMENT UPON CONFESSION - It is one
accused can present his rendered by the court when a party expressly
evidence in case the agrees to the other party’s claim or
demurrer is denied [Rule acknowledges the validity of the claim against
119, Sec.23] him.
If the demurrer is The order of dismissal is
granted, the order of not appealable because Judgment upon Judgment by confession
dismissal is appealable it will constitute double compromise
jeopardy The provisions and terms An affirmative and
If a demurrer is denied, The accused may adduce are settled by the voluntary act of the
the defendant may his evidence only if the parties to the action. defendant himself. The
proceed to present his demurrer is field with The judgment is entered court exercises a certain
evidence leave of court in the record by consent amount of supervision
of the court. over the entry of
judgment.
XV. JUDGMENTS AND FINAL
Kinds of judgment by confession:
ORDERS - JUDGMENT BY COGNOVIT ACTIONEM – After
1. Judgment without trial service, the defendant, instead of entering a
2. Contents of a judgment plea, acknowledged and confessed that the
plaintiff’s cause of action was just and
3. Judgment on the pleadings
rightful.
4. Summary judgments - JUDGMENT BY CONFESSION RELICTA
5. Judgment on the pleadings versus VERIFICATIONE – After pleading and before
summary judgments trial, the defendant both: (a) confessed the
6. Rendition of judgments and final orders plaintiff’s cause of action and (b) withdrew
7. Entry of judgment and final order his plea or other allegations, whereupon
judgment was entered against him without
JUDGMENT proceeding to trial.
The final ruling by a court of competent jurisdiction
regarding the rights and obligations of the parties or Remedy against judgment by consent,
other matters submitted to it in an confession or compromise is to first file a
action/proceeding [Macahiling vs. Heirs of Magalit] motion to set it aside; if denied, file the
appropriate petition under Rule 65.
REQUISITES OF A VALID JUDGMENT [RULE 36, SEC.
ƒ JUDGMENT UPON THE MERITS - It is one that is
1; ART. 8, SEC. 14, 1987 CONSTITUTION] AJOEWS
rendered after consideration of the evidence
ƒ Court/tribunal must be with authority to hear
submitted by the parties during the trial of the
and determine the matter before it;
case. A judgment is “on the merits” when it
ƒ Court must have jurisdiction over the parties
amounts to a legal declaration of the respective
and the subject matter;
rights and duties of the parties, based upon the
ƒ Parties must have been given an opportunity to
disclosed facts
adduce evidence in their behalf;
ƒ Evidence must have been considered by the
ƒ CLARIFICATORY JUDGMENT - It is rendered to
tribunal in deciding the case; [Acosta v.
clarify an ambiguous judgment or one difficult
COMELEC]
to comply with.

ƒ JUDGMENT NON PRO TUNC - Literally, “now for
then”. It is a judgment intended to enter into
the record the acts which had already been
done, but which do not appear in the records.
[Lichauco v Tan Pho]
ƒ JUDGMENT SIN PERJUICIO - It may refer to a
dismissal of a case without prejudice to it being
re-filed.
ƒ CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an event. Such
a judgment is generally void because eof the
absence of a disposition [cu-unjieng v mabalacat
sugar co.]
ƒ SEVERAL JUDGMENT - It is one rendered by a
court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, sec. 4] It
is proper when the liability of each party is
clearly separate and distinct from his co-parties
such that the claims against each of them could
have been the subject of separate suits, and the
judgment for or against one of them will not
necessarily affect the other.
ƒ SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several others
presented in a case, after a determination of
the issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, sec. 5] It is proper when more
than one claim for relief is presented in an
action for the determination as to the issues
material to the claim has been made.
The judgment shall terminate the action with
respect to the claims disposed of, and shall
proceed as to the remaining claims. The court
may stay its enforcement until rendition of
subsequent judgments, and may prescribe
conditions to secure the judgment’s benefits.
Judgment may be given for/against one or more
of several plaintiffs/defendants. The court may
require the parties on each side to file adversary
pleadings as between themselves. [Rule 36, Sec.
3]
If judgment is rendered against 2 or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec. 6]
ƒ PROMULGATION - The process by which a
decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel.
ƒ MEMORANDUM DECISION - A decision of the
appellate court which adopts the findings and
conclusions of the TC.
REMEDIAL LAW REVIEWER
- A judgment is considered rendered upon the
filing of the signed decision.
- This includes an amended decision because an
amended decision is a distinct and separate 135
judgment and must follow the established
procedural rule.
1. Judgment without trial
When trial is not necessary – PSADSA (Asked in the
1996 Bar Exams) [Riano]
ƒ The pleadings of the parties tender no issue at
all – judgment on the pleadings may be directed
by the court [Rule 34]
ƒ There is actually no genuine issue from the
pleadings, affidavits, depositions and other
papers – court may render a summary judgment
[Rule 35]
ƒ Parties entered into a compromise or an
amicable settlement either during the pre-trial
or during the trial [Rule 18; Art. 2028 Civil Code]
ƒ Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5
(last par.)]
ƒ Case falls under the Rules on Summary
Procedure
ƒ Agreed statement of facts [Rule 30, Sec. 6]
2. Contents of a judgment
Parts of a judgment
ƒ Body, Ratio decidendi, or Opinion of the court –
It contains the findings of facts and conclusions
of law;
ƒ Fallo, or Disposition of the case – It is the
dispositive part of the judgment that actually
settles and eclares the rights and obligation sof
the parties, finally, definitevely, and
authoritatively [Light Rail Transit Authority v
CA]; The part of the judgment that is subject to
execution [Riano]
ƒ Signature of the judge.
Distinction Between Judgment and Opinion of the
Court (ASKED IN THE 2006 BAR EXAM)
ƒ A judgment (or FALLO) must be distinguished
from an opinion.
ƒ The latter is the informal expression of the
views of the court and cannot prevail against its
final order or decision.
ƒ While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
ƒ So there is a distinction between the findings
and conclusions of a court and its judgment.
ƒ While they may constitute its decision and
amount to a rendition of a judgment they are
not the judgment itself.
ƒ They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman on
Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan vs. Salcedo (1969)]
Conflict between the dispositive portion and body
of the decision
 REMEDIAL LAW REVIEWER
Rule: Where there is a conflict between the fallo
and the body of the decision, the fallo controls.
136
Qualification: This rule applies only when the
dispositive part is definite, clear, and unequivocal
[Union Bank v Pacific Equipmetnt Corporation]
Basis: The fallo is the final order. The opinion in the
body is merely a statement ordering nothing [Poland
Industrial Limited v. National Development
Company]
3. Judgment on the pleadings [Rule
34] (Asked in the 1999 and 2005 Bar
Exams)
Grounds:
If the answer either
ƒ Fails to tender an issue;
Note: An answer fails to tender an issue due to
either:
- General denial of the material allegations of
the complaint;
- Insufficient denial of the material allegations
of the compliant.
ƒ Admits the material allegations of the adverse
party’s pleading.
Cannot be rendered motu proprio
A judgment on the pleadings can be done only upon
MOTION to that effect filed by the appropriate
party. It cannot be rendered by the court motu
proprio.
Exception: If at pre-trial the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio. [Rule 18, Sec. 2(g)]
When judgment on the pleadings will not apply
ƒ Declaration of nullity of marriage;
ƒ Annulment of marriage;
ƒ Legal separation.
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must always
be proved
Effects
ƒ By moving for judgment on the pleadings, the
plaintiff waives his claim for unliquidated
damages (because claims for such damages must
be alleged and proved).
ƒ One who prays for the judgment on the
pleadings without offering proof as to the truth
of his own allegations and without giving the
opposing party an opportunity to introduce
evidence must be understood to admit all
material and relevant allegations of the
opposing party and to rest his motion for
judgment upon those allegations taken together
with such of his own as are admitted in the
pleadings. [Falcasantos v. How Suy Ching (1952)]
4. Summary judgments [Rule 35]
(Asked in the 1986, 1989, 1996 and
1999 Bar Exams)
Definition, nature
A judgment granted by the court for the prompt
disposition of civil actions, if it clearly appears (after
the issues had been joined and on the basis of the
pleadings and papers filed) that there exists no
genuine issue/controversy as to any material fact,
except as to the amount of damages. [Ley
Construction v. Union Bank; Agbada v Inter-Urban
Developers; Raboca v Velez]
Also called accelerated judgment.
Genuine issue
ƒ An issue of fact which calls for the presentation
of evidence; as distinguished from an issue
which is sham, fictitious, contrived and patently
insubstantial so as not to constitute a genuine
issue for trial.
ƒ When the facts as pleaded appear uncontested
or undisputed, then there is no real/genuine
issue as to the facts.
ƒ The TC cannot motu propio issue a summary
judgment. A party must move for summary
judgment. [Riano]
Procedure [Rule 35, Sec. 3]
Movant files a motion for summary judgment with
supporting affidavits, depositions or admission
p
Service to the adverse party at least 10 days the
hearing
p
Adverse party may serve opposing affidavits,
depositions or admissions at least 3 days before the
hearing
p
Hearing – Court shall determine if a genuine issue as
to any material fact exists and if the movant is
entitled to a summary judgment as a matter of law
p
Judgment
a. for the claimant [Rule 35, Sec. 1]
b. for the defendant [Rule 35, Sec. 2]
Who may file When
the motion
Claimant May file the motion only after the
answer has been served
Defendant May file the motion any time
Filing of a motion for summary judgment does not
interrupt the running of the period for filing an
answer. Hence, the movant must also file a Motion
for Extension of Time to File Answer.
Bases of summary judgment: When, upon the
following, no genuine issue as to any material fact
exists:
ƒ Affidavits made on personal knowledge;
ƒ Depositions of the adverse or a 3rd party; (Rule
23)
ƒ Admissions of the adverse party; (Rule 26)
 REMEDIAL LAW REVIEWER

ƒ Answers to interrogatories. (Rule 25) Based on the Based solely Based on the
pleadings, upon the complaint and
c. When the case not fully adjudicated depositions, pleadings evidence, if court
admissions and requires its 137
Partial summary judgment (Asked in the 2004 Bar affidavits presentation
Exam) There is no The answer No issues as no
Applies when for some reason there can be no full genuine issue fails to tender answer is filed by
summary judgment. Trial should deal only with the between the an issue or the defending
facts not yet specified or established. parties there is an party
admission of
the material
Duty of court [Rule 35, Sec. 4] allegations
ƒ Ascertain what material facts exist without Available to Generally Available to the
substantial controversy and what are actually both plaintiff available only plaintiff alone
and in good faith controverted based on: and defendant to the
- An examination of the pleadings and evidence plaintiff,
before it unless the
- Interrogation of the counsel defendant
ƒ Make an order specifying the facts and the presents a
extent of the amount of damages that appear counterclaim
without substantial controversy 10-day notice 3-day notice 3-day notice rule
ƒ Direct further proceedings as are just required required applies
ƒ Conduct trial on the controverted facts May be On the merits On the merits
accordingly interlocutory
or on the
Effect merits
A partial summary judgment is not a final judgment, Usually Available in Available in any
but merely a pre-trial adjudication that said issues in available in any action, action, except
the case shall be deemed established for the trial of actions to except annulment of
the case. [Guevarra v. CA (1983)] recover a debt, annulment of marriage or legal
or for a marriage or separation cases
d. Affidavits and attachments liquidated sum legal
of money, or separation
Form of affidavits and supporting papers [Rule 35, for declaratory cases
Sec. 5] relief
ƒ Made on personal knowledge
ƒ Shall set forth such facts as would be admissible 6. Rendition of judgments and final
in evidence
ƒ Shall show affirmatively that the affiant is orders
competent to testify to the matters stated
therein. Form of judgment [Rule 36, Sec. 1]
ƒ In writing
Attachments [Rule 35, Sec. 5] ƒ Personally and directly prepared by the judge
Certified true copies of all papers or parts thereof ƒ Stating clearly & distinctly the facts and the law
referred to in the affidavit shall be attached thereto on which it is based
OR served therewith. ƒ Signed by the judged
ƒ Filed with the clerk of court.
Affidavits in bad faith [Rule 35, Sec. 5]
Definition – Affidavits presented under this Rule Definition of rendition of judgment
which appear to the court at any time as presented It is the filing of the judgment with the clerk of
in bad faith or solely for the purpose of delay court. It is not the pronouncement of the judgment
in open court that constitutes the rendition. Even if
Effects: the judgment has already been put in writing and
ƒ Court shall order the offending party or counsel signed, it is still subject to amendment if it has not
to pay the other party – amount of reasonable yet been filed with the clerk of court and before its
expenses which the filing of the affidavits filing does not yet constitute the real judgment of
caused him to incur, including attorney’s fees the court. [Ago v. CA]
ƒ Court may adjudge the offending party or
counsel guilty of contempt, after hearing Period within which decision is to be rendered
[1987 Constitution, Art. VIII, Sec. 15]
ƒ All cases filed must be decided or resolved by
5. Judgment on the pleadings versus the Supreme Court within 24 months from the
summary judgments date of their submission for decision.
ƒ Unless reduced by the SC, within 12 months for
Summary Judgment on Judgment by lower collegiate courts and within 3 months for
judgment the pleadings default all other lower courts.
 REMEDIAL LAW REVIEWER

A case is deemed submitted for resolution upon the ƒ To make corrections of clerical errors, not
filing of the last pleading, brief or memorandum substantial amendments, as by an amendment
138 required by the Rules of Court or by the court. non pro tunc;
ƒ To clarify an ambiguity which is borne out by
An extension of the period may be set by the SC and justifiable in the context of the decision;
upon request by the judge concerned on account of ƒ In judgments for support, which can always be
heavy caseload or by other reasonable excuse [Arap amended from time to time.
v Mustafa]
Amended/clarified Supplemental decision
Interpretation of the judgment judgment
Where the judgment is difficult to execute because An entirely new decision Does not take the place
of ambiguity in its terms, the remedy of the party is and supersedes the of or extinguish the
to file a motion for clarificatory judgment and not to original judgment original judgment
assail the judgment as void. [Poland Industrial Court makes a thorough Serves to add to the
Limited v National Development Company] study of the original original judgment
judgment and renders
7. Entry of judgment and final order the amended and
clarified judgment only
Definition of entry of judgment after considering all the
The entry of judgment refers to the physical act factual and legal issues
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final XVI. POST-JUDGMENT REMEDIES
and executory. [Riano]
1. Motion for New Trial or reconsideration
Rendition of judgment Entry of judgment 2. Appeals in General
Filing of the judgment Act of clerk of court in 3. Relief from judgments, orders and other
with the clerk of court entering the dispositive proceedings
portion of the judgment 4. Annulment of Judgments or final orders
in the book of entries of and resolutions
judgment
5. Collateral attack of judgments
Entry of Judgments and Final Orders [Rule 36, Sec.
2] Remedies BEFORE finality of judgment
If there is no appeal/MNT/MFR filed within the ƒ Motion for Reconsideration
prescribed periods, the clerk of court shall enter the ƒ Motion for New Trial
judgment or final order in the book of entries of ƒ Appeal
judgments.
1. Motion for New Trial or
Date of finality of the judgment = Date of its entry in Reconsideration
the book
Motion for reconsideration
Note: the periods for filing the following pleadings A motion for reconsideration under Rule 37 is
are reckoned from the date of entry of judgment directed against a judgment or final order. It is not
ƒ Execution of a judgment by motion (5 years the motion for reconsideration of interlocutory
from entry) [Rule 39, Sec. 6] order, which often precedes a petition for certiorari
ƒ Petition for relief (as one of its periods, not under Rule 65. It does not apply to cases that fall
more than 6 months from entry of the judgment under Summary Procedure.
or final order) [Rule 38, Sec. 3]
Contents of motion for new trial or
The record: reconsideration
ƒ Shall contain the judgment’s dispositive part Rule 37, Sec.2. Contents of motion for new trial or
ƒ Shall be signed by the clerk of court with a reconsideration.—The motion shall be made in
certificate that the judgment has become final writing stating the ground or grounds therefor, a
and executory. written notice of which shall be served by the
movant on the adverse party.
Amendments to judgment (Asked in the 2008 Bar
Exams) A motion for new trial shall be proved in the manner
The power to amend judgments is inherent to the provided for proof of motions. A motion for the
court before judgment becomes final and executory. cause mentioned in paragraph (a) of the preceding
section shall be supported by affidavits of merits
General rule: The court cannot amend the judgment which may be rebutted by affidavits. A motion for
once it has become final and executory. the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom
Exception: such evidence is expected to be given, or by duly
authenticated documents which are proposed to be
introduced in evidence.

A motion for reconsideration shall point out
specifically the findings or conclusions of the
judgment or final order which are not supported by
the evidence or which are contrary to law, making
express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration
shall not toll the reglementary period of appeal.
a. Grounds
Rule 37, Sec.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 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 law.
Grounds for a motion for reconsideration
ƒ The evidence is insufficient to justify the
decision;
ƒ The damages awarded are excessive;
ƒ The decision or final order is contrary to law.
Form and content of a motion for reconsideration
Motion for reconsideration must be in writing, a
written notice of which must be served on the
adverse party.
It is not sufficient to mention the ground relied
upon. It is necessary for the motion for
reconsideration to point out specifically the findings
or conclusions of the judgment or final order which
are not supported by the evidence or which are
contrary to law, making express reference to the
testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such
findings or conclusions.
Non-compliance with this requirement would reduce
the motion to a mere pro forma motion, which shall
not toll the period for appeal.
Grounds for motion for new trial
REMEDIAL LAW REVIEWER
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 the said 139
party:
ƒ FAME (Extrinsic Fraud, Accident, Mistake or
Excusable Negligence) which ordinary prudence
could not have guarded against and by reason of
which the aggrieved party has probably been
impaired in his rights.
- The motion shall be supported by affidavits of
merit. Non-compliance with this requirement
would reduce the motion to a mere pro forma
motion.
- The affidavits of merit must show the facts
(not mere conclusions or opinions)
constituting the valid cause of action or
defense which the movant may prove in case
a new trial is granted. Otherwise, if the
complaint is after all groundless or the
defense is ineffective, a new trial would serve
no purpose.
ƒ 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.
- The motion shall be supported by: affidavits
of the witnesses by whom such evidence is
expected to be given; and/or duly
authenticated documents which are proposed
to be introduced in evidence.
- Non-compliance with this requirement would
reduce the motion to a mere pro forma
motion.
Tumang vs. CA: Newly discovered evidence may and
does commonly refer to evidence already in
existence prior to or during trial but which could not
have been secured and presented during the trial
despite reasonable diligence on the part of the
litigant.
Extrinsic fraud: any fraudulent scheme executed by
the prevailing party outside of the trial against the
losing party who, because of such fraud, was
prevented from presenting his side of the case.
Intrinsic fraud: acts of a party during the trial which
does not affect the presentation of the case.
Accident: an event that occurs without one’s
foresight or expectation.
Mistake: generally, mistakes of facts or law where,
in good faith, the defendant was misled in a case.
b. When to file
The motion must be filed within the period for
appeal.
The period for appeal is within 15 days after notice
to the appellant of the judgment or final order
appealed from. The 15-day period is deemed to
commence upon receipt by the counsel of record,
 REMEDIAL LAW REVIEWER
which is considered notice to the parties. Service
upon the parties themselves is prohibited and is not
140 considered as official receipt of judgment.
No motion for extension of time shall be allowed.
Where a record on appeal is required, the appellant
shall file:
ƒ a notice of appeal, and
ƒ record on appeal within 30 days from notice of
the judgment or final order.
A record on appeal is required only in:
ƒ Special proceedings;
ƒ Other cases of multiple or separate appeals.
Resolution of the motion
Rule 37, Sec.4. Resolution of motion.—A motion for
new trial or reconsideration shall be resolved within
30 days from the time it is submitted for resolution.
Effect of filing
The filing of a timely motion interrupts the period to
appeal.
The 30-day period to resolve the motion is held to be
mandatory [Gonzales vs Bantolo (2006)]
Rule 37, Sec.3. Action upon motion for new trial or
reconsideration.—The trial court may set aside the
judgment or final order and grant a new trial, upon
such terms as may be just, or may deny the motion.
If the court finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such
judgment or final order accordingly.
c. Denial of the motion; effect
Denial of motion for reconsideration
The judgment or final order shall stand as is.
Rule 37, Sec.7. Partial new trial or
reconsideration.—If the grounds for a motion under
this Rule appear to the court to affect the issues as
to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or
grant reconsideration as to such issues if severable
without interfering with the judgment or final order
upon the rest.
Single motion rule
Rule 37, Sec.5. Second motion for new trial.—A
motion for new trial shall include all grounds then
available and those not so included shall be deemed
waived. A second motion for new trial based on a
ground not existing or available when the first
motion was made, may be filed within the time
herein provided excluding the time during which the
first motion had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
The prohibition on a second motion does not apply
to a motion for reconsideration of an interlocutory
order.
Denial of motion for new trial
The judgment or final order shall stand as is.
Rule 37, Sec.8. Effect of order for partial new
trial.—When less than all of the issues are ordered
retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement of
such judgment or final order until after the new
trial.
When there is an order for partial new trial, the
court may either enter a judgment or final order as
to the rest, or stay the enforcement of such
judgment or final order until after the new trial.
When a second motion for new trial is permissible:
When a ground for new trial was not existing or
available when the first motion was made.
d. Grant of the motion; effect
Grant of motion for reconsideration
The court may amend the judgment or final order
accordingly. The amended judgment is in the nature
of a new judgment, which supersedes the original
judgment.
Grant of motion for new trial
The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at the
new trial without retaking them (if they are material
and competent).
e. Remedy when motion is denied, Fresh 15-
day period rule
Rule 37, Sec.9. Remedy against order denying a
motion for new trial or reconsideration.—An order
denying a motion for new trial or reconsideration is
now appealable. (As modified by AM 07-7-12)
Remedy if motion is denied
ƒ To appeal from the judgment or final order
itself.
ƒ The order denying the motion for new trial or
reconsideration may itself be assailed by a
petition for certiorari under Rule 65.
Habaluyas vs. Japson (1986): A motion for new
trial or reconsideration is not a prerequisite to an
appeal, a petition for review or a petition for review
on certiorari. And since the purpose is to expedite
the final disposition of cases, a strict but prospective
application of said ruling is in order.
Fresh period rule
Neypes vs. CA (2005): If the motion is denied, the
movant has a “fresh period” of 15 days from receipt
or notice of the order denying the motion for new
trial or motion for reconsideration within which to
file an appeal.

This “fresh period rule” shall also apply to:
ƒ Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts;
ƒ Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals;
ƒ Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
ƒ Rule 45 governing appeals by certiorari to the
Supreme Court.
The new rule aims to regiment or make the appeal
period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final
order or resolution.
2. Appeals in General
a. Judgments and final orders subject to
appeal
Rule 41 [as amended by A.M. 07-7-12 (2007)]
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.
SIGNIFICANCE OF THE AMENDMENT
An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
FINAL ORDER INTERLOCUTORY ORDER
Disposes of the matter Does not dispose of a case
in its entirety, leaving completely but leaves
nothing more to be something more to be
done but to enforce decided upon.
execution
Appealable Not appealable except
through a petition for
certiorari under Rule 65
Must clearly and No need to comply with
REMEDIAL LAW REVIEWER
distinctly state the such a requirement
law and the facts on
which it is based
141
b. Matters not appealable
Not appealable under Rule 41
ƒ Order denying motion for new trial or
reconsideration;
ƒ Order denying petition for review or any similar
motion seeking relief from judgment;
ƒ Interlocutory order;
ƒ Order disallowing/dismissing appeal;
ƒ Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other
vitiation of consent;
ƒ Order of execution;
ƒ While the case is pending, judgment or final
order:
- For/against one or more of several
parties;
- In separate claims, counterclaims, cross-
claims, third-party complaints.
Exception: If court allows appeal.
ƒ Order dismissing an action without prejudice.
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action under
Rule 65.
c. Remedy against judgments and orders
which are not appealable
d. Modes of appeal
i. Ordinary appeal
Procedure in the Court of Appeals
Ordinary appealed cases
Rule 44, Sec. 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 shall be further
referred to as the appellant and the adverse party as
the appellee.
Counsels and guardians
Rule 44, 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.
Order of transmittal of record
Rule 44, 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 30 days
after the perfection of 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.
 REMEDIAL LAW REVIEWER
Case docketing
142 Rule 44, 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 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court 7 clearly legible copies of the
approved record on appeal, together with the proof
of service of 2 copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in
the approved record in appeal shall be a ground for
dismissal of the appeal.
Record completion
Rule 44, 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 the
court and recommend 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.
Rule 44, 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 cases, the court, on its own motion or on
motion of an 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.
The failure of appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order is a ground
for dismissal of the appeal.
Appellant’s brief
Rule 44, Sec.7. Appellant’s brief.—It shall be the
duty of the appellant to file with the court, within
45 days from receipt of the notice of the clerk that
all the evidence, oral and documentary, are
attached to the record, 7 copies of his legibly
written, mimeographed or printed brief, with proof
of service of 2 copies thereof upon the appellee.
Important numbers to remember
ƒ File brief within 45 days from receipt of notice,
ƒ File seven copies of the brief,
ƒ Serve two copies to appellee and file proof of
service.
Contents of appellant’s brief
Rule 44, 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
facts admitted by both parties and of those in
controversy, together with the substance of
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 of judgment which the appellant
seeks; and
(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.
Rule 44, 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.
Rule 124, Sec. 7. Contents of brief.—The briefs in
criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A certified
true copy of the decision or final order appealed
from shall be appended to the brief of the appellant.
Appellee’s brief
Rule 44, Sec. 8. Appellee’s brief.—Within 45 days
from receipt of the appellant’s brief, the appellee
shall file with the court 7 copies of his legibly type-
written, mimeographed or printed brief, with proof
of service of 2 copies thereof upon the appellant.
Contents of appellee’s brief
Rule 44, Sec. 14. Contents of appellee’s brief.—The
appellee’s brief shall, 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 the 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.
Reply brief
Rule 44, Sec. 9. Appellant’s reply brief.—Within 20
days from receipt of the appellant’s brief, the
appellee shall file with the court 7 copies of his
legibly typewritten, mimeographed or printed brief,
with proof of service of 2 copies thereof upon the
appellant.
Memoranda in special cases
Rule 44, Sec. 10. Time for 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 30 days from
receipt of the notice issued by the clerk that all the
evidence, oral or documentary, is already attached
to the record.
The failure of the appellant to file his memorandum
within the period therefore may be a ground for
dismissal of the appeal.
Several or plurality of appellant’s, appellees
and/or counsel
Rule 44, 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.
Extension of time for filing briefs
Rule 44, 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.
The brief
De Liano vs. CA (2001): The purpose of the brief is
REMEDIAL LAW REVIEWER
to present to the court in concise form the points
and questions in controversy, and by fair argument
on the facts and law of the case to assist the court in
arriving at a just and proper conclusion. 143
The brief should be so prepared as to minimize the
labor of the court in the examination of the record
upon which the appeal is heard and determined.
Failure to comply with required contents of
appellant’s brief is cause for dismissal of the
petition.
Dismissal of appeal
Rule 50, Sec. 1. Grounds for dismissal of appeal.—
An appeal may be dismissed Court of Appeals, on its
own motion or on that of appellee, on the following
grounds:
(a) Failure of the record on appeal to show on its
face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal of the record
on appeal within the period prescribed by these
Rules;
(c) Failure of the appellant to pay the docket and
other lawful fees as provide in section 5 of Rule
40 and Section 4 of Rule 41;
(d) Unauthorized alterations, omission or additions
in the approved record on appeal as provided in
section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
PNB vs. Philippine Milling (1969): CA has discretion
to dismiss or not to dismiss appeal. Although said
discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play,
having in mind the circumstances obtaining in each
case, the presumption is that it has been so
exercised.
Padasdas vs. CA (1974): Failure to file appellant’s
brief within the reglementary period need not
necessarily cause dismissal of appeal where the
same was due to force majeure.
Dismissal of improper appeal
Rule 50, 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
 REMEDIAL LAW REVIEWER
raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said
144 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.
Atlas Consolidated vs. CA (1991): Circular No.2-90
now prohibits the transfer of appeals erroneously
taken to the SC or CA to whichever of these tribunals
has appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound
discretion and considering the attendant
circumstances, either itself take cognizance of and
decide such issues or refer them to CA for
determination.
Cu-unjieng vs. CA (2006): Nonpayment of the
appellate court docket and other lawful fees within
the reglementary period as provided under Rule 41,
Sec. 4 is a ground for the dismissal of an appeal
under Rule 50, Sec. 1(c). The Supreme Court has
invariably sustained the Court of Appeal’s dismissal
on technical grounds under the afore-quoted
provision unless considerations of equity and
substantial justice present cogent reasons to hold
otherwise. True, the rules may be relaxed but only
for persuasive and weighty reasons, to relieve a
litigant of an injustice commensurate with his failure
to comply with the prescribed procedure.
Withdrawal of appeal
Rule 50, 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.
Stay of execution
General rule: If judgment is rendered against the
defendant, execution shall issue immediately upon
motion.
Exception: Immediate execution of judgment may be
stayed if the following requisites concur:
ƒ an appeal has been perfected
ƒ the defendant files a sufficient supersedeas
bond, approved by the MTC and executed in
favor of the plaintiff to pay the rents, damages
and costs accruing down to the time of the
judgment appealed from
ƒ during the pendency of the appeal, the
defendant deposits with the appellate court the
amount of rent due from time to time under the
contract; in the absence of a contract, he shall
deposit with the RTC the reasonable value of
the use and occupation of the premises for the
preceding month or period at the rate
determined by the judgment of the lower court
on or before the 10th day of each succeeding
month or period
p
The supersedeas bond shall be transmitted by the
MTC, with the other papers, to the clerk of the RTC
to which the action is appealed.
p
All amounts so paid to the appellate court shall be
deposited with said court or authorized government
depositary band, and shall be held there until the
final disposition of the appeal, UNLESS the court:
ƒ by agreement of the interested parties, or
ƒ in the absence of reasonable grounds of
opposition to a motion to withdraw, or
ƒ for justifiable reasons, shall decree otherwise.
p
Should the defendant fail to make the payments, the
appellate court, upon motion of the plaintiff, and
upon proof of such failure, shall order the execution
of the judgment appealed from with respect to the
restoration of possession, but such execution shall
not be a bar to the appeal taking its course until the
final disposition thereof on the merits.
p
After the case is decided by the Regional Trial Court,
any money paid to the court by the defendant for
purposes of the stay of execution shall be disposed
of in accordance with the provisions of the judgment
of the Regional Trial Court.
p
In any case wherein it appears that the defendant
has been deprived of the lawful possession of land or
building pending the appeal by virtue of the
execution of the judgment of the Municipal Trial
Court, damages for such deprivation of possession
and restoration of possession may be allowed the
defendant in the judgment of the Regional Trial
Court disposing of the appeal.
Habere Facias Possessionem; definition
The name of the process commonly resorted to by
the successful party in an action for ejectment, for
the purpose of being placed by the sheriff in the
actual possession of the land recovered.
San Pedro vs CA: Judgments in ejectment cases
which are favorable to the plaintiff are immediately
executory. They can be stayed by the defendant only
by:
ƒ perfecting an appeal;
ƒ filing a supersedeas bond; and
ƒ making a periodic deposit of the rental or the
reasonable compensation for the use and
occupation of the property during the pendency
of the appeal.
These requisites must concur.
Puncia vs Gerona: A stay of execution may also be
warranted once the writ is issued:
ƒ where the delay in the deposit is due to fraud,
accident, mistake, or excusable negligence; or,
ƒ where supervening events occurring subsequent
to the judgment bring about a material change
in the situation of the parties which makes
execution inequitable
ƒ where there is no compelling urgency for the
execution because it is not justified by the
prevailing circumstances

Rule 39, Sec. 2. Discretionary execution.—
(a) Execution of a judgment or a final order
pending appeal.—On motion of the prevailing
party with notice to the adverse party filed in
the trial court while it has jurisdiction over the
case and is in possession of either the original
record or the record on appeal, as the case may
be, at the time of the filing of such motion, said
court may, in its discretion, order execution of a
judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue upon
good reasons to be stated in a special order
after due hearing.
(b) Execution of several, separate or partial
judgments.—A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a judgment
or final order pending appeal.
Sec. 21, Revised Rules on Summary Procedure.
Appeal. — The judgment or final order shall be
appealable to the appropriate RTC which shall
decide the same in accordance with Sec. 22 of BP
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.
Rule 43, Sec. 12. Effect of appeal.—The appeal
shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it
may deem just.
Rule 39, Sec. 4. Judgments not stayed by appeal.—
Judgments in actions for injunction, receivership,
accounting and support, and such other judgments
as are not 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.
General rule: In ordinary appeals, execution is
stayed.
Exceptions
ƒ Decision in forcible entry and unlawful detainer.
Exception to exception: If appellant stays
immediate execution by filing a notice of
appeal, supersedeas bond and depositing in
court a monthly rental or compensation for the
REMEDIAL LAW REVIEWER
occupation as fixed by the court which rendered
the decision.
ƒ Decision of the MeTC, MTC or MCTC or the RTC
where execution pending appeal has been 145
granted by the court of origin or in a proper
case by the appellate court upon good reasons
to be stated in the order.
ƒ Decision of the RTC rendered in the exercise of
its appellate jurisdiction on cases tried and
decided by the court of origin under Summary
Procedure.
ƒ Decision of a quasi-judicial agency under the
Rule 43, Sec. 12, UNLESS otherwise provided by
the Court CA;
ƒ Decision in cases of injunction, receivership,
support and accounting.
Service Specialists vs Sheriff of Manila: An appeal
from the order denying the petition for relief does
not stay the judgment from which relief is sought. In
order to stay execution, it is necessary to obtain a
writ of preliminary injunction.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted for
judgment.—A case shall be deemed submitted for
judgment:
A. In ordinary appeals.—
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.
When such 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.—
Where no comment is filed, upon the expiration of
the period to comment.
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.
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.
The period within which a court must render a
decision is mandatory [New Frontier Mines vs
NLRC]
Judgment
Rule 51, 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.
Rule 51, Sec. 3. Quorum and voting in the court.—
The participation of all three Justices of a division
 REMEDIAL LAW REVIEWER
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
146 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 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 Rules and the concurrence of a majority of
such division shall be required for the
pronouncement of a judgment or final resolution.
Rule 51, Sec. 4. Disposition of a case.—The CA, 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.40, BP 129. Form of decision in appealed
cases.—Every decision or final resolution of a court
in appealed cases shall clearly and distinctly state
the findings of fact and the conclusion of law on
which it is based, which may be contained in the
decision or final resolution itself, or adopted by
reference from those set forth in the decision,
order, or resolution appealed from.
Rule 51, Sec. 5. Form of decision.—Every decision or
final resolution of the court in appealed cases shall
clearly and distinctly state the finding 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.
The body of the judgment must contain the reasons
or conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
what actually constitutes the resolution of the court
which is the subject of the execution is the
dispositive portion of the fallo. [Olac vs. CA]
Rule 51, 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 proceedings
must disregard any error or defect which does not
affect the substantial rights of the parties.
Rule 51, Sec. 7. Judgment where there are several
parties.—In all actions or proceedings, an appealed
judgment may be affirmed as to some of the
appellants, and revered as to others, and the case
shall thereafter be proceeded with, so far as
necessary, as of 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.
Rule 51, 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
Rule 51, 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.
ii. Petition for review
iii. Petition for review on certiorari
Procedure in the Supreme Court (Appealed
Cases)
Mode of appeal
Rule 56, Sec. 3. Mode of appeal.—An appeal to the
Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where
the penalty imposed is death, reclusion perpetua or
life imprisonment.
Procedure
Rule 56, 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 Rules 51, 52 and
this Rule.
Grounds for dismissal of appeal
Rule 56, 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.
Improper appeal

Rule 56, 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 facts
are involved shall be final.
Rule 122, Sec. 3. How appeal taken.—
(a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction, shall be by notice of appeal
filed with the court which rendered the
judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review under Rule 42.
(c) The appeal in cases where the penalty imposed
by the Regional Trial Court is reclusion perpetua
or life imprisonment, or where a lesser penalty
is imposed but for offenses committed on the
same occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
imposed, shall be by notice of appeal to the
Court of Appeals in accordance with paragraph
(a) of this Rule.
(d) No notice of appeal is necessary in cases where
the Regional Trial Court imposed the death
penalty. The Court of Appeals shall
automatically review the judgment as provided
in Section 10 of this Rule.
(e) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on
certiorari under Rule 45.
General rule: An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Exception: Appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
Equally divided
Rule 56, 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.
Questions of Fact vs. Questions of Law
REMEDIAL LAW REVIEWER
Agote vs. Lorenzo (2005): A question of law does
not involve an examination of the probative value of
the evidence presented by any of the litigants.
147
There is a question of law in a given case when the
doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact
when the doubt or difference arises as to the truth
or the falsehood of the facts alleged.
Alsua-Betts vs. CA (1979):
General rule: CA’s findings of fact are final and
conclusive and cannot be reviewed on appeal to the
SC, provided they are borne out by the record or are
based on substantial evidence.
Exception: CA’s findings of fact may be reviewed by
the SC on appeal by certiorari when:
1. Conclusion is a finding grounded entirely on
speculations, surmises or conjectures (Joaquin
vs. Navarro).
2. Inference made is manifestly mistaken, absurd
or impossible (Luna vs. Linatok).
3. There is grave abuse of discretion in the
appreciation of facts (Buyco vs. Pp).
4. Judgment is based on a misapprehension of facts
(De la Cruz vs. Sosing).
5. The Court of Appeal’s findings of fact are
conflicting (Casica vs. Villaseca).
6. The Court of Appeals, in making its findings,
went beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee [Nakpil & Sons vs. CA
(1986)].
7. The Court of Appeals manifestly overlooked
certain relevant facts not disputed by the
parties and which, if properly considered, would
justify a different conclusion [Abellana vs.
Dosdos (1965)].
8. The Court of Appeal’s findings of fact are
contrary to those of the trial court, or are mere
conclusions without citation of specific
evidence, or where the facts set forth by the
petitioner are not disputed by the respondent,
or where the findings of fact of the Court of
Appeals are premised on absence of evidence
but are contradicted by the evidence of record
[Manlapaz vs. CA (1987)].
Perez-Rosario vs. CA (2005): Rule 65 cannot cure
the failure to appeal thru Rule 45.
e. Issues to be raised on appeal
Cognizable judgments/issues
The appellate court has no jurisdiction to review a
judgment which is immediately final and executory
by express provision of law. [Republic v. Bermudez-
Lorino (2005)]
Rationale: Appeal is merely a privilege conferred by
law upon the litigants.
A party cannot change the theory on appeal. Only
issues pleaded in the lower court and properly raised
may be resolved by the appellate court. [Medina v.
CA (1992)]
 REMEDIAL LAW REVIEWER

From RTC (original) to CA to SC and from MTC to

However, issues which are inferred from or RTC (appellate) to CA to SC and from CA to SC and
148 necessarily connected with the issue properly raised from QJA to CA to SC
and pleaded may be resolved by the appellate court. 15 days from notice of judgment or final order or
[Espina v. CA (1992)] from denial of petitioner’s motion for
reconsideration or new trial. The SC may grant a 30
Notice of appeal day extension for justifiable reasons.
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. From QJA to CA
15 days from notice of the award, judgment, final
Record of appeal order or resolution or from date of last publication if
Required only in: required by law. The CA may grant a 15 day
ƒ Special proceedings; extension. No further extension shall be granted
ƒ Multiple or separate appeals where the law or except for the most compelling reasons and in no
the Rules of Court so requires. case longer than 15 days.
Distinctions Between Rule 45 and
Rule 40, Sec.2. When to appeal.—The appeal is Rule 65 Based on J. Regalado’s Commentary
taken by filing a notice of appeal with the court that (Asked in the 1999 and 2008 Bar Exams )
rendered the judgment or final order appealed from. Rule 45 Appeal by Certiorari Rule 65 Original Action
Where a record on appeal is required, the appellant for Certiorari
shall file a notice of appeal and a record on appeal 1. Issues Raised
within 30 days after notice of the judgment or final
order. Questions of Law Grave Abuse of
Discretion Amounting to
The period of appeal shall be interrupted by a timely Lack or Excess of
motion for new trial or reconsideration. No motion Jurisdiction
for extension of time to file a motion for new trial or 2. Against What Court
reconsideration shall be allowed. Action Directed

Neypes vs. CA (2005) on the fresh period rule: Review of the judgment, Directed Against an
Definition: Period of appeal is interrupted by a award or final order on the Interlocutory Order of
timely motion for new trial or reconsideration. merits the court prior to appeal
Motion for extension of time to file motion for new from the judgment, or
trial or reconsideration is not allowed. where there is no appeal
or any other plain speedy
Applicability: and adequate remedy
ƒ Rule 40 on appeals from MTC to RTC. 3. Reglementary Period
ƒ Rule 42 on petitions for review from RTC to CA.
ƒ Rule 43 on appeals from QJA to CA. Must be filed within the Not later than sixty (60)
ƒ Rule 45 on appeals by certiorari to SC. reglementary period for days from notice of the
appeal. judgment, order or
Rationale: To standardize the appeal periods resolution sought to be
provided in the Rules of Court and to afford litigants assailed.
fair opportunity to appeal their cases, the court 4. Effect on the
deems it practical to allow a fresh period of 15 days Proceedings Below
within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the Judgment, award or order No effect (i.e.,
order dismissing a motion for new trial or appealed from is stayed by proceedings below
reconsideration. the Appeal continue) unless a writ of
preliminary injunction or
f. Period of appeal a temporary restraining
order has been issued
From MTC to RTC and from RTC (original) to CA 5. Parties Involved
ƒ By notice of appeal: 15 days from notice of the
judgment or final order Original Parties to the action The parties are the
ƒ By record of appeal: 30 days from notice of the remain the same during aggrieved party against
judgment or final order appeal (albeit with the the lower court/Quasi-
ƒ From MTC to RTC (appellate) to CA: 15 days corresponding appellation of judicial agency and the
from notice of the judgment or final order but appellant and appellee), the prevailing parties, who
the Court of Appeals may grant a 15 day lower court or quasi-judicial thereby respectively
extension. No further extension shall be granted agency is not to be become the petitioner
except for the most compelling reasons and in impleaded. and the respondents.
no case longer than 15 days.
 REMEDIAL LAW REVIEWER

Distinctions Between Rule 45 and Matrix of Periods

Rule 65 Based on J. Regalado’s Commentary
(Asked in the 1999 and 2008 Bar Exams )
Rule 45 Appeal by Certiorari Rule 65 Original Action Period to Extensions Effect of 149
for Certiorari Appeal MR or MNT
6. Requirement of Motion By notice of No extensions Interrupts
for Reconsideration appeal - 15 allowed the period
days from to appeal
For purposes of appeal, MR MR is a CONDITION notice of the
is not required PRECEDENT subject only judgment or
MTC
to certain exceptions. final order
to
7. Exercise of Jurisdiction By record of
RTC
appeal – 30
The Appellate Court Higher Court exercises days from
exercises its appellate original jurisdiction notice of the
jurisdiction and power of under its power of judgment or
review control and supervision final order
over the proceedings of By notice of No extensions Interrupts
lower courts. appeal - 15 allowed the period
days from to appeal
notice of the
This “fresh period rule” shall also apply to: judgment or
ƒ Rule 40 governing appeals from the Municipal RTC final order
Trial Courts to the Regional Trial Courts; to CA By record of
ƒ Rule 42 on petitions for review from the appeal – 30
Regional Trial Courts to the Court of Appeals; days from
ƒ Rule 43 on appeals from quasi-judicial notice of the
agencies to the Court of Appeals; and judgment or
ƒ Rule 45 governing appeals by certiorari to the final order
Supreme Court. The new rule aims to regiment 15 days from The CA may Fresh
or make the appeal period uniform, to be notice of the grant a 15 day period to
counted from receipt of the order denying the judgment or extension. No appeal
motion for new trial, motion for reconsideration final order further from
(whether full or partial) or any final order or OR from extension denial MR
MTC
resolution. [Neypes vs. CA, (2005)] denial of MR shall be or MNT
to
or MNT granted
RTC
A party litigant may now file his notice of appeal except for the
to CA
either within fifteen days from receipt of the most
original decision or within fifteen days from the compelling
receipt of the order denying the motion for reasons and in
reconsideration. no case longer
then 15 days.
Being procedural in nature, Neypes is deemed to be 15 days from The CA may Fresh
applicable to actions pending and undetermined at notice of the grant a 15 day period to
the time of its effectivity and is thus retroactive in award, extension. No appeal
that sense and to that extent. [First Aqua Sugar v. judgment, further from
BPI (2007)] final order or extension denial MR
resolution or shall be or MNT
QJA
g. Perfection of appeal from date of granted
to CA
last except for the
Perfection of an appeal in the manner and within the publication if most
period laid down by law is mandatory and required by compelling
jurisdictional. [Balgami vs. CA (2004)] law OR from reasons and in
denial of MR no case longer
Rationale: Appeal is merely a statutory privilege, or MNT then 15 days.
and may be exercised only in the manner and in 15 days from The SC may Fresh
RTC
accordance with the provisions of the law. It is notice of grant a 30 day period to
to SC
neither a natural right nor a part of due process. judgment or extension for appeal
RTC
final order justifiable from
to CA
Effect of failure to perfect appeal OR from reasons. denial MR
to SC
ƒ Defeats a party’s right to appeal. denial of or MNT
CA to
ƒ Precludes appellate court from acquiring petitioner’s
SC
jurisdiction. MR or MNT.
reglementary period confers only a discretionary
Camposagrado vs. Camposagrado (2005): Failure (not mandatory) power to dismiss the proposed
to pay the appellate court docket fee within the appeal. Such discretion should consider all attendant
 REMEDIAL LAW REVIEWER
circumstances and must be exercised with a view to
substantial justice.
150
Republic v. Bermudez-Lorino (2005): Appellate
court has no jurisdiction to review a judgment which
is immediately final and executory by express
provision of law.
Medina vs. CA (1992): A party cannot change the
theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the
appellate court.
Espina vs. CA (1992): However, issues which are
inferred from or necessarily connected with the
issue properly raised and pleaded may be resolved
by the appellate court.
Appeal from MTC to RTC: the rules on perfection of
appeal from RTC to CA applies.
From the Regional Trial Court to CA:
ƒ By notice of appeal: perfected as to party who
filed notice upon filing of the same in due time
- The court loses jurisdiction over the case
upon perfection of appeal AND expiration
of time to appeal of the other parties.
ƒ By record on appeal: perfected as to the party
who filed appeal and with respect to the subject
matter thereof upon approval of the record filed
in due time
- The court loses jurisdiction upon approval
of the records on appeal AND expiration
of the time to appeal of the other parties
From MTC to RTC (appellate jurisdiction) to CA:
upon timely filing of a petition for review and the
payment of the corresponding docket and other
lawful fees.
ƒ The RTC loses jurisdiction upon perfection of
appeals filed in due time AND the expiration of
time to appeal of other parties.
h. Appeal from judgments or final orders of
the MTC
MTC to RTC
Rule 40, Sec.1. Where to appeal.—An appeal from a
judgment or final order of a MTC may be taken to
the RTC 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 the appellee.
The other provisions governing appeal from RTC to
CA so long as they are not inconsistent are
applicable to appeal from MTC to RTC.
MTC to RTC to CA
File a verified petition for review with the CA,
paying at the same time to the clerk of said court
the corresponding docket and other lawful fees,
depositing the amount of P500 for costs and
furnishing the RTC and the adverse party with a copy
of the petition.
p
The petition shall be filed and served within 15 days
from notice of the decision sought to be reviewed or
of the denial of petitioner’s MNT or MR filed in due
time after judgment.
p
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 CA may grant an additional
period of 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 15 days. [Rule 42, Sec. 1]
(Asked in the 1999 and 2002 Bar Exam)
Petition for review from RTC to CA [Rule 42]
APPLICABILITY - Appeal of RTC decision rendered in
exercise of appellate jurisdiction [Rule 42, Sec. 1]
CERTIFICATE OF NON-FORUM SHOPPING (CNFS) -
Petitioner in a petition for review in CA/SC must
submit a CNFS with the petition. However, this rule
is relaxed where there is need to conduct a review.
In those instances, petitioner may comply with the
requirement after he has filed the petitions. [Rule
42, Sec.1]
MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.—In all cases
where only questions of law are raised or involved,
the appeal shall be to the SC by petition for review
on certiorari in accordance with Rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.—A party desiring to appeal by certiorari from
a judgment or final order or resolution of the CA,
the Sandiganbayan, the RTC or other courts
whenever authorized by law, may file with the SC 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.
(Asked in the 2002 Bar Exams)
Applicability of Rule 45
Rule 45, 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.
Filing of petition
ƒ File with the SC a verified petition for review on
certiorari.
ƒ In 18 copies, with the original copy intended for
the court being indicated as such by the
petitioner.

ƒ Petition shall raise only questions of law which
must be distinctly set forth.
Contents of petition (Sec. 4)
ƒ Full name of the appealing party (petitioner)
and the adverse party (respondent).
ƒ Without impleading the lower court or judges as
petitioners/respondents.
ƒ Material dates:
- 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.
ƒ Concise statement of the matters involved, and
the reasons/arguments relied on for the
allowance of the petition;
ƒ 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;
ƒ Certificate of non-forum shopping.
File petition within 15 days from notice:
ƒ of the judgment or final order or resolution
appealed from, or
ƒ of the denial of the petitioner's motion for new
trial or reconsideration filed in due time after
notice of the judgment.
p or non-compliance with the conditions therefor.
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 SC may for justifiable reasons grant an
extension of 30 days only within which to file the
petition. [Rule 45, Sec. 2]
Rule 45, 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.
Dismissal or denial of petition
Rule 45, 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 SC may on its own initiative deny the petition on
the ground that the appeal is without merits, or is
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
REMEDIAL LAW REVIEWER
Review is 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 therefore. 151
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:
ƒ When the court a quo has decided a question of
substance, not theretofore determined by the
SC, or has decided it in a way probably not in
accord with law or with the applicable decisions
of the SC; or
ƒ 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.
May require pleadings and documents
Rule 45, Sec.7. Pleadings and documents that may
be required; sanctions.—For purposes of determining
whether the petition should be dismissed or denied
pursuant to sec.5 of this Rule, or where the petition
is given due course under sec.8 hereof, the SC 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
Due course and elevation of records
Rule 45, Sec.8. Due course; elevation of records.—If
the petition is given due course, the SC may require
the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.
MTC to SC
ƒ The remedy is a petition for certiorari under
Rule 65.
ƒ This is not an appeal.
i. Appeal from judgments or final orders of
the RTC
RTC to CA
Under Rule 41, an appeal of judgment or final order
under that completely disposes of either:
ƒ The case;
ƒ A particular matter in the case, when declared
by ROC to be appealable.
Not appealable under Rule 41
ƒ Order denying motion for new trial or
reconsideration;
ƒ Order denying petition for review or any similar
motion seeking relief from judgment;
ƒ Interlocutory order;
ƒ Order disallowing/dismissing appeal;
ƒ Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other
vitiation of consent;
 REMEDIAL LAW REVIEWER
ƒ Order of execution;
ƒ While the case is pending, judgment or final
152 order:
- For/against one or more of several parties;
- In separate claims, counterclaims, cross-
claims, third-party complaints.
Exception: If court allows appeal.
ƒ Order dismissing an action without prejudice.
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action under
Rule 65.
Interlocutory order
Definition: If it does not dispose of the case but
leaves something else to be done by the trial court
on the merits of the case. [Investments, Inc. vs. CA
(1987)]
For purposes of appeal, an order is final if it disposes
of the entire case. An order for partial summary
judgment is an interlocutory order which cannot be
appealed from. The trial court had not yet rendered
a complete final judgment. [GSIS vs. Phil. Village
Hotel (2004)]
Multiple appeals
Civil cases which admit of multiple appeals:
ƒ Judgment in an action for recovery or for
partition of property is separately appealable
from the proceedings on that part of the
judgment wherein accounting for receipts from
the property is ordered as a primary or
incidental relief. When such accounting is
submitted and either approved or rejected by
the trial court, another appeal lies therefrom.
ƒ Special civil actions:
- Expropriation; (Rule 67)
- Judicial partition; (Rule 69)
- Judicial foreclosure of mortgage; (Rule 68)
Special proceedings also admit of multiple appeals.
Ko vs. PNB (2006): The order of dismissal due to
failure to prosecute is appealable by notice of
appeal under Rule 41.
Philexport vs. PI (2004): But an order of dismissal
without prejudice is not appealable under Rule 41.
Lanaria v. Planta (2007): Submission of a document
together with the motion for reconsideration
constitutes substantial compliance with compliance
with Section 2, Rule 42 or the requirement that
relevant or pertinent documents be submitted along
with the petition, and calls for the relaxation of
procedural rules
RTC to CA to SC
The remedy is a petition for review on certiorari
under Rule 45.
RTC to SC
ƒ The remedy is a petition for certiorari under
Rule 65.
ƒ This is not an appeal.
j. Appeal from judgments or final orders of
the CA
CA to SC
The remedy is a petition for review on certiorari
under Rule 65.
k. Appeal from judgments or final orders of
the CTA
RA 9282: Decisions of the CTA are now appealable to
the SC by petition for review on certiorari under
Rule 45.
l. Review of final judgments or final orders of
the COA
m. Review of final judgments or final orders
of the COMELEC
n. Review of final judgments or final orders
of the CSC
The remedy of an aggrieved party from a resolution
issued by the CSC is to file a petition for review
thereof under Rule43 of the Rules of Court within
fifteen days from notice of the resolution. [DECS v.
Cuanan (2008)]
o. Review of final judgments or final orders
of the Ombudsman
p. Review of final judgments or final orders
of the NLRC
Rule 43, Sec.2. Cases not covered.—This Rule shall
not apply to judgments or final orders issued under
the Labor Code of the Philippines.
NLRC judgments and final orders or resolutions are
now reviewable, in the first instance, by the Court
of Appeals on certiorari under Rule 65, but those of
the Employees Compensation Commission should be
brought to the Court of Appeals through a petition
for review under this Rule. Also, appeals from the
Office of the Ombudsman in administrative
disciplinary cases are now covered by this Rule.
[Fabian vs. Desierto (1998)]
q. Review of final judgments or final orders
of quasi-judicial agencies
QJA to CA
Applicability
Appeals from judgments or final orders of the CTA
and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)
ƒ Agricultural Inventions Board (AIB);
ƒ Board of Investments (BOI);
ƒ Bureau of Patents, Trademarks and Technology
Transfer (BPTTT);

ƒ Central Board of Assessment Appeals (CBAA);
ƒ Civil Aeronautics Board (CAB);
ƒ Civil Service Commission (CSC);
ƒ Construction Industry Arbitration Commission;
ƒ Department of Agrarian Reform (DAR under RA
6657)
ƒ Employees Compensation Commission (ECC);
ƒ Energy Regulatory Board (ERB);
ƒ Government Service Insurance System (GSIS);
ƒ Insurance Commission;
ƒ Land Registration Authority (LRA);
ƒ National Electrification Administration (NEA);
ƒ National Telecommunications Commission
(NTC);
ƒ Office of the President (OP);
ƒ Philippine Atomic Energy Commission (PAEC);
ƒ Securities and Exchange Commission (SEC);
ƒ Social Security Commission (SSC);
ƒ Voluntary arbitrators authorized by law.
A resolution of the DOJ Secretary is not appealable
under Rule 43. Recourse should be to the President,
instead of the CA, under the established principle of
exhaustion of administrative remedies. [Orosa vs.
Roa (2006)]
Exhaustion of administrative remedies: If an
appeal/remedy obtains or is available within the
administrative machinery, this should be resorted to
before resort can be made to the courts.
Under Rule 43, Sec. 4 the petition should be filed
within 15 days from:
ƒ Notice of the final order; or
ƒ The date of its last publication, if publication is
required by law for its effectivity; or
ƒ The denial of the petitioner’s MFR duly filed
according to the governing law of the court or
agency a quo. [Villorente vs. Laiya (2005)]
Under Rule 43, there is no need to implead the lower
court or agency which rendered the assailed
decision. [Basmayor v. Atencio (2005)]
Submission of the duplicate original or certified true
copy of judgment, order, resolution or ruling subject
of a petition for certiorari is essential to determine
whether or not the court, body or tribunal which
rendered the same indeed committed grave abuse of
discretion. Either a legible duplicate original or
certified true copy thereof shall be submitted. If
what is submitted is a copy, then it is required that
the same is certified by the proper officer of the
court, tribunal, agency or office involved. This is to
assure that such copy is a faithful reproduction of
the judgment, order, resolution or ruling subject of
the petition. [Coca-cola v. Cabalo (2006)]
Recourse to a petition for certiorari under Rule 65
renders the petition dismissible for being the wrong
remedy. Nonetheless, there are exceptions to this
rule:
ƒ when public welfare and the advancement of
public policy dictates;
ƒ when the broader interest of justice so requires;
ƒ when the writs issued are null and void; or
REMEDIAL LAW REVIEWER
ƒ when the questioned order amounts to an
oppressive exercise of judicial authority. [DECS
v. Cuanan (2008)]
153
QJA to CA to SC
Remedy is a petition for review on certiorari under
Rule 45.
QJA to SC
Remedy is a petition for certiorari under Rule 65,
which is not an appeal.
3. Relief from judgments, orders and
other proceedings
Definition: It is a legal remedy whereby a party
seeks to set aside a judgment rendered against him
by a court whenever he is unjustly deprived of a
hearing or was prevented from taking an appeal
because of fraud, accident, mistake or excusable
negligence.
Francisco vs. Puno: A party who has filed a timely
motion for new trial or motion for reconsideration
can no longer file a petition for relief from judgment
after his motion has been denied. These remedies
are mutually exclusive. It is only in appropriate cases
where a party aggrieved by the judgment has not
been able to file a motion for new trial or motion for
reconsideration that a petition for relief can be
filed.
a. Grounds for availing of the remedy
Rule 38, Sec.1. Petition for relief from judgment,
order, or other proceedings.—When a judgment or
final order is entered, or any other proceeding is
thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence,
he may file a petition in such court and in the same
case praying that the judgment, order or proceeding
be set aside.
The relief provided for by Rule 38 is of equitable
character and is only allowed in exceptional cases,
that is where there is no other available or adequate
remedy. A petition for relief is not regarded with
favor and judgment will not be disturbed where the
party complaining has or by his exercising proper
diligence would have had an adequate remedy at
law, as where petitioner could have proceeded by
appeal to vacate or modify the default judgment.
[Manila Electric vs. CA (1990))
Petition for relief under Rule 38 is an admission that
the period to appeal from the decision had already
expired. [David vs CA (1992))
b. Time to file petition
Rule 38, Sec.3. Time for filing petition; contents
and verification.—A petition provided for in either of
the preceding sections of this Rules must be verified,
filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set
 REMEDIAL LAW REVIEWER
aside, and not more than 6 months after such
judgment or final order was entered, or such
154 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.
Both periods must concur. They are also non-
extendible and never interrupted.
c. Contents of petition
Rule 38, Sec.2. Petition for relief from denial of
appeal.—When a judgment of final order is rendered
by any court in a case, and a party thereto, by
fraud, accident, mistake, or excusable negligence,
has been prevented from taking an appeal, he may
file a petition in such court and in the same case
praying that the appeal be given due course.
Under both grounds, the petition shall be filed in the
same court which rendered the judgment and in the
very same case.
Prayer in petition for relief from judgment:
ƒ That the judgment/order/proceeding be set
aside;
ƒ That the appeal be given due course.
Form and content of petition:
ƒ Must be verified;
ƒ Must be accompanied by an affidavit showing
the fraud, accident, mistake or excusable
negligence relied upon;
ƒ The affidavit of merit accompanying the
petition must also show the facts constituting
the petitioner’s good and substantial cause of
action or defense.
An affidavit of merit serves as the jurisdictional basis
for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant denial of
the petition so long as the facts required to be set
out also appear in the verified petition.
When an affidavit of merit is not necessary:
ƒ When there is lack of jurisdiction over the
defendant;
ƒ When there is lack of jurisdiction over the
subject matter;
ƒ When judgment was taken by default;
ƒ When judgment was entered by mistake or was
obtained by fraud; or
ƒ Other similar cases.
Two hearings in a petition for relief from judgment:
ƒ Hearing to determine whether or not the
judgment should be set aside;
ƒ If option a) is in the affirmative, hearing upon
the merits of the case.
Other remedies after finality of judgment:
ƒ Action to Annul a Judgment
ƒ Certiorari
ƒ Collateral Attack of a Judgment that is Void on
its Face
4. Annulment of Judgments or final
orders and resolutions
a. Grounds for annulment
b. Period to file action
c. Effects of judgment of annulment
5. Collateral attack of judgments
Remedies from a Void Judgment (Asked in the 2004
BAR EXAMS)
What is a void judgment?
A void judgment is no judgment at all. It cannot be
the source of any right nor of any obligation. All acts
performed pursuant to it and all claims emanating
from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is
void. It may be said to be a lawless thing which can
be treated as an outlaw and slain at sight, or ignored
wherever and whenever it exhibits its head.
A void judgment never acquires finality. A void
judgment is not entitled to the respect accorded to
a valid judgment, but may be entirely disregarded or
declared inoperative by any tribunal in which effect
is sought to be given to it. It is attended by none of
the consequences of a valid adjudication. It has no
legal or binding effect or efficacy for any purpose or
at any place. It cannot affect, impair or create
rights. It is not entitled to enforcement and is,
ordinarily, no protection to those who seek to
enforce. All proceedings founded on the void
judgment are themselves regarded as invalid. In
other words, a void judgment is regarded as a
nullity, and the situation is the same as it would be
if there were no judgment. It, accordingly, leaves
the parties litigants in the same position they were
in before the trial.
A judgment may be void for lack of due process of
law. [Spouses Benatiro vs. Heirs of Cuyos (2008))
How do you attack a void judgment?
It may be assailed anytime, collaterally or in a direct
action or by resisting such judgment or final order in
any action or proceeding whenever it is invoked,
unless barred by laches. [Spouses Benatiro vs. Heirs
of Cuyos (2008))
What are your remedies?
If the reglementary period for appeal has not yet
lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and
Other Appropriate Remedies such as Certiorari may
also be used.
If the appropriate remedies are no longer available
without the fault of the petitioner, the equitable
and extraordinary remedy of Petition for Annulment
of Judgment may be resorted to.

When all else fails, there is jurisprudence to the
effect that a patently void judgment may be dealt
with by a Main Action for Injunction.
Some jurisprudential basis
Remedial Law Jurisprudence such as Spouses
Benatiro vs. Heirs of Cuyos, (2008) and Agustin vs.
Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against a
void judgment. This remedy, however, should be
availed of only when the appropriate remedies are
no longer available without fault on the part of the
petitioner.
Although Section 2 of Rule 47 of the Rules of Court
provides that annulment of a final judgment or order
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction,"
jurisprudence recognizes denial of due process as
additional ground therefore (Spouses Benatiro Case).
Montinola vs. Judge Gonzales (1989): A VOID
JUDGMENT IS LIKE AN OUTLAW WHICH MAY BE SLAIN
AT SIGHT WHEREVER OR WHENEVER IT EXHIBITS ITS
HEAD. The proper remedy in such case, after the
time for appeal or review has passed, is for the
aggrieved party to bring an action to enjoin the
judgment.
Assuming the judgment to have been void as alleged
by the proponent of this motion, the proper remedy
was by an original proceeding and not by motion in
the cause" (Banco Espanol vs. Palanca). A final
judgment may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
(Panlilio vs. Garcia, 119 SCRA 307)
XVII. EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS
1. Difference between finality of judgment
for purposes of appeal; for purposes of
execution
2. When execution shall issue
3. How a judgment is executed
4. Properties exempt from execution
5. Proceedings where property is claimed by
third persons
6. Rules on Redemption
7. Examination of Judgment Obligor When
Judgment is unsatisfied
8. Examination of Obligor of Judgment
Obligor
9. Effect of Judgment or Final Orders
10. Enforcement and Effect of Foreign
Judgments or Final Orders
1. Difference between finality of
judgment for purposes of appeal; for
purposes of execution
REMEDIAL LAW REVIEWER
The term “finality of judgment for purposes of
appeal” refers to interlocutory orders which:
ƒ are not decisions within the constitutional 155
definition [Armargo v. CA]
ƒ are those that determine incidental matters
that do not touch on the merits of the case or
put an end to proceedings. The following are
examples of an interlocutory order:
- an order denying a motion to dismiss;
- an order granting an extension of time to file
a pleading, or one authorizing an amendment
thereof;
- order granting or denying applications for
postponement or inspection of documents.
[Riano]
The word interlocutory refers to something
intervening between the commencement and the
end of a suit which decides some point or matter but
is not a final decision of the whole controversy.
[Ramiscal, Jr. v. Sandiganbayan]
A final judgment or order is one that finally disposes
of a case, leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on
the merits which, on the basis of the evidence
presented at the trial, declares categorically what
the rights and obligations of the parties are and
which party is in the right; or a judgment or order
that dismisses an action on the ground, for instance,
of res judicata or prescription. Once rendered, the
task of the Court is ended, as far as deciding the
controversy or determining the rights and liabilities
of the litigants is concerned. Nothing more remains
to be done by the Court except to await the parties'
next move (which among others, may consist of the
filing of a motion for new trial or reconsideration, or
the taking of an appeal) and ultimately, of course,
to cause the execution of the judgment once it
becomes 'final or, to use the established and more
distinctive term, 'final and executory.
The proper remedy to question an improvident
interlocutory order is a petition for certiorari under
Rule 65, not Rule 45. A petition for review under
Rule 45 is the proper mode of redress to question
only final judgments. Investments, Inc. v. Court of
Appeals
Execution is a matter of right upon the expiration of
the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action
or proceeding. [Rule 39.1, RoC]
It can be noted that the Supreme Court made a
hairline distinction between finality of order for
appeals and for execution. It is submitted that upon
court’s issuance of a judgment touching upon the
merits of a case, it is final for the purposes of an
appeal, but NOT for execution. Finality for the
purposes of execution refers to the expiration of the
period to appeal and no appeal was perfected.
 REMEDIAL LAW REVIEWER
2. When execution shall issue
156 General rule: When the judgment or order becomes
executory, the court cannot refuse to issue a writ of
execution.
Exceptions: The issuance of a writ of execution
which issues as a matter of right can be countered in
any of the following cases (R-I-N-S-E-D):
ƒ When a PETITION FOR RELIEF or an action to
enjoin judgment is filed and a preliminary
injunction is prayed for and granted (Rule 38.5);
ƒ When the judgment turns out to be INCOMPLETE
OR IS CONDITIONAL since as a matter of law,
such judgment CANNOT BE FINAL;
ƒ When the judgment has been NOVATED BY THE
PARTIES
ƒ When SUBSEQUENT FACTS AND CIRCUMSTANCES
transpire as to render such execution unjust or
impossible
ƒ On EQUITABLE GROUNDS as when there has been
a change in the situation of the parties which
makes execution INEQUITABLE.
ƒ When the judgment becomes DORMANT, the 5-
year period under Rule 39.6 having expired
without the judgment having been revived.
a. Execution as a matter of right
See Annex D.
General rule: An ex parte motion for the issuance of
the writ of execution would suffice since the trial
court may take judicial notice of the record of the
case to determine the propriety of the issuance
thereof.
Exception: However when the losing party shows
that subsequent facts had taken place which would
render the execution unjust, a hearing on the
motion should be held. [Luzon Surety v. Beson
(1976)]
General rule: An appeal seasonably perfected shall
stay the execution of the judgment, unless
discretionary execution is granted by the court.
Exceptions: However, judgments in the following
action, despite perfection of an appeal, shall be
executed, unless the court orders otherwise:
ƒ injunction
ƒ receivership
ƒ accounting
ƒ support
ƒ such other judgments as shall now or may
hereafter be declared to be immediately
executory
Judgments in these actions shall be enforceable
after their rendition and shall not, be stayed by an
appeal taken therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.
General rule: A final and executory judgment or
order may be executed on motion within five (5)
years from the date of its entry. [Sec. 6, Rule 39]
After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
enforced by action.
The revived judgment may also be enforced by
motion within five (5) years from the date of its
entry and thereafter by action before it is barred by
the statute of limitations.
The maximum period within which a final and
executory judgment may be executed is 20 years
(Rule 39.6 in relation to New Civil Code provision on
prescription of judgment).
Exceptions:
ƒ Judgments for support WHICH DO NOT BECOME
DORMANT AND WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez] except for
support in arrears beyond 10 years from the
date they become due;
ƒ Contempt orders by reason of unauthorized
reentry on the land by the ejected defendant
[Azotes v. Blanco];
ƒ Issuance of writs of possession in FORECLOSURE
CASES within the statute of limitations;
ƒ Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT
OF POSSESSION THEREIN NEVER PRESCRIBES
b. Discretionary execution
See Annex E.
General rule: Under the Rule on Discretionary
Execution (also called execution pending appeal),
the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal (Asked in the 2002 Bar
Exam). It is the execution of a judgment or final
order before it attains finality. The court which
rendered the decision can grant an execution
pending appeal if it still retains jurisdiction over the
case and is in possession of the records at the time
of the filing of the motion; otherwise, the motion
shall be acted upon by the appellate court. To be
valid, there should be a good reason to justify the
execution of the judgment pending appeal, the same
to be stated in the order granting it.
Exception: This rule, however, is inapplicable in the
case of the Court of Appeals.
ƒ The Rule on Discretionary Execution
contemplates a situation where a judgment or
final order rendered in the exercise of its
original jurisdiction and the prevailing party in
said decision seeks immediate execution during
the pendency of an appeal.
ƒ The CA has no authority to issue IMMEDIATE
EXECUTION PENDING APPEAL OF ITS OWN
DECISIONS THEREIN.
ƒ Discretionary execution is allowed pending
appeal of judgment or final order of the trial
court upon good reasons to be stated in a
special order.
 REMEDIAL LAW REVIEWER

Heirs of Justice J.B.L. Reyes v. CA (2000): A
JUDGMENT OF THE CA CANNOT BE EXECUTED
PENDING APPEAL. It is acquired either by the arrest
of the accused or by his voluntary appearance in
court.
General rule: The filing of a supersedeas bond is
sufficient to stay the enforcement of a discretionary
execution.
then deliver said payment to the judgment obligee
in satisfaction of the judgment.
p
The excess, if any, shall be delivered to the
157
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.

Exception: However, THE FILING OF SUPERSEDEAS ii. Satisfaction by levy

BOND does not entitle the judgment debtor to the
suspension of execution as a MATTER OF RIGHT.
Where the needs of the prevailing party are
URGENT, the Court can order immediate execution
despite such SUPERSEDEAS BOND. [Regalado]
3. How a judgment is executed
a. Execution by motion or by independent
action
b. Issuance and contents of a writ of
execution
Nature: LEVY MEANS THE ACT OR ACTS by which an
officer sets apart or appropriates a part or the whole
of the property of the judgment debtor for purposes
of the prospective execution sale [Llenares v.
Vandevella (1966)].
If susceptible of appropriation, the officer REMOVES
AND TAKES THE PROPERTY FOR SAFEKEEPING;
otherwise the same is placed under sheriff’s guards.
Without valid levy having been made, ANY SALE OF
THE PROPERTY THEREAFTER is void.
Procedure:

c. Execution of judgments for money (asked If the judgment obligor cannot pay all or part of the
in the 2007 Bar Exam) obligation in cash, certified bank check or other
mode of payment acceptable to the judgment
i. Immediate payment on demand obligee, the officer shall levy upon:
ƒ the properties of the judgment obligor of every
Procedure: kind and nature whatsoever which may be
disposed, of for value, and
The sheriff or executing officer demands from the ƒ not otherwise exempt from execution
judgment obligor the immediate payment of the full p
amount stated in the writ of execution and all lawful The sheriff gives the judgment obligor the option as
fees. to which of the property or part thereof may be
p levied upon, sufficient to satisfy the judgment.
The judgment obligor shall pay in cash, certified p
bank check payable to the judgment obligee, or ANY If the judgment obligor does not exercise the option,
OTHER FORM OF PAYMENT ACCEPTABLE TO THE the officer shall first levy on the personal properties,
LATTER (e.g., dacion en pago), the amount of the if any, and then on the real properties if the
judgment debt under proper receipt directly to the personal properties are insufficient to answer for the
judgment obligee or his authorized representative if judgment.
present at the time of payment. p
p The sheriff shall sell only a sufficient portion of the
The lawful fees shall be handed under proper receipt personal or real property of the judgment obligor
to the executing sheriff who shall turn over the said which has been levied upon.
amount within the same day to the clerk of court of p
the court that issued the writ. When there is more property of the judgment obligor
p than is sufficient to satisfy the judgment and lawful
If the judgment obligee or his authorized fees, he must sell only so much of the personal or
representative is not present to receive payment, real property as is sufficient to satisfy the judgment
the judgment obligor shall deliver the aforesaid and lawful fees.
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 Levy Garnishment
court that issued the writ, or if the same is not seizure of property, the process of notifying
practicable, deposit said amounts to a fiduciary personal and/or real, a third person (the
account in the nearest government depository bank belonging to the garnishee) to retain and
of the Regional Trial Court of the locality. judgment debtor for attach the property he
p subsequent execution has in his possession or
The clerk of said court shall thereafter arrange for sale to satisfy judgment under his control
the remittance of the deposit to the account of the Garnishment is belonging to the
court that issued the writ whose clerk of court shall judgment debtor, to
make disclosure to the
 REMEDIAL LAW REVIEWER
court concerning the
same, and to dispose of
158 the same as the court
shall direct to satisfy the
judgment. (Sec. 9, Rule
39)
iii. Garnishment of debts and credits
Scope: The officer may levy on debts due the
judgment obligor and other credits, including bank
deposits, financial interests, royalties, commissions
and other personal property not capable of manual
delivery in the possession or control of third parties.
The process of levying shall be called garnishment if
the property involved is money, stocks, or other
incorporeal property in the HANDS OF THIRD
PERSONS. Garnishment merely sets apart such funds
but does not constitute the creditor as owner of the
garnished property.
Garnishment is not a violation of RA 1405 on the
secrecy of bank deposits. [Chinabank v. Ortega]
Procedure:
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.
p under him to peaceably vacate the property within
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.
p
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.
p When the property subject of the execution contains
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.
p
The executing sheriff shall observe the same
procedure under IMMEDIATE PAYMENT ON DEMAND
with respect to delivery of payment to the judgment
obligee.
d. Execution of judgments for specific acts
i. Conveyance, delivery of deeds, or other specific
acts
Under this situation, there is a judgment which
directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other
documents, or to perform, any other specific act IN
CONNECTION THEREWITH.
If the party so ordered fails to comply within a
specified period, there are two possible remedies.
Either:
ƒ the court may DIRECT THE ACT TO BE DONE AT
THE COST OF THE DISOBEDIENT PARTY by some
other person appointed by the court and the act
when so done shall have like effect as if done by
the party, or
ƒ if real or personal property is situated within
the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the
title of any party and vest it in others, which
shall have the force and effect of a conveyance
executed in due form of law.
ii. Sale of real or personal property
If judgment is rendered ordering the sale of real or
personal property, an order for execution shall be
issued describing such property as may be ordered
sold, selling it, and applying the proceeds in
conformity with the judgment’s instructions.
iii. Delivery or restitution of real property
The officer shall demand of the person against whom
the judgment for the delivery or restitution of real
property is rendered and all persons claiming rights
three (3) working days, and restore possession
thereof to the judgment obligee.
Otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to retake
possession, and place the judgment obligee in
possession of such property.
ANY COSTS, DAMAGES, RENTS OR PROFITS AWARDED
BY THE JUDGMENT SHALL BE SATISFIED IN THE SAME
MANNER AS A JUDGMENT FOR MONEY.
iv. Removal of improvements on property subject
of execution
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 obligee after the hearing
and after the former has failed to remove the same
within a reasonable time fixed by the court.
v. Delivery of personal property
In judgment for the delivery of personal property,
the officer shall take possession of the same and
forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided.
e. Execution of special judgments
When a judgment requires the performance of ANY
ACT OTHER THAN THOSE MENTIONED IN THE TWO

PRECEDING SECTIONS (EXECUTION OF JUDGMENT
FOR MONEY AND SPECIFIC ACTS), a certified copy of
the judgment shall be attached to the writ of
execution and shall be served by the officer upon
the party against whom the same is rendered, or
upon any other person required thereby, or by law,
to obey the same, and such party or person may be
punished for contempt if he disobeys such judgment.
Special judgments are those which can be complied
with by the judgment obligor because of his personal
qualifications or circumstances (e.g., a judgment
ordering a partner to render an accounting, a
judgment ordering a party to comply with his
recording contract otherwise, pay damages).
Note the difference with sections 9 and 10 (on
execution of money judgments and specific acts)
where contempt is not a remedy against
disobedience by a party.
f. Effect of levy on third persons
4. Properties exempt from execution
General rule: Except as otherwise expressly
provided by law, the following property, and no
other, shall be exempt from execution: (FOTNUP-
LBS-GMRE)
ƒ The judgment obligor's family home as provided
by law, or the homestead in which he resides,
and land necessarily used in connection
therewith;
ƒ Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
ƒ 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;
ƒ His necessary clothing and articles for ordinary
personal use, excluding jewelry;
ƒ 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;
ƒ Provisions for individual or family use sufficient
for four months;
ƒ The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
ƒ One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
ƒ 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;
ƒ Lettered gravestones;
ƒ Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any
life insurance;
REMEDIAL LAW REVIEWER
ƒ The right to receive legal support, or money or
property obtained as such support, or any
pension or gratuity from the Government;
ƒ Properties specially exempted by law. (e.g., 159
property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited
with the POSTAL SAVINGS BANK [Act 2489];
benefits from private retirement systems of
companies and establishments with limitations
[RA 4917]; laborer’s wages except for debts
incurred for food, shelter, clothing and medical
attendance [ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA 1161 AS
AMENDED])
Exception: However, no article or species of
property mentioned in this section shall be exempt
from:
ƒ execution issued upon a judgment recovered for
its price, or
ƒ upon a judgment of foreclosure of a mortgage
thereon.
[Herrera v. Mcmicking]: The exemptions MUST BE
CLAIMED, otherwise they are deemed waived. It is
not the duty of the sheriff to set off the exceptions
on his own initiative.
Return of writ of execution
The writ of execution shall be returnable to the
court issuing it immediately after the 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. [Section 12, Rule 39]
Notice requirement
Before the sale of property on execution, notice
thereof must be given as follows:
ƒ 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 (CPM) 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;
 REMEDIAL LAW REVIEWER
ƒ In case of other personal property, by posting a
similar notice in the three (3) public places
160 above-mentioned for not less than five (5) days;
ƒ 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;
ƒ In all cases, written notice of the 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 (9am-2pm).
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. [Section 15, Rule 39]
PENALTIES
(Selling without notice and defacing notice)
An officer selling A person willfully
without the notice removing or defacing the
prescribed by section 15 notice posted
of this Rule
pay punitive damages in if done before the sale,
the amount of P5,000 to or before the satisfaction
any person injured of the judgment if it be
thereby, in addition to satisfied before the sale,
his actual damages, both shall be liable to pay
to be recovered by P5,000 to any person
motion in the same injured by reason
action thereof, in addition to
his actual damages, to be
recovered by motion in
the same action
Preventing execution sale
At any time before the sale of property on
execution, the judgment obligor may prevent the
sale by paying the amount required by the execution
and the costs that have been incurred therein.
[Section 18, Rule 39]
ƒ This is akin to the equitable right of redemption
under Rule 68, which is available to the
judgment obligor in judicial foreclosure of
mortgage.
ƒ The difference lies in the fact that under Rule
68, a definite period is given.
Concluding the execution sale
When the purchaser is the judgment obligee, and no
third-party claim has been filed, he 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. [Section 21, Rule 39]
By written consent of the judgment obligor and
obligee, or their duly 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 [Section 22, Rule
39]. Written consent is essential, otherwise the
adjournment will be void [Abrozar v. IAC (1988)]
Upon a sale of real property , the officer must give
to the purchaser a certificate of sale containing:
ƒ A particular description of the real property
sold;
ƒ The price paid for each distinct lot or parcel;
ƒ The whole price paid by him;
ƒ 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. [Section 25, Rule 39]
How property sold on execution (See table on
Service of summons upon different entities)
5. Proceedings where property is
claimed by third persons
a. in relation to third party claim in
attachment and replevin
Remedies of a Third-Party Claimant
ƒ Summary hearing before the court which
authorized the execution
ƒ “Terceria” or third-party claim filed with the
sheriff
ƒ Action for damages on the bond posted by the
judgment creditor
ƒ Independent reivindicatory action
The aforementioned are cumulative remedies and
may be resorted to by a third-party claimant
independently of or separately from and without
need of availing of the others. [Sy vs. Discaya (1990)]
Rules regarding terceria (third-party claims)
(ASKED IN THE 2000 & 2005 BAR EXAMS)
The third person whose property was levied on must
make an affidavit of his title thereto or right to the
possession thereof stating the grounds of such right
or title. He must serve 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 as a general rule.
p or within 60 days from the last redemption by
Sheriff is bound to keep the property when the
judgment obligee, on demand of the officer, files a
bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of
the property levied on.
p
In case of disagreement as to such value of the
bond, 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
Apart from Rule 39, the only other provisions of the
Rules of Court dealing with terceria or third party
claims are Rule 57.14 on preliminary attachment and
Rule 60.7 on replevin.
Sierra v. Rodriguez and Northern Motors v.
Coquia: The third party claimant CANNOT APPEAL
NOR AVAIL OF CERTIORARI AS A REMEDY in the event
that his claim was denied since HE IS A NONPARTY to
the original action.
Intervention by a third-party claimant whose
property had been levied upon by the sheriff in the
action from which the writ pursuant to which the
levy was made was issued must be made before
rendition of judgment by the trial court. He can no
longer intervene once the trial court already issues a
writ of execution. [Bautista]
6. Rules on Redemption
ƒ There is no right of redemption where the
property sold at judicial sale is personal
property.
ƒ Real property sold or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:
- The judgment obligor; or his successor in
interest in the whole or any part of the
property;
- A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner. [Section 27, Rule 39]
ƒ Redemption can be made by either:
- JUDGMENT OBLIGOR, within one year from
the date of registration of the certificate of
sale
REMEDIAL LAW REVIEWER
- REDEMPTIONER, within one year from the
date of registration of the certificate of sale;
another redemptioner. 161
- BUT IN ALL CASES, the judgment obligor shall
have the entire period of 1 YEAR from the
date of registration of the sale to redeem the
property.
- IF THE JUDGMENT OBLIGOR REDEEMS, no
further redemption is allowed and he is
restored to his estate.
- THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED by an action to annul the
foreclosure sale.
ƒ If the certificate of sale is not registered, the
period for redemption does not run (Garcia vs.
Ocampo). But where parties agreed on the date
of redemption, the statutory period for legal
redemption was converted into one of
conventional redemption and the period binding
on them is that agreed upon. [Lazo v. Republic
Surety & Insurance Co., Inc (1970)]
ƒ The right of redemption is transferable and may
be voluntarily sold [Gomez v. La Germinal] but
said right cannot be levied upon by the
judgment creditor. The creditor may not
deprive the debtor of any further rights to the
property [Lichauco v. Olegario]
ƒ In effecting redemption, the mortgagor has the
duty of tendering payment (actual tender of
payment of the redemption price) before the
redemption period expires. [Banco Filipino
Savings and Mortgage Bank v. CA (2005)]
However, neither to make an offer to redeem
nor to make tender of payment of the
repurchase price is necessary when the right to
redeem is exercised through the filing of a
complaint to redeem. The filing of an action to
redeem within that period is equivalent to a
formal offer to redeem. [Vda. de Panaligan v.
CA (1996)]
ƒ Redemption price varies depending on who the
redemptioner is:
- If judgment obligor: Purchase price
o 1 % interest thereon up to the time of
redemption
o Any amount of assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate.
o If the purchaser be also a creditor having
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.
- If redemptioner: Amount paid on the last
redemption
o 2% interest thereon.
o Any amount of assessments or taxes which
the last redemptioner may have paid
thereon after redemption by him with
interest on such last named amount;
 REMEDIAL LAW REVIEWER
o Amount of any liens held by said last
redemptioner prior to his own with interest
162
Effects of redemption
[Section 29, Rule 39]
ƒ If the judgment obligor redeems he must make
the same payments as are required to effect a
redemption by a redemptioner, whereupon, no
further redemption shall be allowed and he is
restored to his estate.
ƒ The person to whom the redemption payment is
made must execute and deliver to him a
certificate of redemption acknowledged before
a notary public or other officer authorized to
take acknowledgments of conveyances of real
property.
ƒ Such certificate must be filed and recorded in
the registry of deeds of the place in which the
property is situated and the registrar of deeds
must note the record thereof on the margin of
the record of the certificate of sale.
ƒ 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.
[Section 30, Rule 39]
A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and serve
with his notice to the officer
ƒ a copy of the judgment or final order under
which he claims the right to redeem, certified
by the clerk of the court wherein the judgment
or final order is entered, OR,
ƒ if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by
the registrar of deeds, OR
ƒ an original or certified copy of any assignment
necessary to establish his claim; AND
ƒ an affidavit executed by him or his agent,
showing the amount then actually due on the
lien.
[Section 31, Rule 39]
ƒ Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or
without notice;
ƒ 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.
ƒ The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and
income of the property sold on execution, or the
value of the use and occupation thereof when
such property is in the possession of a tenant.
ƒ All rents, earnings and income derived from the
property pending redemption shall belong to the
judgment obligor until the expiration of his
period of redemption. In all, the judgment
debtor shall exercise the following rights:
- Remain in possession of the property
- He cannot be ejected;
- Use the property in the same manner it was
previously used;
- Make Necessary repairs to buildings thereon
while he occupies the property
- Use it in the ordinary course of husbandry
- Collect rents, earnings and income derived
from the property until the expiration of
period of redemption.
[Section 33, Rule 39]
ƒ If no redemption be made within one (1) year
from the date of the registration of the
certificate of sale, the purchaser is entitled to a
conveyance and possession of the property; or,
ƒ 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;
ƒ 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.
ƒ 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.
ƒ 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.
ƒ The possession of the property shall be given to
the purchaser or last redemptioner by the same
officer unless a third party IS ACTUALLY
HOLDING THE PROPERTY adversely to the
judgment obligor.
Recovery of purchase price and revival of judgment:
ƒ A judgment co-debtor may compel a
contribution from the others:
- When property liable to an execution against
several persons is sold thereon, 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,
ƒ A surety may compel repayment from the
principal:
- 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.
[Section 35, Rule 39].
-
7. Examination of Judgment Obligor
When Judgment is unsatisfied
 REMEDIAL LAW REVIEWER

8. Examination of Obligor of - UNLESS a revocation of his authority is filed,

or upon the endorsement of such admission by
Judgment Obligor the judgment obligee or his counsel, on the
face of the record of the judgment. [Sec. 44, 163
Does a Party Litigant Enjoy Any Discovery Rights Rule 39]
After the Promulgation of Final and Executory
Judgment? ƒ Whenever a judgment is satisfied in fact, or
Yes. See Secs. 36-38, Rule 39 [Bautista] otherwise than upon an execution on demand of
the judgment obligor,
Remedies of Judgment Creditor in Aid of - the judgment obligee or his counsel must
Execution [Sections 36-43] execute and acknowledge, or indorse an
(Asked in the 2008 Bar Exam particularly steps to be admission of the satisfaction as provided in
taken if writ of execution is unsatisfied) the last preceding section,
- and after notice and upon motion the court
ƒ If the execution is returned unsatisfied, he may may order either the judgment obligee or his
cause the examination of the judgment debtor counsel to do so, or may order the entry of
as to his property and income [Sec. 36] (asked in satisfaction to be made without such
the 2002 bar exam) admission. [Sec. 45, Rule 39]
ƒ He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his 9. Effect of Judgment or Final Orders
possession [Sec. 37].
ƒ If after examination, the court finds the RES JUDICATA IN JUDGMENTS IN REM
property of the judgment debtor either in his
own hands or that of any person, the court may Judgments or final Conclusive as to
order the property applied to the satisfaction of order
the judgment. Against a specific thing Title of the thing
ƒ A party or other person may be compelled by an Probate of a will or The will or
order or subpoena to attend before the court or administration of the administration. However,
commissioner to testify as provided in sect 36- estate of a deceased the probate of a will or
37. person granting of letters of
- if the court finds the earnings of the judgment administration shall only
debtor are more than sufficient for his be prima facie evidence
family’s needs, it may order payment in of the death of the
installments [Sec. 40] testator or intestate;
- the court may appoint a receiver for the IN RESPECT TO THE Condition, status or
property of the judgment debtor not exempt PERSONAL, political, or relationship of the
from execution or forbid a transfer or legal condition or status person,
disposition or interference with such property of a particular person or
[Sec. 41] his relationship to
- if the court finds the judgment debtor had an another
ascertainable interest in real property either
as mortgagor, mortgagee or otherwise, and RES JUDICATA IN JUDGMENTS IN PERSONAM
his interest can be ascertained without In other cases, the judgment or final order is, with
controversy, the court may order a sale of respect to the matter directly adjudged or as to any
such interest [Sec. 42]. other matter that could have been missed in relation
- if the person alleged to have the property of thereto, conclusive:
the judgment debtor or be indebted to him, ƒ between the parties and
claims an adverse interest in the property or ƒ their successors in interest, by title subsequent
denies the debt, the court may authorize the to the commencement of the action or special
judgment creditor to institute an action to proceeding, litigating for the same thing and
recover the property, forbid its transfer and under the same title and in the same capacity.
may punish disobedience for contempt [Sec.
43] CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF
ISSUES (AUTER ACTION PENDANT)
Entry of satisfaction In any other litigation between the same parties or
ƒ Satisfaction of a judgment shall be entered by their successors in interest, that only is deemed to
the clerk of court in the court docket, and in have been adjudged in a former judgment or final
the execution book, order which appears upon its face to have been so
- upon the return of a writ of execution adjudged, or which was actually and necessarily
showing the full satisfaction of the judgment, included therein or necessary thereto.
or
- upon the filing of an admission to the BAR BY FORMER CONCLUSIVENESS OF
satisfaction of the judgment executed and JUDGMENT (RES JUDGMENT
acknowledged in the same manner as a JUDICATA)
conveyance of real property by the judgment There is identity of Identity of parties and
obligee or by his counsel parties, subject matter subject matter.
 REMEDIAL LAW REVIEWER

and causes of action ƒ In either case, the judgment or final order may
The first judgment The first judgment is be repelled by evidence of a want of
164 constitutes an absolute conclusive only as to jurisdiction, want of notice to the party,
bar to all matters matters directly collusion, fraud, or clear mistake of law or fact
directly adjudged and adjudged and actually (Rule 39 Sec. 48).
those that might have litigated in the first ƒ Such limitation on the review of foreign
been adjudged. action. Second action judgment is adopted in all legal systems to avoid
can be prosecuted. repetitive litigation on claims and issues,
prevent harassment of the parties and avoid
REQUISITES OF RES JUDICATA undue imposition on the courts.
ƒ finality of the former judgment; ƒ This policy of preclusion rests on principles of
ƒ the court which rendered it had jurisdiction comity, utility and convenience of nations.
over the subject matter and the parties ƒ As a generally accepted principle of
ƒ it must be a judgment on the merits international law, it is part of the law of the
ƒ there must be, between the first and second Philippines by virtue of the Incorporation Clause
actions, identity of parties, subject matter and (Section 2, Article II) of the 1987 Constitution
causes of action [Perez v. CA (2005)] [Regalado].

XVIII. PROVISIONAL REMEDIES

RES JUDICATA VS. “LAW OF THE CASE” VS. STARE
1. Nature of provisional remedies
DECISIS [Ayala Corporation v. Rosa-Diana Realty,
(2000)]
2. Jurisdiction over provisional remedies
3. Preliminary Attachment
Res Judicata “Law of the Stare Decisis 4. Preliminary Injunction
Case” 5. Receivership
The ruling in Operates only 6. Replevin
one case is in the
carried over to particular and 1. Nature of provisional remedies
another case single case
between the where the Definition
same parties ruling arises Writs and processes available during the pendency of
and is not the action which may be resorted to by a litigant for
carried into the preservation or protection of their rights and
other cases as a interests therein pending rendition, and for purposes
precedent of the ultimate effects, of a final judgment in the
The ruling Once a point of case; also known as ancillary or auxiliary remedies.
adhered to in law has been
the particular established by They are applied to a pending litigation, for the
case need not the court, that purpose of securing the judgment or preserving the
be followed as point of law status quo, and in some cases after judgment, for
a precedent in will, generally, the purpose of preserving or disposing of the subject
subsequent be followed by matter. [Calo vs. Roldan, 1946]
litigation the same court
between other and by all Orders granting or denying provisional remedies are
parties courts of lower merely interlocutory and cannot be the subject of an
rank in appeal. They may however be challenged before a
subsequent superior court through a petition for certiorari under
cases where Rule 65.
the same legal
issue is raised
2. Jurisdiction over provisional
10. Enforcement and Effect of remedies
Foreign Judgments or Final Orders All inferior courts can grant appropriate provisional
remedies provided that the main action is within
EFFECT OF FOREIGN JUDGMENTS (Asked in the their jurisdiction. [B.P. 129]
2005 Bar Exam)
ƒ 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 (Rule 39,
Sec. 48).
3. Preliminary Attachment (Asked in
ƒ In case of a judgment or final order against a the 2002 Bar Exam)
person, the judgment or final order is
presumptive evidence of a right as between the Definition: A provisional remedy issued upon order
parties and their successors in interest by a of the court where an action is pending to be levied
subsequent title (Rule 39 Sec. 48). upon the property of the defendant so the property
may be held by the sheriff as security for the

satisfaction of whatever judgment may be rendered
in the case [Davao Light v CA 204 SCRA 343]
Purposes
ƒ To seize the property of the debtor in advance
of final judgment and to hold it for purposes of
satisfying the said judgment.
ƒ To enable the court to acquire jurisdiction over
the action by the actual or constructive seizure
of the property in those instances where
personal service of summons on the creditor
cannot be effected. [Quasha vs. Juan (1982)]
a. Grounds for issuance of writ of attachment
[Rule 57.1] (Asked in 2001 and 2005)
A preliminary attachment may be applied for
ƒ at the commencement of the action or
ƒ at any time before the entry of judgment.
It may be applied for by the plaintiff OR any proper
party (including a defendant who filed a
counterclaim, cross-claim, or a third party
complaint)
There are only specific situations where preliminary
attachment may issue:
ƒ Action for recovery of a specified amount of
money or damages, EXCEPT moral and
exemplary,
- on a cause of action arising from law,
contract, quasi-contract, delict, or quasi-
delict
- against a party who is about to depart from
the Philippines with intent to defraud his
creditors;
ƒ Action for money or property, embezzled or
fraudulently misapplied or converted to his own
use by either:
- a public officer, an officer of a corporation,
an attorney, factor, broker, agent, or clerk, in
the course of his employment as such,
- OR by any other person in a fiduciary
capacity, or for a willful violation of duty;
ƒ Action to recover the possession of property
unjustly or fraudulently taken, detained or
converted,
- when the property, or any part thereof, has
been concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
NOTE: rule makes no distinction between real
and personal property [Riano]
ƒ Action against a party who has been guilty of a
fraud in contracting the debt or incurring the
obligation upon which the action is brought, OR
in the performance thereof;
NOTE: the delivery of counterfeit money or
knowingly issuing a bounced check are
considered as grounds under this rule [Riano]
REMEDIAL LAW REVIEWER
ƒ Action against a party who has removed or
disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or
165
ƒ Action against a party who does not reside and
is not found in the Philippines, OR on whom
summons may be served by publication.
NOTE: the rule also refers to persons on whom
summons may be served by publication and
against whose property, preliminary attachment
may be availed of such as:
- Residents defendants whose identity or whose
whereabouts are unknown (Rule 14.14)
- Resident defendants who are temporarily out
of the country (14.16)
Stages in the grant of preliminary attachment
ƒ The court issues the order granting the
application
ƒ The writ of attachment issues pursuant to the
order granting the writ
ƒ The writ is implemented
For the first two stages, jurisdiction over the person
of the defendant is NOT necessary. However, once
the implementation of the writ commences, the
court must have acquired jurisdiction over the
defendant. [Cuartero, supra]
b. Requisites
ƒ Case must be any of those where preliminary
attachment is proper
ƒ Applicant must file a motion (ex parte or with
notice and hearing)
ƒ Applicant must show by affidavit (under oath)
that there is no sufficient security for the claim
sought to be enforced;
ƒ Applicant must post an attachment bond
executed to the adverse party (Rule 57.3)
c. Issuance and contents of order of
attachment; affidavit and bond
Issuance and contents of order of attachment
[Rule 57.2]
ƒ An order of attachment may be issued EITHER
- ex parte or
- upon motion with notice and hearing
by the court in which the action is pending,
ƒ It must require the sheriff of the court to attach
so much of the property in the Philippines of the
party against whom it is issued, not exempt
from execution, as may be sufficient to satisfy
the applicant's demand, EXCEPT if such party
makes deposit or gives bond in an amount equal
to that fixed in the order. The amount may be
- sufficient to satisfy applicant’s demand, or
- the value of the property to be attached,
exclusive of costs.
 REMEDIAL LAW REVIEWER
ƒ Several writs may be issued at the same time to
the sheriffs of the courts of different judicial
166 regions.
Contents of affidavit of applicant [Rule 57.3]
An order of attachment shall be granted only when it
appears in the affidavit that:
ƒ a sufficient cause of action exists
ƒ the case is one of those mentioned in 57.1
ƒ there is no other sufficient security for the
claim sought to be enforced by the action
ƒ the amount due to the applicant or the value of
the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims.
The affidavit and the bond must be filed with the
court before the order issues.
Condition of applicant’s bond [Rule 57.4]
Applicant must give a bond executed to the adverse
party in the amount fixed by the court in its order
granting the issuance of the writ conditioned that
the applicant will pay:
ƒ all the costs which may be adjudged to the
adverse party and
ƒ all damages which the adverse party may sustain
by reason of the attachment if the court shall
finally adjudge that the applicant was not
entitled thereto.
NOTE: the bond shall only be applied to all damages
sustained due to the attachment. It cannot answer
for those that do not arise by reason of the
attachment (Riano).
d. Manner of attaching real and personal
property; when property attached is claimed
by third person
Manner of attaching property [Rule 57.5]
The sheriff enforcing the writ shall attach only so
much of the property in the Philippines of the
adverse party not exempt from execution as may be
sufficient to satisfy the applicant’s demand, UNLESS
ƒ Party against whom writ is issued makes a
deposit with the court from which the writ is
issued, or
ƒ He gives a counter-bond executed to the
applicant
The levy on attachment shall be preceded or
contemporaneously accompanied by service on the
defendant within the Philippines of:
ƒ summons
ƒ copy of complaint
ƒ application for attachment
ƒ affidavit and bond of applicant
ƒ order and writ of attachment.
e. Rule on prior or contemporaneous service
of summons
General Rule: A writ of attachment may be issued
ex parte even before the summons is served upon
the defendant. BUT a writ may not be implemented
until jurisdiction over the person is acquired by
service of summons. Otherwise, the implementation
is null and void. [Riano]
EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF
SUMMONS: [Rule 57.5]
ƒ Summons could not be served personally or by
substituted service despite diligent efforts, or
ƒ Defendant is a resident of the Philippines
temporarily absent therefrom, or
ƒ Defendant is a non-resident, or
ƒ The action is in rem or quasi in rem.
Sheriff’s Return [57.6]
The sheriff, after enforcing the writ, shall make a
return to the court which issued the writ stating the
ff:
ƒ a full statement of his proceedings under the
writ
ƒ a complete inventory of the property attached,
together with any counter-bond given by the
party against whom attachment is issued
The sheriff shall serve copies of the return to the
applicant.
Manner of attachment of real and personal
property [Rule 57.7]:
ƒ Real property, or growing crops thereon, or
any interest therein
- filing with the registry of deeds:
o a copy of the order, together with a
description of the property attached,
o notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached,
- leaving a copy of such order, description, and
notice with the occupant of the property, if
any, or with such other person or his agent if
found within the province.
Where the property has been brought under the
operation of either the Land Registration Act or
the Property Registration Decree, the notice
shall contain a reference to the number of the
certificate of title, the volume and page in the
registration book where the certificate is
registered, and the registered owner or owners
thereof.
ƒ Personal property capable of manual delivery
- by taking and safely keeping it in the sheriff’s
custody, after issuing the corresponding
receipt therefor;
ƒ Stocks or shares, or an interest in stocks or
shares, of any corporation or company
- by leaving with the president or managing
agent thereof,
o a copy of the writ, and
o a notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such writ;
ƒ Debts and credits, including bank deposits,
financial interest, royalties, commissions, and
other personal property not capable of manual

delivery
- by leaving with the person owing such debts,
or having in his possession or under his
control, such credits or other personal
property, or with his agent,
o a copy of the writ, and
o A notice that the debts owing by him to the
party against whom attachment is issued,
and the credits and other personal property
in his possession, or under his control,
belonging to said party, are attached in
pursuance of such writ;
ƒ Interest of the party whom attachment is
issued in property belonging to the estate of
the decedent
- by serving the executor or administrator or
other personal representative of the decedent
with a copy of the writ and notice that said
interest is attached and
- By filing a copy of the writ and notice in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.
Note:
Property in custodia legis may be attached by:
ƒ filing a copy of the writ of attachment with the
proper court or quasi-judicial agency
ƒ Serving a notice of attachment upon the
custodian of the property [Rule 57.7]
A previously attached property may also be
subsequently attached. But the first attachment
shall have priority over subsequent attachments.
[Riano]
Proceedings Where Attached Property Claimed By
Third Person
A third person who has a claim to the property
attached may avail of the following remedies:
ƒ By terceria – making an affidavit of his title or
right to possession, stating the grounds of such
right or title. The affidavit must be served upon
the sheriff and the attaching procedure [57.14]
NOTE: the same procedure under Rule 39.16 is
Followed
ƒ Motion for summary hearing on his claim
ƒ File a separate action to nullify the levy with
damages due to the unlawful levy and seizure.
The remedies stated are CUMULATIVE and any one of
them may be resorted to without availing of the
other remedies (Ching v CA 423 SCRA 356)
f. Discharge of attachment and the counter-
bond
Effects of attachment
i. Attachment of debts, credits and all other similar
personal property [RULE 57.8] –
ƒ All persons
REMEDIAL LAW REVIEWER
- having in their possession or under their
control any credits or other similar personal
property belonging to the adverse party, or
- owing any debts to him, at the time of service 167
upon them of the copy of the writ of
attachment and notice
shall be liable to the applicant for the amount of
such credits, debts or other similar personal
property, until the attachment is discharged, or
any judgment recovered by him is satisfied, unless
such property is delivered or transferred, or such
debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the attachment.
Garnishment - a species of attachment for reaching
the property or credits pertaining or payable to a
judgment debtor (asked in the 1999 Bar Exams in
comparison with Attachment). It is a warning to a
person who has in possession property or credits of
the judgment debtor not to pay the money nor
deliver the property to latter but to appear and
answer the plaintiff’s suit.
Perla Compania v. Ramolete, 1991: Service of
summons upon the garnishee is not necessary. All
that is necessary is the service upon him of the writ
of garnishment, as a consequence of which he
becomes a virtual party or a forced intervenor in the
case.
ii. Attachment of interest in property belonging to
the estate of a decedent [RULE 57.9] –
ƒ The attachment of the interest of an heir,
legatee, or devisee in the property belonging to
the estate of a decedent shall not impair the
power of the executor, administrator, or other
personal representative of the decedent over
such property for the purpose of administration.
ƒ When any petition for distribution is filed, such
personal representative shall report the
attachment to the court, and in the order made
upon such petition, distribution may be awarded
to such heir, legatee, or devisee, but the
property attached shall be ordered delivered to
the sheriff making the levy, subject to the claim
of such heir, legatee, or devisee, or any person
claiming under him.
Sale of attached property
Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with
notice to both parties, that
ƒ the party attached is perishable, or that
ƒ the interests of all the parties to the action will
be will be subserved by the sale thereof,
the court may order such property to be sold at
public auction in such manner as it may direct, and
the proceeds of such sale to be deposited in court to
abide the judgment in the action. [Rule 57.11]
NOTE: This is an exception to the general rule that
the issuance of a writ of attachment is only a
provisional remedy, thus no sale of the property
should be made during the pendency of the action.
[Riano]
 REMEDIAL LAW REVIEWER

Recovery Upon the Counter-Bond; Disposition of

Deposit/ Attached Property After Judgment
168 ƒ When the judgment has become executory, the
surety or sureties on any counter-bond given to
secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee 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. [Rule 57.17]
ƒ Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under
the direction of the court to the satisfaction of
any judgment rendered in favor of the attaching
party, and after satisfying the judgment the
balance shall be refunded to the depositor or his
assignee.
ƒ If the judgment is in favor of the party against
whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. [Rule 57.18]
ƒ If judgment be rendered against the attaching
party, all the proceeds of sales and money
collected or received by the sheriff, under the
order of attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged. [Rule 57.19]
Discharge of attachment
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the
security given.
Grounds for discharge:
ƒ Debtor has posted a counter-bond or has made
the requisite cash deposit [Rule 57.12];
ƒ Attachment was improperly or irregularly issued
[Rule 57.13] as where there is no ground for
attachment, or affidavit and/or bond filed
therefore are defective or insufficient;
ƒ Attachment is excessive but the discharge shall
be limited to the excess [Rule 57.13];
ƒ Property attached is exempt from execution
[Rules 57.2 and 57.5];
ƒ Judgment is rendered against the attaching
creditor [Rule 57.19].
Such damages may be awarded only after hearing
and shall be included in the judgment on the main
case. [Rule 57.20]
Procedure for claiming damages is EXCLUSIVE. Such
claims for damages cannot be the subject of an
independent action.
EXCEPTIONS:
ƒ Where the principal case was dismissed for lack
of jurisdiction by the trial court without giving
opportunity to the party whose property was
attached to apply for and prove his claim; and
ƒ Where the damages by reason of the attachment
was sustained by a third person who was not a
party to the action wherein such writ was
issued. [Santos v. CA, 95 Phil 360]
4. Preliminary Injunction
a. Definitions and Differences: Preliminary
Injunction and Temporary Restraining Order
A preliminary injunction is an order granted at any
stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court,
agency or a person to either
ƒ refrain from a particular act or acts or
ƒ require the performance of a particular act or
acts, in which case it shall be known as a
preliminary mandatory injunction
A suit for injunction is an action in personam. It is an
ancillary or preventive remedy that is meant to be
temporary and subject to the final disposition of the
principal action [Riano]
Purpose: To prevent future injury and maintain the
status quo (i.e. the last actual, peaceable,
uncontested status which preceded the pending
controversy) for [Kencht vs CA, 1993]
NOTE: the injunction should not establish new
relations between the parties but merely re-
establish the pre-existing relationship between
them.
TRO vs. Injunction
TRO INJUNCTION
May be granted ex Cannot be granted
parte if great and without notice and
irreparable injury hearing
would result otherwise

ƒ A TRO is issued in order to preserve the status

quo until the hearing of the application for
g. Satisfaction of judgment out of property preliminary injunction. (Bacolod City Water v.
Labayen 446 SCRA 110)
attached
ƒ Same requirements for application as
Improper, Irregular or Excessive Attachment
preliminary injunction.
(Asked in the 2008 bar exam)
An application for damages must be filed before the
ƒ An application for a TRO shall be acted upon
trial, or before appeal is perfected, or before the
only after all parties are heard in a summary
judgment becomes executory.
hearing, which shall be conducted within 24

hours after the sheriff's return of service and/or
the records are received by the branch selected
by raffle. [Rule 58.4]
Status Quo Order vs. Injunction (Asked in the 2006
bar exams)
A status quo order is in the nature of a cease and
desist order. It is resorted to when the projected
proceedings in the case made the conservation of
the status quo desirable or essential, but the
affected party neither sought such relief nor did the
allegations in his pleading sufficiently make out a
case for a temporary restraining order.
It does NOT direct the doing or undoing of acts but is
an order to maintain the last, actual, peaceable and
uncontested state of things which preceded the
controversy.
b. Requisites
Requirements for preliminary injunction [Rule
58.4]
ƒ There must be a verified application
ƒ The application must show facts entitling the
applicant to the relief demanded.
- It must establish he has a right and the act
against which the injunction is directed is
violative of such right (PNB v Timbol 451 SCRA
163)
ƒ A bond must be filed, unless exempted, in the
court where the action/proceeding is pending,
in an amount to be fixed by the court (asked in
the 2006 Bar exam)
ƒ Prior notice and hearing for the party/person
sought to be enjoined.
EXCEPTIONS:
- Great or irreparable injury would result to the
applicant before the matter can be heard on
notice.
o The court may issue a TRO effective for 20
days from service on the party sought to be
enjoined.
o Injury is “irreparable” if it is of such
constant and frequent recurrence that no
fair or reasonable redress can be had
therefore in court of law or where there is
no standard by which their amount can be
measured with reasonable accuracy.
- Matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury
o Judge may issue ex parte a TRO effective
for 72 hours from issuance.
o Within 72 hours, judge shall conduct a
summary hearing to determine whether the
TRO shall be extended until the application
for preliminary injunction can be heard.
o Maximum period of effectivity of TRO=20
days (including 72 hrs)
If the application for preliminary injunction is denied
or not resolved within said period, the TRO is
deemed automatically vacated.
EFFECTIVITY OF TRO [58.5]
REMEDIAL LAW REVIEWER
General rule: TRO is effective only for a period of
20 days from service on the party or person sought
to be enjoined
169
Exceptions: If the matter is of extreme urgency and
the applicant will suffer grave injustice and
irreparable injury: effective for only 72 hours from
issuance
Issued Effectivity:
by:
RTC 20 days, non-extendible (including the
original 72 hours)
CA May be effective for 60 days from service
on the party or person sought to be
enjoined.
SC May be effective until further orders
c. Kinds of Injunction
i. Preliminary preventive injunction – prohibits the
performance of a particular act or acts
When preventive injunction does not lie:
ƒ To restrain collection of taxes (Valley Trading vs
CA), EXCEPT where there are special
circumstances that bear the existence of
irreparable injury. [Churchill & Tait vs Rafferty
(1915)]
ƒ To restrain the sale of conjugal properties
where the claim can be annotated on the title
as a lien, such as the husband’s obligation to
give support. [Saavedra vs Estrada (1931)]
ƒ To restrain a mayor proclaimed as duly elected
from assuming his office. [Cereno vs Dictado
(1988)]
ƒ To restrain registered owners of the property
from selling, disposing and encumbering their
property just because the respondents had
executed Deeds of Assignment in favor of
petitioner. [Tayag vs. Lacson (2004)]
ƒ Against consummated acts. [PNB vs Adi; Rivera
v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal
vs CA]
EXCEPTION: If the act is of continuing nature
and in derogation of plaintiff’s right at the
outset.
ƒ Against disposing of the case on the merits
[Ortigas and Company Limited Partnership vs CA
(1988)]
ƒ To stop the execution of judgment where the
judgment was already executed. (Meneses vs
Dinglasan)
EXCEPTION: But where the lower court enforced
its judgment before a party against whom the
execution was enforced could elevate her
appeal in an injunction suit, which was
instituted to prevent said execution, an
independent petition for injunction in the Court
of Appeals is justified. [Manila Surety and
Fidelity vs Teodoro (1967)]
ƒ The CFI has no power to issue a writ of
injunction against the Register of Deeds if its
effect is to render nugatory a writ of execution
issued by the National Labor Relations
Commission. [Ambrosio vs Salvador (1978)]
 REMEDIAL LAW REVIEWER

ƒ Transfer of possession of property to party with utilization, exploration, and/or development of

disputed legal title via preliminary injunction the natural resources of the Philippines.
170
EXCEPTIONS: ƒ Sec. 2, PD 385: no restraining order, temporary
ƒ Forcible entry and unlawful detainer cases in or permanent injunction shall be issued by the
which the court may issue preliminary court against any government financial
mandatory injunction [Rule 70.15] institution in any action taken by such
ƒ Property covered by Torrens Title when there is institution in compliance with the mandatory
a clear finding of ownership and possession of foreclosure whether such restraining order,
the land. (GSIS vs Florendo) temporary or permanent injunction is sought by
the borrower(s) or any third party or parties,
Other instances where writ is not available: except after due hearing in which it is
ƒ Sec. 3, RA 8975: No court, except the Supreme established by the borrower and admitted by
Court, shall issue any TRO, preliminary the government financial institution concerned
injunction or preliminary mandatory injunction that twenty percent (20%) of the outstanding
against the government, or any of its arrearages has been paid after the filing of
subdivisions, officials or any person or entity, foreclosure proceedings.
whether public or private acting under the
government direction, to restrain, prohibit or ii. Preliminary mandatory injunction – requires the
compel the following acts: performance of a particular act or acts
- Acquisition, clearance and development of
the right-of-way and/or site or location of any Requisites of mandatory injunction:
national government project; ƒ Invasion of the right is material and substantial
- Bidding or awarding of contract/ project of ƒ Right of the complainant is clear and
the national government as defined under unmistakable
Section 2 ƒ Urgent and paramount necessity for the writ to
- Commencement prosecution, execution, prevent serious damages [Bautista v. Barcelona,
implementation, operation of any such 100 Phil 1078]
contract or project; ƒ The effect would not be to create a new
- Termination or rescission of any such relation between the parties [Alvaro v. Zapata,
contract/project; and (1982)]
- The undertaking or authorization of any other
lawful activity necessary for such Mandatory injunction does not lie in the following
contract/project. instances:
ƒ to compel cohabitation [Arroyo v. Vasquez
This prohibition shall apply in all cases, disputes (1921)]
or controversies instituted by a private party, ƒ cancellation of attachment [Levy Hermanos v.
including but not limited to cases filed by Lacson (1940)]
bidders or those claiming to have rights through ƒ release imported goods pending hearing before
such bidders involving such contract/project. the Commissioner of Customs. [Commissioner of
Customs v. Cloribel (1967)]
This prohibition shall NOT APPLY when the ƒ to take property out of the possession or control
matter is of extreme urgency involving a of one party and place it into that of another
constitutional issue, such that unless a whose title has not clearly been established [Pio
temporary restraining order is issued, grave v. Marcos (1974)]
injustice and irreparable injury will arise.
INJUNCTION PROHIBITION
The applicant shall file a bond, in an amount to Generally directed Directed against a
be fixed by the court, which bond shall accrue against a party in the court/tribunal/person
in favor of the government if the court should action exercising judicial
finally decide that the applicant was not powers
entitled to the relief sought. Does not involve the may be on the ground
court’s jurisdiction that the court against
ƒ Sec. 78, RA 9136: the implementation of the whom the writ is sought
provisions of the Electric Power Industry Reform acted without/in excess
Act of 2001 shall not be restrained or enjoined of jurisdiction
except by an order issued by the Supreme Court. May be the main action Always a main action
itself, or just a
ƒ Sec. 1, PD 605: no court of the Philippines shall provisional remedy in
have jurisdiction to issue any restraining order, the main action
preliminary injunction or preliminary mandatory
injunction in any case involving or growing out d. When writ may be issued
of the issuance, approval or disapproval,
revocation or suspension of, or any action
e. Grounds for issuance of preliminary
whatsoever by the proper administrative official
or body on concessions, licenses, permits,
injunction [Rule 58.3]
patents, or public grants of any kind in (ASKED IN THE 2006 BAR EXAM)
connection with the disposition, exploitation,

ƒ Applicant is entitled to the relief demanded,
and the relief consists in
- restraining the commission or continuance of
the acts or acts complained of, or
- in requiring performance of an act or acts;
ƒ Commission, continuance or non-performance of
the acts complained of during the litigation
would probably work injustice to the applicant;
or
ƒ A party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual.
Rule 58 Provides for both a Main Action for
Injunction and an Ancillary Writ of Preliminary
Injunction (Asked in the 2006 Bar Exam)
INJUNCTION PRELIMINARY
INJUNCTION
Main action Ancillary; exists only as
part or incident of an
independent action or
proceeding
seeks a judgment sole object of which is to
embodying a final preserve the status quo
injunction until the merits can be
heard
Based on all evidence based solely on initial
gathered by court to and incomplete evidence
determine main action
As a matter of course, in an action for injunction,
the auxiliary remedy of preliminary injunction,
whether prohibitory or mandatory, may issue.
The evidence needed to establish the requisites for a
preliminary injunction need not be conclusive or
complete. It is generally based on initial,
incomplete evidence that gives the court an idea of
the justification for the preliminary injunction
pending the decision of the case on the merits. .
NOTE: It does not necessarily proceed that when a
writ of preliminary injunction is issued, a final
injunction will follow [Urbanes vs. CA (2001)]
f. Grounds for objection to, or for the
dissolution of injunction or restraining order
Grounds for Objection to/Motion for Dissolution of
Injunction/Restraining Order [Rule 58.6]
ƒ Insufficiency of application
ƒ other grounds (e.g. applicant’s bond is
insufficient/defective), upon affidavits of the
party or person enjoined
ƒ if it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof would cause irreparable damage to the
party/person enjoined, while the applicant can
be fully compensated for such damages as he
may suffer, provided the former files a bond
REMEDIAL LAW REVIEWER
If it appears that the extent of the preliminary
injunction or restraining order granted is too great,
it may be modified. 171
Global Injunction of a Foreign Court (Asked in the
2007 Bar Exam)
A global injunction issued by a foreign court to
prevent dissipation of funds against the defendant
who has assets in the Philippines may be enforced in
our jurisdiction, subject to our procedural laws
(Suggested Answers to the 2007 Bar Exam, UP Law
Center)
As a general rule, no sovereign is bound to give
effect within its dominion to a judgment or order of
a tribunal of another country.
However, under the rules of comity, utility and
convenience, nations have established a usage
among civilized states by which final judgments of
foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious
under certain conditions that may vary in different
countries. [St. Aviation Services vs. Grand
International Airways (2006)]
Note: In Pangalangan and Coquia’s book on Conflict
of Laws (2000), citing Cheshire, it was stated that an
interlocutory or provisional judgment of a foreign
court, creates no obligation on the forum court to
enforce it.
h. In relation to RA 8975, Ban on issuance of
TRO or Writ of Injunction in cases involving
government infrastructure projects
Sec. 3, RA 8975: No court, except the Supreme
Court, shall issue any TRO, preliminary injunction or
preliminary mandatory injunction against the
government, or any of its subdivisions, officials or
any person or entity, whether public or private
acting under the government direction, to restrain,
prohibit or compel the following acts:
ƒ Acquisition, clearance and development of the
right-of-way and/or site or location of any
national government project;
ƒ Bidding or awarding of contract/ project of the
national government as defined under Section 2
hereof;
ƒ Commencement prosecution, execution,
implementation, operation of any such contract
or project;
ƒ Termination or rescission of any such
contract/project; and
ƒ The undertaking or authorization of any other
lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases, disputes
or controversies instituted by a private party,
including but not limited to cases filed by
bidders or those claiming to have rights through
such bidders involving such contract/project.
This prohibition shall NOT APPLY when the
matter is of extreme urgency involving a
 REMEDIAL LAW REVIEWER
constitutional issue, such that unless a
temporary restraining order is issued, grave
172 injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be
fixed by the court, which bond shall accrue in
favor of the government if the court should
finally decide that the applicant was not
entitled to the relief sought.
5. Receivership (Asked in the 2001
Bar Exam)
Nature
Receiver: person appointed by the court in behalf of
all the parties to the action for the purpose of
preserving and conserving the property in litigation
and prevent its possible destruction or dissipation, if
it were left in the possession of any of the parties.
Purpose: The purpose of a receivership as a
provisional remedy is to protect and preserve the
rights of the parties during the pendency of the main
action, during the pendency of an appeal or as an
aid in the execution of a judgment when the writ of
execution has been returned unsatisfied. The
receivership under Rule 59 is directed to the
property which is the subject of the action and does
not refer to the receivership authorized under
banking laws and other rules or laws. Rule 59
presupposes that there is an action and that the
property subject of the action requires its
preservation. Receivership under Rule 59 is ancillary
to the main action. (Riano).
Commodities Storage v. CA (1997): The guiding
principle is the prevention of imminent danger to
the property. If an action by its nature, does not
require such protection or preservation, said remedy
cannot be applied for and granted.
Arranza v. B.F. Homes (2000): Receivership is
aimed at the preservation of, and at making more
secure, existing rights; it cannot be used as an
instrument for the destruction of those rights.
a. Cases when receiver may be appointed
ƒ When it appears from the verified application
and other proof that the applicant has an
interest in the property or fund which is the
subject of the action or proceeding, and that
such property or fund is in danger of being lost,
removed, or materially injured unless a receiver
be appointed to administer and preserve it;
ƒ When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially injured, and that its
value is probably insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
ƒ After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned
unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the
judgment, or otherwise to carry the judgment
into effect;
ƒ Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of preserving,
administering, or disposing of the property in
litigation. [Rule 59.1]
Specific situations when a receiver may be
appointed
ƒ If a spouse without just cause abandons the
other or fails to comply with his/her obligations
to the family, the aggrieved spouse may petition
the court for receivership. [Family Code, Article
101]
ƒ The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid a transfer or other disposition of, or
any interference with, the property of the
judgment obligor not exempt from execution.
[Rule 39.41]
ƒ After the perfection of an appeal, the trial court
retains jurisdiction to appoint a receiver of the
property under litigation since this matter does
not touch upon the subject of the appeal. [Rule
41.9; Acuña v. Caluag (1957)]
ƒ After final judgment, a receiver may be
appointed as an aid to the execution of
judgment. [Philippine Trust Company v.
Santamaria (1929)]
ƒ Appointment of a receiver over the property in
custodia legis may be allowed when it is
justified by special circumstances, as when it is
reasonably necessary to secure and protect the
rights of the real owner. [Dolar v. Sundiam
(1971)]
Alcantara v. Abbas (1963): The general rule is that
neither party to the litigation should be appointed as
a receiver without the consent of the other because
a receiver is supposed to be an impartial and
disinterested person.
Abrigo v. Kayanan (1983): A clerk of court should
not be appointed as a receiver as he is already
burdened with his official duties.
b. Requisites
c. Requirements before issuance of an Order
Requisites and Procedure
ƒ Verified application filed by the party
requesting for the appointment of the receiver;
ƒ Applicant must have an interest in the property
or funds subject of the action;
ƒ Applicant must show that the property or funds
is in danger of being lost, wasted, or dissipated;
ƒ Application must be with notice and must be set
for hearing;
ƒ Before appointing a receiver, the court shall
require applicant to post a bond in favor of the
adverse party. When the receiver is appointed,
the receiver shall file a bond then take his oath.
ƒ Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully.
 REMEDIAL LAW REVIEWER

Who appoints receiver ƒ notice to all interested parties and hearing

ƒ court where the action is pending [Rule 59.8]
ƒ CA
ƒ SC Effect: 173
ƒ During the pendency of an appeal, the appellate ƒ Settle accounts of receiver
court may allow an application for the ƒ Delivery of funds to person entitled
appointment of a receiver to be filed in and ƒ Discharge of receiver
decided by the court of origin. [Rule 59.1] ƒ Receiver entitled to reasonable compensation to
be taxed as costs against defeated party.
Denial of application or discharge of receiver
ƒ If the appointment sought or granted is without 6. Replevin (Asked in the 1999 Bar
sufficient cause
ƒ Adverse party files a sufficient bond to answer Exam)
for damages [Rule 59.3]
ƒ Bond posted by the applicant for grant of a. When may writ be issued
receivership is insufficient
ƒ Bond of receiver is insufficient Nature
Replevin may be a main action or provisional
d. Powers of a receiver remedy. As a principal action its ultimate goal is to
recover personal property capable of manual
delivery wrongfully detained by a person. Used in
ƒ Bring and defend in such capacity actions in his
this sense, it is considered as a suit in itself.
own name with leave of court
Replevin under Rule 60 is the provisional remedy.
ƒ Take and keep possession of the property in
[Riano]
controversy
ƒ Receive rents
ƒ Collect debts due to himself as receiver or to REPLEVIN PRELIMINARY
the fund, property, estate, person, or ATTACHMENT
corporation of which he is the receiver Available only where the Available even if the
ƒ Compound for and compromise the same principal relief sought in recovery of personal
ƒ Make transfers the action is recovery of property is only an
ƒ Pay outstanding debts personal property, the incidental relief sought
ƒ Divide the money and other property that shall other reliefs (e.g. in the action.
remain among the persons legally entitled to damages) being merely
receive the same’ incidental thereto.
ƒ Generally, to do such acts respecting the Can be sought only May be resorted to even
property as the court may authorize where the defendant is if the personalty is in the
ƒ Invest funds in his hands, ONLY by order of the in actual or constructive custody of a third
court upon the written consent of all the possession of the person.
parties. [Rule 59.6] personalty involved.
Extends only to personal Extends to all kinds of
No action may be filed against a receiver without property capable of property, whether real,
leave of the court which appointed him. manual delivery. personal or incorporeal.
Available to recover To recover the
Liability for refusal or neglect to deliver property personal property even if possession of personal
to receiver the same is not property unjustly
ƒ Contempt; and concealed, removed or detained (presupposed
ƒ Be liable to the receiver for the money or the disposed of. that the same is being
value of the property and other things so concealed, removed or
refused or neglected to be surrendered together disposed of to prevent
with all damages that may have been sustained its being found or taken
by the party or parties entitled thereto as a by the applicant.
consequence of such refusal or neglect. [Rule Cannot be availed of if Can still be resorted to
59.7] the property is in even if the property is in
custodia legis (e.g. custodia legis.
e. Two (2) kinds of bond under attachment,
seized under a search
ƒ Applicant’s bond warrant).
ƒ Receiver’s bond
EXCEPT:
ƒ when the seizure is
f. Termination of receivership
illegal; [Bagalihog v.
Fernandez (1991)]
Ground: the necessity for a receiver no longer exists
and
ƒ where there is
Procedure:
reason to believe
ƒ motu proprio or on motion of either party
that the seizure will
not anymore be
 REMEDIAL LAW REVIEWER
followed by the
filing of the criminal
174 action in court or
there are conflicting
claims. [Chua v. CA
(1993)]
b. Requisites
Application
Who may apply: party praying for the recovery of
possession of personal property. Applicant need not
be the owner. It is enough that he has right to its
possession. (Yang vs Valdez, 177 SCRA 141)
When:
ƒ at the commencement of the action or
ƒ before the answer [unlike attachment,
injunction and support pendente lite (anytime
before final judgment) and receivership
(anytime even after final judgment)].
The applicant must show by his own affidavit or that
of some other person who personally knows the
facts:
ƒ That the applicant is the owner of the property
claimed, particularly describing it, or is entitled
to the possession thereof;
ƒ That the property is wrongfully detained by the
adverse party, alleging the cause of detention
thereof according to the best of his knowledge,
information, and belief;
ƒ That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
ƒ The actual market value of the property. [Rule
60.2]
Bond
The applicant must also give a bond, executed to the
adverse party in double the value of the property as
stated in the affidavit. [Rule 60.2]
c. Affidavit and bond; Redelivery Bond
Please refer to immediately preceding subsection
for discussion on affidavit and bond.
Redelivery bond: The adverse party may, at any
time before the delivery of the property to the
applicant, require the return of the property by
filing with the court where the action is pending a
bond executed to the applicant, in double the value
of the property as stated in the applicant’s affidavit.
[Rule 60.5]
Order of Replevin
Upon the filing of affidavit and approval of the bond,
the court shall issue an order and the corresponding
writ of replevin describing the personal property
alleged to be wrongfully detained and requiring the
sheriff forthwith to take such property into his
custody. [Rule 60.3]
A writ of replevin may be served anywhere in the
Philippines.
d. Sheriff’s duty in the implementation of the
writ; when property is claimed by third party
Disposition of Property by Sheriff
ƒ The sheriff shall retain the property for 5 days.
The adverse party may object to the sufficiency
of the bond or surety or he may file a redelivery
bond.
ƒ If after 5 days and the adverse party failed to
object or his redelivery bond is insufficient, the
sheriff shall deliver the property to the
applicant. [Rule 60.6]
ƒ The defendant is entitled to the return of the
property under a writ of replevin if:
- He seasonably posts a redelivery bond [Rule
60.5]
- Plaintiff’s bond is found to be insufficient or
defective and is not replaced with proper
bond
- Property is not delivered to the plaintiff for
any reason [Rule 60.6]
Where Property Claimed by Third Person
When third party claims the property and such
person makes affidavit of his title thereto stating his
grounds, and serves such affidavit upon the sheriff
while the latter has possession of the property and a
copy upon the applicant, the sheriff SHALL NOT BE
BOUND to keep property under replevin or deliver
property to the applicant UNLESS the applicant files
a bond approved by the court in favor of the third
person (the bond should not be less than the value of
stated under Sec. 60.2; the court shall determine
the value in case of disagreement).
No claim for damages for the taking or keeping of
the property may be enforced against the bond
UNLESS the action is filed within 120 days from filing
of the bond.
XIX. SPECIAL CIVIL ACTIONS
1. Nature of special civil actions
2. Ordinary civil actions versus special civil
actions
3. Jurisdiction and venue
4. Interpleader
5. Declaratory Reliefs and Similar Remedies
6. Review of Judgments and Final Orders or
Resolution of the COMELEC and COA
7. Certiorari, Prohibition and Mandamus
8. Quo Warranto
9. Expropriation
10. Foreclosure of Real Estate Mortgage
11. Partition
12. Forcible Entry and Unlawful Detainer
13. Contempt
1. Nature of special civil actions
 REMEDIAL LAW REVIEWER

Rules on ordinary civil actions shall apply to special

civil actions insofar as they are not inconsistent with 3 special civil actions within the jurisdiction of
or may supplement the rules governing the latter. inferior courts:
[Rule 1.3] ƒ interpleader, provided the amount involved is 175
within its jurisdiction [Makati Development
Since a civil action in general is one by which a party Corp. v. Tanjuatco (1969)]
sues another for the enforcement of a right, or the ƒ ejectment suits [Rule 70]
prevention or redress of a wrong, a special civil ƒ contempt [Rule 71]
action is generally brought or filed for the same
purpose. [Riano] 4. Interpleader
How commenced: Definition: A remedy whereby a person who has
ƒ COMPLAINT property in his possession or has an obligation to
- interpleader render wholly or partially, without claiming any right
- expropriation in both, comes to court and asks that the defendants
- foreclosure of real estate mortgage who have made conflicting claims upon the same
- partition property or who consider themselves entitled to
- forcible entry and unlawful detainer demand compliance with the obligation be required
ƒ PETITION to litigate among themselves in order to determine
- declaratory relief who is entitled to the property or payment or the
- review of adjudications of Constitutional obligation [Beltran v. PHHC, 1969]
commissions
- certiorari Purpose
- prohibition ƒ To compel conflicting claimants to interplead
- mandamus and litigate their several claims among
- quo warranto themselves. [Rule 62.1]
- contempt ƒ To protect a person against double vexation in
respect of one liability [Beltran, supra]
Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus issued a. Requisites for interpleader
by RTCs are enforceable within their respective
ƒ There must be two or more claimants with
judicial regions. [B.P. 129]
adverse or conflicting interests to a property in
the custody or possession of the plaintiff.
2. Ordinary civil actions versus ƒ The plaintiff has NO CLAIM upon the subject
special civil actions matter of the adverse claims, or if he has an
interest at all, such interest is NOT DISPUTED by
The fact that an action is subject to special rules the claimants.
other than those applicable to ordinary civil actions ƒ The subject matter of the adverse claims must
is what makes a civil action special. [Riano] be one and the same.

Ordinary Civil Action Special Civil Action Procedure

Governed by ordinary Also governed by
rules ordinary rules but
subject to specifically
prescribed rules (Rules
62 to 71)
Some concepts applicable to ordinary civil actions
are not applicable in special civil actions. E.g.:
ƒ the definition of a cause of action requiring
violation of a right does not appear to be
relevant to the special civil action of
declaratory relief and interpleader;
ƒ ordinary civil actions may be filed initially in
MTC or RTC depending on jurisdictional amount
while some special civil actions can only be filed
in MTC (forcible entry and unlawful detainer)
and some cannot be commenced in MTC
(certiorari, prohibition, mandamus). [Riano]
3. Jurisdiction and venue
Venue is governed by the general rules on venue,
except as otherwise indicated in the particular rules
for special civil actions.
Complaint filed by the person against whom
conflicting claims are or may be made. [ibid]
The docket and other lawful fees paid by the
complainant, and costs and litigation expenses shall
constitute a lien or charge upon the subject matter
of the action, unless otherwise ordered by the court.
[R62.7]
p
Court order requiring the conflicting claimants to
interplead with one another. If the interests of
justice so require, the court may direct that the
subject matter be paid or delivered to the court.
[Rule 62.2]
p
Summons, copy of complaint and order served upon
the conflicting claimants. [Rule 62.3]
p
Each claimant shall file his answer within 15 days
from service of the summons, serving a copy thereof
upon each of the other conflicting claimants, who
may file their reply thereto.
p
If claimant fails to plead within the time herein
 REMEDIAL LAW REVIEWER
fixed, the court may, on motion, declare him in
default and render judgment barring him from any
176 claim in respect to the subject matter.
p government ordinance
Within the time for filing an answer, each claimant
may file a motion to dismiss. Grounds:
ƒ impropriety of the interpleader action, or
ƒ other appropriate grounds specified in Rule 16
The period to file the answer shall be tolled.
p
If the motion is denied, an answer may be filed
within the remaining period, in no case less than 5
days (reckoned from notice of denial) [Rule 62.4].
p
The parties may file counterclaims, cross-claims,
third-party complaints and responsive pleadings
thereto. [Rule 62.5]
p
Pre-trial
p
Court shall determine conflicting claimants’
respective rights and adjudicate their several claims.
[Rule 62.6]
b. When to file
Whenever conflicting claims upon the same subject
matter are or may be made against a person who
claims no interest in the subject matter or an
interest which is not disputed by the claimants.
[Rule 62.1]
Cannot be availed of to resolve the issue of breach
of undertakings made by defendants, which should
be resolved in an ordinary action for specific
performance or other relief [Beltran, supra].
5. Declaratory Reliefs and Similar
Remedies
a. Who may file the action
ƒ a person interested under a deed, will, contract
or other written instrument
ƒ a person whose rights are affected by a statute,
executive order or regulation, ordinance or any
other governmental regulation [Rule 63.1]
Parties
ƒ all persons who have or claim any interest
which would be affected by the declaration
[Rule 63.2]
ƒ If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63.3]
ƒ If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule
63.4]
Subject Matter Notice Given To
Validity of a statute, EO or Sol Gen
regulation, or any
governmental regulation
Validity of a local Prosecutor or attorney
government ordinance of the LGU
Constitutionality of a local Sol Gen
Baguio Citizens Action vs. City Council of Baguio
(1983): Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined shall
not be prejudiced in their interests unless otherwise
provided by the Rules.
Commission of Customs vs. Cloribel (1977): A
third-party complaint is not available in a
declaratory relief.
Visayan Packing vs. Reparations Commission
(1987): A compulsory counterclaim may be set up in
a petition for declaratory relief.
Where filed
ƒ in the proper RTC [Rule 63.1]
ƒ not within the original jurisdiction of the
Supreme Court, even if pure questions of law
are involved. [Remotigue vs. Osmeña (1967)]
b. Requisites of action for declaratory relief
ƒ subject matter of the controversy must be a
deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance [Rule 63.1];
ƒ the terms of said documents and the validity
thereof are doubtful and require judicial
construction [Santos v. Aquino, 94 Phil 65]
ƒ no breach of the documents in question.
[Reparations Commission v. Northern Lines
(1970)] Otherwise, an ordinary civil action is the
remedy.
- Concept of a cause of action in ordinary civil
actions does not apply.
- If before the final termination of the case, a
breach or violation of an instrument or a
statute, etc. should take place, the action
may be converted into an ordinary action.
[Rule 63.6]
ƒ actual justiciable controversy [Velarde v SJS
(2004)]
ƒ adverse interests between the parties
- A declaratory relief is not available for a
declaration of citizenship [Villa-Abrille vs.
Republic (1956)] or the validity of a
registration certificate [Obiles vs. Republic
(1953)] as they are unilateral in nature and
without conflicting adverse interests.
ƒ issue must be ripe for judicial determination
[Velarde v SJS (2004)]
ƒ adequate relief is not available through other
means or other forms of action or proceedings.
[Ollada v. Central Bank (1962)]
- A court decision cannot be the subject of a
declaratory relief since there exists other
remedies, i.e., appeal or a motion for
clarificatory judgment [Tanda vs. Aldaya
(1956)]
c. When court may refuse to make judicial
declaration

ƒ where a decision would not terminate the
uncertainty or controversy which gave rise to
the action, or
ƒ where the declaration or construction is not
necessary and proper under the circumstances.
[Rule 63.5]
d. Conversion to ordinary action
Requisites:
ƒ before the final termination of the case
ƒ a breach or violation of an instrument or a
statute, executive order or regulation,
ordinance, or any other governmental regulation
should take place
Effect: The parties shall be allowed to file such
pleadings as may be necessary or proper. [Rule 63.6]
e. Proceedings considered as similar
remedies
i. Reformation of an instrument (Arts. 1359-1369
Civil Code)
Definition: Art. 1359. When, there having been a
meeting of the minds of the parties to a contract,
their true intention is not expressed in the
instrument purporting to embody the agreement, by
reason of mistake, fraud, inequitable conduct or
accident, one of the parties may ask for the
reformation of the instrument to the end that such
true intention may be expressed.
If mistake, fraud, inequitable conduct, or accident
has prevented a meeting of the minds of the parties,
the proper remedy is not reformation of the
instrument but annulment of the contract.
Art. 1369. The procedure for the reformation of
instrument shall be governed by rules of court to be
promulgated by the Supreme Court
ii. Consolidation of ownership (Art. 1607 Civil Code)
[Rule 63.1 par. 2]
Definition: Art. 1607. In case of real property, the
consolidation of ownership in the vendee by virtue of
the failure of the vendor to comply with the
provisions of article 1616 shall not be recorded in
the Registry of Property without a judicial order,
after the vendor has been duly heard.
iii. Quieting of title to real property (Arts. 476-481
Civil Code)
Definition: Art. 476. Whenever there is a cloud on
title to real property or any interest therein, by
reason of any instrument, record, claim,
encumbrance or proceeding which is apparently
valid or effective but is in truth and in fact invalid,
ineffective, voidable, or unenforceable, and may be
prejudicial to said title, an action may be brought to
remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud
REMEDIAL LAW REVIEWER
from being cast upon title to real property or any
interest therein.
Art. 481. The procedure for the quieting of title or
the removal of a cloud therefrom shall be governed 177
by such rules of court as the Supreme Court shall
promulgated.
6. Review of Judgments and Final
Orders or Resolution of the COMELEC
and COA
Scope
ƒ Applicable only to judgments and final orders of
the COMELEC and COA [Rule 64.1]
ƒ Judgments/orders of the Civil Service
Commission are now reviewable by the Court of
Appeals under Rule 43, eliminating recourse to
the Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]
ƒ An aggrieved party may bring the questioned
judgment, etc. directly to the SC on certiorari
under Rule 65. [Rule 64.2]
Such petition for certiorari shall not stay the
execution of the judgment, etc. sought to be
reviewed unless otherwise directed by the Supreme
Court [Rule 64.8]
Procedure
File a petition for review.
When [Rule 64.3]:
ƒ Within 30 days from notice of judgment/final
order/resolution sought to be reviewed
ƒ Filing of motion for reconsideration/new trial
with Constitutional commission interrupts the
30-day period. If motion is denied, aggrieved
party may file petition within remaining period,
which shall not be less than 5 days from notice
of denial.
Form [Rule 64.5]: verified and accompanied by
(annexes):
ƒ a clearly legible duplicate original or certified
true copy of the subject judgment, etc.
ƒ certified true copies of such material portions of
the record referred to in the petition
ƒ other documents relevant and pertinent to the
petition
ƒ proof of service of a copy of the petition on the
Commission and the adverse party
ƒ proof of the timely payment of the docket and
other lawful fees
in 18 legible copies (containing plain copies of all
documents attached to the original copy of the
petition)
Contents [Rule 64.5]:
ƒ name of aggrieved party (petitioner)
ƒ respondents: Commission concerned and
person(s) interested in sustaining the judgment
a quo
ƒ facts
ƒ issues involved
ƒ grounds and brief arguments relied upon for
 REMEDIAL LAW REVIEWER

review is denied, the aggrieved

ƒ prayer for judgment annulling or modifying the
178 question judgment, etc.
ƒ material dates showing that it was filed on time
ƒ certification against non-forum shopping
Findings of fact of the Commission supported by
substantial evidence shall be final and non-
reviewable.
Failure to comply with foregoing requirements shall
be sufficient ground for dismissal.
p
Order to Comment [Rule 64.6]
If the SC finds the petition sufficient in form and
substance, it shall order the respondents to file their
comments on the petition within 10 days from notice
thereof.
Grounds for dismissal:
ƒ Petition not sufficient in form and substance
ƒ Petition was filed manifestly for delay
ƒ the questions raised are too unsubstantial to
warrant further proceedings.
p
Comments of Respondents [Rule 64.7]
Requirements:
ƒ original copy with certified true copies of
material portions of the record as are referred
to in the comment and certified true copies of
other supporting papers
ƒ 18 legible copies with plain copies of all
documents attached to the original
ƒ Copy of the comment shall be served on the
petitioner.
p established or admitted facts may be considered.
Decision [Rule 64.9]
Case is deemed submitted for decision upon:
ƒ filing of the comments on the petition, and such
other pleadings or papers as may be required or
allowed.
ƒ expiration of the period to file the pleadings.
Exceptions: SC sets the case for oral argument or
requires parties to submit memoranda.
a. Application of Rule 65 under Rule 64
party may file the
petition within the
remaining period, but
which shall not be less
than 5 days reckoned
from the notice of
denial.
7. Certiorari, Prohibition and
Mandamus
The original action of certiorari is not a substitute
for appeal. [Lobite vs. Sundiam 1983]
Exceptions:
ƒ appeal is not a speedy and adequate remedy
[Salvadores vs. Pajarillo (1947)]
ƒ the orders were issued either in excess of or
without jurisdiction [Aguilar vs. Tan (1970)]
ƒ special considerations, i.e., public welfare or
public policy [Jose vs. Zulueta (1961)]
ƒ the order is a patent nullity [Marcelo vs. De
Guzman (1982)]
ƒ the decision in the certiorari case will avoid
future litigations [St. Peter Memorial Park vs.
Campos (1975)]
NOTE: In the 2005 and 2008 Bar Exams, bar
examinees were asked to compare Petition for
review on Certiorari and Certiorari.
Certiorari
Suarez v. NLRC (1998): Questions of fact cannot be
raised in an original action for certiorari. Only
Medran vs. CA (1949): Findings of fact of CA are not
binding upon SC in an original action for certiorari.
Prohibition
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
sought to be prevented during the pendency of the
proceedings for the writ, the petitioner should
obtain a restraining order and/or writ of preliminary
injuction. [Regalado]

b. Distinction in the application of Rule 65 to Enriquez v. Macadaeg, 84 Phil 674: Prohibition is

judgments of the COMELEC and COA and the the remedy where a motion to dismiss is improperly
application of Rule 65 to other tribunals, denied.
persons and officers

Rule 64 Rule 65 Mandamus

Directed only to the Directed to any tribunal,
judgments, final orders board, or officer
or resolutions of exercising judicial or
COMELEC and COA quasi-judicial functions
Filed within 30 days from Filed within 60 days from
notice of the judgment notice of the judgment
The filing of a MR or a The period within which
Motion for New Trial if to file the petition if the
allowed, interrupts the MR or new trial is
period for the filing of denied, is 60 days from
the petition for notice of the denial of
certiorari. If the motion the motion.
A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to
alter or review the action taken in the proper
exercise of the discretion of judgment, for the writ
cannot be used as a writ of error or other mode of
direct review.
However, in extreme situations generally in criminal
cases, mandamus lies to compel the performance of
the fiscal of discretionary functions where his
actuations are tantamount to a wilful refusal to
perform a required duty. [Regalado]
 REMEDIAL LAW REVIEWER

General rule: In the performance of an official duty p

or act involving discretion, such official can only be
directed by mandamus to act but not to act in one
way or the other.
EXCEPTION: gross abuse of discretion, manifest
injustice, palpable excess of authority [Kant Wong v.
PCGG (1987)]
JUDGMENT
If after such hearing or submission of memoranda or
the expiration of the period for the filing thereof, 179
the court finds that the allegations of the petition
are true, it shall render judgment for the relief
prayed for or to which the petitioner is entitled.

Mandamus can be availed of only by the party who
has direct legal interest in the right sought to be
enforced. HOWEVER, if the question is one of public
right, it is sufficient to show that the petitioner is a
citizen. [Tanada v. Tuvera (1985)]
a. Definitions and distinctions
b. Requisites
c. When petition for certiorari, prohibition
and mandamus is proper
See Annex F.
The court, however, may dismiss the petition if it
finds the same to be (1) patently without merit, (2)
prosecuted manifestly for delay, or that (3) the
questions raised therein are too unsubstantial to
require consideration. [Rule 65.8]
p
SERVICE AND ENFORCEMENT OF ORDER OR
JUDGMENT
A certified copy of the judgment rendered shall be
served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person
concerned in such manner as the court may direct,
and disobedience thereto shall be punished as
contempt.

Procedure An execution may issue for any damages or costs

awarded in accordance with section 1 of Rule 39.
[Rule 65.9]
FILE PETITION FOR CERTIORARI / PROHIBITION /
MANDAMUS.
When filed: d. Injunctive relief
ƒ Not later than 60 days from notice of
judgment/order/resolution Rule 65.7 provides for the issuance of a temporary
ƒ If a motion for reconsideration/new trial is restraining order, and not only for a writ of
filed, the 60-day period shall be counted from preliminary injunction, but such order shall be
notice of denial of motion. subject to the rules on the grounds and duration
ƒ Extension may be granted for compelling thereof. [Regalado]
reasons, not exceeding 15 days. [Rule 65.4]
e. Certiorari distinguished from Appeal by
Where filed: Certiorari; Prohibition and Mandamus
ƒ Supreme Court distinguished from Injunction; when and
ƒ Court of Appeals where to file petition
- If it involves the acts of a quasi-judicial
agency, the petition shall be filed only in CERTIORARI DISTINGUISHED FROM APPEAL
the CA, unless otherwise provided by law CERTIORARI APPEAL
or the Rules. Proper to correct errors Proper where error is not
ƒ Regional Trial Court, if it relates to acts / of jurisdiction one of jurisdiction but an
omissions of a lower court / corporation / board committed by lower error of law or fact
/ officer / person. courts, grave abuse of which is a mistake of
ƒ Sandiganbayan, if it is in aid of its appellate discretion which is judgment
jurisdiction. [Rule 65.4] tantamount to lack of
p jurisdiction
ORDER TO COMMENT Certiorari invokes Appeal when filed
If the petition is sufficient in form and substance to original jurisdiction of invokes the appellate
justify such process, the court shall issue an order the court jurisdiction of the court
requiring the respondent(s) to comment on the Within 60 days from Filed within period of
petition within 10 days from receipt of a copy notice of judgment, appeal
thereof. order or resolution
An original and Continuation of the
Such order shall be served on the respondents in independent action original case
such manner as the court may direct, together with Impleads the tribunal, Parties to an appeal are
a copy of the petition and any annexes thereto. court, board or officer the original parties of
[Rule 65.6] the case
p
HEARING OR MEMORANDA PROHIBITION DISTINGUISHED FROM INJUNCTION
After the comment or other pleadings required by PROHIBITION INJUNCTION
the court are filed, or the time for the filing thereof Directed to the court or Directed against a party
has expired, the court may hear the case or require tribunal directing it to to the action
the parties to submit memoranda. [Rule 65.8]
 REMEDIAL LAW REVIEWER

refrain from the Quo warranto is the remedy to try disputes with
performance of acts respect to the title to a public office.
180 which it has no
jurisdiction to perform a. Distinguish from Quo Warranto in the
Omnibus Election Code
MANDAMUS DISTINGUISHED FROM INJUNCTION
MANDAMUS INJUNCTION
Special civil action Ordinary civil action
Directed against a Directed against a ROC Rule 66 OEC Sec. 253
tribunal, corporation litigant Filed Solicitor General or Any voter
board or officer by Public Prosecutor in
Purpose is for the Purpose is for the whom behalf of the
tribunal, corporation, defendant either to Republic; Individual
board or officer to refrain from an act or to Where By SolGen: RTC COMELEC, if
perform a ministerial perform not necessarily a filed Manila, CA or SC; against election of
and legal duty legal and ministerial duty Otherwise, RTC with a Member of
Purpose is to perform a Purpose is to prevent an jurisdiction over Congress, Regional,
positive legal duty and act to maintain the territorial area Provincial or City
not to undo what has status quo between the where respondent Officer;
been done parties resides, CA or SC
appropriate RTC or
f. Exceptions to filing of motion for MTC, if against a
reconsideration before filing petition municipal or
barangay officer
General rule: A motion for reconsideration must Period Within 1 year from Within 10 days
first be availed of before certiorari – to enable the for ouster, or from the after proclamation
lower court to correct its mistakes without the filing time the right to of results
intervention of the lower courts. [BA Finance vs. the position arose
Pineda (1982)] Against A person, who Ineligibility or
whom, usurps, intrudes into disloyalty to the
Exceptions: grounds or unlawfully holds Republic
ƒ the order is a patent nullity [Vigan Elec. Light or exercises a public
vs. Public Service Commission (1964)] office, position or
ƒ the questions raised in the certiorari have been franchise;
duly raised and passed upon by the lower court
[Fortich-Celdran vs. Celdran (1967)] or are the A public officer,
same as those raised and passed upon in the who does or suffers
lower court [Pajo vs. Ago (1960)] an act which, by
ƒ there is an urgent necessity for the resolution of provision of law,
the question and delay would prejudice the constitutes a ground
interests of the government [Vivo vs.Cloribel for forfeiture of
(1966)] office
ƒ the MR would be useless [People vs. Palacio
(1960)] How commenced
ƒ the petitioner was deprived of due process and By a verified petition [Rule 66.1]
there is extreme urgency for relief [Luzon
Surety vs. Marbella (1960)] By whom/against whom
ƒ the proceeding was ex parte in which the
petitioner had no opportunity to object b. When the government commences an
[Republic vs. Maglanoc (1963)] action against individuals
ƒ the issue raised is purely a question of law or
where the public interest is involved [PALEA vs. ƒ By Government, brought in the name of the
PAL (1982)] Republic of the Philippines, against:
- A person who usurps, intrudes into, or
g. Reliefs petitioner is entitled to unlawfully holds or exercises a public office,
position or franchise
h. Actions/Omissions of MTC/RTC in election - A public officer who does not or suffers an act
cases which, by the provision of law, constitutes a
ground for the forfeiture of his office
- An association which acts as a corporation
i. Where to file petition within the Philippines without being legally
incorporated or without lawful authority so to
j. Effects of filing of an unmeritorious act [Rule 66.1]
petition
ƒ When Solicitor General or public prosecutor
8. Quo Warranto MUST commence action:

- When directed by the President of the
Philippines.
- When upon complaint or otherwise, he has
good reason to believe that any case specified
in Sec. 1 can be established by proof. [Rule
66.2]
ƒ When Solicitor General or public prosecutor
MAY commence action:
- with permission of the court
- at the request and upon the relation of
another person
- Officer bringing such action may first
require an indemnity for the expenses and
costs of the action in an amount approved
by and deposited in court. [Rule 66.3]
c. When individual may commence an action
By a person claiming to be entitled to a public
office or position, brought in his own name, against
another who usurped or unlawfully held or exercised
such public office or position [Rule 66.5]
d. Judgment in Quo Warranto action
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position, or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator recover his costs. [Rule 66.9]
e. Rights of a person adjudged entitled to
public office
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
executing any official bond required by law, take
upon himself the execution of the office, and may
immediately thereafter demand of the respondent
all the books and papers in the respondent's custody
or control appertaining to the office to which the
judgment relates.
The person adjudged entitled to the office may also
bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation. [Rule 66.10]
9. Expropriation
a. Matters to allege in complaint for
expropriation
The complaint for expropriation must be VERIFIED.
Contents:
ƒ The right and purpose of expropriation
ƒ Description of the real or personal property
sought to be expropriated;
REMEDIAL LAW REVIEWER
ƒ The complaint shall join as defendants all
persons owning or claiming to own, or occupying
any part thereof or any interest therein,
showing as far as practicable the separate 181
interest of each defendant.
ƒ The following must be clearly stated in the
complaint , if applicable:
- If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals;
- If the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners.
[Rule 67.1]
b. Two stages in every action for
expropriation
i. Determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the
facts.
This stage is terminated by either an order of
dismissal of the action or order of the condemnation
declaring that expropriation is proper and legal.
These orders are final and therefore appealable.
[Municipality of Biñan v. Garcia (1989)]
It includes an inquiry into the propriety of the
expropriation – its necessity and public purpose.
[Riano]
ii. Determination of just compensation.
This is done with the assistance of not more than
three (3) commissioners.
The order fixing just compensation is also final and
appealable (Ibid). Just compensation is to be
determined as of the date of the taking of the
propriety or the filing of the complaint, whichever
comes first.
Ansaldo v. Tantuico (1990): There is taking when
the owner is actually deprived or dispossessed of his
property; when there is a practical destruction or a
material impairment of the value of his property or
when he is deprived of the ordinary use thereof.
Bardillon v. Bgy. Masili (2003): An expropriation
suit is incapable of pecuniary
estimation. Accordingly, it falls within the
jurisdiction of RTCs, regardless of the value of the
subject property.
c. When plaintiff can immediately enter into
possession of the real property, in relation to
RA 8974
Sec. 4. of RA 8974 otherwise known as “An Act to
facilitate the acquisition of right-of-way, site or
location for national government infrastructure
projects and for the purposes”: [w]henever it is
necessary to acquire real property for the right-of-
 REMEDIAL LAW REVIEWER

way or location for any national government See table of comparison under the preceding
infrastructure project through expropriation, the subsection, column of RA 8974.
182 appropriate implementing agency shall initiate the
expropriation proceedings before the proper court
under the following guidelines:

ƒ Upon the filing of the complaint, and after due

notice to the defendant, the implementing
agency shall immediately pay the owner of the
property the amount equivalent to the sum of e. Defenses and objections
(1) 100% of the value of the property based on
the current relevant zonal valuation of the NO OBJECTION OR HAS OBJECTION
Bureau of Internal Revenue (BIR); and (2) the DEFENSE TO THE OR DEFENSE TO
value of the improvements and/or structures as TAKING THE TAKING
determined under Section 7 hereof; What to Notice of Answer to the
ƒ In provinces, cities, municipalities and other file and appearance and complaint
areas where there is no zonal valuation, the BIR serve manifestation
is hereby mandated within the period of sixty Period Time stated in the summons
(60) days from the date of the expropriation to file
case, to come up with a zonal valuation for said Con- Manifestation to Specifically
area; and tents the effect that he designating/identif
ƒ In case the completion of a government has no objection or ying the property
infrastructure project is of utmost urgency and defense; in which he claims
importance, and there is no existing valuation of to have an interest
the area concerned, the implementing agency Specifically in and the nature
shall immediately pay the owner of the property designating/identif and extent of the
its proffered value taking into consideration the ying the property interest;
standards prescribed in Section 5 hereof. in which he claims
to be interested ALL his objections
Upon compliance with the guidelines above- and defenses to
mentioned, the court shall immediately issue to the the complaint or
implementing agency an order to take possession of any allegation
the property and start the implementation of the therein
project. Prohibit Counterclaim,
ed cross-claim, third
Riano opines that Sec. 2 of Rule 67 is deemed party complaint in
modified by RA 8974. He noted the following any pleading
differences:
A foreclosure action must be brought in the RTC of
Rule 67 RA 8974 the province where the land or any part thereof is
Before issuance of writ Upon filing of the situated.
of possession complaint
Expropriation Right-of-way, site or A defendant waives all defenses and objections not
proceedings initiated by location of national so alleged, but the court, in the interest of justice,
the national government government may permit amendments to the answer not to be
infrastructure projects made later than ten (10) days from filing thereof.

Initial deposit with an Immediate payment to At the trial of the issue of just compensation,
authorized government the property owner whether the defendant has previously appeared or
depositary answered, he may present evidence as to the
Amount for deposit Amount to be paid is: amount of the compensation to be paid for his
equivalent to 100% ƒ 100% of the value of property, and he may share in the distribution of the
assessed value of the the land as stated in award. [Rule 66.3]
property for purposes of the tax declaration or
taxation. current zonal f. Order of Expropriation
valuation, whichever
is higher, and the It declares that the plaintiff has a lawful right to
value of take the property sought to be expropriated for the
improvements, OR public use or purpose described in the complaint,
ƒ in the case of utmost upon payment of just compensation to be
urgency, the determined as of the date of the taking of the
proffered value of the property or the filing of the complaint whichever is
property to be seized earlier.

d. New system of immediate payment of It is issued by the court in which the complaint for
initial just compensation expropriation is filed when:

ƒ objections or defenses of the defendant have
been overruled, or
ƒ the defendant raised no such defense or
objection, or
ƒ No party appears to defend. [Rule 67.4]
g. Ascertainment of just compensation
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by
the expropriator.
Determined as of the date of taking of the property,
or the filing of the complaint, whichever came first.
[Rule 67.4]
The measure is not the taker’s gain, but the owner’s
loss. To compensate is to render something which is
equal in value to that taken or received.
The word “just” is used to intensify the meaning of
the word “compensation”; to convey the idea that
the equivalent to be rendered for the property taken
shall be real, substantial, full, and ample.
In eminent domain or expropriation proceedings, the
general rule is that the just compensation which the
owner of condemned property is entitled to is the
market value.
Market value is “that sum of money which a person
desirous but not compelled to buy, and an owner
willing but not compelled to sell, would agree on as
a price to be given and received therefore.” [BPI v.
CA (2004)]
Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain
and report to the court the just compensation for
the property sought to be taken. [Rule 67.5]
h. Appointment of Commissioners;
Commissioner’s report; Court action upon
commissioner’s report
Order of appointment to be served on the parties.
Objections to the appointment of any of the
commissioners shall be filed in court within ten (10)
days, and shall be resolved within thirty (30) days
after all the commissioners have received copies of
the objections.
Powers and duties of commissioners:
ƒ Parties can present evidence before the
commissioners and the latter have the power to
administer oaths or hearings before them;
ƒ They can, after due notice to the parties to
attend, view and examine the property sought
to be expropriated and its surroundings and may
measure the same;
REMEDIAL LAW REVIEWER
EXCEPTION: when the parties agree otherwise,
the commissioners cannot view and examine the
property
- The commissioners shall assess the 183
consequential damages to the property taken
and deduct from such consequential damages
the consequential benefits derived by the
owner from the public use or purpose of the
property taken, the operation of its franchise
by the corporation or person taking the
property.
- In no case shall the consequential benefits
assessed exceed the consequential damages
assessed, or the owner be deprived of the
actual value of his property so taken. [Rule
67.6]
ƒ The commissioners shall make full and accurate
report to the court of all their proceedings.
- The report shall be filed within 60 days from
the date the commissioners were notified of
their appointment.
- Upon filing of the report, the clerk of court
shall serve copies thereof on all interested
parties, with notice that they are allowed ten
(10) days within which to file objections to
the findings of the report, if the parties
desire. [Rule 67.7]
ƒ After the 10-day period for objecting to the
commissioners’ report, the court, after hearing,
may:
- ACCEPT the report and render JUDGMENT in
accordance therewith;
- RECOMMIT the report to the commissioners for
further report of facts;
- SET ASIDE the report and APPOINT new
commissioners;
- ACCEPT the report IN PART and REJECT it IN
PART;
And make such order or render judgment as
shall secure to the plaintiff the property
essential to the exercise of his right of
expropriation and to the defendant just
compensation for the property so taken. [Rule
67.8]
i. Rights of plaintiff upon judgment and
payment
ƒ Right to enter upon the property expropriated
and appropriate it for the public use or purpose
as stated. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from the
taking of the possession of the property, or after
tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have
the right to enter upon the property
expropriated and to appropriate it for the public
use or purpose defined in the judgment, or to
retain it should he have taken immediate
possession thereof under Sec. 2. [Rule 67.10]
ƒ Right to enter upon the property even pending
appeal. The right of the plaintiff to enter upon
the property of the defendant and appropriate
 REMEDIAL LAW REVIEWER
the same for public use or purpose shall not be
delayed by an appeal from the judgment.
184
The judgment entered in expropriation proceedings
shall state definitely, by an adequate description,
the particular property or interest therein
expropriated, and the nature of the public use or
purpose for which it is expropriated. [Rule 67.13]
j. Effect of recording of judgment
When real estate is expropriated, a certified copy of
the judgment entered in expropriation proceedings
shall be recorded in the registry of deeds of the
place in which the property is situated, and its
effect shall be to vest to plaintiff the title to the
real estate so described for such public use or
purpose. [Rule 67.13]
10. Foreclosure of Real Estate
Mortgage (Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is generally
the non-payment of the mortgage loan, but it may
be on other grounds which under the contract
warrant the foreclosure, such as the violation of the
other conditions therein.
Foreclosure may be made:
ƒ judicially – governed by Rule 68
ƒ Extrajudicially – proper only when so provided in
contracts in accordance with Act. No. 3135;
governed by A.M. No. 99-10-05-0.
Monte de Piedad v. Rodrigo, 56 Phil 301: A
foreclosure action must be brought in the RTC of the
province where the land or any part thereof is
situated.
If a mortgage contract covers several distinct parcels
of land situated in different provinces, the action
may be brought in the RTC of any of the provinces
and the judgment will be enforceable against any of
the parcels of land involved.
a. Judgment on foreclosure for payment or
sale
Judgment
PAYMENT: If upon the trial, the court shall find the
facts set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and
other charges as approved by the court, and costs,
and shall render judgment for the sum so found due
and order that the same be paid to the court or to
the judgment obligee within a period of not less
than 90 days nor more than 120 days from the entry
of judgment (“equity of redemption”).
SALE: In default of such payment the property shall
be sold at public auction to satisfy the judgment.
[Rule 68.2]
b. Sale of mortgaged property; effect
ƒ When the defendant fails to pay the amount of
the judgment within the period specified
therein, the court, upon motion, shall order the
property to be sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under execution.
- It is the ministerial duty of the court to order
the foreclosure of the property when the debt
is not paid within the period specified.
- A motion for such order of sale is non-litigable
and may be made ex parte. [Gov’t of P.I. v De
las Cajigas, 55 Phil 667]
ƒ Such sale shall not affect the rights of persons
holding prior encumbrances upon the property
or a part thereof, and
ƒ When confirmed by an order of the court, also
upon motion, it shall operate to divest the rights
in the property of all the parties to the action
and to vest their rights in the purchaser, subject
to such rights of redemption as may be allowed
by law.
ƒ POSSESSION: Upon the finality of the order of
confirmation or upon the expiration of the
period of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property, unless a third party
is actually holding the same adversely to the
judgment obligor.
ƒ The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from
the court which ordered the foreclosure. [Rule
68.3]
ƒ The purchaser is entitled to a writ of possession
and it is ministerial upon the court to issue a
writ of possession in his favor upon an ex parte
motion. [Barican, et al v Caguioa, et al, (1986)]
c. Disposition of proceeds of sale
Claims to be satisfied by the proceeds of the public
sale of mortgaged property (in order):
ƒ Costs incurred in the sale of property
ƒ Claim of the person foreclosing the property
ƒ Claims of junior encumbrancers in the order of
their priority
If proceeds of the sale exceeds the cost of the sale
as well as the claims of the person foreclosing the
property and junior encumbrancers, if any the
residual amount shall be given to the mortgagor or
his agent, or to the person entitled to it. [Rule 68.4]
If the proceeds of the sale is less than the amount of
the claims to be satisfied, the person foreclosing the
property may move for a DEFICIENCY JUDGMENT
from the court confirming the foreclosure sale, to
recover the amount of the deficiency in his claim.
d. Deficiency judgment
i. Instances when court cannot render deficiency
judgment
 REMEDIAL LAW REVIEWER

Registration [RULE 68.7]

Definition: A judgment against a debtor for the A CERTIFIED COPY of the final order confirming the
unpaid balance of the debt if a foreclosure sale or a sale shall be registered in the Registry of Deeds.
sale of repossessed personal property fails to yield 185
the full amount of the debt due; also termed a IF NO RIGHT OF IF A RIGHT OF
deficiency decree. (Black’s Law Dictionary) REDEMPTION EXISTS REDEMPTION EXISTS
The Certificate of Title The Certificate of Title
General rule: Sec. 6 provides for a deficiency in the name of the in the name of the
judgment which shall be rendered, on motion, when mortgagor shall be mortgagor shall NOT be
the foreclosure sale did not produce proceeds cancelled, and a new cancelled, but the
sufficient to satisfy the judgment. one issued in the name Certificate of Sale and
of the purchaser. the order confirming the
In extrajudicial foreclosure, the mortgagee can also sale shall be registered
recover by action any deficiency in the mortgage and a brief
account which was not realized in the foreclosure memorandum thereof
sale. [PNB v. CA (1999)] shall be made by the
Registrar of Deeds upon
A motion for deficiency judgment may be made only the certificate of title
after the sale and after it becomes known that a
deficiency exists. [Governor of the Philippine Islands IF THE PROPERTY IS IF THE PROPERTY IS
v. Torralba Vda. de Santos (1935)] REDEEMED NOT REDEEMED
The Deed of The FINAL Deed of Sale
If the debtor dies, the deficiency may be filed as a Redemption shall be executed by the sheriff
claim against his estate. [Rule 86.7] registered with the in favor of the
Registry of Deeds and a purchaser at the
EXCEPTIONS: brief memorandum foreclosure sale shall
ƒ Third Party Mortgagor - No deficiency judgment thereof shall be made be registered with the
may be rendered where the mortgage was by the Registrar of Registry of Deeds.
executed by a third person to secure the Deeds on said
obligation of a debtor, such third person not certificate of title. The Certificate of Title
having assumed personal liability for the debt. in the name of the
The remedy is an ordinary action against the mortgagor shall be
debtor. [Philippine Trust Co. v. Echaus Tan cancelled and a new
Siusa (1929)] one shall be issued in
the name of the
ƒ Extrajudicial Foreclosure - There can be no purchaser.
deficiency judgment because there was no
judicial proceeding in the foreclosure. Recovery f. Equity of redemption versus right of
can be made through a separate action. [DBP v
redemption
Mirang (1975); DBP v Zaragosa, 1978; PNB v CA
(1999)]
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
Right of the defendant Right of redemption is
e. Judicial foreclosure versus extrajudicial
mortgagor to extinguish the right granted to the
foreclosure the mortgage and retain debtor-mortgagor, his
ownership of the successor-in-interest or
JUDICIAL FORECLOSURE EXTRAJUDICIAL property by paying the any judicial creditor of
FORECLOSURE amount fixed in the said debtor-mortgagor or
Governed by the Rules of Governed by Act 3135 as decision of the court any person having a lien
Court amended within 90 to 120 days in the property
Involves the filing of an Does not require filing of after entry of judgment subsequent to its
independent action an action or even after the mortgage or deed of
Equity of redemption Right of redemption foreclosure sale but prior trust, under which the
EXCEPT if the to its confirmation. property is sold, to
foreclosure is in favor of [Limpin v. Intermediate redeem the property
banks as mortgagees, a Appellate Court (1988)] within 1 year from the
Right of redemption registration of the
exists sheriff’s certificate of
There could be a No deficiency judgment foreclosure sale. [De
deficiency judgment because there is no Castro v. Intermediate
judicial proceeding Appellate Court [1988)]
BUT deficiency can be The mortgagor may The right of redemption
recovered exercise his equity of in relation to a mortgage
Recovery of deficiency is Recovery of deficiency is redemption in judicial is understood in the
by mere motion for a by an independent foreclosure before the sense of a prerogative to
deficiency judgment action sale is confirmed by the re-acquire mortgaged
court (Raymundo v property after
 REMEDIAL LAW REVIEWER
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
Sunico, 1913; Rosales v registration of the
186 Suba, 2003). foreclosure sale. It exists
No right of redemption is only in the case of the
recognized in a judicial extrajudicial foreclosure
foreclosure, except only of the mortgage.
where the mortgagee is
the Philippine National
Bank or a bank or
banking institution.
[Huerta Alba Resort, Inc.
v. CA (2000)]
Confirmation of the sale of mortgaged real property
vests title in the purchaser including the equity of
redemption, it retroacts to the date of the sale. It
cuts off all the rights or interests of the mortgagor
and of the mortgagee. [Lozame v Amores (1985]].
The motion for the confirmation of the sale requires
a hearing to grant an opportunity to the mortgagor
to show cause why the sale should not be confirmed
[Tiglao v Botones, 90 Phil 275], as by proof of
irregularities therein or of gross inadequacy of the
price. Lack of notice vitiates the confirmation of the
sale.
11. Partition
Partition of property may be:
ƒ Extrajudicial – by agreement
ƒ Judicial – compulsory; governed by Rule 69
Even if the parties resorted to judicial partition,
they may still make an amicable partition of the
property. [Secs. 2 and 12]
a. Who may file complaint; who should be
made defendants
Filed by person having the right to compel the
partition of real estate, [Sec. 1], or of personal
property, or of both real and personal property.
[Sec. 13]
The plaintiff is the person who is supposed to be a
co-owner of the property. The defendants are all the
co-owners, who are indispensable parties.
Sepulveda v. Pelaez (2005): All persons considered
as co-owners and interested in the property to be
partitioned are indispensable parties to the action
and must be impleaded.
Exceptions to the Right to Ask for Partition:
ƒ When there is a stipulation against it, not
exceeding 10 years [Art. 494 CC]
ƒ When partition is prohibited by the donor or
testator for a period not exceeding 20 years
[Art. 494, 1083 CC]
ƒ When partition is prohibited by law (e.g. ACP,
party wall) [Art. 494 CC]
ƒ When the property is not subject to a physical
division and to do so would render it
unserviceable for the use for which is it
intended [Art. 495 CC] or
ƒ When the condition imposed upon voluntary
heirs before they can demand partition has not
yet been fulfilled. [Art. 1084 CC]
b. Matters to allege in the complaint for
partition
Contents of complaint for partition
ƒ Nature and extent of the complainant’s title
ƒ Adequate description of the real estate of which
the partition is demanded
ƒ All other persons interested in the property
must be impleaded. [Rule 69.1]
c. Two (2) stages in every action for partition
i. Determination of the propriety of partition
This involves a determination of whether the subject
property is owned in common and whether all the
co-owners are made parties in the case.
The order may also require an accounting of rents
and profits recovered by the defendant. This order
of partition is appealable. [Miranda v. Court of
Appeals (1976)]
If not appealed, then the parties may partition the
common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
meantime be executed. [De Mesa v. CA (1994)]
ii. The actual partitioning of the subject property
This is also a complete proceeding and the order or
decision is appealable.
When there was a prior partition, the fact that the
share of each co-heir has not been technically
described and the title over the whole lot remains
uncancelled does not negate such partition.
There can be no partition again because there is no
more common property. [Noceda v. CA (1999)]
Crucillo v. IAC, 1999: Oral partition of land when
the same is fully consummated is valid and binding
upon the parties thereto.
Maglucot-aw et al. v. Maglucot et al. (2000):
Parties to a partition proceeding, who elected to
take under partition, and who took possession of the
portion allotted to them, are estopped to question
title to portion allotted to another party. A person
cannot claim both under and against the same
instrument. In other words, they accepted the lands
awarded them by its provisions, and they cannot
accept the decree in part, and repudiate it in part.
They must accept all or none. Parties who had
received the property assigned to them are
precluded from subsequently attacking its validity of
any part of it.
Partition may be inferred from circumstances
sufficiently strong to support the presumption. Thus,
after a long possession in severalty, a deed of

partition may be presumed.
Recitals in deeds, possession and occupation of land,
improvements made thereon for a long series of
years, and acquiescence for 60 years, furnish
sufficient evidence that there was an actual
partition of land either by deed or by proceedings in
the probate court, which had been lost and were not
recorded.
Where a tract of land held in common has been
subdivided into lots, and one of the lots has long
been known and called by the name of one of the
tenants in common, and there is no evidence of any
subsequent claim of a tenancy in common, it may
fairly be inferred that there has been a partition and
that such lot was set off to him whose name it bears.
Venue
Actions for partition should be filed in the RTC of the
province where the property or part thereof is
situated.
If several distinct parcels of land are situated in
different provinces, venue may be laid in the RTC of
any of said provinces. [Pancho v. Villanueva, 99 Phil
611]
d. Order of partition and partition by
agreement
Order of partition
After trial, if the court finds that the plaintiff has
the right to the property subject of partition, it shall
issue an order demanding the partition of the real
estate among all the parties in interest. [Sec. 2]
(Refers to 1st stage of partition)
Partition by agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves.
p
If they agree, proper instruments of conveyance will
be executed to effect the partition.
p report to the court of all their proceedings as to the
After the execution of instruments of conveyance,
the court shall confirm the partition through a final
order.
p Upon filing the report, the clerk of court shall serve
The final order of partition and the instruments of
conveyance shall be registered with the Registry of
Deeds where the property is situated. [Rule 69.2]
p desire.
If they do not agree, there will be a partition by
commissioners.
A party shall recover from another his just share of
rents and profits received by such other party from
the real estate in question, and the judgment shall
include an allowance for such rents and profits.
[Rule 69.8]
REMEDIAL LAW REVIEWER
A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby. [Rule
69.2]
187
e. Partition by commissioners; Appointment
of commissioners, Commissioner’s report;
Court action upon commissioner’s report
Appointment of commissioners
If the parties are unable to agree upon the partition,
the court shall appoint not more than 3 competent
and disinterested persons as commissioners to make
the partition, commanding them to set off to the
plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.
[Rule 69.3]
Duties of Commissioners [Rule 69.4]:
ƒ view and examine the real estate, after due
notice to the parties to attend at such view and
examination
ƒ hear the parties as to their preference in the
portion of the property to be set apart to them
and the comparative value thereof
ƒ set apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
improvements, situation and quality of the
different parts thereof.
General rule: If the commissioners should determine
that the real estate cannot be divided without
prejudice to the interests of the parties, the court
may order that the property be assigned to one of
the parties willing to take the same PROVIDED he
pays to the other parties such amounts as the
commissioners deem equitable
EXCEPTION: if one of the parties asks that the
property be sold instead of being so assigned, then
the court shall ORDER the commissioners to sell the
real estate at public sale under such conditions and
within such time as the court may determine. [Rule
69.5]
Commissioner’s report
The commissioners shall make a full and accurate
partition, or the assignment of real estate to one of
the parties or the sale of the same.
copies thereof on all interested parties with notice
that they are allowed 10 days within which to file
objections to the findings of the report, if they so
No proceeding had before or conducted by the
commissioners shall pass the title to the property or
bind the parties until the court accepts the
commissioners’ report and rendered judgment
thereon. [Rule 69.6]
Upon the expiration of the 10-day period, or even
before the expiration of such period but after the
 REMEDIAL LAW REVIEWER

interested parties filed their objections to the adversely occupies the property without recognizing
report/statement of agreement, the court, upon the co-ownership [Cordova v. Cordova, 102 Phil
188 hearing, may: 1182] in which case, acquisitive prescription may set
ƒ ACCEPT the commissioners’ report and render in.
JUDGMENT based upon it.
ƒ RECOMMIT the report to the commissioners for If a co-owner repudiates the co-ownership and
further report of facts if there is cause to do the makes known such repudiation to the other co-
same owners, then partition is no longer a proper remedy
ƒ SET ASIDE the report and APPOINT new of the aggrieved co-owner. He should file an accion
commissioners reivindicatoria, which is prescriptible. [Roque v. IAC
ƒ ACCEPT the report IN PART and REJECT it IN (1988)]
PART
ƒ Make such order and render such judgment as 12. Forcible Entry and Unlawful
shall effectuate a fair and just partition of the
real estate or of its value, if the property is
Detainer (Asked in the 2000 Bar Exam
assigned or sold between the several owners in Relation to a Pending Action for
thereof. [Rule 69.7] Specific Performance)
f. Judgment and its effects a. Definitions and Distinction
CONTENTS OF EFFECTS OF Forcible Entry
JUDGMENT JUDGMENT ƒ Resorted to when a person is deprived of
IF ACTUAL Judgment shall Judgment shall possession of any land or building by (1) force,
PARTITION state definitely, vest in each (2) intimidation, (3) strategy, (4) threat, or (5)
IS by metes and party to the stealth. (FISTS)
PROPERLY bounds and action in ƒ Must be brought at any time within 1 year after
MADE adequate severalty the such unlawful deprivation in the proper MTC
description, the portion of the against the person unlawfully depriving him of
particular real estate possession or against any person or persons
portion of the assigned to him. claiming under them.
real estate ƒ Action must be for the restitution of possession
assigned to each of property together with damages and costs.
party. [Rule 70.1]
IF THE Judgment shall Judgment shall ƒ The owners of a property have no authority to
WHOLE state the fact of vest in the party use force and violence to eject alleged usurpers
PROPERTY such payment making the who were in prior physical possession of it.
IS ASSIGNED and of the payment the ƒ They must file the appropriate action in court
TO ONE OF assignment of whole of the real and should not take the law into their own
THE the real estate to estate free from hands. [Laurora v. Sterling Technopark (2003)]
PARTIES the party making any interest on
AFTER the payment. the part of the Unlawful Detainer
PAYMENT other parties. ƒ Resorted to when a lessor, vendor, vendee, or
IF Judgment shall Judgment shall other person against whom the possession of any
PROPERTY state the name vest the real land or building is unlawfully withheld, after the
IS SOLD AND of the purchaser estate in the expiration or termination of the right to hold
SALE IS or purchasers purchaser(s), possession by virtue of an express or implied
CONFIRMED and a definite making the contract.
BY THE description of payment(s) free ƒ May also be brought by the legal representative
COURT the parcels of from the claims or assigns of any such lessor, vendor, vendee, or
real estate sold of any parties to other persons.
ƒ Must be brought at any time within 1 year after
A certified copy of the judgment shall in either case the unlawful withholding of possession in the
be recorded in the registry of deeds of the place in proper Municipal Trial Court against the person
which the real estate is situated. [Rule 69.11] unlawfully withholding possession or persons
claiming under them.
g. Partition of personal property ƒ Action must be for the restitution of possession
of property together with damages and costs.
The provisions of Rule 69 shall apply to partitions of [Rule 70.1]
estates composed of personal property, or of both
real and personal property, in so far as the same FORCIBLE ENTRY UNLAWFUL DETAINER
may be applicable. [Rule 69.13] Possession becomes Possession was lawful at
unlawful right from the first but later becomes
h. Prescription of action very start (i.e. from the illegal, as when the
time of entry) as he lease contract has
The right of action to demand partition does not acquires possession by expired and the lessee
prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT FISTS. refuses to vacate the
where one of the interested parties openly and premises despite
 REMEDIAL LAW REVIEWER

demand. It is thus an action whereby plaintiff alleges

The deprivation of The unlawful withholding
physical possession of of possession is made
land and building is after the expiration or
effected through force, termination of the right
intimidation, strategy, to hold possession under
threat or stealth (FISTS). any contract, express or
implied.
The issue centers on who The issue centers on
was in prior possession whether the defendant’s
de facto. right to possess has
expired or not.
Previous demand upon Previous demand to
defendant to vacate not vacate required
required. (jurisdictional).
The plaintiff must allege The plaintiff need not be
and prove that he was in in prior physical
prior physical possession possession.
of the premises until
deprived thereof.
1-year period counted 1-year period counted
from date of actual from date of last
entry on the land. demand or last letter of
demand.
b. Distinguished from accion publiciana and
accion reinvindicatoria
ownership over a parcel of land and seeks recovery
of its full possession. [Javier v. Veridiano (1994)]
189
c. How to determine jurisdiction in accion
publiciana and accion reinvindicatoria
A/P and A/R are actions involving title to or
possession of real property or an interest therein
ƒ RTC has jurisdiction where the assessed value of
the property exceeds P20K or, in MM, P50k
ƒ MTC has jurisdiction if the assessed value does
not exceed said amounts
d. Who may institute the action and when;
against whom the action may be maintained
Who may File, When, Against Whom
Who: A person deprived of the possession of any
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or
other person against whom the possession of any
land or building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of
any such lessor, vendor, vendee, or other person

i. Accion Interdictal
ƒ the summary action for forcible entry
(detentacion)
ƒ where the defendant’s possession of property is
illegal ab initio, or
ƒ the summary action for unlawful detainer
(desahucio) where the defendant’s possession
was originally lawful but ceased to be so by the
expiration of his right to possess,
ƒ both of which must be brought within one year
from the date of actual entry to the land, in
case of forcible entry, and from the date of last
demand, in case of unlawful detainer,
ƒ in the proper MTC or MeTC
Nature:
ƒ special civil action involving realty;
ƒ subject to the Rules on Summary Procedure;
[Rule 70.3]
ƒ under the original exclusive jurisdiction of first
level courts;
ƒ nature of the action is determined by the
allegation of the complaint and the character of
the relief sought; [Abrin v. Campos (1991)]
ƒ one co-owner may institute the action.
ii. Accion Publiciana
A plenary action for recovery of the right to possess
and which should be brought in the proper regional
trial court when the dispossession has lasted for
more than one year.
iii. Accion Reivindicatoria
Also called accion de reivindicacion, it seeks the
recovery of ownership and includes the jus utendi
and the jus fruendi, which must be brought in the
proper regional trial court.
When: At any time within 1 year after such unlawful
deprivation or withholding of possession in the
proper MTC
Against Whom: The person or persons unlawfully
withholding or depriving of possession, OR any
person or persons claiming under them [Rule 70.1]
e. Pleadings allowed
Pleadings must be verified. [Rule 70.4]
Allowed pleadings [Rule 70.4]:
ƒ Complaint
ƒ Compulsory Counterclaim pleaded in the answer
ƒ Cross-claim pleaded in the answer
ƒ Answer
f. Action on the complaint
From the examination of the allegations in the
complaint and such evidence as may be attached
thereto, the court may:
ƒ DISMISS the case outright based on the grounds
for dismissal for ordinary civil actions apparent
in the complaint, or
ƒ ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70.5]
Cases requiring referral to conciliation, where there
is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70.12]
g. When demand is necessary
 REMEDIAL LAW REVIEWER
In cases of unlawful detainer, the action by the
lessor shall be commenced only after:
190 ƒ demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee,
or
ƒ by serving written notice of such demand upon
the person found on the premises, or
ƒ by posting such notice on the premises if no
person be found thereon, and the lessee fails to
comply therewith after 15 days in the case of
land or 5 days in the case of buildings. [Rule
70.2]
EXCEPTIONS (prior demand not required):
ƒ Where purpose of the action is to terminate the
lease by reason of the expiry of its term, and is
not for failure to pay rentals or comply with the
terms of the lease contract. [De Santos v. Vivas,
96 Phil 538]
ƒ When the purpose of the suit is not for
ejectment but for the enforcement of the terms
of the contract. [Guanson v. Ban, 77 Phil 7]
ƒ When the defendant is not a tenant but a mere
intruder. [id]
Jakihaca v. Aquino (1990): Demand upon a tenant
may be oral.
Dakudao v. Consolacion (1983): A person who
occupies the land of another at the latter's tolerance
or permission, without any contract between them is
necessarily bound by an implied promise that he will
vacate upon demand, failing which, an action for
unlawful detainer may be instituted against him.
Muñoz v. CA (1992): This rule as to tolerance does
not hold true in a case where there was forcible
entry at the start, but the lawful possessor did not
attempt to oust the intruder for over 1 year, and
only thereafter filed forcible entry suit following
demand to vacate.
Refugia v. CA (1996): Tolerance must be presented
right from the start of possession sought to be
recovered to categorize a cause of action as one of
unlawful detainer.
Zobel v. Abreu (1956): When failure to pay rent or
comply with the condition of lease is the ground for
ejectment, plaintiff should give 2 demands (which
may be embodied in 1 demand letter):
ƒ demand to pay rental or comply with conditions
of the lease, and if this is not complied with,
ƒ demand to vacate
Yap v. Cruz (1992): Notice and demand to vacate is
required on a lease on a month-to-month period to
render effective the termination of the lease upon
the expiration of the month, and prevent an implied
renewal of the lease.
Penas, Jr. v. CA (1994): An alternative demand to
either renew the expired lease contract at a higher
rental rate or vacate is not a definite demand to
vacate and therefore, insufficient basis for the filing
of an action for unlawful detainer.
Uy v. CA (1989): Refusal to collect or accept rentals
is not a defense. There must be consignation.
Procedure
Filing of complaint.
p
After the court has examined the allegations in the
complaint and supporting evidence attached to the
same, the court may:
ƒ DISMISS the case outright based on the grounds
for dismissal for ordinary civil actions apparent
in the complaint, or
ƒ ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70.5]
Cases requiring referral to conciliation, where there
is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70.12]
p
The defendant shall file his ANSWER and serve a
copy of it to the plaintiff within 10 days from service
of summons. [Rule 70.6]
Failure of the defendant to answer within the period
provided above shall give power to the court, motu
propio or on motion, to render judgment as may be
warranted by the facts alleged in the complaint and
limited to what is prayed for therein. [Rule 70.7]
Affirmative and negative defenses and cross-claims
and compulsory counterclaims not pleaded in the
answer are deemed waived.
EXCEPTION: lack of jurisdiction over the subject
matter.
p
Answers to the counterclaims or cross-claims shall
be served and filed within 10 days from service of
the answer in which they are pleaded.
p
Where there is a defense of tenancy, there must be a
preliminary hearing on the question of tenancy
relations. [Bayog v. Natino (1996)] If there is a prima
facie showing of tenancy, the court should dismiss
the case for lack of jurisdiction (jurisdiction belongs
to the DARAB). [Baranda v. Padios (1987)]
p
Not later than 30 days after the last answer is filed,
a PRELIMINARY CONFERENCE shall be held.
Rule 18 applicable. Effects of failure to appear:
ƒ When the plaintiff does not appear
- It shall be a cause for dismissal of his
complaint
- All cross-claims shall be dismissed
- The defendant who appears in the
absence of the plaintiff shall be entitled
to the judgment on his counterclaim
ƒ When the defendant does not appear
- The plaintiff shall be entitled to
judgment (This is true when there is only
one defendant or when all of the
defendants did not appear)

General rule: No postponement of the preliminary
conference shall be granted.
Exception: Highly meritorious grounds and without
prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the
movant. [Rule 70.8]
p occupation of the premises.
The court shall issue an ORDER stating matters
taken up during the preliminary conference within 5
days after the termination of the same.
Contents of the Order:
ƒ Whether the parties have arrived at an amicable
settlement, and if so, terms thereof;
ƒ The stipulations or admissions entered into by
the parties;
ƒ 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 30 days from
issuance of the order;
ƒ A clear specification of material facts which
remain controverted;
ƒ Such other matters intended to expedite the
disposition of the case. [Rule 70.9]
p defendant, execution shall issue immediately. [Rule
The parties shall submit 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
within 10 days from receipt of the order. [Rule
70.10]
Affidavits required to be submitted 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.
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
records. [Rule 70.14]
p accordance with Rule 58 to prevent the defendant
Judgment
GENERAL RULE: The court shall render judgment
within 30 days from the date of its receipt of the
affidavits and position papers OR the expiration of
the period for filing the same. [Rule 70.11]
EXCEPTION: Should the court find it necessary to
clarify certain material facts, it may during the 30-
day period issue an ORDER specifying the matters to
be clarified and require the parties to submit
affidavits or other evidence on the said matters
within 10 days from receipt of said order. Judgment
shall be rendered within 15 days after receipt of the
last affidavit or the expiration of the period for filing
the same. [Ibid.]
The court shall not resort to the foregoing procedure
just to gain time for the rendition of the judgment.
[Id.]
REMEDIAL LAW REVIEWER
If the trial court finds that the allegations of the
complaint are TRUE, it shall render judgment in
favor of the plaintiff for 191
ƒ restitution of the premises,
ƒ the just sum due as arrears of rent or
reasonable compensation for the use and
ƒ attorney’s fees and costs. [Rule 70.17]
If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render judgment for
the defendant to recover his costs. [Ibid.]
The judgment rendered in an action for forcible
entry shall be conclusive with respect to the
possession only, and it shall not in any way affect
the title or ownership of the land or building. Hence,
such judgment shall not bar an action between the
same parties with respect to the title of the land or
building.
The judgment or final order shall be appealable to
the appropriate RTC. [Rule 70.18]
p
Execution of judgment
GENERAL RULE: If judgment is rendered against a
70.19 and 70.21]
EXCEPTION: Appeal has been duly perfected by the
defendant and bond has been posted.
Lu v. Siapno (2000): Although immediately
executory, the judge should not order immediate
execution in his decision.
Kaw v. Anunciacion (1995): There must be notice of
the judgment and a motion with notice to the
adverse party.
h. Preliminary injunction and preliminary
mandatory injunction
Preliminary injunction
The court may grant preliminary injunction in
from committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession may move for
a preliminary mandatory injunction within 5 days to
restore him in his possession of the property. The
court then shall decide the motion within 30 days
from the filing thereof. [Rule 70.15]
i. Resolving defense of ownership
When ownership is raised as a defense, the court
may resolved the issue of ownership but only under
these conditions:
ƒ When the issue of possession cannot be resolved
without resolving the issue of ownership; and
ƒ The issue of ownership shall be resolved only to
determine the issue of possession [Rule 70.16].
 REMEDIAL LAW REVIEWER
When the defendant asserts ownership over the
property, the inferior court is not divested of its
192 jurisdiction [Rural Bank of Sta. Ignacia, Inc v
Dimatulac]
The judgment rendered in an action for forcible
entry or unlawful detainer shall be conclusive with
respect to the possession only, and it shall not in any
way affect the title or ownership of the land or
building. Hence, such judgment shall not bar an
action between the same parties with respect to the
title of the land or building. [Rule 70.18]
Matters Not Constituting Prejudicial Question to
Ejectment [Arcal vs. Court of Appeals (1998)]
ƒ Injunction suits instituted in the RTC by
defendants in ejectment actions in the
municipal trial courts or other courts of the first
level [Nacorda v. Yatco (1996)] do not abate the
latter, and neither do proceedings on
consignation of rentals [Lim Si v. Lim (1956)]
ƒ An ‘accion publiciana’ does not suspend an
ejectment suit against the plaintiff in the
former [Ramirez v. Bleza (1981)].
ƒ A ‘writ of possession case’ where ownership is
concededly the principal issue before the
Regional Trial Court does not preclude nor bar
the execution of the judgment in an unlawful
detainer suit where the only issue involved is
the material possession or possession de facto
of the premises [Heirs of F. Guballa, Sr. v CA
(1988)].
ƒ An action for quieting of title to the property is
not a bar to an ejectment suit involving the
same property [Quimpo v. de la Victoria
(1972)].
ƒ Suit for specific performance with damages do
not affect ejectment actions (e.g., to compel
renewal of lease contract) [Desamito v.
Cuyegkeng (1966)]; (Asked in the 2000 Bar
Exam)
ƒ An action for reformation of instrument (e.g.
from deed of absolute sale to one of sale with
pacto de retro ) does not suspend an ejectment
suit between the same parties [Judith v.
Abragan (1975)].
ƒ An action for reconveyance of property or
‘accion reivindicatoria’ also has no effect on
ejectment suits regarding the same property
[Del Rosario v. Jimenez (1963)].
ƒ Neither do suits for annulment of sale, or title,
or document affecting property operate to
abate ejectment actions respecting the same
property [Salinas v. Navarro - annulment of
deed of sale with assumption of mortgage
and/or to declare the same an equitable
mortgage (1983); Ang Ping v. RTC - annulment
of sale of title (1987); Caparros v. C.A. -
annulment of title (1989); Dante v. Sison -
annulment of sale with damages 174 SCRA 517;
Galgala v. Benguet Consolidated, Inc. -
annulment of document (1989)].
j. How to stay the immediate execution of
judgment
GENERAL RULE: If judgment is rendered against a
defendant, execution shall issue immediately. [Rule
70.19 and 70.21]
EXCEPTION: Appeal has been duly perfected by the
defendant and bond has been posted.
Procedure for staying the execution of judgment:
ƒ defendant perfects his appeal in due time;
ƒ defendant files a sufficient supersedeas bond
approved by the Municipal Trial Court; and
ƒ during the pendency of the appeal, he deposits
with the appellate court the amount of rent due
from time to time under the contract, if any, on
or before the 10th day of each succeeding
month. [Rule 70.19]
BUT upon motion of the plaintiff within 10 days from
the perfection of the appeal to the RTC, the court
may still issue a preliminary mandatory injunction to
restore the plaintiff in possession if the court is
satisfied that the defendant’s appeal is frivolous or
dilatory, or that the appeal of the plaintiff is prima
facie meritorious. [Rule 70.20]
k. Summary procedure, prohibited pleadings
Prohibited pleadings and motions [Rule 70.13]:
ƒ Motion to dismiss
EXCEPTIONS:
- Motion to dismiss based on lack of jurisdiction
over the subject matter
- Motion to dismiss for failure to comply with
section 12 (referral to Lupon for conciliation)
ƒ Motion for a Bill of Particulars
ƒ Motion for New Trial
ƒ Motion for reconsideration of a judgment
ƒ Motion for reopening of trial
ƒ Petition for relief from judgment
ƒ Motion for extension of time to file pleadings,
affidavits or other papers
ƒ Memoranda
ƒ Petition for Certiorari, Mandamus or Prohibition
against any interlocutory order issued by the
court
ƒ Motion to declare defendant in default
ƒ Dilatory motions for postponement
ƒ Reply
ƒ Third-party complaints
ƒ Interventions
13. Contempt
Definition
Contempt of court is a defiance of the authority,
justice or dignity of the court, such conduct as tends
to bring the authority and administration of the law
into disrespect of, to interfere with, or prejudice
parties litigant or their witnesses during litigation.
It is defined as a disobedience to the court by
setting up an opposition to its authority, justice and
dignity.
It signifies not only a willful disregard or
disobedience to the court’s order but such conduct
as tends to bring the authority of the court and the
administration of law into disrepute or in some
manner to impede the due administration of justice.