Remedial Law Essentials

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REMEDIAL LAW
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Civil Procedure
Special Civil Actions
Special Proceedings
Criminal Procedure
Evidence
Special Laws
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It is that part of the

law which creates,
It refers to the
legislation providing
defines or
means or methods
regulates rights
whereby causes of
action may be
eflbctuated, wrongs
redressed and relief
obfarned (also known
as ADJEGTIVE LAW),
concerning life,
liberty or property or
the powers of
agencies or
instrumentalities for
the administration of
public affairs.
accurate because only jurisdiction over the

subject mafter is confened by substantive
law. Jurisdiction over the parties, issues
and res is governed by procedural laws.
It makes vested
rights possible.
It has NO vested rights.
It is prospective in
application.
It governs acts and

transactions which took
place (Retroactive).
It cannot be enacted
by the Supreme
Court.
The Supreme Court is
REQUTSITES FOR THE VALID EXERCISE

OF JURISDICTION
3.
it
must have jurisdiction over the
persons of the Parties.
It is acquired the
moment he files his
complaint, petition or
initiatory pleading.
expressly empowered
to promulgate
orocedural rules.
Judicial Power includes the duty of the courts
of
That
to
justice
settle actual controversies
involving rights, which are legally demandable
and enforceable, and to determine whether or
not there has been grave abuse of 'discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality o{ the
Government (Section 1, Article Vlll, 1987
Constitution).
4.
That
it
It is acquired either by
his voluntary
appearance in court
and his submission to
its authority, or by
service of summons or
other coercive process
upon him.
must have iurisdiction over the
subiect mafter ol lhe controversY.

Jurisdiction
the subject matter is

in the
The power of judicial review is the Supreme

Court's POWER TO DECLARE a law, treaty,
international or executive agreement,

presidential decree, proclamation, order,
instruction, ordinance, or regulation
UNCONSTITUTIONAL.
Jurisdiction (Latin: 'juris" and'dico" - I speak

of the law) is the power and authority of a
court to try, hear, and decide a case and to
E.
ys.
a.
April
carry its judgments into effect.
o The statement that 'Jurisdiction

confened bv substantive /aw" is NOT
is
activelY
defendant
stages ofthe
EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA'VILLENA
oveiall chairperson, MINISTER MOISES DU chairperson for academics, DJOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA 5TA. ANA vice<hairpersori for operations, MIKHAIL MAVERICK TUMACDER vicechairperson for secretariat, JACKIE LOU LAMUG vice-chairperson for finance, DIANA JEAN TUAZON vice<hairperson for edp, JASSEN
RALPH LEE vice<hairperson for logistics
SUBJECT COMMITTEE:
RYAN MERCADER subject chair, MARTA DESIREE FEDERIO assistant subje{t chair, IVA FREYRITZ ERICA CAYABAN edp, JANNA MAE
TECSON and KRISTINE TUPAZ civil procedure, KAREN KRISTI LACAP special civil actiont MYRTLE CALVAN special proceedings. KIMBERLY
JOY BARAOIDAN criminal procedure, CRISALYN LUMANGLAS evidence, HANZEL SANTOS special laws
MEMBERS:
Ethel Joy Arriola, Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan
Daniel Galang, Erika Gallego. Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, Ali Lorraine Manrique, Roniel Muioa
Kevin Averell Pangan, Rimiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabalog Norliza
Villanueva, Jose Angelo David, Kamille Deanne Lagasca, Raynan Larosa
REMEDIAL LAW
INTRODUCTION
withheld from the plenary powers of
pro@edings before the trial court and

invoked its authority by asking for an
affirmative
relief (Soliven vs.
Fastforms, lnc. G.R. No. 139031, Oct.
and extends only
18,2004).
specified cases.
Jurisdiction is governed by the law
.
o
That it must haye jurisdiction over the res

(thing or property under litigation).
r lt is acquired either by the seizure of
the properg under legal process or as
result of the institution
decide cases previously decided by a

lower court now elevated for judicial
review.
of
legal
proceedings, in which the power of the
court
recognized and made
effective.
As to Nature and Extent of EXERGISE:

EXCLUSIVE jurisdiction Confined to
is
a particular court to the exclusion of
it
must have jurisdiction over the

rcsues as raised in the pleadings or by
their agreement in a pre-trial order or
those tried by the implied consent of the
That
- Exercised over
to particular or
As to NATURE of the Cause:

Exercised by
ORIGINAL jurisdiction
courts in the first instance.
Exercised
APPELLATE jurisdiction
by a superior court to review and
at the time the action is

COMMENCED.
6.
the court.
LIMITED jurisdiction
parties.
other courts.
CONCURRENT
jurisdiction
Pertaining to different courts over the
same subject matter at the same time
and place. When two or more courts
have concurrent jurisdiction over a
case, the court which has first validly
acquired jurisdiction takes it to the
exclusion of the others (also referred

Pertains to the authority
to hear and decide
cases.
to as
Any act of the court

pursuant to such
authority including the
decision and its
consequences.
4.
Where there is an exercise of jurisdiction
in the absence of jurisdiction, the court

be commifting an error of
would
mere error
of
One where the court,

officer or quasi-judicial
body acts wiihout or in
excess of jurisdiction, or
with grave abuse of
discretion.
It renders a judgment
void or at least voidable.
judgment,
not
of
One that the court may

commit in the exercr.se of
errors of procedure or
mistakes in the court's
Such an error does not
make the court's decision
void.
CLASSIFICATION OF JU RISDICTION
coordinate
As to SITUS:
TERRITORIAL jurisdiction - Exercised
within the limits of the place where the
court is located.
EXTRA-TERRITORIAL jurisdiction Exercised beyond the confines of the

territory where the court is located.
Where on the other hand, the court acted

with jurisdiction but coqnmitted procedural
errors or errors in the appreciation of the
facts or of the taw, the error would be a
1. As to CASES
or
jurisdiction.
jurisdiction.
confluent
jurisdiction).
Tried:
GENERAL jurisdiction - Exercised

over all kinds of cases, excepf those
COURTS OF LAW vs. COURTS OF EQUITY

A COURT OF LAW decides a case according
to what the promulgated law is while a COURT
OF
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ADHERENCE TO
DOCTRINE OF
JURISDICTION
(Also Known As Continuity of Jurisdiction)
Cannot be abolished
by Congress without
amending the
Constitution.
Once jurisdiction has been acquired, the court

retains it untilthe final termination of the case.
May be abolished by
Congress by just
siniply repealing the
lawwhich created
those courts.
General Rule: Law enacted during
the
pendency of a case which transfers jurisdiction
to another court does not affect cases prior to
its enactment.
Ex. The Gourt of Tax
Appeals
SUPERIOR COURT vs. INFERIOR COURT

SUPERIOR COURTS refer to those courts
which have the power of review or supervision
over another lower court while INFERIOR
COURTS are those which, in relation to
another are lower in rank and subject to review
and supervision of the latter.
Exceptions:
1. When the new law
EXPRESSLY
PROVIDES for a retroactive application;
2. When the change of
jurisdiction
is
CURATIVE in character.
EXCLUSIONARY PRINCIPLE
The court first acquiring jurisdiction excludes

all others.
COURTS OF RECORD
Those whose proceedings are enrolled and

which are bound to keep a wriften record of all
trials and proceqdings handled by lhem. R.A.
No. 6031 mandates all Municipal Trial Courts
to be courts of record.
POLICY OF JUDICIAL HIERARCHY
This policy means that a higher court will not

entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate
DOCTRINE OF PRIMARY JURISDICTION
Under this doctrine, courts 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 and
experience of said tribunal in determining
technical and intricate matters of fact (Villaflor

vs. CA, G.R. No. 95694, Oct. 8, 1997).
courts.
DOCTRINE OF ANCILLARY JURISDICTION
While it is true that the SC, CA, and the RTC

have concurrent original jurisdiction to issue
writs of Certiorari, Prohibition and Mandamus,
such concurrence does not accord litigants
unrestrained freedom of choice of the court to
which the application for the writ may be

directed. The application should be filed with
the court of lower level unless the importance
of the issue involved deserves the action of
the couft of higher level.
DOCTRINE
OF JUDICIAL STABILITY
It involves the inherent or implied powers of

the court to determine issues incidental to the
exercise of its primary jurisdiction.
Under its aneillary jurisdiction, a court may

determine all questions relative to the matters
brought before it, regulate the manner in which
a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be
money
OR
NON INTERFERENCE
General Rule: No court has the authority to

interfere by injunction with the judgment of
another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare
judgment
another court
as unjust a
of
(lndustrial Enterprises lnc. vs. CA, G.R. Na.

88550, Aprit 18, 1990).
Exception: The doctrine of judicial stability

does not apply where a third pafty claimant is
involved (Sanfos vs. Bayhon, G.R. No. 88643,
July 23, 1991).
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REMEDIAL LAW
JURISDICTION
EXCLUSIVE
1.
Actions involving personal property,
1.
whose value does NOT exceed

P300,000 or in Metro Manila the
amount does NOT exceed P400,000;
The action is incapable of pecuniary

estimation;
2"
Title to or possession of real property or

any interesttherein, the assessed value
EXCEEDS P20,000 or EXCEEDS
P50,000 in Metro Manila,
ORIGINAL
Note: The
adjusted
jurisdictional
2.
amount is based
on Sec. 5 of R.A.
7691, this year
being the 2nd 5year period
mentioned therein.
Demand for money NOT exceeding

P300,@0 or in Metro Manila NOT
exceeding P400,000;
Admiralty and maritime cases where

demand or claim EXCEEDS P300,000
Note: Exclusive of lnterest, Samages

of whatever kind, gttorney's fees,
litigation gxpenses, and gosts
flDALEC), the amount of which must
or EXCEEDS P400,000 in Metro

Manila;
be specifically alleged but the filing fees

thereon shall be paid,
Matters of Probate (testate & intestate)

where gross value of the estate
EXCEEDS P300,000 or EXCEEDS
P400,000 in Metro Manila;
. The exclusion of the term

"damages of whatever kind"
applies to cases where the
5.
damages are merely incidental to
or a
consequence of the main

cause of action. However, in cases
where 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;
3.
4.
Probate proceedings (testate or

intestate) where the gross value of the
estate does NOT exceed P300,000 or
in Metro Manila the value does NOT
exceed P400,000;
Actions involving title to or possession

of real property, or any interest therein
where the assessed value or interest
therein does NOT exceed p20,000 or
in Metro Manila, does NOT exceed
P50,000;
5.
lnclusion and exclusion of voters (Bp

881,
X
Sec.138);
6.
Admiralty and maritime cases where

demand or claim does NOT exceed
P300,000 or in Metro Manita, does
NOT exceed P400,000;
Those covered by the Rules on
Summary Pr;ocedure:
lorcible Entry and Unlawful
petainer (FEUD)
7.
a.
.
o
With jurisdiction to resolve issue of

ownership to determine ONLY the
issue of possession;
lrrespective of the amount of
damages or unpaid rentals sought
to be recovered.
Where attorney's fees are
All actions involving the contract of

maniage and family relations (See RA.
8369 amending BP. 129).
Family Courts now have exclusive
original jurisdiction over:
Petitions for guardianship, custody
of children, habeas corpus in
relation to the latter (but the SC
and the CA have not been
deprived of their original
a.
b.
c.
,
jurisdiction);
Petitions for adoption of children
and the revocation thereof;
Complaints for annulment and
declaration of nullity of marriage,
matter relating to marital status
and property relations of husband
and wife or those living together
under different Status or
agreement, and petitions for
dissolution of conjugal partnership
of gains;
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d.
f.
Supp-qdandktaekrowledgment;
"Pbtition tor de.qlantipnlffiKftatus
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2011 CENTRATIZED BAR OPERATIONS
awarded, the same shall NOT
exceed P20,000.
Other civil cases, excepf probate
proceedings, where
the total
b.
amount of the plaintiffs claim does
NOT exceed P100,000 or does

NOT exceed P200,000 in Metro
Manila, exclusive of interests and
costs (as amended by A.M. No.

02-1 1-09-SC, effective November
defendant upon verifi ed application

by the complainant or the victim for
relief fom abuse;
The court may order the temporary
custody of children in all
Civil actions for their custody,
support pendente /lfe, including
deduction from the salary, and use
ofconjugal home and other
properties in all civil actions for
support.
25,2002).
Cases NOT Win the exclusive
jurisdiction of any court, tribunal,
person or body exercising judicial or
quasi-judicial fu nctions (general
jurisdiction of RTC);
Civil actions and special proceedings
falling within the exclusive original
jurisdic'tion of Juvenile and Domestic
Relations Court and of Court of '
Agrarian Relations as now provided by
law;
All other caseslivhere demand

EXCLUSIVE of IDALEG or the value of
the property in controversy EXCEEDS
P300,000 or EXCEEDS P400,000 in
Metro Manila;
Under Sec. 5.2 of the Securities and
Regulations Code to hear and decide:

. Cases involving devices or
schemes employed by or any acts
ofthe board ofdirectors, business
associates, its officers or
partnership, amounting to fraud
and misrepresentation which may
be detrimental to the interest of the
public and/or of the stockholders,
with
REMEDIAL LAW
JURISDICTION
management of a Rehabilitation
Receiver or Management
Committee.
With SC
CONCURRENT
Actions affecting ambassadors,
public ministers and consuls.
With SC, CA and Sandigatnbayan lssuance of writs of certiorari, prohibition,

mandamus, habeas corpus; quo warranto,
injunction against lower courts.
With SC, CA and Sandiganbayan issuance of writ of amparo and habeas data
With MTC, etc.
NONE.
With lnsurance Commissioner

NOT exceeding P100,000.
Claims
May be assigned by the SC to hear

cadastral or land registration cases where
there is no controversy over the land or in
DELEGATED
case of contested lands, the value does

NOT exceed P100,000.
PetitiOn for Habeas Coryus OR application

for bail in criminal cases in the absence of
all RTC judges in the province or city.
SC may designate certain branches of RTC
to try exclusively criminal cases, juvenile

and domestic relations cases, agrarian
cases, urban land reform cases not falling
wiip the jurisdiction of any
quasi-judicial
body and other special cases in the interest
of justice.
All cases decided by the tourer courts
in
r respective territorial j u risd iction ex cept

declsrbns of lower courts in the exercise of
thei
delegatedjuisdiction. -
Petitions for certiorari, prohibition or

mandamus against:
a.
b.
c.
d.
CA;
COMELEG;
COA;
Sandiganbayan.
With Court of Appeals (CA)

Note: While the
mandamus (CPM) against RTC,
Rules provide for
habeas corpus, quo warranto;
concurrent
jurisdiction among
mandamus against the NLRC.
the RTC, CA, and
CONCURRENT
a.
b.
SC, the same is

still subject to the
principle
of
HIERARCHY OF
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pursuant to Sec 4
of Rule 65.
Wth CA, the Sandrganbayan and RTC
a.
b.
Petitions for issuance of Writ of

Amparo;
Petitions for Habeas Data, where
the action involves public data or
government office.
With the CA , RTC and Sandiganbayan
mandamus against inferior courts
and other bodies;
Petitions for habeas corpus and quo
warranto.
a.
b.
Wth RTC
Actions against ambassadors, other public
ministers and consuls
With GA, lhe Sandiganbayan and RTC

c. Petitions for issuance of Writ of
Amparo;
Petitions for Habeas Data, where
the action involves public data or
govemment office.
With CA only unless otherwise provided by
law
Petitions for certiorari, prohibition
or mandamus against quasijudicialagencies {like CSC, CBM,
CTA, etc.) (Amendments to Rule
65, A.M. No. 07-7-12-SC).
d.
a.
With the dC, nfC and Sandiganbayan

Petitions for certiorari, prohibition
or mandamus against inferior
courts and other bodies; and
Petitions for habeas corpus and
quo wananto.
a.
b.
Review, revise, reverse, modify, or affirm on

appeal or certiorari the following:
All cases in which the
constitutionality or validity of any
treaty, international or executive
agreement, law, presidential decree,
proclamalion, order, instruc'tion,
ordinance or regulation is in
question;
All cases involving the legality of any
tax, impost, assessment, or toll, or
any penalty imposed in relation
thereto;
All cases in which the jurisdiction of
any lower court is in issue;
All criminal cases in which the
penalty imposed is reclusion
perpetua or higher;
All cases in which only an error or
question of law is involved
APPELLATE
a.
b.
Exclusive Appellate jurisdiction over all
final judgments, decisions,
the 4" paragraph of section 17 of
Judiciary Act of 1948.
c.
d.
e.
EXCLUSIVE
ORIGINAL
1.
Offenses punishable with
imprisonment
six (6)
irrespective of the
amount of fine, and
regardless of other
exceeding
imposable accessory or
other penalties, including

the civil liability arising
from such offenses or
predicated thereon,
inespective of kind,
nature, value
or
1.
Offenses
imposable
2.
Offenses not
NOT
years
amount
court, tribunal or
jurisdiction
resolutions,
orders or awards of RTC and quasi-judicial

agencies except those falling within the
appellate jurisdiction of the Supreme Gourt
in accordance with the Constitution, Labor
Code, .8.P. 129 and of subparagraph 1 of
the {- paragraph and subparagraph 4 of
of
the
the
REMEDIAL LAW
JURISDICTION
thereof;
e.
Sandiganbayan.
2. Offenses
DAMAGE
Note: ln cases where the

only penalty is a fine, the
involving
TO
PROPERTY through
criminal negligence.
determine jurisdiction. lf
Note: ln cases where the only

penal$ is a fine, the amount
jurisdiction (Adm. Cir. 09-
thereof shall
determine
amount thereof
shall
the amount EXCEED

P4,000, RTC'S
have
e4).
3.
iurisdiction. lf the amount does
NOT exceed P4,000, MTC's
have jurisdiction (Adm. Cir. 0994).
Those covered by the

Rules on Summary
Procedure:
a.
b.
c.
d.
Family Court - Criminal

cases where:
One or more of the
accused is/are below
eighteen (18) years
of age but not less
than nine (9) years of
age; or
Where one of the
victims is a minor at
the time of the
commission of the
offense;
Cases against minors
cognizable under the
Dangerous Drug Ac{;
Violations of RA
a.
Violations of traffic
laws, rules and
regulations;
Violations of the
rental law;
Violations of
b.
municipal or city
ordinances;
Violations of BP 22,
otherwise known as
Bouncing Checks
c.
Law (4.M. No.00-1101-SC, effective April

15,2003);
e. All other criminal

cases where the
penalty
is
imprisonment
exceeding
or
liabilities
therefrom and
in
offenses involving
damage to property
through
criminal
negligence where the
imposable fine is not
exceeding P10,000.
Civil and criminal cases filed

pursuant to and in connection
wilh Executive Order Nas. 1, 2,
14, and 14a (filed by PCGG).
d.
2610, otherwise
not
months
andlor P 1,000 fine
irrespective of other
penalties
civil
arising
2.
Other offenses or
felonies whether
simple or complexed
with other crimes.
The offender committing
the offense in items a, b, c,
and e is a public official
occupying a position
elassified as salary grade
27 and higher;
The offense was
committed in relation to
office.
e.
known as the
"Special Protection of
Children Against
Child Abuse,
Exploitation and
Discrimination Act'as
amended by RA
7658; and
Cases of domestic
violence against
women and children.
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All cases decided by the
APPELLATE
MTC's in their respective

territorial jurisdiction.
Appeals from the final

judgments, resolutions or
orders of regular courts where
all the accused are
occuPYing
grade 27 or not
covered by the
otherwise
preceding
positions lower than salary
enumeration.
Petition
for
certiorari, prohibition and
mandamus against Court of Appeals and

Sandiganbayan.
With the CA: petitions for certiorari,

prohibition and mandamus against the
Actions for annulment of judgment of the

Regional Trial Courts
Crimes of Terrorism under Human Security
Act of 2007.
With the SC: petitions for certiorari, prohibition
and mandamus against the RTC's.
RTC's.
With the CA and RTC: petitions for
certiorari, prohibition and mandamus
against the MTC's.
With the SC and RTC: petitions for certiorari,

prohibition and mandamus against the MTC's.
By petition for review on certiorari:

From the CA;
From lhe Sandiganbayan;
From the RTC where only an error
or question of law is involved.
By.Notice of Appeal:
r
.
r
Note: In People vs. Mateo, G.R. Nos.

14767&87, July 7, 2004 lhe Supreme
Court held that while the Fundamental Law
a mandatory review by the

imposed is reclusion perpetua, life
requires
Supreme Court of cases where the penalty

imprisonment, or death, nowhere, however,
has it proscribed an intermediate review. lf
only
to
ensure utmost circumspection

before the penalty of death, reclusion
perpetua or life imprisonment is imposed,
the Court now deems it wise and
compelling to provide in these cases a

review by the Court of Appeals before the
case is elevated to the Supreme Court. A
prior determination by the Court of Appeals
on, particularly, the factual issues, would
minimize the possibility of an error of
judgment. lf the Court of Appeals should
of death, reclusion
perpetua or life imprisonment, it could then
render judgment imposing the
affirm the penalty
conesponding
penalty as
the
circumstances so warrant, refrain from

entering judgment and elevate the entire
records of the case to the Supreme Court
for its final disposition.
From the RTC in the exercise of its original

iurisdiction, except those appealable to the
Sandiganbayan.
From the RTC where penalty imposed 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 (Section 3 Rule 122
as amended by AM. No.0O-U03-SC).
By automatic review (i.e. no notice of appeal is
necessary):
From the RTC, in cases wherein the death
penalty is imposed.
the
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REMEDIAL LAW
JURISDICTION
ORIGINAL
1.
All cases involving custody, guardianship, legitimacy, paternity and filiation

arising under the Code of Muslim Personal Laws;
All cases involving disposition, distribution and settlement of estate
of
deceased Muslims, probate of wills, issuance of lefters of administration or

appointment of administrators or executors regardless of the nature or
aggregate value ofthe property;
3.
Petitions for the declaration of absence and death for the cancellation or
correction of entries in the Muslim Registries mentioned in Title Vl, Book Two
of the Code of Muslim Personal Laws;
4.
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
All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus,
dnd all other auxiliarv writs and
in aid of its aDoellate
1.' Petitions by Muslim for the constitution of a family home, change of name and
cpmmitment of an insane person to an asylum;
All other personal and legal actions not mentioned in paragraph 1 (d) wherein
thb 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
All special civil actions for interpleader or declaratory relief wherein the parties
are Muslims or the propertv involved belongs exclusively to Muslims.
4
Offenses defined and punished under PD 1083
2.
Disputes relating to :
a.
Marriage
b.
Divorce
c.
Betrothal or breach of contrac{ to marry
d. Customary dower (mahr)
Disposition and distribution of property upon divorce
Maintenance and support,
Consolatory gifts (muf'a) and
restitution of marital rights
Disputes relative to communal properties.
2.
3.
Cases that can be filed
e.
f.
S.
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Applicability
1.
SECTION
1. TITLE OF THE RULES
Civil Action - one by which a party sues

another for the enforcement or protection
of a right or the prevention or redress of a
wrong.
The Rules of Court DO NOT HAVE retroactive
effect. They can, however, be made
A civil action may either be
passage and therefore are retroactive in that
OR SPECIAL, BOTH are governed by the

rules for ordinary civil actions, SUBJECT
applicable to cases pending at the time of their

sense.
to the specific rules
1.
2.
3.
Simplified and inexpensive procedure for
2.
the speedy disposition of cases;
Uniform for all courts of the same grade;

and
Shall not diminish, increase or modify

substantive rights (Arf. Vlil Sec. S[S], 19A7
3.
Phil. Constitution).
o ln the interest of just and expeditious

proceedings,
the Supreme Court
may
suspend the application of the Rules of
Court and except a case from its

operation because the Rules were
precisely adopted with the primary
objective of enhancing fair trial and
expeditious justice.
SECTION
2.
APPLICABLE
IN WHAT
prescribed
for
special civil action.
The rule-making power of the Supreme Court

has the following limitations:
ORDINARY
Griminal Action
- one by which the State

prosecutes a person for an act or omission
punishable by law.
Special Proceedings
- a
remedy by
which a party seeks to establish a gtatus,

a gight, or a particular fact (SRP).
Glassifi cation of Actions
B.
As to Nature
Governed by ordinary
rules.
AIso governed by
ordinary rules but
SUBJECT to specific
rules prescribed
COURTS
These Rules shall apply in all the courts,

EXCEPT as otherwise provided by the
*ffi t*ev{
Supreme Court.
SECTION
3. CASES GOVERNED
A right possessed
One party prosecutes

another for the
enforcement or
protection of a right or
the prevention or
by one against
another.
The moment said
claim is filed before
a court, the claim is
converted into an
action or suit.
EXECUTIVE COMMITTEE:
EZEKIEL JOSHUA VILLENA
overall chairperson, MINISTER MOISES DU chairperson for academics. DJOANIVIE JOMARE JUNASA
chairperson for hotel operations, MARIE MICAELA STA. ANA vice<hairperson for operations, MIKHAIL MAVERICK TUMACDER vice.
chairperson for secretariat, JACKIE Lou LAMUG vice_chairperson for ffnince, DIANA lren ruezoru vicechairperson for edp. JASSEN
RALPH LEE vice-chairperson for logistics
SUBJECT COMMITTEE:
RYAN MERCADER subject chair. MARTA DESIREE FEDERIo assisrant subject chair, tvA FREyRtrz ERtcA CAYABAN edp, JANNA MAE
TECSON and KRISTINE TUPAZ ciMI procedure, KAREN KRlSTl LACAP special civil actions, MYRILE CALVAN special proceedings, KIMBERLY
JOY BARAOIDAN criminal procedure, CRISALYN LUMANGI-AS evidence, HANZEL SANTOS special laws
MEMBERSI
Ethel Joy Arriola. Glory Grace Arugay, Mark Joseph Ayo, Kriselle Balmes, Elizabeth Mae Bongalonta, Venice Buagnin, Diana Fajardo, lan
Daniel Galang, Erika Gallego, Nicole Rose MargaretJamilla, Frances Dyan Lim, Jane Kathyrine Lim, AIi Lorraine Manrique, Roniel Murioa
Kevin Averell Pangan, Ramiila Quinto, Beverly Quintos, Lee Realino Reyes, Lyndon Rutor, Ednalyn Saron, Carlo Tabaloc, Norliza
blfrrleri-a Joe Angelo David, lGmille Deanne Lagasca, Raynan Larosa
REMEDIAL LAW
CIVIT PROCEDURE
defendant is
NOT required.
A proceeding
to determine
the state or
condition of
Jurisdiction over
the person of
the defendant is
required.
An action to
Jurisdiction over
the person of the
defendant is NOT
required as long
as jurisdiction
over the res is
A proceeding to
subject the
interest of a
impose a
responsibility
or liability
upon a penion defendant over
directly.
a particular
property to an
lien burdening
it.
Judgment is
binding on the
WHOLE
Judgment is
binding only
upon PARTIES
IMPLEADED
OR THEIR
SUCCESSORS
IN INTEREST,
Ex. Action for
specific
performance;
action for
breach of
contract.
Judgment is
binding upon
PARTICULAR
PERSONS.
Ex. Aclion for
partition; action
to foreclose real
estate mortgage.
1. Wh.ether or not jurisdiction over the person
_
2.
of the defendant is required; and

Persons upon whom judgment is binding.
D.
As to Carrca
Filed in the
court where
the property
or any part
thereof is
situated.
Filed in the
court where
the plaintiff
or any of the
defendants
resides, at
the option of
Ex. Action
for a sum of
t2
The distinction is significant in determining the

VENUE of an action.
E.
As to the Place of
Must be brought in a
particular place
where the subject
property or a portion
thereof is located,
unless there is an
agreement to the
contrary (Section 4,
Rule 4).
Dependent on the place

where the party resides
regardless of where the
cause of action arose
subjecl.
(Section 4, Rule 4).
Ex. Action to recover

real property
Ex. Action to recover

sum of money
Note: lf the action is founded on privity of

contract between the parties, then the action
whether debt or covenant, is TRANSITORy.
But if there is no privity of contract and the
action is founded on privity of estate only, such
hands of the remote grantees, then the action
The distinction is important in determining the
Personal
property is
sought to be
recovered
or where
damages for
breach of
contract are
object (e.9., action for annulment of maniage).
as a covenant that runs with the land in the
following:
Ownership or
possessjon of
real property
is involved.
Note: An action could be real as to cause ard

personam as to object (e.g., acrfun to
recover a piece of land). An action could also
be personal as to cause and ,n /ern as to
in
Both real and

personal properties
are involved.
is LOCAL and must be brought in the ptace

wherein the land lies (paper lndu'stries
Corporation of the Philippines vs. Samson,
G.R. No. L-301 75, November 25, 1 975).
Actions lncapable of pecuniary Estimation

An action CAPABLE of pecuniary estimation is
one wherein the action is'brought primarily
for the recovery of a sum of money; and the
amount of the claim shall determine where
the jurisdiction ties.
than th&&S&tWffi&vei*i
w{'LW"e.rW,WtgWW*shiw
The rules on venue

of real actions shall
govern.
Sm
Febu Gollege of LEb
secrrof
4.
IN WHAT CASES
been left for dete.rmination by the court,

additional filing fee therefor shall
NOT
the
APPLICABLE
constitute a lien on the judgment.
NOT APPLICABLE lN: {ELCaNio)

1. llection Cases;
land registration/qdastral cases;
2.
3.
4.
5.
. The amount of
damages should be
specified not onlY in the bodY of the
[aturalization;
lnsolvency proceedings;
Qther cases not provided in the Rules of

Court.
Exception: The Rules of Court are applicable
above cases by analogy or in a

s u p pl eto ry ch a racte r and when eve r practicab e
to the
and convenient.
SECTION
case,
it is the date of mailing that is
considered as the date of filing and not the
5. COMMENCEMENT OF ACTION
A civilaction is commenced by:

1. The FILING OF THE COMPLAINT (When
an additional defendant is impleaded in a
later pleading, the action is commenced
with regard to him on the date of the filing
of such LATER PLEADING); and
Note:
actions
deemed
commenced from the date of the filing and
docketing of the complaint, without taking
Civil
pleading but also in the PraYer.

lf the complete amount of the docket fee is
not paid, the prescriptive period continues
to run as the complaint is deemed not filed
(Feria, 2001, p. 208).
An action can be commenced by filing the
complaint by registered mail. ln which
are
into account the issuance and service of

summons (Cabrera vs. Tiano, G. R. No" L17299, July 31, 1963).
2. The PAYMENT OF
DOCKET FEES
(Determined not only by the amount of the
claim but also by the amount of damages)
ln Sun lnsurance Office, Ltd. v. Asunciotn fl7a

SCRA 274, 1989) the Supreme Court laid
down the following rules:
It is not simply the filing of the complaint or
appropriate initiatory pleading but also the
payment of the prescribed docket fee that
vests a trial court with jurisdiction over the
subject matter or nature of the action.
Where the filing of the initiatory pleading is
not accompanied by payment' of the
docket fee, the court may allow payment
of the fee within the reasonable time but in
no case beyond the applicable prescriptive
period.
b. The same rule applies to permissive
counterclaims, third-party claims and
similar pleadings which shall not
date of the receipt thereof by the clerk of

court.
SECTION
6,
CONSTRUCTION
General Rule: Liberal construction
Exceptions:
1. Reglementary periods;
2. Rule on forum shopping;
3. Service of summons.
. The power of the Supreme Court to
promulgate rules concerning pleading,

practice, and procedure includes the
power fo suspend the effectivity of such
rules or to provide an exception from the
operation of said rules. lt is within the
inherent power of the Supreme Court to
suspend its own rules in a particular case
in order to do justice (De Guia vs. De
Guia, G.R. No. 135384, APril 4, 2001).
Reasons Which Would Warrant the

Suspension of the Rules
1. The existence of special
or
compelling
circumstances;
be
considered filed until and unless the filing

fee prescribed therefor is paid.
Where the trial court acquires jurisdiction

over a claim by the filing of the appropriate
pleading and payment of the prescribed
filing fee, but subsequently, the judgment
awards a claim not specified in the

pleading, or if specified, the same has
13
REMEDIAL LAW
CIVIL PROCEDURE
1.
SECTION
BASIS OF
ORDINARY GIVIL ACTIONS,
Every ordinary civil action must be based on a

cause of action.
SECTION
Gause
2.
CAUSE OF ACTION, DEFINED
of Action is the act or omission
by
which a party violates a right of another.
Requisites of Right of Action:

1. The existence of a LEGAL RIGHT of the
The redress,
protection,
award or
coercive
measure
which the
plaintiff prays
the court to
render in his
favor as
consequence
ol the delict
committed by
the defendant.
The
procedure or
appropriate
legal form of
relief of
action which
may be
availed of by
the plaintiff
as the
means to
obtain the
desired
relief.
plaintiff;
2. A CORRELATIVE OBLIGATION of the

defendant to respect plaintiffs right; and
3. An act or omission of the defendant in
VIOLATION of the plaintiffs legalright.
results from the injury.
of Action is right of a
person to
commence and prosecute an action to obtain
the relief sought.
SINGLE
A party may not institute more than one suit for

a single cause of action
SECTION 4. SPLITTING A SINGLE CAUSE

OF ACTION, EFFECT OF
Splifting of cause of action is the act of

dividing a single or indivisible cause of action
Requisites:
1. There must be a good cause (The

existence of a cause of action);
2. A compliance with qll the conditions
precedent
3.
3. ONE SUIT FOR A
CAUSE OF ACTION
lnjury is the illegal invasion of a legat right

while damage is the loss, hurt, or harm which
Right
SECTION
The thing,
wrongful ad,
contract or
property
which is
directly
involved in the
action,
concerning
which the
wrong has
been done
and with
respect to
which the
controversy
has arisen.
to the bringing of the
action;
and
The action must be instituted by the proper
Delict or wrongful act or Remedial right or right

omission committed by to relief granted by law
the defendant in to a party to institute an
violation of the primary action against a person
who has committed
rights of the plaintiff.
into several parts or claims and bringing

several actions thereon. lt is NOT allowed.
Purpose:
To avoid the following:

Multiplicity of suits;
2" Conflicting decisions; and
Unnecessary vexation and harassment of
defendants.
1.
3.
Applies NOT only to complaints but also to

counterclaims and cross-claims.
delict or wrong against

him.
The reason for
the The remedy
aclion.
q-5{P"
or
afforded or
means
the
consequent relief.
The formal statement of The remedial right given

the operative facts that to a person because of
gives rise
to
remedial
right.
the occurrence of
the
alleged facts.
matter of procedure A matter of right and

and depends on the depends on substantive
pleadings filed by the law.
parties.
Not affected by
affirmative
(Fraud,
estoppel, etc.).
14
Affected by affirmative
defenses defenses.
prescription,
#tCSA
ion to di3fi1iSb Cnl*tlrHdlound of:
tftwsffi65ry4;sff:1h,aw i
9en Fcls
GoIIege ot
leb
b.
Exception: A contract to do several things

at several times is divisible, and judgmen!
for a single breach of a continuing contract
is NOT a bar to a suit for a subsequent
breach (e.9., promlssory note payable in
several installments so long as fhere ts no
acceleration clause).
c.
Exception
to the
All
of
Doctrine
Anticipatory Breach: An
UNQUALIFIED and POSITIVE REFUSAL
to perform a contract, though the
performance thereof is not yet due, may, if
the renunciation goes into the whole
contract, be treated as a complete breach
which will entitle the injured party to bring
his action at once (Elossom & Co. ys.

Manila Gas Corp., No. 32958, Nov. 8,
19s0).
The rule against splitting of a cause of action

appties only where the action is between the
same parties (ltogon Suoc Mneg lnc. vs.

Sangil-ltogon Worker's Union, G.R. No. l24189, August 30, 1968).
5.
SECTION
JOINDER OF CAUSES OF
ACTION
Joinder
of
4.
The venue lies,thereon.
Where the claims in the causes of action

are principally for recovery of money, the
aggregate amount claimed shall be the
test of jurisdiction (Totality Rule).
Totality Rute under BP 129: Where there are
exception:
obligations which have matured at the time

of the suit must be integrated as one
cause of action in one complaint, and
those not so included would be barred.
d.
b.
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 causes
of action, irrespective of whether the causes of
action arose out of the same or different
transaction.
The jurisdictional amount excludes: a)

interest, b) damages of whatever kind, c)
attorney's fees, d) litigation expenses and
costs. These matters however, shall be

included in determining the filing fees.
(Riano 2009, p.l79)
Note: Ihe exclusion of the term "damages of
whatever kind' in determining the iurisdictional
amount, applies fo cases where the damages
are merely incidental thereto or consequence
of the main cause of action.
Note: We will follow the totality rulein BP 129
because it is elementary in
construction that in case of
statutory
conflict,
substantive law prevails over procedural laws.
cruses of action is purely

The plaintiff can always file
PERMISSIVE.
separate actions for each cause of action.
Requisites for Joinder of Gauses of Action:
1.
The party joining the causes of action

must comply with the rules on joinder of
parties;
It causes multiplicity of
suits and double
It minimizes multiplicitY
of suits and
Note: The following are the elements for a

joinder of parties (Sec. 6, Rule 3):
a. A right to relief in respect to or arising
out of the same transaction or series
b.
2.
of transactions; and
A common question of law or fact.
The joinder shall not include special civil
actions
or
actions governed by special
rules;
3.
the causes of action are between

the same parties but pertain to different
venues or jurisdictions, jurisdiction is with
Vly'here
the Regional Trial Court, provided that:

a. One of the causes of action falls within
the jurisdiction of the RTC; and
15
EIALLAW
@il.PROCHX'RE
Phintiff
of the
SEIN 1. TO IAY BE PARTIES;

PLtfTrFAII I'EFEM)ANT
fqimomsbra person to be a party to
a drt*lin:
1. ib mrct be either:
a A nafural person; (e.9. Juan dela Cruz
vs fudro Sanfos)
b. A juridical person, (e.9. Juan dela
Cruz vs ABC Corporation) or
c. An entity authorized by law. (e.g.
corporations
by estoppel,
partnership
by estoppel- Juan Dela cruz vs Pedro
Sanfos, et.al. doing buslness under

the name ofXYZ Cgmpany)
2. He must have the legal capacity to sue;

and
3. He must be the reat party-in-interest.
One need not be a natural or a juridical person
to be a party to a civil action. As long as an
entity is authorized by law to be a party, such
entity may sue, be sued or both (Riano, 2007,
p.179).
Note: Entities authorized by law to be parties

to a suit include:
1. The estate of a deceased person;
2. A political party incorporated
under Act
1459 (now 8.P. Btg. 69, Corporation
Code); and
3. A registered
labor union (Sec. 243, pD

442, Labor Code), with respect to its
property.
As to properties of the Roman Catholic

Church, the Archbishop of the diocese to
which they belong may be a party (Versoza vs.

Fernandez, G.R. No. L-25254, Nov" 22, 1926).
It refers to a plaintiffs
general disability to sue.
such as on account of
minority, insanity,
incompetence, lack of
juridical personality or
any other general
disqualifications of a
party.
The plaintiff is not the
It can be a ground for
It can be used as a
one having an interest in the matter
action
or in
obtaining
the
relief
demanded. The term may refer lo lhe claiming
party, the counter-claimant, the crossclaimant, or the third (fourth, etc.)- pafty
plaintiff.
Defendant - one claiming an interest in the

controversy or the subject thereof adverse to
the plaintiff . The term may also include:
1. An unwilling co-plaintiff or one who should
be joined as plaintiff but refuses to give his
consentthereto (Sec. 10, Rule 3);
2. The original plaintiff becoming a defendant

to original defendant's counterclaim; and
3. One necessary to a complete
determination or settlement of the
questions involved therein,
SECTION
2.
PARTIES IN INTEREST
Real Party-in-lnterest is the party who stands

to be benefited or injured by the judgment in
the suit or the party entitled to the avails of the
suit.
Note: To be a real party-in-interest, the

interest must be 'real', which is a presenf
substantial interest as distinguished from a
mere expectancy or a future, contingent
subordinate or consequential interest.
ln Oposa vs- Factoran (G.R. No. 101083,

1993/, minors represented by their parents
were held as real parties in interest to file an
action to annul timber licenses issued by the
state under the following principles:
lnter-generational responsibility;
lnter-generational justice;
The right of the Filipinos to a balanced and
healthfulecology; and
Minors represent themselves and the
a.
b.
c.
d.
real party-i n-i nterest.
motion to dismiss on the ground for a motion to

ground o'f lack of legat dismiss based on the
capacity to sue.
fact that the complaint,
on the face thereof,
states no' cause of

action.
16
without
'
9m Ftls
Gstlegt of Lclo
2O1I CENTRALIZED BAR OPERATIONS
an action (must he joined under
all
conditions).
Necessary parties - Those who are not

indispensable but ought to bb joined as
parties if complete relief is to be accorded
as to those already parties, or for
Where the action is allowed to be prosecuted

or defended by a representative or $omeone
acting in a fiduciaqi capacity, the beneficiary
shall be included in the title of the case ad
shall be deemed
to be the real party-in-
interest.
complete determination or settlement of

the claim subject of the aclion (may or
may not be joined).
.3. Representative parties - Those acting in

fiduciary capacity such as trustees,
guardians, executors, or administrators.

The beneficiary shall be included in the
An agent may sue or be sued without joining

his principal except when the contract involves
things belonging to the principal.
SECTION 4. SPOUSES AS PARTIES
General Rule: Husband and wife shall sue or

be sued jointly.
title of the case and shall be deemed to be

the real party in interest.
4.
Pro forma parties
Exceptions (lJncler
Those who are

required to be joined as co-parties in suits
by or against another party as may
be
provided by the applicable substantive law
or procedural rule such as in the case of

spouses under Sec. 4.
5.
Quasi parties
1.
2.
3.
Those in whose behalf a
class or representative suit is brought.
the Family Code):

A spouse without just cause abandons the
to comply with his or her

obligations to the f;amily with respect to the
marital, parental or property relations.
A spouse of age mortgages, encumbers,
alienates or otherwise disposes of his or
her exclusive property.
The regime of separation of property
governs the property relations of the
spouses. (Feria, 2001, p. 231)
other or fails
SECTION
Must be joined under Should be joined

any and all conditions, whenever possible, the
their presence being a
sine qua non for
exercise of
action can proe,eed even

the in their absence.
judicial
power.
No valid judgment if The case may
be
indispensable party is determined in court but

the judgment therein will
not joined.
not resolve the entire

controversy if
a
necessary party is not
joined.
They are those with such They are those whose
presence is necessary to
an interest in the
controversy that a final
whole
adjudicate
decree would
controversy but whose
necessarily affect their
interests are
tar
rights so that the court
final
separable that
cannot proceed without
decree can be made in
their presence.
their absence without
affecting them.
3.
MINOR OR INCOMPETENT
Under the present rules, a suit may be brought

by or against a minor or incompetent but with
the assistance of his parents or his guardian.
A person NEED NOT be judicially declared

incompetent, it being sufficient that his
incompetency be ALLEGED in the
corresponding pleadings.
SECTION
PARTIES
6.
PERMISSIVE JOINDER OF
Permissive
rule on
be
#JsrH{ffi#g& be
the
so
a
SECTION
5,
s#ikut*w# r: #W **ew
1.
2.
to
REPRESENTATIVES AS
3.
PARTIES
representative may be a trustee of an

express trust, a guardian, an executor or
administrator or a party authorized by law or
Series
the Rules of Court.
L7
REMEDIAL LAW
CIVIL PROCEDURE
SECTION 7. COMPULSORY JOINDER OF
INDISPENSABLE PARTIES
by ordering plaintiff to file an amended

complaint impleading the necessary party
therein as co{efendant.
The indispensable party must always be

included in the suit. ln the absence of such
party, the court should order that the
indispensable party be included. lt shall not
Note: The failure to comply with the court's

order to include or join a necessary party
without justifiable cause shall be deemed a
order the dismissal of the suit outright.
waiver of the claim against such party.
Only when the party ordered
SECTION 10. UNW|LLING CO.PLAIXTIFF
to implead the
indispensable party refuses or fails to do so
shall the case be dismissed, on the ground of
disobedience to the Rules or orders of the
court under Sec. 3 of Rule 17.
of
an indispensable party
renders all subsequent actuations of the court
null and void for want of authority to act not
The absence
only as to the absent parties but even as to
lf the consent of any party who
be made a defendant and the reason therefore

shall be stated in the complaint.
SECTION 1'1. MISJOINDER AND NON.

JOINDER OF PARTIES
those present.
A party is
SECTION 8. NECESSARY PARTY
impleaded.
MISJOINED when he is made a

party to the action although he should not be
Also called PROPER PARTIES - those whose

presence is necessary to adjudicate the whole
controversy, but those interests are so far

separable that a final decree can be made in
their absence without affecting them

(Quisumbing vs. CA, G.R. No. 93339 Sepf.
13,1990).
The non-inclusion of a necessary party does

not prevent the court from proceeding with the
action and the judgment therein shall be

without prejudice to the rights of such
necessary party not impleaded.
Joint Debtor - He is an indispensable party in

a suit against him but a necessary party in a
suit against his co-debtor.
Solidary Debtor
should be
joined as plaintiff cannot be obtained, he may
- ln a suit brought by a
creditor against one solidary debtor, the other

solidary debtor is NEITHER indispensabte nor
A party is NOT JOINED when he is supposed

to be joined but is not impleaded in the action
(Riano,2007, p. 195).
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of the action.
Exception: Secflon 7, Rule 3 in relation to the

disobedience to the rules or order of the court
for the inclusion of an indispensable party.
Note:
Objections to defects in parties should

be made at the earliest opportunity, r.e., the
moment such defect becomes apparent, by a
MOTION TO STRIKE THE NAMES OF THE
PARTIES impleaded. Objedtions to misjoinder
cannot be raised for the first time on appeal.
sEcTtoN 12. CLASS SU|T
a necessary party.
SECTION 9.
NON-JOINDER
NECESSARY PARTIES TO BE PLEADED
and
OF
Duty of a pleader whenever a necessary

party is not joined or impleaded:
1. State the name pf the necessary party, if
2.
known; and
State why said necessary party is omitted
in the pleading.
Should the court find the reason for the

omission unmeritorious, it may order the
inclusion of the omitted necesiary party if
jurisdiction over his person may be obtained
18
one of
that it is
5sr Fels ollege
of
Let!
3.
4.
Parties bringing the class suit are

SUFFICIENT IN NUMBER AND
SECTION 15. ENTITY WTHOUT JURIDICAL

PERSONALITY AS DEFENDANT
REPRESENTATIVE of the class and can

fully protect the interests of all concerned;
Requisites: (TED)
and
The representative sues or defends for the
benefit of all.
Note: 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 goveming law especially on the
issue of locus sfandl (Regalado p. 97).
Any party in interest shall have the right to

intervene to protect his individual interest.
(Ihls rb an instance when a person may
intervene as a matter ot risht).
1.
2.
3.
or more persons not

organized as a juridical entity;
They gnter into a transaction; and
A wrong or g[elict is committed against a
such
the course
third person
transaction.
There are lwo
of
in
Persons associated
in an
entity
without
juridical personality may be sued under the
by which they are generallY or

commonly known, but they cannot sue under
name
such name.
The service of summons may be effected

upon all the defendants by serving upon any of
in charge of the
office or place of business maintained under
such name (Section 8, Rule 14).
them, or upon the person

There is one single
cause of action
pertaining to numerous
persons.
There are multiple

causes of action
separately belonging to
several persons.
SECTION 13. ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against who of

several persons he is entitled to relief, he may
join any OR all of them in the alternative,

although a right to relief against one may be
inconsistent with a right to relief against the
other.
SECTION 14. UNKNOWN IDENTITY OR

NAME OF DEFENDANT
Requisites:
1.
2.
3.
4.
There is a defendant;
Hls identity or name is unknown;
Fictitious name may be used because of

ignorance of defendant's true name and
INSTANCES WHERE SUBSTITUTION OF

PARTIES IS PROPER
A.
SECTION 16. DEATH OF PARW; DUTY

OF COUNSEL
This provision applies where the claim is

NOT extinguished as in cases involving
property and property rights such as:
1. -property
Recovery of real and Personal
against the estate;
2. Enforcement of liens on such
3.
properties, or
an injury to Person or
property by reason of tort or delict
Recovery for
commifted by the deceased.
ln this case, the heirs will be substituted

deceased OR if no legal
for the
court will
said ignorance is alleged in the complaint;
ldentifying description may be used: sued

as unknown owner, heir, devisee, or other
designation;
5. Amendment to the pleading when identity

or true name is discovered; and
6. Defendant is the defendant being sued,
not a mere additional defendant.
Service of summons upon a defendant whose
identity is unknown may be made by

publication in a newspaper of general
circulation in accordance with Section 14 of
Rule 14.
19
REMEDIAL LAW
CMIL PROCEDURE
Note: lf the action does not
survive (like
A transferee pendente lite:

1. Stands in exactly the same position as
its predecessor-in-interest, the original
defendant; and
purely personal actions of support, annulment

of marriage and legal separation), the court
shall simply dismiss the case. Substitution will
2.
not be required (Riano, 2007, p. 200).
B.
SECTION 17. DEATH OR SEPARATION
OF
PARTY WHO
IS A
included as
voLl p.405)
PUBLIC
OFFICER
Requisites:
1. Public officer is a PARTY TO AN

ACTION in his officiat capacity;
2. During the pendency of the action, he
either DIES, RESIGNS, OR
OTHERWISE CEASES to hotd office;
3. lt is satisfactorily shown to the court by
any party, within 30 .days afier the
4.
5.
successor takes office, that there is a

SUBSTANTIAL NEED for continuing
or maintaining the action;
That the successor ADOPTS OR
CONTINUES OR THREATENS TO
ADOPT OR CONTTNUE the action of
his predecessor; and
The party or ofiicer affected has been
given REASONABLE NOTTCE of the
application therefor and accorded an
opportunity to be heard.
C. SECTION
18.
INCAPACITY
INCOMPETENCY OR
ln case a party becomes incompetent or

incapacitated, the action survives and may
be
continued by or against th;

or incapacitated assisted by
his legal guardian or guardian ad titem,
incompetent
who is his legalrepresentative.
D.
SECTION 19. TRANSFER OF INTEREST

The transfer of interest that is referred to in
this section is bansfer that occurs
DURING THE PENDENGY of the action.
The transferor would no longer be the real
party in interest if the transfer is made
before the commencement of the suit.
Bound by the proceedings had in the

was
transferred to it, even if not formally
case before the propefi
defendant. (Henera,
The case will be dismissed if the interest

of plaintiff is transferred to defendant
UNLESS there are several plaintiffs, in
which case, the remaining plaintiffs can
' proceed
with their own cause of action.
SECTION 20. ACTION ON CONTRACTUAL

MONEY CLAIMS
Requisites: (MAD)
1. The action must primarily be for recovery
2.
3.
ofggoney, debt , or interest thereon;
The claim, subject of the action, 3rose

from contract, express or implied; and
Defendant glies before the entry of final

judgment in the court in which the action
was pending.
Note:
Under this section, the death of the
defendant will not result in the dismissal of the

action. The deceased shall be substituted by
his legal representatives
the manner
provided for in Sec. 16 of Rule 3 and the
action continues until the entry
final
judgment.
in
of
However, execution shall not issue in favor of

the winning party. The final judgment should
be filed as a claim against the estate of the
decedent without need of proving the claim.
SECTION
21. INDIGENT PARTY
General rule: The rule does not consider
the transferee an indispensabte party.

Hence, the action may proceed witfrout ttre
need to implead him.
Exception; When the substitution by or

joinder of the transferee is ordered by
court.
20
docket
9m Feta @ollr$e of I.sb

SECTION 22. NOTICE TO THE SOLICITOR
GENERAL
SECTION 1. VENUE OF REAL AGTIONS

The venue is the place where the real property
or any portion thereof is located.
Venue is the place of trial or geographical

location in which an action or proceeding
should be brought.
lf property is located at the boundaries of

two places: File case in either place at the
When the case involves two properties
option of the plaintiff.

located in two different places:
1.
Power of the court to
hear and decide
2.
case,
Jurisdiction over the
May be waived.
subject matter and over

the nature of the action
is conferred by law and
cannot be waived.
lf the properties are the objecl of the

same transaction, file it in any of the
two places;and
lf they are the subjects of two distinct
transactions, separate actions should
be filed in each place unless properly
joined.
SECTION
2.
VENUE
OF
PERSONAL
ACTIONS
May be changed by
the written agreement
of the parties.
Not
ground for
motu pro prio disrfissal

(excepf in summary
procedure)
Cannot be the subject

of the agreement of the
parties.
Ground
for a
motu
proprio dismissal
Requisites for venue agreement to be valid:

1. ln writing;and
2. Executed by the parties before the filing of
3.
There must be exclusivity as
actual residence or place of abode (Raymond

vs. Court of Appeals G.R. No.80380 Sept" 28,
1988).
'
the action.
Residence should be viewed or understood in
its popular sense, meaning the personal,

actual, or physical habitation of a person,
to
the
selection of the venue.
ln the absence of qualifying or restrictive

words (e.9. only, solely, exclusively in this
caurt, in no other court save, particularly,
nowhere else buUexcepf) venue stipulation
is merely permissive and not exclusive,
meaning that the stipulated venue is in

addition to the venue provided for in the rules
(Polytrade Corp. vs. Blanco, G.R. No. L-
Venue of personal actions:
1.
Where the PLAINTIFF
or any of the
principal plaintiffs resides;
2. Where the DEFENDANT or anY of the

principal defendants resides; or
3. ln case of a NON-RESIDENT
DEFENDANT, the action may be brought

in the place where he maY be found.
Note:
All at the
ELECTION
of
the
PLAINTIFF.
Means of Waiving Venue:

1. Failure to object via motion to dismiss;
2. Affirmative relief sought in the court where
27033, 1969).
When the stipulation as to . venue
in a
passenger ticket of a vessel wguld be contrary

to public policy of making courts accessible to
all who may have need of their service, the
stipulation is void and unenforceable (Sweef
E,1
l^r;*ffi.
ffiffi ##il t-drW
Lrhes vs. Teves, G:R. No. 28324, May19,

1972).
Note: When the action is no longer based on

the agreement but ON THE TORTIOUS ACT
of sending collection telegrams despite the
fact that the obligation had already been paid,
venue is no longer based on the written

stipulation but at the ELECTION OF THE
PLAINTIFF as fixed by law (Herrera, 2007
Vot.l, p.636).
2l
REMEDIAL LAW
CIVIL PROCEDURE
An action may be filed only when the case
SECTION
2.
MEANING OF TERMS
involves:
a.
b.
Personal status of plaintiff

Venue:
Where plaintiff resides; and
Any property of said defendant located
in the Phil. Venue: Where the
property
or any portion
Rules on Summary Procedure (Givil Cases)

Filing of verified
complaint with the MTC
thereof is
situated or found.
Court may dismiss
the case outright
The Supreme Court has the power to order a

change of venue to prevent a miscarriage of
justice.
Note: The court may NOT motu
proprio
dismiss a complaint on the ground of improper
venue (Dacoycay vs. lAC, G.R. No. 74854,

April 2, 1991). An exception is provided in
Secfibn 4 of the Rule on Summary Procedure.
SECTION
4.
WHEN RULE
W/in 10 days from

receipt of summons,
lf Defundant faib b
in 10 days-
defendant answers,
incoporating
Thecourt,
compulsory
counterclaim or
crossclaim, and serves
a copy on plaintiff.
an*
mduprwps
on plaintiffs motion, may

render judgment based on
alleged in the complaint
w/o prejudice to
Rule 9, Sec. 3 (c).
NOT
APPLICABLE
The rule on venue is inapplicable in cases:
1. Where a
or /aw provides
othenvise (i.e. an action for damages
2.
specific rule
10 days
arising from libel); or
counterdaim, All crossdaims
The parties have validly agreed in writing
before the filing of the action on the

exclusive venue thereol (Sec. 4).
SECTION 1. UNIFORM PROGEDURE
impliedly applies onty
courts; or
5 days after
conference, court issues

record of preliminary
conference
lf sole defendant fails to

appear, plaintiff is
entitled to judgment
based on complaint and
what is proved therein.
to either of said
ln civil cases governed by the Rule
Summary Procedure.
dismissed.
Preliminary
conference within
30 days after last
answer is filed
Win
The procedure in the MTC shall be the same

as in the RTC, EXCEpT:
1. Where a particular provision expressly or
2.
Answer to counterclaim
and crossclaim within
lf plaintiff fails to appear in

preliminary conference,
complaint may be dismissed.
Defendant entitled to
decision based on his
on
Win 10 days fom

receipt of order,
submission by the
#.&s{ ffiW#Pr
:.\a*
22
&
lLrilt
$en Fela Gdlege of Leb

Prohibited Pleadings or Motions under the
Rule on Summary Procedure
(DaBaNa PEMP'D DiRTt)
1. Motion to glismiss the complaint or to
quash the complaint or information except
on the ground of:
a. lack of jurisdiction over the subject

matter, or
b. failure to comply with the preceding
3.
4.
5.
6.
7.
8.
section; (refenal to lupon)

Motion for a lill of particulars;
Motion for new trial, or for reconsideration
of a judgment, or for reopening of triat;
letition for relief from judgment;
Motion for extension
time
file
pleadings, affidavits or any other paper;
of
Semoranda;
Petition
for
to
governed
appealable to the RTC.

procedure no longer applies.
further appeal that may be taken.
Note: Please
'
o
o
The filing of a prohibited pleading wiil not

suspend the period to file an answer or to
appeal.
motion to dismiss is a
prohibited pleading, its fiting after the
Although
Procedure.
Katarungang Pam baran gay Law

(Title One, Book lll, RA 7160)
No complaint, petition, action, or proceeding
involving any matter
cause undue delay (Heirs
of
O/fuas ys.
Flor,'G.R. No. 78343, May 21, I9B8).
A motion to dismiss may be treated as an

answer (Rosa/es vs. Court of Appeats,
G.R. No. 137566, Feb 28,2001).
Note: While a motion to declare the defendant
in default is prohibited by the rutes on

summary procedure, the plaintiff may
(BETWEEN
INDIVIDUALS/NATURAL PERSONS) within

the authority of the /upon shall be filed or
instituted directly in court or any other
government office for adj ud ication,
UNLESS:
1. There has been

BETWEEN
2.
answer had already been submitted does

not constitute a pleading prohibited by the
summary rules. What the rules proscribe is

a motion to dismiss that would stop the
running of the period to file an answer and
refer to the special laws on the

of the Rules on Summary
salient features
prohibition against any interlocutory order
issued by the court;

Motion to gleclare the defendant in default;
10. Dilatory motions for postponement;
11. Eeply;
12. Third party complaint; and
13. lntervention
The decisions of the RTC (On appeal) in
civil cases under this rule, including

ejectment cases, are IMMEDIATELY
EXECUTORY without prejudice to a
certiorari, mandamus, or
of inferior courts in cases

by summary procedure are
Judgments
CONFRONTATION
the
THE PARTIES before
lupon chairman or pangkat, and
That no conciliation or settlement has

been reached OR unless the settlement
has been repudiated by the parties
thereto.
Cases NOT covered by the Katarungang
Pambarangay Law
(SUBSTANTIVE
Exceptions: G-POP RDP J)
1. Where one party is the government or any
2.
subdivision or instrumentality thereof;
Where one party is a public officer or

employee, and the dispute relates to the
performance of his
"offi,cial functions;
nevertheless file a motion to render judgmeit

as may be wananted when the defendant fails
to file an answer.
Trial Procedure in Civil Gases

No testimonial evidence is required nor cross-
examination of witnesses allowed. All that is

required is that wiinin 1tO; days from receipt
by the parties of the court,s pre-trial order, they
shallsubmit:
1.
2.
The affidavits of their witnesses; and
Other evidence on the factual issues set

together with
their
papers setting forth ttre taw
and the facts relied upon by them.
ln the pre-triat order,

fgrt! position
23
REMEDIAL LAW
CIVIL PROCEDURE
b.
The parties thereto agree to submit
their
differences
to
amicable
settlement by an appropriate lupon;
7.
8.
Such other classes of disputes which the

president may determine in the interest of
justice; and
Where one of the parties
is a
entity.
iuridical
complaint in court or any government office for

adjudication. (1 0 days to repudiate)
Rules on Venue under the Katarungang

Pambanngayl-aw
1. Disputes between residents of the same
barangay shall be brought for settlement
2.
Note: The court in which non-criminal
cases
not falling within the authority of lhe lupon are
filed may, at any time before trial, motu proprio
refer the case
to the lupon concerned
for
3.
before lupon of said barangay.

Residents of difierent barangays within the
same city or municipality - ln the barangay
where the respondent or any of the
respondents reside at the election of the
complainant.
Disputes involving real property or any
Where real property or
amicable settlement.
interest therein
While the dispute
larger portion thereof is situated.

Disputes arising at the WORKPLACE
where
contending parties are
conciliation,
or
is
under mediation,
the prescriptive
arbitration,
periods for offenses and cause of action under
existing laws shall be intemtpted upon filing of

barangay.
the complaint with lhe punong
Such interruption sfra// NOT exceed 60 days

from the time of the filing of the comptaint with
the punong barangay.
The pafties may go directly to court in the
following instances (PROCEDURAL

Exeeptions: CHAS LACT)
1. Where the accused is under police
gustody or detention;
2. Where the person has otherwise been
deprived
3.
of personal liberty
5.
6.
7.
8.
barangay where such workplace or

institution located.
Note: Please refer to the special laws on the

salient features of the law and on Katarungang
Pambarangay Chart.
SECTION 1. PLEADINGS DEFINED
fiabeas corpus proceeding;
Pleadings are the written statements of the

respective claims and defenses of the parties
injunction, attachment, delivery of

personal property,
support
pendente lite;
Where the action may otherwise be barred
by the gtatute of limitations;
labor Disputes (Montoya vs. Escayq G.R.
No. 82211-12, March
judgment.
Where the gctions are coupled with

provisional remedies such as preliminary
21,1989);
Actions
to
annul judgment upon
compromise (Sanchez vs. Tupaz,

G.R. No. 76690, Feb.21, 19BB).
QARL disputes; and
Disputes involving
the lraditions
of
indigenous cultural community.
The parties may,
at any stage of the
proceedings, agree in writing to have the

matter in dispute decided by arbitration by
either the Punong Barangay or Pangkat.
The settlement and arbitration agreement may

be repudiated on the ground that consent is
vitiated by fraud, violence, or intimidation.

Such repudiation shall be sufficient basis for
the issuance of the certification for filing a
24
the
employed or at the |NST|TUT|ON,where

such parties are enrolled for study - ln the
calling , for
and
4.
4.
submitted
to the court fbr
appropriate
Purpose of pleadings: (AlD)

1. To apprise the Court of the rival claims in
a judicial controversy submitted for trial
and decision;
9nu Fete
@ollcge of
Lsb
3. The g[etails of
Only 9 kinds
of
pleading are allowed
Any
application for
relief not by a pleading

is a motion.
May be oral
Note:
motion
pleading.
when
made in open court or
Must be written.
in the
to
course
dismiss
is
of
NOT
4,
SECTION
SECTION 2. PLEADINGS ALLbWED

1. Complaint;
Counterclaim;
Cross-claim;
Third-party Comptaint;
2.
3.
4.
5. Complaint-inintervention;
6. Answer;
7. Reply;
8. Counter-counterclaim; and
9. Counter-Crossclaim.
May or may not contain a counterclaim.
allegations in the pleading of the claimant,

bar
recovery by him.
would nevertheless prevent
or
Affirmative defenses include
fraud,
prescription, release, payment, illegality,
statute
of
frauds, estoppel,
former
recovery, discharge in bankruptcy, and

another matter by way of confession and
avoidance.
2.
It should contain a concise staternent of the

ultimate facts constituting the plaintiffs cause
of action, not evidentiary facts or legal
Negative Defenses
It refers to a specific denial of the

material facts or facts alleged in the
pleading of the claimant essential to his
cause of action.
conclusions.
Ultimate facts refer to the essential facts
Two Kinds of Defenses that may be set

forth in the answer
1. Affirmative Defenses
It is an allegation of a new matter which,
while hypothetically admitting the material
complaint is the pleading aileging the
constituting the plaintifPs cause of action.
to
SECTION 5. DEFENSES
3. COMPLAINT
plaintiffs cause or causes of acilon.
may likewise be the response
counterclaim or a cross-claim.
SECTION
4. ANSWER
Answer is the pleading where the defendant

sets forth his affirmative or negative defenses.
It
HOWEVER, there are motions that actually

seek judgment like a motion for judgment on
pleadings (Rule 34) and motion for summary
judgment (Rute 35).
probative matter or
particulars of evidence, statements of law,

inferences and arguments; and
An gllegation that a contract is valid or
void is a mere conclusion of law.
lnsufficient denial or denial amounting to

admissions
1.
Generaldenial; and
A fact is essenfia/ if it cannot be stricken out

without leaving the statement of the cause of
action insufficient.
Test of sufficiency of the facts alleged in
the complaint
Determine whether upon the avernent of

facts, a. valid judgment may be properly
rendered.
What are NOT Uttimate facts: (ELDA)
1.
lvidentiary or immaterial facts;
2. legal
conclusions, conclusions or
inferences of facts from facts not stated, or
inconect inferences or conclusions from
facts stated;
alleg
25
REMEDIAL LAW
CIVIL PROCEDURE
SECTION
o ln Calo vs. Ajax lnt'l (G.R lrio.. 2t&,
6. COUNTERCLAIM
March 16. 1968), frE remedy strcre a

counterdaim is beyond the jurisdiclbn of
the MTC is to set off the claims and file a
Counterclaim is any claim which a defending

party may have against an opposing party.
separate action to collect the balance.
Nature of a counterclaim
A counteiclaim is in the nature of a
cross-
complaint. Although it may be alleged in the

answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the
original complaint. For this reason, it must be
answered within ten (10) days from service.
Gounterclaims may either be:
2.
Compulsory;or
Permissive.
sEcTtoN
COMPULSORY
7.
COUNTERCLAIM
Gompulsory Counterclaim
the opposing party's claim and does not

require for its adjudication the presence of
It does not require for

its adjudication the
presence of third
parties of whom the
court cannd acquire
It may require for its

adjudication the
presence of third
parties over whom the
court cannot acquire
Need not be
It is NOT baned even

if not set up in the
action.
Must be answered,
otherwise, the
defendant can be
deelared in defauft.
answeredi no default.
third parties of whom the court cannot acquire

jurisdiction.
Requisites of a compulsory counterclaim
1. lt
must arise out of, or be necessaily

connected with, the transaction or
2.
3.
4.
occunence that is the subject matter of the

opposing party's claim;
lt does not require for its adjudication the
presence of third pafties of whom the court
cannot acquire jurisdiction;
lt must be within the jurisdiction of the
court; and
lt must be cognizable by the regular courts
of justice.
Rules on Gompulsory Counterclaim

A counterclaim before the MTC must be within
the jurisdiction of said court, boffr as fo fhe
Notei A plaintifi who fails or chooses not to

answer a compulsory counterclaim may not be
declared in default, principally because the
issues raised in the counterclaim are deemed
automatically joined by the allegations of the
complaint (Gojo vs. Goyala, G.R. No. 26768,
Oct.30, 1970).
General Rule: A compulsory counterclaim not
set up in the answer is deemed barred.
Exceptions:
lf it is a counterclaim which either matured
or was acquired by a party after serving
a.
be pleaded
his
by
9,
amount and nature thereof.
ln an original action
t::;#,bLy-w"ffix
before
of
nor is it necessarily
connected with the
subject matter of the
opposing party's claim.
is one which,
being cognizable by the regular courts, arises

out of or is connected with the transaction or
occurence constituting the subject matter of
It does not arise out
One which arises out

of or is necessarily
connected with the
transaction or
occurrence that is the
subject matter of the
a-
the RTC, the
counterclaim may be considered compulsory
## **ew
regardless of the amount.
or
of
However, the natuie of the aetion is always

material such that unlawful detainer cannot be
set up in the RTC.
by
lf a counterclaim is filed in the MTC in

ex@ss of its jurisdictional amount, the
excess is considered waived (Agustin vs.
Bacalan, O.R. No. 46000, March 18,
the
ground for
at the
st choose only
counterclaim
1egq.
26
event
are
that a
5un
Fell GoIIege of L^tu

one remedy. lf he decides to file a motion
to
dismiss,
he
cannot
set up
his
counterclaim. But if he opts to set up his
in which case,
it is called a
counterclaim, he may still plead his ground
for dismissal as an affirmative defense
compulsory
counterclaim,
or it may not,
in which case
it is called a
permissive
counterclaim.
in
his answer.
sEcTtoN 8. cRoss-clArM
Gross Glaim is any claim by one party against
a co-party arising out of the transaction or
occurrence that is the subject matter either of
the original action or of a counterclaim therein.
Requirements for a Cross- Glaim;
1. A claim by one party against a co-party;
2. lt must arise out of the subject matter of

the complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the
claim against him by the opposing party.
Purpose: To seftle in a single proceeding all

the claims of the different parties in the case
against each other in order to avoid multiplicity
of suits (Republic vs. Paredes, G.R. No.
l-
12546, May 20. 1960).
lf it is not set up in the action, it is BARRED.

except:
1. When it is outside
2.
3.
o
the jurisdiction of the
court; or
lf the court cannot acquire jurisdiction over
third parties whose presence is necessary
for the adjudication.of said cross-claim. ln

which case, the cross-claim is considered
PERMISSIVE;or
Cross claim that may mature or may be
acquired after service

(Riano,2007, p.285)
of the answer.
The dismissal of the complaint carries with

it the dismissal of a cross-claim which is
purely defensive, but not
cross-claim
seeking an affirmative relief.
Against a
peison not a
party to the
action.
Must arise out
of the
transaction
that is the
subject matter
of the original
action or of a
counterclaim
therein.
May arise out

of or be
necessarily
connecled
with the
transaction or
the subject
matter of the
opposing
party's claim,
Must be in
respect of the
opponent's
(Plaintiff)
claim.
NO NEED for
a leave of
court.
NO NEED for
a leave of
court.
SECTION 9. COUNTER.COUNTERCLAIMS
AND COUNTER.CROSS.GLAIMS
Gounter-Counterclaim
is a claim
asserted
against an original counterclaimant.
Counter-Grossclaim is a claim filed against

an original cross-claimant.
SECTION {0. REPLY
Reply is the response of the plaintiff to the

defendant's answer, 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 thereby join or make issue as
to such new matters.
Effect of Failure to File a Reply
General Rule: Filing
reply
is
merely
optional. New facts that were alleged in the

answer are deemed controverted should a'
party fail to reply thereto.
Exceptions:
Reply is required:
1. Where the
AC
; and
based
an
Rule
Note:
c
deem
tn
an
to file
27
REMEDIAL LAW
CIVIL PROCEDURE
sEGnoN {1.
THTRD (FOURTH, ETC.) _
SEGTION 12. BRINGING NEW PARTIES
PARTY COMPLAINT
Third
Distinguished from a Third-party complaint
Party Comptaint is a claim that a

defending party may, with leave of court, file
against a person not a party to the aciion for
gontribution, lndemnity, gubrogation or gny
other relief (CISA),
in
respect
of
purpose and function.
Tests to determine whether the third-party

complaint is in respect of plaintiff's claim
2.
3.
SECTION 1. CAPTION
The Caption contains the following:
1. The name of the court;
The title of the action; and
The docket number if assigned.
SECTION
of
court to file a third-party

be obtained by motion
15_
on third, fourth, etc.-party
defendant must be served for the court to

obtain jurisdiction over his person, since
he is not an original party.
Where the trial court has jurisdiction over

the main case, it also has jurisdiction over
the third-party complaint, regardless of the
amount involved as a third-party complaint
is merely auxiliary to and is a continuation
of the main action (Repu blic vs. Central
Surety & Insurance Co., G.R. A/o. L27802, act.26, 1968).
A third-party complaint is not proper in an

action for declaratory reliel (Commissrbner
of
Cusforns
TO
PARTS OF A PLEADING
claim.
Leave
13.
ANSWER
THIRD
(FOURTH, ETC.) - PARTY COMPLAINT
2.
3.
Whether the third-parg defendant may

assert any defenses which the third-party
plaintiff has or may have to the ptaintiffs
Summons
SECTION
the original defendant; and
under Rule
'
the
defendants in a counterclaim or cross-claim is
already a party to the action, then the other
necessary parties may be brought in under
this section.
same
transaction on which the plaintiff's claim is

based, or although arising out of another
or different transaction, is connected with
the plaintiffs claim;
Whether the third-party defendant would
be liable to the plaintiff or to the defendant
for all or part of the plaintiffs claim against
complaint may
to the main action. lf one or more of
his
opponent's claim. There could also be a

fourth, etc.; - party complaint with the same
1. Whether it aiises out of the
A third-party complaint is proper when not one

of the third-party defendants therein is a party
ys. Cloribet, G.R. /Vo.
21036, June 30, 1977).
L-
2.
THE BODY
The Body sets forth:

lts designation;
1.
2. The allegation of the party's claims and
defenses;
3. The relief prayed for; and
4. The date of the pleading.
Note:
lt is not the caption of the pleading but
the allegations therein which determine the

nature of the action and the court shall grant
relief warranted by the allegations and proof
even
if no such relief is prayed lor
(Riano,
2007, p.46).
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Brings into the action

third person who
was not originally
in its
party.
lnitiative is with the

person already a
party to the action.
28
Initiative
is with
non-party who seeks

to join the action.
be
9en Fe[a Gollege
ot
Ltr
Disciplinary action
following cases:
on
in
counsel
the
1. Deliberately filing an unsigned pleading;

2. Deliberately signing a pleading in violation
of the Rules;
3. Alleging scandalous or indecent matter in
the pleading; or
4. Failing to promptly report a change of his
address.
SECTION 4. VERIFICATION
Pleadings need NOT
How a pleading is verified: By an affidavit

that the affiant:
Has read the pleading; and
That the allegations therein are true and

correct of his personal knowledge or
based on authentic documents.
of the petitioi nave been made ii good

faith, or are true and correct, not merely
speculative (Sarmiento v. Zaratan, G.R.
No. 167471, February 5, 2A07).
List of pleadings that should be VERIFIED

(NOT EXCLUSTVE)
asserting claims
2.
3.
4.
6.
initiatory pleadings
for relief (including
permissive counter-claims). (See Sec.

Rule 7, Rules of Civil Procedure)
5,
Statement of Claim for Small Claims

Cases, as well as the Response thereto
(See Secs. 5 & 11, Rules of Procedure for
SmallClaims Cases)
Complaint for injunction (See Sec.
5fl Rules of Civil Procedure)
4, Rule
Application
receiver
for
appointment
Procedure)
Petition for
forcible entry
Rules of Civil Procedure)

12. Appeal by Certiorari under Rule 45, from
Appeals
Supreme Court
Court
(See Sec. 7, Rule 45, Rules of Civil
Procedure)
13. Petition for Certiorari (special civil ac{ion)
under Rule 64 (See Sec. 2, Rule 64, Rules
of Civil Procedure)
14. Petition for Certiorari (special civil action)
under Rule 65 (See Sec. 7, Rule 65, Rules
of Civil Procedure)
15. Petition for Prohibition under Rule 65
(See Sec.
Rule 65, Ru/es 'of Civil
Procedure)
'16. Petition for Mandamus under Rule 65
(See Sec.
Rule 65, Rules of Civil
Procedure)
guardian
appointment
17. Petition
(See Sec. 2, Rule 93, Rules of Court)
18. Petition for leave filed by guardian to sell
estate
encumber property
(See Sec. 1, Rule 95 Ru/es of Court)
19. Petition for declaration of competency of a
ward (See Sec. /, Rule 97, Rules of Court)
20. Petition for habeas corpus (See Sec. 3,
Rule 102, Rules of Court)
21. Petition for change of name (See Sec. 2,
Rule 103, Rules of Court)
22. Petition for voluntary judicial dissolution of
corporation (See Sec. 1, Rule 105,
to
of
or
3,
for
Rules
of
of an
or
of
Court; see also Sec.
Corporation Code)
1, Rule 59, Rules of Civil

Procedure)'
Application for support pendente lite
(See Sec. 1, Rule 69, Rules of Civil
(SeeSec.
Rules of Civil Procedure)
10. Petition for Review from RTC to Court of

Appeals (See Sec. 1, Rule 42, Rules of
CivilProcedure)
11. Petition for Review under Rule 43, from
CTA and other quasi-judicial agencies to
Court of Appeals (See Sec. 5, Rule 43,
2,
The purpose of requiring a verification is to

secure an assurance that the allegations
1. Civil complaints or
Petition for Review from the RTC to the

Supreme Court (See Sec. 2[c], Rule 41,
of
be verified
EXCEPT
when othenryise provided by the law or rules.
'l.
2.
9.
23. Petition for cancellation

entries in
119,
or correction of
Rule 108
See
unlaMul
detainer, the answers thereto, and the

answers to any compulsory counter-claim
and
cross-claim pleaded
in
the
answer (See Sec. 4, Rule 70, Rules of

CivilProcedure)
7.
8.
Petition for indirect contempt (See Sec. 4,

Rule 71, Rules of Civil Procedure)
Petition for relief from judgment or order.
(See Sec.
Rule 38, Rules of Civil
Procedure)
3,
29
REMEDIAL LAW
CIVIL PROCEDURE
TEST to determine the presence of forum
shopping: Whether in the two (or more) cases
pending, there is identity in terms of the
following:
Parties or identity of interests represented
(Cf. Fkst Phil. lntemational Bank, et at. vs.
C.A., G.R. No. 115849, January 24, 1996);
Rights or causes of action; and
Relief sought.
1.
2.
3.
. The. certificate is to be executed by
petitioner, and not by counsel, unless the
latrer is specifically authorized to do so.
Ratio: The party himself has actual knowledge

or knows better than anyone else, whether he
has initiated similar actions in other courts

agencies or tribunals (Riano, 2007, p. 56).
Three Ways of Gommifting
the case, without prejudice, unless othenrvise

provided, upon motion (not motu proprio) and
after hearing.
Effect of Submission of False Certification
or Non4ompliance with the Undertakings

Therein
1. lndirect contempt; and

2. Without prejudice to the filing
of
aCministrative and criminal actions against

the counsel.
Effect
of Willful and
Deliberate Forum
Shopping
1.
2.
Shall be ground for summary dismissal of

the case with prejudice; and
Direct contempt, as well as
a cause for
administrative sanctions.
Forum
Shopping:
'1.
2.
3.
Filing multiple cases based on the same

cause of action and with the same prayer,
the previous not having been resolved yet
(litis pendentia);
cause of action and with the same prayert
the previous having been resolved with
finality (res judicata);
causes of action but with different prayers
(splitting of cause of action, where the
ground for dismissal is also litis pendentia
or res judicata) (Ao-As vs. CA, et al., G.R.
No. 128464, June 20,2006).
Note: The certificate of non-forum shopping is
a mandatory requirement in filing a compliint
SECTION
I.
IN GENERAL
Every pleading shall contain in a methodical

and logical form a plain, concise and direct
statement of the ultimate facfs, omitting the
statement of mere evidentiary facts.
Ultimate Facts refer to those which directly

form the basis of the right sought to be
enforced or the defense relied upon. lf the
ultimate facts are NOT alleged, the cause of
action would be insufficient.
Evidentiary Facts refer to those which are

necessary to prove the ultimate fact or which
and olher initiatory pleadings assLrting a ctaim

or relief (Sec. 5, Rule 7, Rutes of Court).
furnish evidence of the"existence of some
f!e96
Test to Distinguish Conclusion of Law from

Statement
initiatory pteadings inctude not onty the

original complaint but also:
1.
other facts.
Permissivecounterclaim;
2. Cross-claim;
3. Third (fourth, etc.) - party cornptaint;
4. Complaint-in-intervention; and
5. Petition or application wherein the party
asserts his claim for relief.
The rule does not require a certificate against

forum shopping for a compulsory counterclaim
because it cannot be subject to a separate and
independent adjudication.
NOT AN
INITIATORY PLEADTNG (USf vs. Suda, G.R.
No. 129718, August 17, 1gg8).
lt is
Effect of Failure to Compty
A party
the
pleading but shall be cause for the dismissal of
as he
Not curable by mere amendment of
30
defenses
but each
Ssn Felu
@ollege ot 1[.ub
Facts that may be Averred Generally: (CGC

LeMJO)
L Gonditions precedent (BUT there must still
be an allegation that the specific condition
precedent
has been complied with,
otherwise, it will be dismissed for lack of
2.
3.
cause of action; Sec. 3);

Capacity to sue or be sued (Sec. 4);
Qapacity
to sue or be sued in
2.
By setting forth what is elaimed to be the

facts.
Where the actionable document is properly
alleged, the failure to specifically deny

under oath the same rcsults in:
1. The admission of the genuineness and
due execution of said document, EXCEPT
that an oath is not required:
a.
b.
representative capacity ( Sec. 4) ;
4. $gal existence of an organization
(Sec.
4),
Note: A party desiring to raise an issue as

to the legal existence or capacity of any
party to sue or be sued in a representative

capacity shall do so by SPEC|FtC DENIAL
which shall include supporting particulars
within the pleader's knowledge.
5.
Malice, intent, knowledge,
or
other
condition of the mind (Sec. 5);
Ratio: lt is dlfficutt to state the particulars
7.
party to the instrument; OR

When compliance with an order for an
inspection was refused.
2. The document heed not be formally

offered in evidence.
Genuineness means that the instrument is:
1.
Not spurious, counterfeit, or of different

import on its face from the one executed
2.
That the party whose signature
3,
by the party; or
it
bears
has signed it; and
That at the time it was signed, it was in

words and figures exactly as set out in the
constituting these matters.
6.
When the adverse party was not a
pleadings.
judgments of domestic or foreign courts,

tribunals, boards, of officers (no need to
show jurisdiction (for it is presumed; Sec.
6); and
Qfficial document or act (Sec. 9).
pacts inat must be Averred particularly:

The circumstances showing fraud or mistake
in all averments of fraud or mistake (Sec. 5).
Due Execution means that the
document
was:
1.
Signed voluntarily and knowingly by the
2.
That
3.
party whose signature appears thereon;

if signed by somebody else such
representative had the authority to do so;

and
That it was duly delivered, and that the

formalities were complied with. (Hibberd
vs. Rhode, G.R. No. 84"N8. Dec. S, 1915)
SECTION 7. ACTION OR DEFENSE BASED

ON DOCUMENT
to a written
instrument upon which the action or defense is
based.
Actionable Document refers
Two permissible ways
of
pleading
DEFENSES, not being

inconsistent with the genuineness and due
execution, are NOT WAIVED despite failure
to specifically deny under oath:
The following
(FEW MPM DiSC)
an
actionable document
1. By setting forth the substance of such
document in the pleading and attaching
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said document thereto as an exhibit

(contents of the document annexed are
controlling, in case of variance in the
2.
substance of the document set forth in the

pleading and in the document attached);
or
By setting forth said document verbatim in
the pleading.
SFCTION
8. HOW TO
CONTEST SUCH
DOCUMENT
BUT
1.
3.
The
an
its
How to Gontest an Actionable Document
1.
By specific denial under oath; AND
31
REMEDIAL LAW
CIVIL PROCEDURE
5.
At the time the document was signed, it

was not in words and figures exactly as
set out in the pleading.
Note: Failure to specifically deny under oath

the genuineness and due execution of an
actionable document generally implies an
admission of the same by the other party.
However, such IMPLIED ADMISSION lS
DEEMED WAIVED if the party asserting the
same has allowed the adverse party to present
evidence contrary to the contents of such
document without objection (Central Surefy rzs.
Hodges, G.R. No. 12730, August 22, 1960).
Exceptions:
1. Allegations
2.
3.
as to the amount of
unliquidated damages;
Allegations immaterial to the cause of
action; and
Conclusion of law.
Note: Admissions may be withdrarm by

amendments. The original pleadings .ue
superseded by the amended pleading (lnwlar
Veneer, lnc. vs. Plan, No. L40155, Sept. 10.
1976).
SECTION 12. STRIKING OUT OF PLEADING

OR MATTER CONTAINED THEREIN
SECTION 9. OFFICIAL DOCUMENT OR AGT

Allegations of merely evidentiary or immaterial
SECTION 10. SPECIFIC DENIAL
facts may be expunged ftom the pleading or

may be stricken out on motion.
Three Ways of Making a Specific Denial
Specific Absolute Denial

By specifically denying the averment and,
whenever practicable, setting forth the
substance of the matters relied upon for
1.
such denial;
NOT PLEADED
General Rule: Defenses and objections not

raised in a MOTION IO DISMISS or in the
Partial Specific Denial
2.
SECTION 1. DEFENSES AND OBJEGTIONS
Part admission and part denial; and
ANSWER are deemed waived.
Disavowalof Knowledge
By an allegation of lack of knowledge or
information sufficient to form a belief as to
the truth or falsity of the averment in the
Exceptions:
opposing party's pleading.
o
.
This does not apply where the fact as
to
which want
of
1. Lack of jurisdiction over the subject matter;

2. Litis pendentia;
3. Res judicata; and
4. Prescription of the action.
. The court shall dismiss the claim if any of
foregoing grounds appears from the
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
pleadings or the evidnce on record.
These defenses may be raised at any

stage of the proceedings even for the first
time on appeal EXCEPT that lack of
palpably untrue.
. A Negative pregnant is a form of

denialwhich at the same time involves
'
an affirmative implication favorable to

the opposing party. tt is in effect, an
admission of the averment to which it
is directed. lt is said to be a denial
pregnant with an admission of the
substantial facts in the pteading
responded to.
SECTION 11. ALLEGATION NOT

SPECIFICALLY DENIED DEEMED
ADMITTED
General Rule: Ailegatibns NOT specifically

denied are deemed admitted.
32
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2011 CENTRALTZED BAR OPERATTONS

SEGTION
3. DEFAULT;
DECLARATION OF
DEFAULT
It is the failure of the
defendant
to answer
within the proper period. lt is not his failure to

appear nor failure to present evidence.
Two Stages of Default:
1.
2.
Default
to file his
responsive
Rendered by the court

a default
order or after
received,
ex
Procedure
the plaintiff
may move to
declare the
defendant in
default
plaintiffs motion for following

failure of the defendant
Ordinary
After the lapse

of time to file
an answer,
Declaration or Order of default; and

Rendition of Judgment by default.
lssued by the court, on
tn
it
pat7e,
Motion granted:
Court issues order
of default and
renders judgment,
or require plaintiff
to submit evidence
ex pafte.
Before judgment by
default is rendered,
defendant may:
1. Move to set
aside order of
default upon
showing of:
FAME and
that he has a
2.
meritorious
defense;
Avail ot Rule
65 in proper
cases-
Court sets aside

order of default and
defendant is allowed
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33
REMEDIAT LAW
CIVIT PROCEDURE
Note: Failure of the defendant to attend the

pre-trial is a cause for the court to order the
plaintiff to present his evidence ex parte and
for the court to render judgment on the basis
thereof under the Rules. This consequence is
NOT to be called a declaration of default (Sec.
5, Rule 18).
General Rule: Default order and consequenfly

a default judgment are triggered by the fiailure
of the defending party to file the
required
answer (Sec. 3, Rule 9).
Effect of an Order of Default
1. The court shall
proceed
to
.erder
judgment granting the claimant such relief

as his pleading may warrant; OR in ils
2.
3.
4.
discretion
to
Shall require the claimant

submit
evidence;
Loss of standing in court of the defaulting
party (Cavile vs. Florendo G.R. No. 73039,
Oct.9, 1987); and
Defendant
is still
entitled
to
notices of
subsequent proceedings
Exceptions: A judgment by defautt may be

in the following cases despite an
Relief from Order of Default: filotion to

Order of Default
1. lf a
Requisites:
rendered
answer having been filed:
2.
party refuses
to obey an order
requiring him to compty with the various

modes of discovery gec. 3[c], Rute 29): or
lf a party or officer or managing agent'of a
party willfuily fails to appear before the

officer who is to take his deposition (Sec.
5, Rule 29) (Riano, 2007, p.297).
Elements of a Valid Declaration of Default:

1. The court must have vatidly ACQUIRED
JURISDICTION over the person of the
2.
3.
4.
defendant either by service of summons or

voluntary appearance;
The defendant FATLS TO ANSWER within
the time allowed therefore;
There must be a MOTION to declare the
defendant in default;
There must be NOTICE to the defendant
by
_serving upon him a copy of such
motion;
5. There must be pROOF of such failure to

answer; and
6. There must be a HEARING to dectare the
defendant in default;
1.
2.
particulars (Feria, 2001,
34
p. 1Se.
1.
2.
3.
4.
Note: 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 (Cavite vs.

Florendo G.R. No. 73039,gcL 9, 19en.
lf the defendant was declared in default

upon an original complaint, the fiting of the
Hence
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to be fited;
.$ummary Procedure.
order denying motion to dismiss or for bill of
Meritoriousdefenses.
Rights of a Party in Default:

Entitled to notice of
Motion to declare him in default;
Order declaring him in default;
Subsequent proceedings; and
Service of final orders and judgments.
comment instead of an answer is required
again from the moment defendant receives the
mistake or excusable negligence; and
ln such a case, the order of default may be set
1 Annulment of marriage;
Qeclaration of nuilitybf mairiage;
?.
3. lggalseparation;
4. Special civil actions of certiorari,
prohibition and mandamus where
May a defendant be. declared in default

while a motion to dismiss or a motion for
bill_ of particulars remains pending and
undisposed of?
NO, because the filing of a motion to dismiss
or motion _for bill of particulars interrupts the
running of the period to answer. lt will run
Verified motion showing fraud, accident
aside on such terms and conditions as the

judge may impose in the interest of justice
(Rule 9 Secflon 3 (b) Rules of Court).
Wherb no Defaults are Ailowed: (ADLeS)
5.
Lift
are
RA
lnc.
complaint.
to
*"._&w
5sn Fels
@ollege of
{.Eb

Partial Default
1. The pleading asserting a claim states a
common cause of action against several
defending parties;
2. Some of the defending parties answer and

the others fail to do so; and
3. The answer interposes a common
defense.
Effect of Partial Default
The court will try the case against
ALL
defendants upon the answer of some except

where the defense is personal to the one who
answered, in which case, it will not benefit
those who did not answer.
The Extent of Relief to be awarded in
SECTION
1. AMENDiIENTS IN GENERAL
Pleadings may be amendedby:

1. Adding an allegation of a party;
Adding the name or substitution of a party;
Striking out an allegation of a party;
Striking out the name of a Party;
2.
3.
4.
5.
6.
Correcting
mistake in the name
of
party; and
Correcting a mistake or inadequate

allegation or description in any other
respect.
Judgment by Default shall not:
1. Exceed the amount prayed for; NOR

2. Be different in kind from that prayed for;
NOR
3. Award unliquidated damages.
Types of Amendments:
1. Amendment
as a matter of right
the
party has the unconditional right to amend
his pleading. The court has no right to

prevent him from amending. The'opposite
party has
Remedies from judgment by default (flow

chart)
no right to
oPPose the
amendment (lf the court refused to admit

the amended pleading as a matter of right,
it is correctible by mandamus.).
2.
Amendment as a matter of iudicial

discretion - the court may or may not
allow the amendment. The'other party has
Motion for new trial or reconsideration at

any time after service of judgment by
default and within 15 (30) days therefrom
the right to oppose (Amendment by leave

of coutt).
SECTION 2. AMENDMENTS AS A MATTER

OF RIGHT
Failure to file motion for new trial/

Denial of said motion
Perfect appeal from said judgment by

default within the balance of said
15 (30) - day period
is matter of right before a

responsive pleading /s SERVED, or in case of
a Reply, within 10 days after it was SERVED'
Amendment
Such right can only be exercised ONCE.

Subsequent amendments should be made
party
only by
S*d$i$ffiffio1"
Petition for relief frsm judgment within

60 days from notice of the judgment but
within 6 months from entry thereof
Annulment of Judgment
under Rule 47
35
REMEDIAL LAW
CIVIL PROCEDURE
lnstances When Amendment is a Matter of
Right:
1. Amendment of
2.
complaint before an
answer is filed;
Amendment of answer before a reply is

filed or before the period for filing a reply
expires;
3.
Amendment
4.
days after it is served; and

Formal amendment.
of reply any time within
r The cause of
in
action stated
the
supplemental complaint must be the same
as that stated in the original complaint.
Otherwise, the court should not admit the
supplemental complaint
lrusf vs. G.R. No.
Privatization
(Assef
121171
Dec.29, 1998).
10
SECTION 3. AMENDMENTS BY LEAVE OF

COURT
Refers to '
AT
TIME of
existing
facts
THE
the
Refers to facts arising

AFTER THE FILING of
the original pleading.
mmmencement of
Leave of Court is required:

1. lf the amendment is substantial;AND
2. A responsive pleading had already been
served.
1.
Takes the place of

a
of right as
when no responsive
pleading has yet
matter
There must be a motion filed in court;
Taken together
with
Can be made as
Requisites:
2, Notice to the adverse party; and

3. Opportunity to be heard afforded
the action.
Always with leave of

court.
been filed.
to the
adverse party.
lnstances when amendment by leave of

court may NOT BE ALLOWED:
1. When the cause of action, defense or
theory ofthe case is changed;
2. Amendment is intended to confer
jurisdietion to the court;
3. Amendment to cure a premature or nonexisting cause of action; and

4. Amendment for purposes of delay.
SECTION 4. FORMAL AMENDMENTS
SECTION 5. AMENDMENT TO CONFORM

TO OR AUTHORIZE PRESENTATION OF
EVIDENCE
When an
pleading
amended
is
filed,
new copy of
the
supplemental
pleading does not

require the filing of a
entire pleading must
new copy of the entire
be flled.
pleading.
7.
SECTION
FILING
OF
AMENDED
PLEADINGS
An amendment which merely
supplements
and amplifies facts originally alleged in the

complaint relates back to the date of the
commencement of the action and is not barred
by the Statute of Limitations which expired
after service of the originalcomplaint (Verzosa
vs. CA, G.R. No 119511-13, Nov.24, 1998).
sEcTroN
8.
EFFECT
OF AMENDED
PLEADING
When issues NOT RAISED in the pleadings

are tried with the express or implied consent of
parties:
1. They shall be treated
2.
3.
as if raised in the
pleadings;
Pleadings may be amended to conform to
the evidence; and
Failure to amend does not affect the result
of the trial of these issues.
Effect of
ame
rffi
ffi#?egFffi
SECTION 6. SUPPLEMENTAL PLEADINGS

ts
Supplemental Pleadings - those which aver

facts occurring after lhe filing of the original
pleadings and which are material to the
matured claims and/or defenses therein
alleged (Herrera vol.l p. 603).
36
may be
9m Felu Gollege ot 1[,cb

2O1t CENTRALIZED BAR OPERATIONS
not be offered in evidence pursuant to
counted from notice
Section 4 of Rule 129.
admifting the same.
of the court order
The Rule shall apply to the answer to an

amended counterclaim, amended cross-
claim, amended third
(fourth,etc.-party
complaint, and amended complaint-inSECTION 1. ANSWER TO THE COMPLAINT
2. ANSWER OF A DEFENDANT
FOREIGN PRIVATE JURIDICAL ENTIW
SECTION
ANSWER to a complaint
1.
Wthin 15 days after service of summons,

UNLESS a different period is fixed by the
Court;
2.
ln case the defendant is a foreign private

juridical entity:
a. lf it has a resident agent - Within 15
b.
days after Fervice of summons to him;

lf it has no resident agent, but it has
an agentor officer in the Philippines
Within 15 days after service of
c.
summons to said agent or officer;
lf it has no resident agent nor agent

nor officer - in which case service of
summons is to be made on lhe proper
government office (now the SEC)

which willthen send a copy thereof by
registered mail within 10 days to the
home office of the foreign private

corporation - within 30 days after
receipt of summons by the home
intervention).
lf NO NEW ANSWER lS FILED, answerto
original pleading shall be deemed as
answer to the amended pleading.
SECTION 4, ANSWER TO COUNTERCLAIM

OR CROSS.CLAIM
counterclaim
or
cross-claim must be
answered within 10 days from service.
sEcTroN 5. ANSWER TO THIRD (FOURTH,
COMPLATNT
The third-party defendant is served
ETC.)-PARTY
with
summons just like the original defendant.

Hence, he also has 15, 30, or 60 days from
service of summons, as the case may be, to
file his answer.

SECTION 6. REPLY
A reply may be filed within 10 days from

service of the pleading responded to.
SECTION 7. ANSWER TO SUPPLEMENTAL

COMPLAINT
office of the foreign private entity.
3. ln case of service of summons by

publication - Within the time specified in
the order granting leave to serye
Answer to a supplemental complaint must be

filed within 10 days from notice of the order
admitting the same unless a different period is
fixed by the court.
summons by publication, which shall NOT

be less than 60 days after nolice (Rule 14,
Sec. /5,); and
4.
ln case of a'non-resident defendant on

whom extraterritorial service of summons
is made, the period to answer should be at
least 60 days.
The court may extend the time to file the
pleadings BUT may NOT shorten them.

(ExcepF in Quo Warranto proceedings)
SECTION
3.
ANSWER
TO
rough
AMENDED
GOMPLAINT
1.
2.
lf the filing of an amended complaint is a

matter of right - Within 15 days from
service of the amended complaint.
lf the filing of the amended complaint is

NOT a matter of right - Within 10 days
37
REMEDIAL LAW
CIVIL PROCEDURE
lnstances When Amendment is a Matter of
Right:
1.
2.
Amendment
of
complaint before
an
answer is filed;
expires;
Dec.29,
4.
days after it is served; and

Formal amendment.
of reply any time within
COURT
Leave of Gourt is required:

1. lf the amendment is substantial;AND
2. A responsive pleading had already been
served.
Refers io -
AT
TIME of
existing
facts
THE
the
commencement of
Takes the place of

a
of right as
when no responsive
pleading has yet
There must be a motion filed in court;

Notice to the adverse party; and
afforded
to
Refers to facts arising

AFTER THE FILING of
the action.
Can be made as
to be heard
121171,
19981.
matter
Requisites:
Opportunity
lrusf vs. G.R. No.
10
SECTION 3. AMENDMENTS BY LEAVE OF
1.
complaint
Privatization
Amendment
in
action stated
the
supplemental complaint must be the same
as that stated in the original complaint.
Otherwise, the court should not admit the
(Assef
supplemental
Amendment of answer before a reply is

filed or before the period for filing a reply
3.
2.
3.
. The cause of
Always with leave of

court.
been filed.
the
adverse party.
lnstances when amendment by leave of

court may NOT BE ALLOWED:
1. When the cause of action, defense or
theory of the case is changed;
When an
pleading
amended
is filed, a
new copy of
the
supplemental
pleading does not

require the filing of a
entire pleading must
new copy of the entire
be filed.
pleading.
7.
SECTION
FILING
OF
AMENDED
2- Amendment is intended to confer

jurisdiction to the court;
3. Amendment to cure a premature or non-
An amendment which merely
4.
and amplifies facts originally alleged in the

complaint relates back to the date of the
existing cause of action; and

Amendment for purposes of delay"
SECTION 4. FORMAL AMENDMENTS
SEGTION 5. AMENDMENT TO CONFORM

TO OR AUTHORIZE PRESENTATION OF
EVIDENCE
When issues NOT RAISED in the pleadings

are tried with the express or implied consent of
parties:
1.
2.
3.
PLEADINGS
supplements
commencement of the action and is not barred

by the Statute of Limitations which expired
after service of the origina{ complaint (Verzosa
vs. CA, G.R. No 119511-13, Nov. 24, 1998).
sEcTtoN
8.
EFFECT
OF AMENDED
PLEADING
Effect of
if raised in the
pleadings;
Pleadings may be amended to conform to
the evidence; and
Failure to amend does not affect the result
of the trial of these.issues.
They shall be treated as
SECTION 6. SUPPLEMENTAL PLEADINGS

ts
Supplemental Pleadings - those which aver

facts occurring after lhe filing of the original
pleadings and which are material to the
matured claims and/or defenses therein
alleged (Henera vot.l p. 603).
36
may be
$sn
Ftlr
@ollege ot
iltb
not be offered in evidence pursuant to
counted from notice
Secfion 4 of Rule 129.
admifting the same.
of the court
The Rule shall apply to the answer to an

amended counterclaim, amended cross-
claim, amended third

SECTION 1. ANSWER TO THE COMPLAINT
SECTION 2. ANSWER OF A DEFENDANT

FOREIGN PRIVATE JURIDICAL ENTITY
ANSWER to a complaint
1.
Within 15 days after service of summons,

UNLESS a different period is fixed by the
Court;
2.
ln case the defendant is a foreign private

juridical entity:
a. lf it has a resident agent - Within 1b
days after gervice of summons to him.
b. tf ii has no resident agent, but it has
an agenlor officer in the philippines Within 15 days after service of
c.
summons to said agent or officer;

lf it has no resident agent nor agent
nor officer - in which case service of

summons is to be made on lhe proper
government office (now the SEC)

which will then send a copy thereof by
registered mail within 10 days to the
home office of the foreign private

corporation - within 30 days after
receipt of summons by the home
order
(fourth,etc.-party
complaint, and amended complaint-in-
intervention).
lf NO NEW ANSWER lS FILED, answer to
original pleading shall be deemed as
answer to the amended pleading.
SECTION 4. ANSWER TO COUNTERCLAIM

OR CROSS.CLAIM
counterclaim
or
cross-claim must be
answered within 10 days from service.
sEcTroN 5. ANSWER TO Tl{rRD (FOURTH,

ETC.)-PARTY COMPLATNT
The third-party defendant is served with

summons just like the original defendant.
Hence, he also has 15, 30, or 60 days from
serviee of summons, as the case may be, to
file his answer.
SECTION 6. REPLY
A reply may be filed within 10 days from

service of the pleading responded to.
SECTION 7. ANSWER TO SUPPLEMENTAL

COMPLAINT
office of the foreign private entity.
3. ln case of service of summons by

publication - Within the time specified in
the order granting leave to serve
summons by publication, which shall NOT
be less than 60 days after notice (Rute 14,
Answer to a supplemental complaint must be

filed within 10 days from notice of the order
admitting the same unless a different period is
fixed by the court.
SECTION 8. EXISTING COUNTERCLAIM OR
Sec.15); and
4.
ln case of a'non-resident defendant on

whom extraterritorial service of summons
is made, the period to answer should be at
least 60 days,
The court may extend the time to file the
pleadings BUT may NOT shorten them.

{Except: in Quo Warranto proceedings)
SECTION
3.
COMPLAINT
1.
2.
ANSWER
TO
rough
AMENDED
lf the filing of an amended cornplaint is a

matter of right - Within 15 days from
service of the amended complaint.
lf the filing of the amended comptaint is

a matter of right - Within 10 days
NOT
37
REMEDIAL LAW
CIVIL PROCEDURE
SECTION
1{.
EXTENSION OF TIME TO
SECTION
3.
GOMPLIANCE WTH ORDER
PLEAD
Requisites:
1. There must be a motion;
With service of such motion to other party;
and
On such terms as may be just.
2.
3.
Period to comply with order granting the

motion: Ten (10) days from notice of order
unless a different period is fixed by the court.
The Bill of Particulars may be filed either in a

separate or in an amended pleading, serving a
copy thereof on the adverse party.
SECTION
sEcTtoN
,t.
WHEN APPLIED
FOR;
PURPOSE
Bill of
Particulars
is a
more
definite
a.
Purpose: To aid in the preparation of a
2.
indefinite. The remedy of the defendant is
Galeon, G.R. No. L-30380, Feb. 28, 1973).
3.
May order the striking out of the

pleading or the portion thereof to
which the order is directed; or

Make such order as it may deem just.
lf the plaintiff fails to obey, his complaint
may be dismissed with prejudice UNLESS
otheruvise ordered by the courl (Rule 12,
Secfibn 4; Rule 17, Section 3);
b.
lf defendant fails to obey, his answer will
be stricken off and his counterclaim
dismissed, and he will be declared in

default upon motion of the plaintift (Rule
The motion for bill of particulars shail be filed

before responding to a pleading. Hence, it
must be filed within the period granted by the
Rules (Rule 11) for the fiting of a responsive
12, Section 4; Rule 17, Section 4; Rule
SECTION
2. The paragraphs wherein they are

contained; and
3. The details desired.
. The motion must comply with the
requirements for motions under Sec" 4, 5

and 6 of Rule 75. Otherwise the motion
will not suspend the period to answer
(Filipino Fabricator vs. Magsino, G.R. No.
47574, Jan.29, 1988).
Note: A motion for bill of particulars is not

it is a motion that
APPLIES TO ANY PLEADING which in the
perception of the movant contains ambiguous
allegations (Riano, 2007, p. 256).
directed only to a complaint.
SECTION 2. ACTION BY COURT
The court may either:
1.
Deny;
2. Grant it outright; or
3. Allow the parties the opportunity to be
heard.
38
9,
Section 3).
pleading.
The Motion shall point out

1. The defects complained of;
NON-
insufficient compliance therewith, the
responsive pleading.
to move for a bill of particulars or avail of

the proper mode of discovery (Galecin vs.
OF
court:
with sufficient defi n iteness or particularity.
An action cannot be dismissed on the

ground that the complaint is vague or
EFFEGT
Effect of Nonompliance:
1. lf the Order is not obeyed or in case of
statement of any matter which is not avened
4.
COMPLIANCE
5. STAY OF
PERIOD TO FILE
RESPONSIVE PLEADING
Effects of Motion
1.
lf the motion is granted,"in whole or in part,
the movant can wait until the bill of

particulars is served on him by the
opposing party and then he will have the
balance of the reglementary period within
such
$ln Selc
ollege of Lcb

SECTION 12. PROOF OF FILING
Filing is proved by its existence in the record

of the case.
Note:
This Rule is not arranged per section
but per topic.
1. lf filed personally:
SECTION 1. COVERAGE
SECTION
2,
lf it is not in the record, and
FILING AND
Proved by the written

or stamped acknowledgment of its filing by
the clerk of court on a copy of the same; or
SERVICE,
DEFINED
2.
to a
party who is duly

is a nullity, unless
service thereof on the party himself was
Notice given
represented by counsel
by registered mail: Proved by the

registry receipt AND the affidavit of the
person who did the mailing with a tull
lf .filed
statement of:
a.
ordered by the court or the technical defect

was waived.
b.
c.
Where party is represented by more than one

counsel of record, service of notice on any of
4.
days if undelivered.
PAPERS REQUIRED TO BE
FILED AND SERVED: (pAMNOJ-DORS)
1. Pleading subsequent
2. Appearance;
3. Written 4qotion;
4. Sotice;
5. Order;
6. judgment;
7. pemand;
8. Qffer of Judgment;
9. Resolution; or
to the complaint;
SECTION 5. i'IODES OF SERVICE
Personal Service (Section 6)
a.
b.
Filing is an act of presenting the pleading or
other paper to the clerk of court"
by
c.
Delivering personally a copy to the

party, who is not represented by a
counsel, or to his counsel; or

Leaving a copy in counsel's office with
his clerk or with person having
charge thereof; or
Leaving the copy between 8 a.m. and
p.m. at the party's or counsel's
residence, if known, with a person of
SECTION 3. MANNER OF FILING
Personal service
Service is the act of providing a party with a

copy of the pleading or paper concemed.
10. Similar papers.
1.
a sealed
envelope addressed to the court;
With postage fully paid; and
With instructions to the postmaster to
mail in the post office in
retum the mail to the sender after 10
the latter is sufficient.
SECTION
The date and place of depositing the
discretion then
presenting the
is found
original copies thereof, plainly indicated as

such, to the clerk of court; or
2.
Registered mail.
Filing
by mail
should
be through
the
REGISTRY SERVTCE which is made by

deposit of the pleading in the post office, and
not through other means of transmission.
lf a private carrier is availed of by the

party, the date of actual receipt by the
court of such pleading and not the date of
of court
delivery to the private carrier, is deemed to

be the date of the fiting of that pteading
(Benguet Electric Cooperative,
lnc.
ys.
NLRC, G.R. No. g9AT0 May 18, 1992).
39
REMEDIALLAW
CIVIL PROCEDURE
10.
SECTK)IiI
SERVICE
1.
COMPLETENESS OF
must be accompanied by a written explanation

why the seruice or filing was not done
personally.
PerconalService:
a. By handling a copy to defendant; or

b. Tendering him a copy if he refuses.
2.
Complete upon actualdelivery,
Service by Ordinary Mail:
Complete upon expiration of 10

days after mailing, unless the court
provides otherwise.
3.
Ssrvice by Registercd Mail:

. Complete upon actual receipt by the
addressee; or after 5 days from the
date he received the first notice of
the
postmaster.
SECTION 14. NOTICE OF LIS PENDENS
Lis Pendens is a notice of a pendency of the

action between the parties involving title to or
right of possession over real property.
Requisites:
1. Action
2.
3.
4.
Proof of Perconal Service

1 , Written admission of the party served; or
the date, place and manner of service.
Secflon 7, Rule 13.
Proof of service by registered mail:

1. Affidavit of mailer showing compliance of
Secfibn 7, Rule i3; and
2.
R:gistry receipt issued by the maiting
ofiice.
SECTION
9.
SERVICE OF JUDGMENT,
FINAL ORDERS, OR I{ESOLUTIONS
1. By personal service;
2. By registered mail; or
3. By publication, if party is summoned
Notice shall contain the name of the

of the action or
defense and a description of the property
parties and the object
affected thereby; and
Action
in rem (AFP Mutual Benefit
This serves as a warning to all persons
that
particular real property
is
in
litigation, and that one who acquires an

interest over said property does so at his
own risk, or that he gambles on the result
of the litigation over said property (Lee Tek
Sheng vs. CA, G.R. No. 115402, July 15,
2. Official return of the server; or

3. Affidavit of the party serving, containing
Proof of Service by Ordinary Mait: Affidavit
of the person mailing showing compliance of
or the right of
Association, lnc. vs. CA, G.R. No.l04769,

March 3,2000).
Note: Whichever date is earlier.

SECTION 13. PROOF OF SERVICE
affects the title
possession ofthe real property;

Affirmative relief is claimed;
1eeg).
The defendant may also record a notice of

lis pendens when he claims an affirmative
relief in his answer.
Note: Section 76 of P.D. /529 provides that

no action to recover possession of real estate,
or to quiet title thereto, or
remove clouds
upon the title thereof, or for partition, or other
proceedings of any kind in court directly
affecting the title to land or the use or

occupation thereof or the buildings thereon,
and no judgment, and no proceeding to vacate
by
publication and has failed to appear in the
action.
Note: No substituted service.
SECTION 11. PRIORITIES

SERVICE AND FILING
Personal service and
IN MODES OF
filing is the
general
rule, and resort to other modes of servi-ce and
filing is the exception.
Except papers emanating from the court, a

resort to modes other than by personal service
40
al
an
filing
notice
$sll ptls
@otlege of
{.elr

cancellation may be authorized ONLY upon
order of court, after proper showing that:

1. The notice is for the purpose of molesting
the adverse party; or
lt is not necessary to protect the rights of
the party who caused it to be recorded.
2.
But where 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 amended
deemed withdrawn upon such
on the
defendant
complaint, as the original complaint was

amendment (Atkins vs. Domingo, G.R. No.
L-19565, March 24, 1923).
of
the person
the
defendant in a civil case is acquired either
Jurisdiction over
by his VOLUNTARY
SERVICE
OF SUMMONS upon
him
Summons is the writ by which the defendant

is notified of the action brought against him.
Purpose of Summons
A. Actions in Personam:
1. To acquire jurisdiction over the person
B.
is joined, summons must be served upon him.
APPEARANCE or
(Minucher vs. CA G.R. IVo.142963, Feb.

11,2003).
2.
General Rule: When an additional defendant
of the defendant in a civil case; and
To give notice to the defendant that an

action has been commenced against
him (Rtghf to due process).
Exceptions:
1.
2.
3.
a deceased
party defendant substitutes the deceased;
Where upon the death of the original
defendant his infant heirs are made
parties; and
ln cases of substitution of the deceased
under Sec. 16 of Rule 3.
When the administrator of
Note: ln these instances, the service
SECTION 1. CLERK TO ISSUE SUMMONS

Summons to be issued:
Upon the filing of the complaint; and
Payment of the requisite legal fees.
Actions in Rem and Quasi in Rem:
1.
2.
constitutional requirement of due process.
SECTION 2. CONTENTS
Not
to
acquire jurisdiction over the

defendant but mainly to satisfy the
Jurisdiction over
the defendant is
not
required and the court acquires jurisdiction
over an action as long as it acquires
jurisdiction over the res (Riano, 2007. P.

232).
Effect of Non-Service
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.
of the
ORDER OF SUBSTITUTION is sufficient.
SECTION 3, BY WHOi'I SERVED

Summons may be served by:
1. Sheriff;
Sheriffls deputy; or
Other proper court officers; or
2.
3.
4.
For justifiable reasons, by any suitable
$.hffiffi#w e*ew
The non-service or invalidity of service of

summons may be a ground for dismissal, for
lack of jurisdiction over the person of the

defending party.
Note: Where the defendant has
the
of
already
original
been served with summons on the

complaint, no further summons is required on
the amended complaint if it does not introduce
new causes of action (Ong Peng vs. Cusfodio,
G.R. No. 14911, March 25, 1961).
servrce,
(Sec.6)
summons to
4L
REMEDIAL LAW
CIVIL PROCEDURE
Z
8.
Sbndering itto
$tcfituted
1.
Service
him.
(S*tion
T)
By leaving copies of the summons at
the defendant's residence with some

person of suitable age and discretion
residing therein; or
2.
By leaving the copies at defendant,s

office or regular place of business with
some competent person in charge
thereof.
For substituted service of summons to be

vali4 it is necessary to establish the following;
1. The impossibiliiy of the personal serviojof
summons within a reasonable time;
The efforts exerted to locate the person to
be served; and
Service upon a person of sufficient age
2.
3.
and discretion residing in the same plate

as defendant OR some competent person
in charge of his office or regular piace of
any action where the defendant is designated

as unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be
ascertained by diligent inquiry. Thus, it now
applies to any action, whether in personam, in
rem or quasi-in rem.
. lf
property
17,1998I
Note: 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 ys. Maximo, G.R No. 22997,
business.
March 15,1968).
ln substituted service, the sheriffs return

must show that an effort or attempt was
exerted to personally serve the summons
on the defendant and that the same had
failed (Spouses Venturanza vs. CA, G.R.
Service of Summons on Different Entities

Upon any or all the defendants
being sued under common
name; or person in charge of the
office.
Minors and
lncompetents
Publication (Section 14)
(Section l0)
Requisites:
1. Defundant's identity or
where_
abouts are unknown and cannot be
^
z.
ascertiained by diligent inquiry; and

there must be leave of court.
pumnno-ns by way of pubtication may with

leave of court be availed of where a defendant
involved in any action (in rem, quasi in
an! in
personam)
is
designaied
im
as an
unknown owner or whenever his whereabouts
are unknown and cannot be ascertained. The

summons shallbe effected through publication
in a newspaper of general circrjtation.ano ln
such places and for such time as the court
sets.
ln
Sanfos
v,
?NAC
G.R. No. 17lg4g,
September 25, 20OS), the Supreme eourt held

that.the in rem/in personam distinction was
srgnrficant under the old rule because it was
silent as to the kind of action to which the rule
was applicable. Because of this silence, the
court limited the apptication of the old rule to in
rem actions only. This has been changed. The
present rule expressly states that it applied
to
42
attached and later the
(and voluntarily
submits to the jurisdiction of the court), the
case becomes mainly a suit rn personam
(Villareal vs. CA, G.R. No. 107314, Sept.
No.77760, Dec. 11, 1987).
C.
is
defendant appears
lN CASE OF MINORS: By
serving upon the minor,
regardless of age, AND upon his
legal guardian, or also upon
either of his parents.
IN CASE OF INCOMPETENTS;
By serving on him personally
AND upon his legal guardian,
but not upon his parents, unless
they are his legal guardians.
IN ANY EVENT, if thc
$ux Fell
@otlege of
1[sb

Foreign
private
Serve on the resident agent; or if

,none; on the government official
designated by law; or on any
officer or agent of the
corporation within the
juridical entity
(Section 12)
Public
corporations
the
defendant
from any
interest in
any property
within the
IN CASE DEFENDANT IS THE

REPUBLIC OF THE
PHILIPPINES - By serving upon
the Solicitor General
IN CASE OF A PROVINCE,
CITY OR MUNICIPALITY, OR
LIKE PUBLIC CORPOMTIONS
- by serving on its executive
head or on such oiher ofiicer or
officers as the law or the court
may direct.
(Section 13)
Phil;or
or
. Property
of
defendant
has been
gttached in
the Phil.
SECTION 14. SERVICE UPON DEFENDANT
under
service
15.
EXTRATERRITORIAL
SECTION 16. RESIDENTS TEMPORARILY

OUT OF THE PHILIPPINES
Resident
temporarily out
of the
Phitippines
t/Vith leave of
(Section 14)
Any action (rn

rem, in
personam or
quasi in rem)
ln rem or quasi
in rem. ll
either:{AREAI
r Affects the
personal
status of
plaintiff;
Relates to or
the subject
of which is
Not a resident
and is not
found in the
Philippines
(Sectian 15)
manner the
court deem
sufficient.
extraterritorial
ARE UNKNOWN
Resident but
identity or
whereabouts
unknown
c. Any other
Substituted
service or with
leave of court,
personal
servlce out of
the Phil. as
WHOSE IDENTITY OR WHEREABOUTS
SECTION
SERVICE
by
registered
mail to the
last known
address of
defendant;
property
within the
Philippines
in which
defendant
has a lien or
interest;
Demands a
relief which
consists
wholly or in
part in
gxcluding
Any action
(lt?
rem, in
personam or
quasiin rem)
(Section 16)
Note: ln all
these cases, it
should be
noted that,
defendant
must be a
resident of the
Philippines.
Otherwise, an
adion in
personam
court, BY
cannot be
PUBLICATION
broughf
ina
because
newspaper of
general
circulation.
jurisdiction
over his
person is
essential to
make a
binding
decision
Service:
a. lA/ith leave
of c:ourt
serve
outside the
Phil. by
personal
tH ffiWWe
servi@; or
b.
Wth leave
of court
serve by
publication
ina
newspaper
of general
circulation,
in which
case copy
of the
summons
and order of
court must
also be sent
EBY
or
ness
or
affidavit a
attached;
43
REMEDIAL LAW
CIVIL PROCEDURE
2.
Affidavit showing the deposit of a copy of

the summons and order for publication in
the post office. (Henera vol.l p. 722)
SECTION 20. VOLUNTARY APPEARANCE
Any form of appearance in court, by
SECTION 3. CONTENTS
Contents of the Motion:
1. The relief sought to be obtained;

2. The ground upon which it is based; and
3. lf required by the Rules or necessary to
prove facts alleged therein, shall
the
defendant, by his agent authorized to.do so, or
by attomey, is
equivalent
to
service of
summons EXCEPT where such appearance is

precisely to object to the jurisdiction of the
court over the person of the defendant.
lnclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over
the person of the defendant shall NOT be
deemed a voluntary appearance.
SEGTION
other papers.
Requisites of a Motion: (Not made in open

courl or in the course of a hearing or trial):
1. lt must be in WRITING;
2. HEARING OF MOTION set bY the
applicant;
3. NOTICE OF HEARING shall be addressed
to all parties concemed. Date of hearing

must not be later than 10 days from the
4.
1, MOTION, DEFINED.
filing of the motion (Sec. 5);
Motion and notice of hearing must be

served at least 3 DAYS BEFORE THE
DATE
Motion is an application for relief other than by
OF
HEARING (THREE DAY
NOTICE RULE); and

PROOF OF SERVICE (Sec.6).
a pleading. A motion is not a pleading.
5.
Kinds of Motions
Exceptions to the Three Day Notice Rule:
1.
Motion EX PARTE is made without the

presence or a notification to the other
party because the question generally
presented is not debatable (Le. Motion for
2.
extension of time to file pleadings).

Motion OF COURSE is where the movant
is entitled to the relief or remedy sought as
a matter of discretion on the part of the
court.
3.
LITIGATED Motion is the one made with

notice to the adverse party to give an
opportunity to oppose (i.e. Motion to
4.
SPECIAL Motion is a motion addressed
dlsmLss).
to ihe discretion of the court.
General Rule:
judgment.
motion cannot pray for
Exceptions:
1.
2.
3.
Motion for judgment on the pleadings;

Motion for summary judgment; and
Motion
for judgment on demurrer to
evidence.
sEcTroN
2.
MOTION MUST
BE
IN
WRITING
General Rule: Motions musl be in writing.
Exceptions: Those made in OPEN COTJRT or

in the COURSE OF HEARTNG orTR|AL.
44
be
accompanied by supporting affidavits and
1. Ex-partemotions;
2. Urgent motions;
3. Motions agreed upon by the parties to be
,
4.
heard on shorter notice or jointly submitted

by the parties; and
Motions for summary judgment which
must be served at least 10 days before its
hearing.
Note: Any motion
that does not comply with

Secflons 4, 5 and 6 of this Rule (Requirements
4 and 5) is a mere SCRAP bf PaPeR.
r lt
does not interrupt the reglementary

period for the filing of the requisite
pleading.
5un Fe[e @otlegt of I.sb

SEGTION
9.
Types of Dismissal of Action
MOTION FOR LEAVE
1.
SECTION 10. FORM
2.
A Motion to Dismiss is NOT a
responsive
pleading. lt is not a pleading at all.
3.
It is subject to the omnibus motion rule since it
Motion
to dismiss before answer
under
Rule 16;
Motion to dismiss underRule 17;
Upon notice by plaintiff;
Upon motion by plaintiff; or
Due to fault of plaintiff,
r
.
.
Motion
to dismiss called a demurrer to
evidence after plaintiff has completed the

presentation of his evidence under Rule
33; and
Dismissal of an appeal.
is a motion that attacks a pleading. Hence, it

must raise all objections available at the time
4.
of the filing thereof.
sEcTroN 1. GROUNDS (DILL-RPF-CUN)

1. No jurisdiction over the person of the
the following grounds are NOT

DEEMED WAIVED:
Lack of jurisdiction over the subject matter;
However,
1.
2. Litis pendentia;
4. Prescription (Sec.1 Rule 9).
3.
General Rule: A court may nol motu proprio

dismiss a case unless a motion to that effect is
filed by a party thereto.
2.
3.
defending party;
No jurisdiction over the gubject matter of
the claim;
lmproper venue;
4. No legal capacity to sue;

5. litis pendentia;
6. Res judicata;
7.
8.
9.
lrescription;
lailure to state a cause of action;

Qlaim or demand has been paid, waived,
abandoned, or otherwise extinguished;
Exceptions:
1.
2"
Those cases where the court may dismiss

a case motu proprio (Sec. 1, Rule 9);
Sec. 3, Rule 17 (Failure to prosecute)', and
Rule on Summary Procedure (Section
1991, Revised Rule
on
10. Claim is gnenforceable under the Statute

of Frauds; and
11.
lon-compliance
with
condition
precedent for filing claim.
4,
Summary
Procedure).
The language of the rule, particularly on

the relation of the words "abandoned" and
"otherwise extinguished" to the phrase

"claim or demand deemed set forth in the
plaintiffs pleading " is broad enough to
include within its ambit the defense of bar
by laches (Pineda v. Heirs of
Eliseo
Guevarra, G.R. No. 168557, February
19,
2007).
May be filed by any
defending party against
whom a claim is
asserted in the action.
May be {iled only by

the defendant against
the complaint of the
plaintiff.
Should be filed withiir

the time for but prior to
the filing of the answer
of the defending party
to the pleading
asserting the claim
against him.
May be filed only after

the plaintiff has
completed the
presentation of his
evidence.
lf denied, defendant
must file an answer, or
else he may be
declared in default.
lf granted, plaintiff may
appeal or ifsubsequent
case is not barred, he
may re-file the case.
lf denied, defendant
may present
evidence.
lf granted, plaintiff
appeals and the Order
of the dismissal is
reversed, the
defendant loses his
right to present
evidence.
the affiggf@W#dF# in
parties
it
may
be
which party
45
REMEDIAL LAW
CIVIL PROCEDURE
lt
Note: is applicable between the same

parties only when the judgment to be rendered
in the action first instituted will be such that
regardless of which parg is successRrt, it wiii
amount to res judicata against the second
action (HSBC vs. Aldecoa & Co., G.R. No. L8437, March 23,1915).
A motion to dismiss may be filed in either

suit, not necessarily in the one instituted
first.
Order granting motion

to dismiss is a final
order (without
prejudice).
Order granting motion
to dismiss (with
Preludice).
Order denying the
motion to dismiss is
interlocutory.
Requisites of Res Judieata
1. Previous final judgment or order;

2. Jurisdiction over the subject matter and
3.
4.
the parties by the court rendering it;

Judgment upon the merits; and
There must be identity
subject matter, and
action between
actions.
of
parties, of
17.
Prescription
motion
to
dismiss on the ground of
prescription will be given due course only if the

complaint shows on its face that the action has
already prescribed.
It is concerned with the

effect of delay.
It is a matter of time.
Prohibition may lie

under Rule 65.
second
Note: There could be res judicata without a

trial, such as in a judgment on the pleadings
(Rule 34);a summary judgment (Rute 3S); or
an order of dismissal under Secfion 3 of Rule
It is a mafter of
Non-Compliance
in the complaint.
Failure to State a Cause of Action and Not

Lack or Absence of Cause of Action is the
ground for a motion to dismiss. The former
means there is insufficiency in the allegations
in the pleading. The /affer means that there is
insufficiency in lhe factual basis of the action.
46
Gondition
Non-compliance with P.D. 1548 (Katarungang

Pambarangay Law) may result in dismissal of
the case on the ground of non-compliance with
a condition precedent.
SECTION
2.
HEARING OF MOTION
SECTION
3.
RESOLUTION OF MOTION
The court may:

Dismiss the action;
Deny the motion; or
Order the amendment of the pleading
1.
2.
3.
Note: ln
is
resolution.
complaint states no cause of action, such fact

can be determined only from the facts alleged
with
Precedent
court
Gomplaint States No Cause of Action

When the ground for dismissat is that the
File answer and

proceed with the trial, if
decision is adverse,
appeal therefrom and
raise as error the denial
of the motion to dismiss.
lf there is grave abuse
of discretion.amounting
to lack or excess of
jurisdiction, Certiorari or
of cause of
the first and
Refile the complaint.
resolving motion to dismiss, the

required to give reasons for its
5m Felu ollege
of
i[,ab

Exception: The action cannot be re-filed if it
was dismissed on any of these
grounds:
EXGEPT:
Statute of
Frauds

4. !,xtinguishment of the claim or demand;
. ln these instances, the remedy of the plaintiff
is APPEAL.
SECTION
5.
confi rming the dismissal.
Such dismissal is WITHOUT PREJUDICE,
(PURE)
1. flrescription;
2. lnenforceability under the
The rule requires a COURT ORDER
1. Where the notice of dismissal
so provides;
or
2. Where the plaintiff has

dismissed the same case
competent jurisdiction
previously
in a court of
Owo
Dismissal
Rule).
o
PLEADING GROUNDS AS
AFFIRMATIVE DEFENSES
lf no motion to dismiss had been filed, any of

the grounds for dismissal provided for in Rule
16, INCLUDING IMPROPER VENUE, may be
pleaded as affirmative defenses in the answer
and a preliminary hearing may be had thereon
lf the plaintiff files a notice of dismissal

providing therein a reason that prevents
the refilling of the complaint, the dismissal
must be deemed one with prejudice. This
happens when the notice provides that the
plaintiff recognizes the fact of prescription
or extinguishment of the obligation of the
defendant or for reasons stated in Sec. 5
of Rule 16 (Riano, 2007, p. 225).
in the discretion of the court.
SECTION 2. DISMISSAL UPON MOTION OF
Note: lf the defendant
would want to file a

counterclaim, he should NOT file a motion to
dismiss. lnstead,.he should allege the,grounds
of a motion to dismiss as affirmative defenses
in his answer with a counterclaim. A
preliminary hearing may be had thereon, and
in the event the complaint is dismissed, the
defendant can PROSECUTE his counterclaim.
The
ld
of
paragraph
Secfion
clearly
provides that the dismissal of the complaint is
without prejudice to the prosecution of the
counterclaim.
PLAINTIFF
of the
complaint is subject to the DISCRETION of the
court and upon such terms and conditions as
may be just.
Under this section, the dismissal
lf a counterclaim has been pleaded by the

defendant PRIOR TO THE SERVICE upon
him of the plaintiff's motion for dismissal, the
dismissal shall
be
LIMITED
TO THE
COMPLAINT.
Such dismissal shall be without prejudice to

the right of the defendant to either:
SECTION 1. DISMISSAL UPON NOTICE BY

PLAINTIFF
Dismissal
is effected not by motion but
1. Prosecute his counterclaim in a separate

action;OR
2. To have the same resolved in the same
by
mere NOTICE of dismissal which is a matter of

right BEFORE the SERVICE of:
1. The answer; or
A motion for summary judgment.
2.
Note: The dismissal as a matter of right

ceases when an answer or a motion for
summary judgment is SERVED on the plaintiff
and NOT when the answer or the motion is

FILED with the court. Thus, if a notice of
dismissal is filed by the plaintiff even after an
answer has been filed in courf but before the
responsive pleading has been served on the
plaintiff, the notice of dismissat is STILL A
MATTER OF RIGHT (Riano,2007, p.224).
to
The
ry in the
47
REMEDIAL LAW
CIVIL PROCEDURE
Dismissal is at the
instance ofthe
plaintiff.
SECTION 4. DISMISSAL OF
COUNTERCLAIM, CROSS.GLAIM, OF
THIRD.PARTY COMPLAINT
Dismissal is not
procured by plaintiff
though justified by
causes imputable to
dismissal or discontinuance of an action

operates to annul orders, rulings or judgments
him.
previously made in the case, as well as all

proceedings had in connection therewith and
renders all pleadings ineffective (Servicewide
Specia/rs[ lne. vs. CA, G.R. No. 110597, May
8,1996).
Dismissal is a matter
of procedure, without
prejudice unless
otherwise stated in the
order of the court or on
plaintiffs motion to
dismiss his own
complaint"
Dismissal is a matter
of evidence, an
adjudication on the
merits.
Dismissal is without
prejudice to the right of
the defendant to
prosecute his
counterclaim in a
separate action unless
Min 15 days from
notice of the motion he
manifests his intention
to have his
counterclaim resoived
in the same action.
Dismissal is without
prejudice to the right of
the defendant to
prosecute his
counterclaim on the
same or separate
action.
Prc-Trial is a mandatory ennference and

personal confrontation before the judge
between the parties and their respective
counsel.
SECTION 1. WHEN CONDUCTED
After the last pleading has been served and

filed, it shall be the duty of the plaintiff to
promptly move ex-parte that the case be set
for pre-trial.
SECTION 3. DISMISSAL DUE TO FAULT OF
PLAINTIFF
Causes for Dismissal

1. Plaintiff fails to appear for no justifiabte
cause on the date of the presentation of
2.
3.
.
his evidence in chief on the complaint;
Plaintiff fails to prosecute his action for an

unreasonable length of time (NoIIe
Prasequi);and
Plaintiff fails to comply with these Rutes or
any order of the court.
The plaintiffs failure to appear at the trial

. after he has presented his evidence and
rested his case DOES NOT WARRANT
the dismissal of the case on the ground of
failure to prosecute. lt is merely a waiver
of his right to cross-examine and to object
to the admissibility of evidence (Jatover vs.
Ytoriaga, G.R.
No. L-359A9, Oct.
28,
1977).
Complaint may be dismissed:
.
2.
1
Upon motion of the defendant; or

Upon the court'F own initiative.
Dismissal shall have
the effect of
an
ADJUDICATION UPON THE MERTTS (RES

JUDICATA), unress otherwise dectared by the
couft or
if the court has not yet acquired
jurisdiction over the person of the defendant

(Henera, voL 1 p.798).
48
Specifically, the motion is to be filed within

5 days after the last pleading joining the
issue has been served and filed
(Administrative Circular No. 3-99 January

15, 1999). lf the plaintiff fails to file said
motion within the given period, the branch
clerk of court shall issue a NOTICE OF
PRE- TRIAL (A.M. No. 03-109-SC, July
1s,2004).
Note: The "LAST PLEADING' need not be

literally construed as the qctual filing of the last
pleading. For purposes of the pre-trial, the
expiration of the period for filing the last
pleading is sufficient (Sarmiento vs. Juan,
9m
ffie[u Gollege of Lsb
2OT 1 CENTRALIZED BAR OPERATIONS
Note: The
of
prooess
securing
admissions, whether of facts or evidence,
is essentially voluntary. When the parties
are unable to arrive at a stipulation of

agreed facts, the court must close the pretrial and proceed with the trial of the case
(Filoil Marketing Corp. vs. Dy Pac & Co.,

G.R. No.29636, Sepf. 30, 1982).
5.
6.
7.
The limitation of the number of witnesses;

The advisability of a preliminary reference
of issues to a commissioner;
The propriety of rendering judgment on the
pleadings,
or summary judgment, or of
the action should a valid
dismissing
SECTION
5.
EFFECT OF FAILURE TO
APPEAR
Effect of Non-Appearance of Plaintiff:
Cause for the dismissal of the action. This
dismissal shall be with prejudice except when
the court orders othenrrrise.
Effect of Non-appeanance of Defendant:

Cause the plaintiff to present evidence ex
parte and for the court to render judgment on
the basis thereof.
Note: The non-appearance of the defendant in
the pre{rial is not a ground to declare him in

default.
ground therefor be found to exist;
8. The advisability or necessity of

suspending the proceedings; and
9. Such ofher mafters as may aid in the
prompt disposition of the case.
SECTION 6. PRE.TRIAL BRIEF
Contents of.the Pre-Trial Brief

1. A statement of their willingness to enter
into amicable settlement or alternative
SECTION 3. NOTICE OF PRE.TRIAL
The notice of pre-trial shall be served
on
counsel, or on the party who has no counsel.
The counsel served with such notice is

charged with the duty of notifying the party
represented by him.
SECTION 4. APPEARANCE OF PARTIES
BOTH the parties and their counsel must

appear at the pre-trial.
When non-appearance of a party may be

EXGUSED:
lf a valid cause is shown therefor; AND
1.
2. lf a representative shall appear in his
behalf fully authorized in writing to:
a. Enter into an amicable setflement;
b. Submit to alternative modes of dispute
resolution; and
c. Enter into stipulations or admissions of
modes of dispute resolution, indicating the

desired terms thereofi
summary
admitted facts and
proposed stipulations of facts;
The issues to be tried or resolved;
The documents or exhibits to be presented
stating the purpose thereof;
A manifestation of their having availed or
2. A
3.
4.
5.
of
to avail themselves of
discovery procedures or referal to
their intention
6.
'
commissioners; and
The number and names of the witnesses,
and the substance of their
respective
testimonies
Note: Failure to file pre-trial brief has the

same effect as failure to appear at the pre-trial.
Principles lnvolved
in
Agreements
facts and of documents.
Written authority must be in the form of

Special Power of Attorney (Riano, 2007, p.
3Aq. ft the party is a corporation, the SpA
must be supported by a board resolution.
Note: The mere presentation of such written

authority is not sufficient, but must be
complemented by a showing of valid cause for

the non-appearance of the party himself.
49
REMEDIAL LAW
CIVIT PROCEDURE
3. The issues involved: (a) Factual and (b)

Legal;
4. Number of witnesses; and
5. The dates of trial.
r The proceedings in the pre-trial shall be
recorded.
The contents of the PRE-TRIAL order shalt

control the subsequent course of the action,
UNLESS:
1. Modified before trial to prevent manifest
injustice (Rule 18, sec.7);
lssues impliedly included therein or may
be inferable therefrom by necessary
implication (Vetasco vs. Apostol, G.R. No.
44588, May g, 1989); and
Amendment to conform to evidence (Rule
l4 sec. O.
2.
3.
party
is
deemed
to
lntervention is a legal proceeding by which a
third person is permitted by the court to

become a party by intervening in a pending
action after meeting the conditions and
requirement set by the Rules of Court.
SECTION 1. WHO MAY INTERVENE
1.
2.
3.
4.
One who has a legal interest in the matter

in litigation;
One who has
legal interest in the
success of either of the parties;
One who has an interest against both
parties; or
One who is so situated as to be adversely
affected
distribution
other
by a
disposition
have waived the
delimitations in a pre.trial order if he failed to

object to the introduction of evidence on an
issue outside of the pre-trial order, as well as
in cross-examining the witness in regard to
said evidence.
or
of property in the custody of
the court or of an officer thereof.
Note: Intervention is never an independent

proceeding but is ancillary and supplemental
to an existing litigation.
Hence, the final

disrnissal of the principal action results in the
denial of a pending motion for intervention.
Exception: When intervention has
been
allowed and the complaint in intervention has

already been filed before plaintiffs action had
been expressly dismissed (Metro Bank vs.

RTC-Manila, Br. 39, G.R. No. 89909, Sept. 21,
l- Setttement
"J"_J
1990).
I Agreerens
by
I made
I parties;
I Amendments to
I pbaflins;
Schedule
of motion to intervene does not

res judicata. Remedy of
intervenor is to file a separate action.
Denial
constitute
oftrial
(Asuncion vs. Pinedq G.R. No.L-47924,
I
I
July 31, 1989).
I
I
Factorc to be Considered by the Gourt

will unduly
I
I
delay
I
i
direct
and
lf evidence is
insufiicient to prove
plaintitrs cause of
action or defendant's
counterclaim, lhe
court rules in favoi of
either one or
dismisses the case.
50
r legal
in the
which
pla
1989):
5sn Felu
@ollege of
Lab
Proper in any of the

four situations
mentioned in this Rule.
The action is against

either or both the
original parties to the
Remedies for the Denial of lntdrvention:

1. APPEAL;or
2. MANDAMUS, if there is grave abuse of
Presupposes that the

plaintiff has no interest
in the subject matter of
the action or has an
interest therein, which
in whole or in part, is
not disputed by the
other parties to the
action.
discretion.
. lf there is
intervention,
improper granting of
the remedy of the party is
certiorari.
SECTION 1. CALENDAR OF CASES
Defendants are being

sued precisely to
implead them.
Prefercnce shall be given to:
1.
Habeas corpus cases;
2. Election cases;
3. Specialcivilactions; and
4. Those so required by law.
SECTION 2. TIME TO INTERVENE
The motion to intervene must be filed at any

time BEFORE REND|T|ON OF JUDGMENT
by the trial court.
SEGTION 2. ASSIGNMENT OF GASES
Note:
Note: After rendition of judgment, a motion to

intervene is barred, even if lhe judgment itself
Assignment of cases is required to be
done exclusively by raffle.
recognizes the right of the movant.
The REMEDY of the movant is to file

separate action.
Exceptions:
1. With
respect to indispensable parties,

intervention may be allowed even on
2.
appeal (Falcasantos ys. Falcasanfos, G.R.

No. L-4627,. May 13, 1952).
When the intervenor is the Republic (Lim
vs. Pacquing, G.R No. 115044, Jan.
3.
27,
1995).
lntervention may be allowed after

judgment where necessary to protect
some interest which cannot otherurrise be
protected, and for the purpose of
preserving the intervenor,s right to appeal
An order to appear
and testify or to
An order to answer
complaint.
produce books and

documents.
Needs tender of
kilometrage,
attendance fee and
reasonable cost of
Does not need tender

of kilometrage and
other fees.
SECTION 1. SUBPOENA AND SUBPOENA
(Herrera vol.1 p. 847).
sEcTtoN
3.
PLEADINGS.IN-
INTERVENTION
1.
2.
Complaint-in-intervention
an
by
his
- lf
the
intervenor asserts a claim against either or
all of the original parties.
Answer-in-intervention - lf the intervenor
unites with the defendant in resisting a
with
claim against the latter.
SECTION 4. ANSWER TO
lll{ilTERVENTION
COMPLAINT.
Wthin 15 days from notice of the

adni&r the same.
order
Who
1. Court
51
REMEDIAL LAW
CIVIL PROCEDURE
2. Court of the place where the deposition is

to be taken;
3. fficer or body authorized by law to do so
in connection with investigations
conducted
, Any Justiceby said officer or body; oi
4.
of the SC or of the CA in any
case or investigation pending within thi
sEcTtoN 6. SERVTCE
Service of subpoena shall be made in the
same manner as personal or substifuted
service of summons.
1.
Philippines.
Subpoena to a Prisoner
It must be for a valid
purpose.
lf
prisoner
required to appear in court is sentenced to

death, reclusion perpetua or life imprisonment
and is confined in prison - must be authorized
by the SC.
SECTION 3. FORM AND CONTENTS
2.
.
3.
Shall state the name of the court and the
title of the action or investigation;
shall contain a reasonable description of
the books, documents or things demanded

which must appear to the court to be prima
facl'e relevant.
A. Subpoena Duces Tecum may

quashed upon: (Mpura)
flotion prompfly made;AND
SECTION 7. PERSONAL APPEARANGE IN

GOURT
General Rule:
Proofthat:
or
c. The person asking for
the
cost for the production
the
subpoena does not gdvance the
of
B. Subpoena Ad Testificandum mav be

quashed if the witness is not bbund
thereby.
EITHER CASE,
the subpoena may
and kilometrage allowed by the Rules
sEcTtoN
DEPOStTtOtTtS
5.
The court which issued the subpoena may

issue a WARRANT FOR THE ARREST
OF THE WITNESS and make him pay the
cost of such warrant and seizure, if the
court should determine
his
disobedience was willful AND without just
cause(Sec. 8).
SUBPOENA
2.
The refusal to obey a subpoena without
adequate ctuse shall
be
CONTEMPT of the court issuing

e).
deemed
it
(Sec.
SECTION 10. EXCEPTIONS
compelling of
his
be
quashed for failure to tender ine witnesi'fees
52
be tendered.
that
produced do not appear prima

facie to be relevant to'the issues;
ln
of
the subpoena is duces tecum, the

reasonable cost of producing the books,
documents, or things demanded shall also
be
lt is gnreasonable and oppressive;

3
b. The articles sought to be
articles desired.
to the place
4. lf
1.
SECTION 4. QUASHING A SUBPOENA
Tendering to him the fees for one day,s

attendance or kilometrage allowed by the
Rules; except that, when a subpoena is
issued by or on behalf of the Republic of
the Philippines or an officer or agency
thereof, the tender need not be made;
The service must be made so as to allow
the witness a reasonable time for
attendance; and
2. lt shall be directed to the person whose

attendance is required; and
3. ln the case of a subpoena duces teeum, it
1
2.
whom it is served;
preparation and travel
A subpoena:
1.
The original shall be exhibited and a copy

thereof be delivered to the person on
FOR
not to
9er Fels
Gollrgc of Lsb
without formal interrogation and
SECTION 1. HOW TO COMPUTE TIME
opportunity
Any extension of time to file the required
pleading should be counted from the
expiration of the period regardless of the

fact that the said due date is a Saturday,
Sunday, or legal hotiday (A.M. No. 0O-214-SC, as explained in Luz vs. National
Amnesty Commission, G.R. No. lSgTO2g,
Sept.24, 2004).
RULES OF DISCOVERY
Discovery is a device employed by a party to

obtain information about relevant matters on
the case from the adverse party in

preparation fortrjat (Riano, 2007, p.
the
31 0).
Purpose: To enable the parties to obtain the

fullest possible knowledge of the issues and
evidence long before the trial to prevent such
trialfrom being carried on in the dark.
Modes
of
Discovery under the Rules of
Court (D-DIAPP)
1. Depositions pending action (Rute 23);

2. Depositions before action or pending
, appeal (Rule 24);
3. lnterrogatories to parties (Rute 2S);
4. {dmission by adverse party (Rute 26);
5. lroduction or inspection of documents, or
things (Rule 27);and
6. f;hysical and mental examination of
persons (Rule 28).
Modes of Discovery are intended to be

CUMULATIVE, and not alternative nor
for
cross-examination.
Affidavits are NOT admissible in evidence

except in cases governed by the Rule on
Summary Procedure or in ordinary cases
subject to cross-examination.
SEct'IoN 2. EFFEcT oF INTERRUPTIoN
Depositions are different from affidavits

since the latter are ex pafte statements
Depositions are intended as a means to

compel disclosure of facts resting in the
knowledge of a party or other person, which
are relevant in a suiU proceeding.
Classifi cation of Depositions
1. Depositions on oral examination and

Depositions upon wrifte n i nte rrog atorie s;
2- Depositions de bene esse - Those taken
3.
for purposes of a pending action (Rule 23);

and
Depositions in perpetuam rei memoriam
to
perpetuate evidence for

purposes of an anticipated dction or
further proceedings in a case on appeal
Those taken
(Rute 24).
SECTION
1-
DEPOSITION PENDING
ACTION, WHEN MAY BE TAKEN
When Taken:
A. With Leave of Court
1. After jurisdiction
has been obtained
over any defendant or over the

property which is the subject of the
action but BEFORE an answer has
been filed.
Ratio: Leave of court
is
necessary
because the issues are not yet joined

and the disputed facts are not yet
clear-
confined
in
mutually exclusive.
Note: Discovery is NOT MANDATORy but

failure to avail carries sanctions in Rules 25
and 26.
out of
safe
of an
Deposition is a written testimony of a witness

given in the course of a judicial proceeding in
advance of the trial or hearing upon oral
or in
response to written
interrogatories and where an opportunity is
examination
ex
may
court
1, June
given for cross-examination.
53
REMEDIAL LAW
CIVIL PROCEDURE
5.
SECTION 2. SCOPE OF EXAMINATION
Scope of Examination in Depositions

1. Matter which is relevant to the subject of
the pending action;
2. Not privileged; and

3. Not restricted by a
protective order
(Secfibns 16 and 18).
Upon application and notice, that such

exceptional circumstances exist as to
make it desirable in the interest of justice.
Note: Gertiorari will not lie against an order

admitting or rejecting a deposition in evidence.
The remedy is an appeal ftom the final
judgment.
SEGTION 3. EXAIIIIINATION AND CROSS.

EXAilINATION
Ratio: Because it is merely an error of law not

grave abuse of discretion.
SECTION 4. USE OF DEPOSITIONS
SECTION 5. EFFECT OF SUBSTITUTION OF

PARTIES
Where the witness is available to testify and

the situation is not one of those excepted
under Secfibn 4, his deposition is inadmissible
in evidence and he should be made to testify.
SECTION 6. OBJECTIONS TO
ADMISSIBILITY
SECTION
7.
EFFECT
OF
TAKING
DEPOSITIONS
By any party for
contradicting or
impeaching the
testimony of deponent
as witness.
A party or any one

who at the time of the
deposition was an
By an adverseparty
for any purpose.
Exception: lf a party offers the deposition in

evidence, then he is deemed to have made
the deponent his witness (Sec.8).
OFFICER,
DIRECTOR, oT
MANAGINGAGENT
Exception to the exception: UNLESS the

deposition is that of an opposing party OR the
deposition is used to impeach or contradict the
deponent (Sec. 8).
of a public or private
corp., partnership, or
association which is a
party.
\Mtness, whether or
not a party.
By any party for any

purpose if the court
finds the 5 instances
SECTION 9. REBUTTING DEPOSITION
SECTION 10 AND 11. PERSONS BEFORE

wHoM DEPOSTIONS MAY BE TAKEN
Depositions can be used as evidence by a
("for any purpose") under the specific
conditions in Section 4.
party_
Five lnstances Where Deposition of
.any
Witness may be Used for any purpose (DR.
usE)
1. The witness is dead;

2. The witness -gesides more than 100
kilometers from
3.
.
4.
54
A party shall not be deemed to make a person

his own witness for any purpose by taking his
deposition because depositions are taken for
discovery and not for use as evidence.
the place of trial
or
hearing, or is out of the philippines. Unless

it appears that his absence was procured
!y the party offering the deposition;
The witness is gnable to teitify because of
age, sickness, infirmity, or imprisonment;
The party offering the deposition has been
unable to procure the attendance of the
witness by gubpoena; OR
Within the Philippines:
Sm Fela
Gollege of
llb

SECTION 12. GOMMISSION OR LETTERS
ROGATORY
SECTION {7. RECORD OF EXAMINATION;

OATH; OBJECTIONS
Gommission is an instrument issued by a
SECTION {8. i'OTION TO TERMINATE OR

LIMIT EXAMINATION
any other act by authority of such court or
May be Filed:
court of justice, or other competent tribunal, to

authorize a person to take depositions or do
tribunal.
Letterc Rogatory is an instrument sent in the

name and by the authority of a judge or court
to another, requesting the latter to cause to be
examined, upon interrogatories filed in a case
pending before the former, a witness who is
within the jurisdiction of the judge or court to
1. Any time during the taking of
.
2.
3.
the
deposition;
On motion or petition of any party or of the
deponent; and
Upon showing that the examination is

conducted in:
Bad faith;
a.
b.
whom such letters are addressed (Feia, 2001,
p.518).
deponent or party.
.
lssued to a non-judicial
foreign officer who will
directly take the
testimony.
lssued to the
appropriate judicial
officer of the foreign
country who will direct
somebody in said
foreign country to take
down testimony.
Applicable rules of
procedure are those of
Applicable rules of
procedure are those of
the foreign court
requested to act.
the requesting court.

Resorted to if
permission of the
foreign country is
given.
Resorted to if the
execution ofthe
commission is refused
in the foreign cluntry.
13.
INTEREST
When the constitutional privilege against

self-incrimination is invoked by deponent
or his counsel, the trial court may stop the
examination (lsabela Sugar Co. ys.

Macadaeg, G.R. No. L-5924, OcL 28,
1953).
Provides protection to
Provides such protection
the party or witness

before the taking of
during the taking of
Motion is filed with the

court in which the action
DISQUALIFICATION BY
NO deposition shall be taken before a person

who is:
1. A relative within the { degree of affinity or
Motion or petition is filed

in the court in which the
action is pending OR the
RTC of the place where
the deposition is being
taken.
SECTION 19. SUBMISSION TO WTNESS;

CHANGES;SlcNlNG
consanguinity;
.**ft
2. An employee or caunset of any of the

parties;
3. A relative within the same degree, or
employee of such counsel; and
4. Financially interested in the action.
gJS;!*t+t
OF
SECTION 14. STIPULATTONS REGARDING

TAKING OF DEPOSITONS
SECTION 15. DEPOSITION UPON ORAL
notice
EXAMINATION; NOTTGE; TIME AND PLACE
SECTION 16. ORDERS FOR THE

PROTECTION OF PARTIES AND
deposition.
deposition.
is pending.
Leave of court is not
SECTION
ln such manner as unreasonably to

annoy, embarass, or oppress the
of
and his
counsel
DEPONENTS
55
REMEDIAL LAW
CIVIL PROCEDURE
SEGTION 25. DEPOSITION UPON WRITTEN
INTERROGATORTES; SERVTCE OF NOTTCE
AND OF INTERROGATORIES
conclusive proo{ either of the existence of

any right or even of the facts to whicfr they
relate, as it can be controverted at the tial
the same manner as though no
perpetuation of testimony was ever had.
SECTION 26. OFFICERS TO TAKE AND

PREPARE RECORD
in
SECTION 27, NOTICE OF FILING AND

FURNISHING OF COPIES
SECTION 28. ORDERS FOR THE

PROTECTION OF PARTIES AND
DEPONENTS
SECTION
29. EFFECT OF ERROR
IRREGULARITIES IN DEPOSITIONS
1. As to
notice
objection
is
- Waived
prompfly
party giving the notice.
2. As to
SECTION
unless written
of
officer
Waived unless made before the taking of
the deposition begins or as soon thereJfter

as the disqualification becomes known.
3. As to
4.
6.
1,
DEPOSITION BEFORE
AGTION; PETITION
A petition may be filed by any person:
1. Who wants to
2.
perpetuate his own

testimony; or
Who wants to perpetuate the testimony of
another person.
competency and relevancy of

evidence - NOT waived by failurb to
make them before or during the taking of
the deposition unless the ground of tne
objection is one which might have been
obviated or removed if presented at that
For example, the petitioner has a cause of

action which has not yet accrued. In such a
case, inasmuch as he cannot bring the action
As to oral examination
perpetuate his testimony
time.
- Waived unless
reasonable objections thereto is made at
5.
However, in the absence of any objeciion to its

taking, and even if the deponent did not testify
at the hearing, the perpetuated testimony
constitutes prima facie proof of facts referred
to in the deposition.
AND
served upon the
disqualification
Depositions under this Rule do not prove
the existence of any right and the

testimony perpetuated is not in itself
the taking of the deposition.
As to fonn of written interogatories

Waived unless served in writing upon the
party propounding them within the time
allowed.
As to manner of prcparation
Waived
unless a motion to suppress the deposition
or
some part thereof
is
made
Note: This may be availed of ONLY in civil

cases and NOT in criminal cases.
until the cause of action arcrues, he may

or that of another
person (Feria, 2001, p. 534).
SECTION 2. CONTENTS OF PETITION
The petition shall be verified and shail be filed
in the place of residence of any
expected
adverse party. lt shall contain the matters set

forth in Sec. 2 of Rule 24.
wiEt
reasonable promptness after sucfr defect

is, or with due diligence might have been,
SECNON 3. NONCE AND SERVICE
ascertained.
deposition before action
and
deposition pending appeal are refened to

as perpetuation of testimony or peryetuam
rei memoriam because their objective is to
perpetuate the testinrony of a witness for
future use.
Depositions under this Rule are also taken
conditionally, to be used at the trial only in
case the deponent is not available.
55
of
notice
$en
Fell Golhgp sJTffi

SECTION 6. USE OF DEPOSITION
lf deposition is taken under this Rule, it may be
used
in any
SUBJECT
action invotving the SAME

MAfiER subsequentty brought.
SECTION
7.
DEPOSITIONS PENDING
APPEAL
Depositions are taken pending appeatwith the
view to their being used in the event of further
proceedings
in the COURT OF ORtGtN or
APPELLATE COURT.
For example,
party may perpetuate the
testimony of a witness which was objected by

the adverse party and ruled out by the court. lf
the appellate court should reverse the
decision/order of the lower court, it could admit
the deposition as ADDITIONAL EVIDENCE or
remand the case back to the lower court for

such ADMISSION in accordance with Secfrbns
4 and 5 of Rule 23 (Feria 2001,
p.
SECTION
1.
INTERROGATION TO
PARTIES; SERVICE THEREOF
A party may serve written interrogatories:
1. Without
Leave of Gourt - After answer

has been served, for the first set of
2.
interrogatories.
Wth Leave of Court

been served.
537).
Before answer has
Reason: At that time, the issues are not

yet joined and the disputed facts are not
yet clear.
Purpose of Written lnterrogatories: To elicit

facts from any adverse party (answers may
also be used as admissions of the adverse
party).
Written interrogatories and the answers

thereto must both be FTLED and SERVED.
Hence, the answers may constitute as
JUDICIAL ADMTSSTONS (Sec.
Rute
2.
SECTION
INTERROGATORIES
the person making them.
matters of proof which

may later be made a
part of the records as
evidence.
\Mth' intervention of the

officer authorized by
the court to take
A party may properly
Answers cannot be made by an agent or

attomey; answers not made by the parties
are nullities (Herrera vol2 p.44).
.
A party may properly
seek disclosure of
TO
The interrogatories shall be answered fully in

writing and shall be signed and sworn to by
12e).
ANSWER
A judgment by Cefautt may be rendered

against a party who fails to answer written
interrogatories.
seek disclosure only of

matters which define
the issues and become
a part of the pleadings.
No intervention.
Written interrogatories
are directed to the
57
REMEDIAL LAW
CIVIL PROCEDURE
for
necessary
intenogatories.
5.
SECTION
sets
of
SCOPE AND USE
OF
succeeding
3.
Under this rule, a matter of fact not related

to any documents may be presented to the
other party for admission or denial.
INTERROGATORIES
The SCOPE of interrogatories shall be the

matters mentioned in Sec. 2 Rule 23. The
answers may be USED for the same purpose
provided in Sec. 4 of the same Rule.
Since answers to interrogatories may be
for the
used
same purposes as
depositions, they may also be the basis of
a summary judgment under Rule 35.
SECTION
6.
Proper when the

genuineress of an
Must be attached to the

complaint or copied
evidentiary document
is sought to be
admitted. lf not
denied under oath, its
genuineness is
deemed impliedly
admitted. Essentially
a mode of discovery.
therein. lts
genuineness and due
execution is deemed
impliedly admitted
unless specifically
denied under oath by
the adverse party.
SERVE WRITTEN INTERROGATORIES
party had been served wriften

interrogatories, he may not be compelled by
Unless
the adverse party:

1. To give testimony in open court; or
Give a deposition pending appeal.
2.
The only EXCEPTION is when the court

allows it. for GOOD CAUSE shown and to
prevent a failure of justice.
Note: The sanction adopted by the Rules is

not one of compulsion in the sense that the
party is being compelled to avail of the
discovery mechanics, but one of negation by
depriving him of evidentiary sources which
would otherwise have been accessible to him.
SECTION
2. IMPLIED ADM|SSION
Each of the matters of which an admission is

requested shall be deemed admitted UNLESS
the party to whom the request is direcled files
and serves upon the party requesting the

admission a sworn statement either denying
specifically the mafters of which an admission
is requested or setting forth the reasons why

he cannot either admit or deny those mafters.
The REMEDY of the party, in this case, is
to file a motion to be relieved of the

consequences of the imPlied
admission.
amendment of the
nnot set aside the legal
The
complaint per se
effects of the request for admission since

its materiality has not been affected by the
amendment.
sEciloN
SECTION
1.
REQUEST FOR ADMISSION
Purpose of wriften rcquest for admission:

To expedite trial and relieve the parties of the
3. EFFECT
Or iOmlSStOr.r
Use: An admission under this Section is for

the purpose of the PENDING ACTION ONLY
of proving facts which will not be

disputed on trial and the truth of which can be
ascertained by reasonable inquiry.
costs
When rcquest may be made: At any time

after the issues have been joined (after the
responsive pleading has been served).
What request may include:
1. Admission of the
genuineness of any
material and relevant document described
2.
58
in and exhibited with the request;
Admission of the truth of any material and

relevant matter of fact set forth in the
request; or
action and
9m Fell
othge of Lelr

must be only those within lhe possession,
insane person, while the physical condition
of the party is
control, or custody of a party.
generally involved
in
PHYSICAL INJURIES cases.
Since the results of the examination are

intended to be made public, the same are
not covered by the physician-patient

privilege (Sec. 24b, Rule 130).
A means of compelling
production of evidence
SECTION 2. ORDER FOR EXAMINATION
The Rules is limited to

the parties to the
action.
It may be directed to a
person whether a party
or not.
Examination:
The order under this

Rule is issued only
upon motion with
notice to the adverse
It may be issued upon

an ex parte application.
SECTION
1. MOTION FOR
PRODUCTION
OR INSPECTION; ORDER
of documents affords more

for discovery than a subpoena
duces tecum. However, the rule is not
intended for use as a dragnet or any fishing
Production
opportunity
expedition.
1.
Should not be priviteged; and
Should constitute or contain evidence

material to any matter involved in the
action, and which are in his (the party
ordered) possession, custody, or control.
ln a petition for the production of papers
and documents, they must be sufficienfly

described and identified. Othenrvise, the
petition
nnot prosper.
or
deprive
1. A MOTION must be filed for the physical

and mental examination;
2. The motion must show GOOD CAUSE for

the examination;
3. NOTICE to the party to be examined and
to all other parties; and
4. The motion shall SPECIFY the time, place,
manner, conditions, and scope of the
examination and the person or persons by
whom it is made.
SEGTION 3. REPORT OF FINDINGS
report of the examining physician.
After such request and delivery, the party

causing the examination to be made shall be
entitled upon request to receive from the party
examined
previously
a like report of any examination,

or thereafter made, of the
the person
same
mental or physical condition.
sEcTroN 4. wAtvER
This mode of discovery does not authorize

the opposing party or the clerk or other
funclionaries of the court to distrain the
articles
to Obtain an Order for
lf requested by the party examined, the party

causing the examination to be made shall
deliver to him a copy of a detailed written
The DOCUMENTS to be produced:
2.
Requisites
or pnluleer
Where the party examined requests and

obtains a
e results of the
who
produced the same of their possession,
even temporarily (Tanda vs. Atdaya, L13423, Nov.23, 1959).
He
the
and
tn
SECTION 1. WHEN EXAMINATION MAY BE

ORDERED
same
of any
him or
This mode of discovery is available in an

action in which the mentat or physical
condition of a party is in controversy.
The mental condition of a party is in

controversy in proceedings for
GUARDIANSHtp over an imbecile or
59
f,
REMEDIAT LAW
CIVIL PROCEDURE
Refusal to
Admit under
Rule 26 (Sec.4)
1.
Refusal to
answer any
question
The court, may, upon proper

application, compel a
refusing deponent to answer
(Sec.1).
a. If granted and refusal to
answer is without substantial
justification, court may rcquire
the refusing pafty to pay the
proponent the amount of the
re a son ab le expenses i nc u rred
in obtaining the order, including
attorney's fees.
b. lf denied and filed
without su b sta nti a I justification,
auft may require the proponent
to pay the refusing pafty the
amount of the reasonable
expenses incuned in obtaining
the order, including attomey's
Failure of Pafi
to affend or
serye answers
to written
interrogatories
(Sec.5)
after
being directed by the court
to do so may be considered
as contempt ofcourt (Sec.
Refusal to
answer
designated
questions or
refusal to
produce
documents or
to submit to
physical or
Dismiss the action or

proceeding or any part
thereof;
Enter a judgment by default
against disobedient party;
Order payment of
reasonable expenses
incurred by the other
and despite an order compelling him
to
3(c) will apply (Zepeda v. China Banking

Corpontion, G.R. rVo. 172175, October 9,
2006).
The court may make the

following orders:
1. Prohibit the disobedient
party to introduce evidence
of physical or mental
condition
Expenses and aftomey's fees are not to be

imposed upon the Republic of the Philippiries
under this rule.
disobedient party to support

or oppose claims or
defenses
3. Strike out pleadings or parts
Trial is the judicial process of investigating

and
starting
by the
thereof
4. Stay further: proceedings
5.
Rdgf,ftLffi#ffi,"

thereof
6. Render a judgment by
default against disobedient

party
7.
Direct the anest of any

party or agent of a party
disobeying any of such
orders except an order to
submit to a physical or
mental examination
1.
2.
I
4.
5.
6.
7.
60
3.
Party;
answer, still refuses to obey the order, Section
Cite the disobedient deponent in

Contempt of court
mental
examination
(Sec.3/
2.
lf a party refuses to answer the whole written

interrogatories, Secflon 5 of Rule 29 applies.
Where a party refuses to answer a particular
question, in the set of written intenogatories
2. A refusal to answer
Refusal to be
The court, on motion and notice,

may:
1. Strike out all or any part of
any pleading of disobedient
4.
fees.
Swom (Sec.2J
The court, upon proper

application, issue an order
requiring the other party to pay
him reasonable expenses
incurred, including aftorney's
fees.
REMEDIAL
tAW
CIVIL PROCEDURE
Refusal to
Admit under
1.
Refusal to
ansuter any
question
The court, may, upon proper

application, compel a
refusing deponent to answer
(Sec.1).
a. lf granted and refusal to
answer is without substanilal
justifrcation, court may require
the refusing pafty to pay the
proponent the amount of the
rea son a b I e expenses i nc u rred
in obtaining the order, inctuding
attomey's fees.
b. lf denied and fited
without substa ntial j ustification,
aurt may require the proponent
to pay the rcfusing pafty the
amount of the reasonable
expenses incuned in obtaining
the order, including attomey,s
fees.
2.
A refusal to answer affer

being directed by the court
to do so may be considered
as contempt of court (Sec.
Refusal to be
Swom (Sec.2/
Refusal to
answer
designated
questions or
refusal to
produce
documents or
to submit to
pftysical or
mental
enrnination
Cite the disobedient deponent in

Contempt of court
The court may make the
following orders:
1. Prohibit the disobedient
party to introduce evidence
of physical or mental
condition
2. Refuse to allow tre
disobedient party to support
or oppose claims or
defenses
3. Skike out pleadings or parts
Failure of Party
to attend or
serve answens
to written
interrogatories
(Sec.5)
him reasonable expenses

incuned, including attorney's
fees.
The court, on motion and notice,
may:
1. Strike out all or any part of
any pleading of disobedient
party;
2. Dismiss the action or
thereot
J. Enter a judgment by defaull
4.
against disobedient party,

Order payment of
reasonable expenses
incurred by the other
fiaes.
lf a party refuses to answer the whole written

interrogatories, Secfibn S of Rute 29 applies.
Where a party refuses to answer a particular
question, in the set of written interrogatories
and despite an order compelling him
to
No. 172175, October
g,
answer, still refuses to obey the order, Section

3(c) wtll apply (Zepeda v. China Banking
Coryoration, G.R.
2006).
Expenses and attomey's lrees are not to be

imposed upon the Republic of the philippines
under this rule.
Trial is the judicial process

and determinino the
thereof
4.
5.
Stay further prooeedings

thereof
6.
fsec. 3,
7.
lLi
Rule 26 (Sec.4)
The court, upon proper

application, issue an order
requiring the other party to pay
Renderajudgmentby
default against disob6dient
party
Direct the anest of any
qarty or agent of a party
disobeying any ofsuch
orders except an order to
submit to a physical or
mental examination
RurS'f,ftffi#ffi,"
5en Felu Gollege of Lab

SECTION
1.
4. REQUISITES OF MOTION TO
POSTPONE TRIAL FOR ILLNESS OF
NOTICE OF TRIAL
SECTION
PARTY OR COUNSEL
Reception of evidence
and other processes:
the period for the
introduction of evidence
confined in trial but

embraces several
stages of litigation,
including the pre-trial
Requisites:
1. A motion for postponement
2.
2.
POSTPONEMENTS
and to any stated time, as the expeditious and
convenient transaction
business may
require.
of
However, the court has no power to adjourn a

trial for:
1. A period longer than one month for each
adjournment; OR
More than 3 months in all, except when
authorized
writing
the court
administrator, Supreme Court.
2.
in
POSTPONE TRIAL FOR ABSENCE OF

EVIDENCE
2.
b.
The presence of
such
party
for
and
That the character of his illness is

such as to render his non-attendance
excusable.
Postponements are addressed to the

sound' discretion of the court. ln the
absence of grave abuse of discretion, it
cannot be controlled by mandamus (O/sen
v. Fresse/ & Co., G.R. No. 12955, Nov. 8
1917).
SECTION 5. ORDER OF TRIAL
Defendant presents
evidence to support
his defense/
Third-party complaint
postponement stating the
ground relied upon must be filed; AND
The motion must be supported by

affidavit showing:
a.
an
. The materiality and relevancy of such
b.
evidence; and
That due diligence has been used to

procure it.
lf the adverse party admits the facts to

be given in evidence, the trial will not
be postponed even if he objects or
reserves the right to object to their
admissibility (Feria, Civit procedure
Annotated, Vot. 1, p. 565).
Note: This section DOES NOT appty
or
counsel at the trial is indispensable;
counterclaim/
crossclaim/
Requisites:
motion
an
by
SECTION 3. REQUISITES OF MOTION TO
1. A
a.
ADJOURNMENTS AND
A court may adjourn a trial from day to day,
The motion must be supported by

affidavit or sworn certification showing:
Does not necessarily

imply presentation of
evidence in open court
but the parties are
afforded the opportunity
to be heard.
SECTION
stating the
ground relied upon must be filed; and
ffi
{P
u*^.},3-\"?.#
to
criminal cases as the rule on postponenrents

in.cdminal cases is governed by Sbc. 2, Rule
119.
Qral
.
arguments
Submission of
memoranda
REMEDIAL LAW
CIVIL PROCEDURE
Note:
SECTION 8. SUSPENSION OF ACTIONS
Reverse Order of Trial
Under, ARTICLE 2030 of the Civil Code: Every

civil action or proceeding shall be suspended:
possible
willingness
discuss
cornpromise is expressed by one or both
evidence ahead of the plaintiff.
2.
Subject to Secflon 2 of Rule 37 and

unless the court for special reasons, othenruise
directs, the trial shall be limited to the issues
stated in the pre-trial order.
ln this situation, the defendant presents
1. lf
require proof (Sec. 2, Rute 129).
Note:
parties;OR
lf it appears that one of the parties, before

commencement of the action or
the
the offer.
SECTION
Ratio: Plaintiff need not have to present

evidence since judicial admissions do not
Evidence offered
in rebuttal is
not
automatically excluded just because it would

have been more properly admitted in the case
in chief (Regalado, Remedial Law
Compendium, Volume
SECTION
I,
gth
Ed., p.375).
6. AGREED STATEMENTS OF
FACT
proceeding, offered to discuss a possible

compromise but the other party refused
When Proper:
lf the defendant in his answer relies upon an
affirmative defense, a reverse order of trial is
proper.
to
9. JUDGE TO
REGEIVE
EVIDENCE; DELEGATION TO CLERK OF

GOURT.
General Rule: The judge shall personally

receive and resolve the evidence to be
adduced by the parties.
HOWEVER, the reception
of such
may be delegated under the
evidence
following
conditions:
1. The delegation
may be made only ln
defaults or ex-pafte hearings, and in any

This is known as Stipulation of Facts and is
among the purposes of a pre-trial. Under the
Rules, it must be in writing. But it may also be
verbally made in open court.
Note: lf NO EVTDENCE tS PRESENTED

and the case is submitted for decision on an
agreement of the parties, the court should
render' judgment
in
accordance with said

agreement. The court cannot impose upon
the parties a judgment different from their
compromise agreement.
2.
3.
4.
case where the parties agree in writing;
The reception of evidence shall be made

only by the clerk of that court who is a
member of the bar;
Said clerk shall have no power to rule on
objections to any question or to admission
of evidence or exhibits; and
He shall submit his report and transcripts
of the proceedings,
hearing.
However, the compromise agreement must

not be contrary to law, morals, good customs,
public order and pubtic poticy (phitippine Bank
of Communications v. Echiveni, G.R. No. L41795, Aug.29,1980).
Stipulations gf Facts (SOF) are not

permifted in actions for annulment of
marriage and for legal separation.
May be signed by the

counsel alone who has
a special power of
May be made verbally
or in writing.
Must be signed both by

the counsel and the
accused.
Strict; lt must always be
in writing.
SECTION 7. STATEMENT OF JUDGE

62
together with the
objections to be resolved by the court,

within 10 days ftom the.termination of the
of duty
$un Fete
@stlege of
i[eb
2.
Filed with different branches of the same
RTC and one
of such cases has
NOT
been partially tried.
Purpose: To avoid multiplicity of suits, guard

against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of
the trial court and save unfiecessary costs and
expenses.
Requisites for Consolidation:

1. Actions which involve a common question
of law or fact; and
2. There must be at least 2 actions pending

before the same court.
. lf filed with DIFFERENT courts, an
authorization from the SUPREME COURT
is necessary.
Three (3) Ways of Gonsolidating Cases

1. By recasting the cases atready instituted Reshaping of the cases by amending the
pleading and dismissing some caseJ and
. retaining only one case. There must be
joinder of causes of action and of parties;
2. By
consolidation
proper or
consolidating the existing cases
by
lt is a
joint trial with joint decision, the cases

retaining their original docket numbers;
3.
and
Reference to a commissioner may be had

by the written consent of both parties.
General Rule: Trial by commissioner depends

largely upon the discretion of the court; BUT
the following are
instances when such
appointment is mandatory:
1. Expropriation (Rule 67);
Partition (Rule 69);
2.
3. Settlement of Estate of a Deceased
Person in case of contested claims; and
4. Submission of accounting by executors or
administrators.
Note: An irregularity in the appointment of a

commissioner must be seasonably raised in
the trial court where the defect could still be
remedied. lt can be WAIVED by consent of
the parties, express or implied.
SECTION
2.
REFERENCE ORDERED ON
MOTION
Situations when reference to a Commissioner

may be made ON MOTION: IETC-AI
1. lxamination of a long account;

2. Taking of an account is necessary;
3. Garrying a judgment or order into effect; or
4. Question of fact, other than upon the
pleading arises.
By fesl-case method - by hearing only the

principal case and suspending the hearing
SECTION
cases retain their originat docket numbers.
Requisites of the Order of Reference:
on the other cases until judgment has

been rendered iri the principal case. The
Consolidation of clses on appeal and

assigned to different divisions of ine SC anO
the CA is also authorized.
Note: The consolidation of civil with criminal

is allowed. This is now sanctioned
under Section 2(d, Rute 1'lt of the Rulei of
Criminal Procedure (Canas v. peralta, G.R.
cases
No. L-38352, Aug. 19, 1982).
3.
bT
ORDER
REFERENGE"
POWERS OF THE COMMISSIONER
1. lt must state the purpose;

2. lt must be in writing; and
3. lt may'specify or limit the power of the
commissioner.
Powerc of
the
SECTION 2. SEPARATE TRIALS
SECTION
1.
REFERENCE BYCONSENT
Gommissioner - a person to whom a case

pending in court is referred, for him to take
testimony, hear the parties and report thereon

to the court, and upon whose report, if
confirmed, judgment is rendered (2 Martin, p.
142).
63
BEMEDIAT
TATTY
CIVIL PROCEDURE
SECTION 5. PROCEEDINGS BEFORE THE
COMMISSIONER
SECTION
6.
FAILURE OF PARTIES TO
APPEAR BEFORE COMMISSIONER

Where the order was merely to examine the
accounts involved in the counterclaim without
of law shall
thereafter
be
considered.
SECTION
13.
COMPENSATION
OF
COMMISSIONER
to
any
direction
hold hearings, the
commissioner do not need the presence of the
parties (Froilan v. Pan Oriental Shipping, G.R.
No. L-6060, September 30, 1 954).
SECTION 7. REFUSAL OF WTNESS
Disobedience
commissioner
to a subpoena issued by the

is deemed a contempt of the
court which appointed the latter.
SECTION
questions
8.
SECTION 1. DEMURRER TO EVIDENCE
Demurrer to Evidence is a motion to dismiss

based on the ground of insufficiency of
evidence and is presented after the plaintiff
rests his case.
Nature: There is only a one-sided trial, i.e., it
COMMISSIONER SHALL
is
only the plaintiff who has
presented
AVOID DELAYS
evidence.
SECTION 9. REPORT OF COMMISSIONER
Purpose: To discourage prolonged litigations.
Clerk of court must be

a lawyer.
Commissioner need not

be a lawyer.
Clerk of court cannot

rule on objections or on
the admissibility of
evidence.
Commissioner can rule

on objections or on
admissibility of
evidence.
Delegation is made
during trial.
Commissioner can be
appointed even afrer
the case has become
of the
report
of
Rule 16.
the
commissioner:
1. The parties shall be notified by the clerk;
2.
AND
The parties shall be allowed 10 days

within which to bbject to the findings of the
report.
Note: Objections to the report based upon

grounds which were available to the parties
during the proceedings before
the
commissioner shall not be considered by the

court, UNLESS they were made before the
commissioner.
SECTION 11. HEARING UPON REPORT
SEGTION
12.
STIPULATIONS
AS
TO
FINDINGS
When the parties stipulate that

commissioner's finding shall
64
be final,
Presented before a
responsive pleading
(answer) is made by
the defendant.
It may be based on anY
of those enumerated in
SECTION 10, NOTICE TO THE PARTIES OF

THE FILING OF REPORT
Upon the filing
It is presented after the

plaintiff has rested his
case.
only
lf the motion is denied,

the defendant may
present his evidence.
lf the motion is granted,
the complaint is
dismissed. The
REMEDY of the plaintiff
is APPEAL.
lf the motion to dismiss

is denied, the
defendant may file his

responsive pleading.
lf
$e
motion to dismiss
is granted, lhe
complaint is dismissed
and depending on the

ground, the complaint
mav be re-filed.
5sn Frle olhge of {lb

Denial is
INTERLOCUTORYSec. 1, Rule 36 (That
judgment should state
clearly and distincfly
the facls and the law
on which it is based),
will not apply.
The denial is NOT
appealable.
present his evidence

and submits the case
for decision based on
the prosecution's
evidence.
Order of the court is

An ADJUDICATION
ON THE MERITS.
Hence, the
requirement in Sec. /,
Rule 36 should be
complied with.
Judgment on Demurrer
to
Evidence is a
judgment rendered by the court dismissing a

case upon motion of the defendant, made after
plaintiff has rested his case, on the GROUND
that upon the facts presented and the law on
the matter, plaintiff has not shown any right to
relief.
Defendant need not ask

for leave of court.
May be filed with or

without leave of court.
Leave of court is
necessary so that the
accused could
present his evidence
Note: The requirement under this
Rule
would apply if the demurrer is granted, for in

this event, there would in fact be adjudication
upon the merits of the case, leaving nothing
more to be done (Nepomuceno v. COMELEC,
G.R. No. L-60601, Dec.29, 1983).
if the demurrer is
Ifthecourtfinds
.-
plaintiffs evidence
insufficient, it will grant
the demurrer by
dismissing the
complaint.
The judgment of
dismissal is appealable.
lf plaintiff appeals and
judgment is reversed by
the appellate court, it
will decide the case on
the basis of the
plaintiff s evidence with
the consequence that
the defendant already
loses his right to
present evidence;
There is no res judicata
in dismissal due to
demurrer.
The plaintiff files a
motion to deny motion
to demurrer to
evidence.
denied"
lf the court finds the
prosecution's evidence
insufficient, it will grant
the demurrer by
rendering judgment
acquitting the
accused. Judgment of
acquittal is not
appealable; double
ieopardy sets-in.
Judgment of acquittal
is not appealable;
double jeopardy setsin.
Judgment on the Pleadings is a judgment

rendered by the court if the answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse party's
pleading.
It is rendered without a trial, or even without a

pre-trial.
SECTION
1.
JUDGMENT
PLEADINGS
ON
THE
judgrnent on the pleadings must be on
motion of the claimant. HOWEVER, if at the

pre-trial the court finds that a judgment on the
pleadings
is
proper,
it
may render
such
18).
One
fiFJii#ffiffi
The court may motu

propio deny the
motion.
to
to
,ANT
rty and
lf court denies the
demurrer, defendant will
It court denies the

demurrer:
lf demurrer was with
GR No.
leave, accused may

lf demurrer was
without leave,
accused can no lonoer
by Filing
of
1.
lneieva
2.
6s
REMEDIAL LAW
CIVIT PROCEDURE
Allegations of damages in the complaint.
Grounds for Judgment on the pleadings

-issue
'l . The answer fails to
tender an
because of.
,
2.
Based on the
pleadings,
depositions,
admissions
and affidavits.
a. General denial of the material

allegations of the complaint;
b. lnsufficient denial of the material
allegations of the complaint; OR

The answer admits material allegations of
the adverse party,s pleading.
Note: By moving for judgment on the

pleadings, plaintiff waives -his claim for
unliquidated damages. Claim for such
damages must be alleged and proved.
No Judgment on the Pleadings in Actions

for:
't. Declaration of Nullity of Marriage;
2.
3.
Annulment of marriage; and

Legal Separation.
Filed by a defendant to
a complaint,
counterclaim, crossclaim or 3d-party
complaint.
Fibd by the plaintiff if

the answer fails to
tender an issue
Ngte: lf the comptaint
states no cause of
actlon, a motion to dismiss should be filed

and
not a motion for judgment on the pleadingi.
for Judgment on the pteadings
fInat
{etion
rs considered ex pafte
is one
Based solely
on the
pleadings.
Available to
both plaintiff
and
defendant.
Generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim.
Available to
plaintiff.
There is
no genuine
issue between
the parties,
r.e. there may
be issues but
these are
irrelevant-
The answer
fails to tender
an issue or
there is an
admission of
No issue as
no answer is
filed by the
defending
43886, Juty 19, 1989).
1O-day notice
required,
3-day notice
required.
3day notice
May be
interlocutory
or on the
merits.
On the merits.
On the merits.
Available only
in actions to
recover a
debt, or fora
liquidated sum
of money or
for declaratory
relief.
Available in
Available in
any action
except
annulment of
maniage or
legal
separation
cases.
any action
except
annulment of
marriage or
legal
separation
cases,
There is
There is no
answer filed.
lf filedby
already an
answer filed.'
*wa
adefendanffi
ffiay
ffi
Summary Judgment is a judgment rendered

ny a court without trial if it is clear that
efq
a
tlhn
ffi
W
d}
F^ftr4fr
*ei ;ffiffi&;
(
W
for
ff^u. EncSncair
ffir
tru
ffi_
,&
66
rule applies.
ffiffi.ffi&
ffi$yeirh*t "trffiffi {pffi *" &wv
exists NO GENUINE ISSUE or: controoerw-a"

to any materiat fact, EXCEPT as to tn!-am6uilt
of damages.
so as not to constitute a genuine issue for

trial.
film
be
time eveffi
fiffiffie lhere,is"
there
Genuine lssue is an issue of fact which calls

for the presentation of eviOence .
as
distinguished from an issue which l.
,fl"r,
fi ctitious,. contrived, a n d patenily,
"
n.u U.i.nli"f
paily.
material
allegations.
lf filed by
plaintiff, it
must be filed
at any time
after an
answer is
served;
becauie upon
fa.cts thus presented, the ptaintiF is
ryf:ul"i
enmted_to judgment, or motu proprio
under
fyP_18 (2s) (Dino v. vatencii, Gi. N".-r_
Based on the
complaint and
evidence, if
presentation
is required.
made
action
5m Fclc
6o[eqe of
Irb
1 & 2. SUMMARY JUDGMENT

FOR CLAIMANT; SUMMARY JUDGMENT
SECTIONS
FOR DEFENDING PARTY
1. Plaintiff: May file the motion
after the
answer has been served, and therefore,
2.
1. AFFIDAVITS made on
2.
llYho can file:
must wait until the

joined.
Bases of Summary Judgment
issues have
been
3.
4.
Defendant: He can move for summary
judgment at any time.
Test: Whether or not the pleadings, affidavits

and exhibits in support of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, there is no defense to the action or claim
is clearly meritorious (Estrada v. Consolacion
et al., G.R. No. L-40948, June 29,1976).
DEPOSITIONS of the adverse party or a

third par$ under Rule 23
ADMISSIONS of the adverse party under

Rule 26; and
ANSWERS to interrogatories under Rule
25. All intended to show that:
a. There is no genuine issue as to any
material fact, except damages which
b.
must always be proved; and
The movant is entitled to a judgment

as a matter of law.
SECTION 3. MOTION AND PROGEEDINGS

THEREON
Even if the answer does tender an issue,

and therefore a judgment on the pleadings
is NOT proper, a summary judgment may
still be rendered if the issues tendered are
NOT genuine, are sham, fictitious,
contrived, set-up in bad faith, and patently
unsubstantial (Vergara
No. L-74766, Deeember
The motion mustalso satisfy the requirements

under Rule f5.
SECTION
4. CASE NOT
vs. Sue/fo,
2l, 1 987).
G.R.
FULLY
ADJUDICATED ON ITIIOTION
This authorizes rendition of partial summary

judgment but such is interlocutory in nature
and is not a final and appealable judgrnent
(Guevana v. CA, G.R.'No. L-49017, eug. SO,
1e83).
SECTION
personal
knowledge
Judgment
is the final consideration
determination
of a
court
and
competent
of
jurisdiction upon the matters submitted to it in

an action or proceeding.
Parts of a Judgment
5. FORM OF AFFIDAVITS AND
SUPPORTING PAPERS
Requisites of Affidavits
1. Based on personal knowledge;

2. Set forth facts as would be admissibte in
1. The opinion of the court -
2.
3.
Contains the
findings of facts and conclusions of law;
The disposition of the case
The final
and actual disposition of the rights litigated
(the dispositive part); and
Signature of the'judge (Herrera, p. 145)
evidence;
Affiant is competent to testify on matters

stated therein; and
Certified copies of all papers must be '

attached thereto and served on the
opposing party.
SECTION 6. AFFIDAVITS IN BAD FAITH
Sanctions:
1.
2.
Pay to the other party the amount of the

reasonable expenses including attomey,s
fees; and
After hearing, adjudged offending party

guilty of contempt.
the facts
67
tAW
REMEDIAT
CIVIL PROCEDURE
Allegations of damages in the complaint.
Grounds for Judgment on the pleadings
1. The
answer fails
ot
because
to tender
-irsu"
"n
a. General denial of the material

allegations of the complaint;
b. lnsufficient denial of the material
2.
allegations of the complaint; OR

The answer admits material allegations of
the adverse party's pleading.
{otei By moving for judgment on the

pleadings, plaintiff waives nis claim ior"
unliquidated damages. Claim for such
oamages must be alleged and proved.
No Judgment on the pleadings in Actions
Declaration of Nultity of Marriage;

1 Annulment
of marriage; and
?
3. Legalseparation.
N9!e: lf the comptaint
states no cause of
tor
Judgment on the pteadings is

fl{o!1on
rnar ls considered ex parte becauie one
upon
fa.cts thus presented, tne piaintif;-is
!:f'gll"l judgment, or
enuiled-to
motu propio under
N;.-iry!91s (29) (Dino v. vatencia,
ci.
43886, Juty 19, 1989).
Based on the
complaint and
evidence, if
presentation
is required.
Available to
both plaintiff
and
defendant.
Generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim.
Available to
plaintiff.
There is
The answer
fails to tender
an issue or
there is an
admission of
No issue as
no answer is
exists NO GENUTNE TSSUE ol: *ntrou"i.u-",
any materiat fact, EXCEPT as to

of damages.
to-
t"-Jri6.,it
Genuine lssue is an issue of fact which

calls
-ls
f9r.. th9, presentation
of
eviOence
distinguished from an issue whicn
,n"il
fic{itious,. contrived, and patenty
l.
"
;fi;"ianli;i
so as not to constitute a genuine issue

for
triii
material
allegations.
3day notice
May be
interlocutory
or on the
merits.
On the merits.
On the merits.
Available only
in actions to
recover a
debt, or for a
liquidated sum
of money or
for declaratory
relief.
Available in
Available in
any action
except
annulment of
any action
except
annulment of
rule applies.
maniage or
lf filed by
plaintifi it
must be filed
at any time
after an
answer is
served;
lf filed
^&
rlefo..t.'^ffi
mal be fitfiffitr
maniage or
legal
separation
cases,
legal
separation
cases.
There is
already an
answer filed.
There is no
answer filed.
time everS efd

ffi
ffiffi."ffi&
,&frffie
there"is-
ffib$vef-F*-{ .#4$ffi {#W
*_
ffi
-{s&
ewv
nnffin p^*dl
be
oeffiffi ;i&;U
:":ffi
ffi
speffi;1
tnffiv
noW,
for
F,,q
ffiffi
dtmffi
;ru ffi--{"{j
ffi
66
defending
party.
3-day notice
required.
bv
Judgment is a judgment rendered

lummary.
oy a court without trial if it is clear
that there
filed by the
1O-day notice
required.
Filed by the ptaintiff if

the answer fails to
tender an issue
actton, a motion to dismiss should

be filed and
not a motion for judgment on the pfeaOffi- '
Based solely
on the
pleadings.
no genuine
issue between
the parties,
r.e. there may
be issues but
lhese are
inelevant.
fior:
Filed by a defendant to
a complaint,
counterclaim, cross_
claim or 3d-party
complaint.
Based on the
pleadings,
depositions,
admissions
and affidavits.
made
action
$en Felu 6o[ege of llf

1 & 2. SUMMARY JUDGMENT

FOR CLAIMANT; SUMMARY JUDGMENT
SECTIONS
FOR DEFENDING PARTY
1. Plaintiff: May file the motion after the
3.
answer has been served, and therefore,
2.
1. AFFIDAVITS made on
2.
llVho can file:
must wait until the

joined.
Bases of Summary Judgment
issues have
4.
been
Defendant: He can move for summary
judgment at any time.
Test: Whether or not the pleadings, affidavits

and exhibits in supporl of the motion are
sufficient to overcome the opposing papers
and to justify the finding that, as a matter of
law, there is no defense to the action or claim
is clearly meritorious (Estrada v. Consolacion
et al., G.R. No. L-40948, June 29,1976).
FULLY
Judgment
This authorizes rendition of partial summary

judgment but such is interlocutory in nature
and is not a final and appealable judgment
(G-uevana v. CA, G.R. No. L-49A17,'eig. SO,
of a
court
and
competent
of
jurisdiction upon the matters submitted to it in

an action or proceeding.
Parts of a Judgment
1.
5. FORM OF AFFIDAVITS AND
2.
SUPPORTTNG PAPERS
Requisites of Affidavits:
1
2.
is the final consideration
determination
1effi).
SECTION
Even if the answer does tender an issue,

and therefore a judgment on the pleadings
is NOT proper, a summary judgment may
still be rendered if the issues tendered are
NOT genuine, are sham, fictitious,
contrived, set-up in bad faith, and patenfly.
unsubstantial (Vergara vs. Sue/fo, G.R.
No. L-74766, December21, I987).
The motion must.also satisfy the requirements

under Rule 75.
4. CASE NOT
must always be proved; and
The movant is entitled to a judgment

as a matter of law.
THEREON
SECTION
DEPOSITIONS of the adverse party or a

third party under Ru/e 23
ADMISSIONS of the adverse party under
Rule 26; and
ANSWERS to interrogatories under Rule
25. All intended to show that:
a. There is no genuine issue as to any
material fact, except damages which
b.
SECTION 3. MOTION AND PROCEEDINGS
ADJUDICATED ON MOTION
personal
knowledge
3.
Based on personal knowledge;
Set forth facts as would be admissibte in
The opinion of the court Contains the

findings of facts and conclusions of law;
The disposition of the case
The final
and actual disposition of the rights litigated
(the dispositive part); and
Signature of the'judge (Herrera, p. 145)
evidence;
MENTS
Affiant is competent to testify on matters

stated therein; and
Certified copies of all papers must be

attached thereto and served on the
oT'
opposing party.
SECTION 6. AFFIDAVITS II.I BAD FAITH
Sanctions:
1.
2.
Pay to the other party the amount of the

reasonable expenses including attomey,s
fees; and
After hearing, adjudged offending party

guilty of contempt.
the facts
67
REMEDIAL LAW
CIVILPROCEDURE
7. lt should contain a dispositive
part and
B.
should be signed by the judge and fited
Judgment by Gonfession
It is one rendered by the court when a

party expressly agrees to the other party's
claim or acknowledges the validity of the
claim against him.
with the clerk of court.
Kinds of Judgments
1. Judgment upon compromise;

2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro func (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rute 34);
9. Summary judgment (Rute 3S);
Two Kinds of Judgment by Confession

1. Judgment by COGNOVIT ACTIONEM
The defendant after service instead of
entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.
?.
10. Several judgment (Sec. 4, Rute 36);

11. Separate judgment (Sec. 5, Rule 36);
12. Specialjudgment (9ec.11, Rute 39);
13. Judgment for specific acts (Sec. 10, Rute
3e);
both
or
14. Judgment on demuner to evidence (Rute
or
allegations, whereupon judgment was

entered against him without
33);
15. Conditional judgment;

16. Finaljudgment;
17. Amended judgment; and
'1
8. Supplemental judgment
A.
Judgment by CONFESSION RELICTA

VERIFICATIONE
After pleading and before trial, the
defendant
confessed the
plaintiffs cause of action and withdrew
abandoned his plea
other
proceeding to trial.
Note: Remedy against judgment
then if denied file the
Judgment upon a Compromise

It is one rendered by the court on the basis
41).
between the parties.
It is covered by Artictes 2028 to 2046 of
the New CivilCode.
Note: Judgment upon a compromise is

immediately executory upon the signing of
the compromise agreement in the absehce
of a motion to set aside on the ground of
fraud, mistake, etc. Hence, it haslhe effect

of res judicata (World Machine Enterprises
v. lAC, G.R. No. 72019, Dec. 20, 199e.
. The parties may submit to
c. Judgment upon the Merits is one that is

rendered after consideration of the
evidence submitted by the parties during
the trial of the case.
D.
Clarificatory Judgment is rendered to

clarify an ambiguous judgment or one
difficult to comply with. .
Where the judgment
even without approval of the court.
cannot be annulled unless
it
is
difficult to
execute because of ambiguity in its

terms, the
is to file a motion
and not to
compromise agreement at any stage
of the case, even if judgment has

already become final and executory,
appropriate
PETITION UNDER RULE 65 (Sec.l Rule
of a compromise agreement entered into
r lt
by
consent, confession or compromise is to

first file a MOTION TO SET lT ASIDE,
sef{
ffiffiffie
ffirffitrukc.!"&eA
is
vitiated with enor, deceit, violence or
of documents.(Morales ys.
Fontanos, 64 phil. 19; Articb 2a3g,
forgery
CivitCode)
Advantage of Approval of Court: The

court could render a judgment based upon
a compromise and in case of breach of
any of the conditions, the party may ask

the court for Execution of Judgment under
Rule 39.
68
toa
to its
only
and
fact and
Sm Fell
Gollege sf
{.sb

G. Gonditional Judgment is one wherein the
effectivity
of which depends upon the
The power to amend a judgment is

inherent to the court before judgment
occurrence or non-occurrence of an event.
As a general rule, judgments of such kind,

conditioned upon a contingency, are held
to be NULL and VOID. (Cu Unjieng y Hijos
vs. Mabalacaf Sugar Co., 70 Phil. 380)
H.
lncomplete Judgment is one which

leaves certain matters to be setfled in a
subsequent proceeding (lgnacio ys.
Hilario, 76 Phil. 605). There is a decision
but there are Still other matters to be
incorporated later in such decision.
becomes final and executory.
General Rule: After judgment has become

final and executory, the court cannot amend
the same.
Exceptions:
1. To make corrections of clerical errors, not
substantial amendments,
2.
3.
'
The
provisions
and
An affirmative and
terms are settled and voluntary act of the

agreed upon by the defendant himself. The
parties to the action, and
court exercises a certain
which is entered in the amount

record by the consent of
the court.
of supervision
over the entry of
judgment.
as by
an
amendment non pro tunc;
To clarify an ambiguity which is borne out
by and justifiable in the context of the
decision; or
ln judgments for support, which can
always be amended from time to time.
Rule: The validity of a judgment or order of a

court cannot be collaterally attacked.
Exceptions:
1. Lack of jurisdiction; and

2. lrregularity of its entry apparent from the
face ofthe record.
Promulgation refers to 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.
o fi judge permanently transferred to

another COURT OF EQUAL
.
court which was TOTALLY HEARD by him

and submitted for decision, with the parties
(Valentin vs.
having argued the
Sta" Maria, G.R. No. L-30158, Jan. 17,
Memorandum Decision is a decision of the

appellate court which adopts the findings and
case
the conclusion of the trial court.
Promulgation of Judgment
JURISDICTION (coordinate court) can

render a decision on a case in his former
1974).
Minute resolutions of the Supreme Court

denying petition to review the decision of
the Court of Appeals are not decisions

within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Ca., Ltd. V.
Co., G.R.
Court renders decision
File an appeat within

15/30 days from notice
ofjudgment.
Losing Party
File a motion
for
t*k
reconsideration or
motion for new trial
within 15/30 days from
notice ofjudgment.
Accepts
decision
without further
{.}tr"
fi"*s4b.d
contest.
lf no appeal
is taken or
did not avail
of remedies,
judgment
becomes
final and
executory.
lf
granted,
the court:
1. Modifies
decision; or
2. Grants
new trial
lf
denied,
losing
party may appeal

within a fresh 1S
day period.
(Neypes vs. Court
some
S-year
6, Rule
Remedial
af Appeals.)
69
REMEDIAL LAW
CIVIT PROCEDURE
7. lt should contain a dispositive
part and
B.
should be signed by the judge and fited
It is one rendered by the court when a
with the clerk of court.
party expressly agrees to the other party's

claim or acknowledges the validity of the
claim against him.
Kinds of Judgments
1. Judgment upon compromise;

2. Judgment upon confession;
3. Judgment upon the merits;
4. Clarificatory judgment;
5. Judgment non pro func (Now for then);
6. Judgment sin perjuicio;
7. Judgment by default (Sec. 3, Rule 9);
8. Judgment on the pleadings (Rule 34);
9. Summary judgment (Rule 35);
10.
11.
12.
13.
Judgment by Gonfession
Two Kinds of Judgment by Confession

1. Judgment by COGNOVITACTIONEM
The defendant after service instead of
entering a plea, acknowledged and
confessed that the plaintiffs cause of
action was just and rightful.
2.
Several judgment (Sec. 4, Rule 36);

Separate judgment (Sec. 5, Rute 36);
Specialjudgment (5ec.11, Rute 39);
both
Judgment for specific acts (Sec" 10, Rute
allegations, whereupon judgment was

entered against him without
33);
15. Conditional judgment;

16. Finaljudgment;
17. Amended judgment; and
18. Supplemental judgment
proceeding to trial.
Note: Remedy against judgment
then if denied file the
upon a Compromise
41).
between the parties.
Judgment upon the Merits is one that is
It is covered by Articles 2028 to 2046 of
rendered after consideration
the New CivilCode.
of
the
evidence submitted by the parties during

the trial of the case.
is
immediately executory upon the signing of

the compromise agreement in the absence
of a motion to set aside on the ground of
fraud, mistake, etc. Hence, it has the effect

of res judicata (Warld Machine Enterprises
u. lAC, G.R. No. 72019, Dec.20, 1990).
a
compromise agreement at any stage
of the case, even if
judgment has
already become final and executory,
even without approval of the court.
r lt
cannot be annulled unless it is

vitiated with enor, deceit, violence or
forgery of documents.(Morales ys.
Fontanos, 64 phil. 19; Articte 2058,
CivitCode)
Advantage of Approval of Courtr The

court could render a judgment based upon
a compromise and in case of breach of

any of the conditions, the party may ask
the court for Execution of Judgment under

Rule 39.
68
appropriate
PETITION UNDER RULE 65 (Sec.l Rule
of a compromise agreement entered into
. The parties may submit to
by
consent, confession or compromise is to

first file a MOTION TO SET lT ASIDE,
It is one rendered by the court on the basis
Note: Judgment upon a compromise
or
or
3e);
14. Judgment on demurrer to evidence (Rule
A. Judgment
Judgment by CONFESSION RELICTA

VERIFICATIONE
After pleading and before trial, the
confessed the
defendant
plaintiffs cause of action and withdrew
other
abandoned his plea
D.
Clarificatory Judgment is rendered to

clarify an ambiguous judgrnent or one
difficult to comply with."
Where the judgment is difficult to

execute because of ambiguity in its
terms, the
is to file a motion
and not to
'#*ef$ ffitr#ilt&
WffiSfuhcWtd
toa
to its
only
and
fact and
bsequent
Sm Fe[a olbge of {.nb

(J.
Conditional Judgment is one wherein the

effectivity of which depends upon the
The power to dmend a judgment is

inherent to the court before judgment
occurrence or non-occurrence of an event.
As a general rule, judgments of such kind,

conditioned upon a contingency, are held
to be NULL and VOID. (Cu tJnjieng y Hgos
vs. Mabalacat Sugar Co., 70 phit. 390)
H.
lncomplete Judgment is one which

leaves certain matters to be setfled in a
subsequent proceeding (lgnacio ys.
Hilario, 76 Phil. 605/. There is a decision
but there are still other matters to be
incorporated later in such decision.
becomes final and executory.
General Rule: After judgment has become

final and executory, the court cannot amend
the same.
Exceptions:
1.
To make corrections of clerical errors, not
substantial amendments,
amendment non pro tunc;
2.
as by
an
To clarify an ambiguity which is borne out
by and justifiable in the context of
the
decision; or
3. ln judgments for support,
which can
always be amended from time to time.
The
provisions
terms are seftled
and
and
agreed upon
the
parties to the action, and
which is entered in the
by
record by the consent of
the court.
An afflrmative and
voluntary act of the
defendant himself. The
Rule: The validity of a judgment or order of a

court cannot be collaterally aftacked.
court exercises a certain
amount of supervision
over the entry of
judgment.
Promulgation refers to 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.
Exceptions:
1. Lack of jurisdiction;and
2. lrregularity of its entry apparent from the
face ofthe record.
o I judge permanently transferred to

another COURT OF EQUAL
JURISDICTION (coordinate court) can

render a decision on a case in his former
court which was TOTALLY HEARD by him

and submitted for decision, with the parties
having argued the
(Valentin vs.
Memorandum Decision is a decision of the
case
appellate court which adopts the findings and
the conclusion of the trial court.
Sta. Maria, G.R.
Promulgation of Judgment
No.
L-3015e, Jan. i7,
1e74).
Minute resolutions of the Supreme Court

denying petition to review the decision of
the Court of Appeals are not decisions

within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Co., Ltd. V.
Court renders decision
File an appeal within

15/30 days from notice
ofjudgment.
Losing Party
File a motion
for
reconsideration or
within 15/30 days from
Accepts
decision
wilhout further
notice of judgment.
contest.
lf no appeal
is taken or
did not avail
of remedies,
judgment
becomes
final and
lf
granted,
the court:
1. Modifies
decision; or
2. Grants
new trial
lf
denied,
some
S-year
6, Rule
losing
parly may appeal

within a fresh 15
day period.
3e)
relief
(Neypes vs. Court
of Appeals.)
executory.
59
REMEDIAL LAW
CIVIL PROCEDURE
SECTION 3. JUDGMENT FOR OR AGAINST
ONE OR MORE OF SEVERAL PARTIES
SECTION 4. SEVERAL JUDGMENTS
Several Judgment is one rendered by a court

against one or more defendants and not
against all of them leaving the action to
B.
AFTER the finality of the judgment
or
final order:
Relief from judgment or final order;
An annulment of judgment;
3. A petition for certiorari; and
Collateral attack of a judgment.
1.
2.
4.
proceed against the others.
Several judgment is PROPER where the

liability of each part is clearly separable and
An order denying the

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
affec{ the other.
motion for new trial based on

grounds not existing or available
when the 1s motion was filed
2no
A several judgment is NOi
PfOPER in action against solidary debtors
(Fernandez y. Sfa. Maria, G.R. No. 16A730,
Dec.10, 2004|
Appeal from the judgment or final

order and assign as one of the
enors the denial of the motion for
new trial
SECTION 5. SEPARATE JUDGMENTS
Separate Judgment is one rendered by a

court disposing of a claim, among several
others, presented in a case after determination

of the issues material to a particular claim and
all counterclaims arising out of transaction or
occurrence, which is the subject matter of said
claim.
lt is proper when more than one claim for
relief is presented in an action and a

determination as to the issues material to
the claim has been made. The action shall

proceed as to the remaining claims.
Fresh Period Rule

The aggrieved party has a "fresh period" of {5
days within which to file his appeal. This

applies to Rules 40, 41, 42, 43 and 45
(Neypes vs. CA, GR 141524, September
14,
2005).
The fresh period
of 15 days becomes
significant only when a party opts to file a

motion for new trial or reconsideration (Riano,
It is an entirely new It does not supersede

decision
and the original decision.
supersedes the original
judgment.
Court makes a thorough

study
the original
judgment and renders
amended and
clarified judgment onlv
after considering all th6
factual and legal issues.
of
Civil Procedure, 2007 Editi6n,
denying the
but to
from the
Serves to bolster or add

to the original judgment.
Remedies Against Judgments
A.
#{#ffi
or
{:k g".eldv
Final
BEFORE finatity of judgment or final order:

1. A motion for reconsideration;
A motion for new trial; or
An appeal.
and
or
2.
3.
new
taken.
70
355).
The fresh period rule does not refer to the

period within which to appeal from the order
the
Orders
p.
or
steps are
5an Fels Gollege of Lffi

Note.' Rule 9 Sec 3(b) on the rules from order
of default and Rule 37 on motion for new trial
have the same grounds- FAME. Rule 3T could
also be a remedy in case the defendant who is
declared in default failed to avail of the remedy
in Rule 9 Sec 3(b) and as a result, a judgment
has already been rendered. This is because
Rule 37 is broader.
One remedy available to a party declared in

default is, lf the judgment has already been
rendered when the defendant discovered the
default, but before the same has become final

and executory, he may file a mo6on for new
trial under Secfion 1 (a) of Rule 37 (Cerezo
the time the l"tmotion

was made.
only to final ordqrs or

judgments; hence, it
is allowed in
interlocutory orders.)
lf a new trial is
granted, the original
judgment or final
order is vacated. The
case stands for trial
de novo and will
tried anew.
lf 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.
be
vs. Tuazon).
Available even on
Rule 9 sec3(b) v. Rule 37

o Rule 9, Sectr'on 3 [b]- after notice of the
order of default but before judgment
c Rule 37- if there is already a judgment but
Available against the

judgments or final
appeal but only on the
ground of newly
orders of both the trial
discovered evidence.
and appellate courts.
Both are prohibited motions under
not yet final and executory. During the

period of filing an appeat.
Motion for a New Trial

When to file: Within the period for taking an
appeal.
Where
to file:
With the triat court which
rendered the questioned judgment.
Note: The motion for reconsideration under

Rule 37 is one that is directed against a
judgment or final order, not of an interlocutory

order which for instance, precedes a petition
for
eftionri.
Fraud
Fraud as
ground
for new trial must
be
Motion for Reconsideration
extrinsic.
When to file: Within the period for taking an
Extrinsic Fraud connotes any faudulent

scheme executed by the prevailing party
appeal.
Where
to file:
With the trial court which
rendered the judgment or final order sought to

be reconsidered.
Grounds: fraud,
arcident, mistake or
excusable negligence
or newly discovered
evidence which could
not, with reasonable
diligence, have been
discovered and
produced at the trial,
and which if
presented would
probably alter the
result.
Second motion may
be allowed so long as
based on grounds not
existing or available at
oulside of the trial against the losing party who

because of such fraud is prevented .from
presenting his side of the case (ex. prevent

wrfness tro m te dify in g).
Grounds: damages
awarded are
excessive, that the
evidence is
insufficient to justify
the decision or final
order, or that the
decision or final order
is contrary to law.
Second motion from

the same party is
prohibited. (Ihe
prohibition applies
77
REMEDIAL LAW
CIVIL PROCEDURE
Rule-' Negligence of counsel is binding on the
client.
Exception:,Such negligence of counsel may
be a ground for new trial if it was so great that
the party was prejudiced and preueiteJ
rarny presenting his case.
lro*
Requisites of Newly-Discovered Evidence

(Berry Rute)
1. lt must have been discovered after the
trial;
SECTION 2. CONTENTS OF MOTION FOR

NEW TRIAL OR RECONSIDERATION AND
NOTICE THEREOF
A motion for new trial, based on FAME must

include an affidavit of merit, which states:
1. The nature or character of FAME;
2.
3.
if his motion is granted.
2. lt could not have been discovered

3.
and
produced at the trial even with the
exercise of reasonable diligence; and
The evidence is of
affidavits
Newly discovered evidence need not be

newly created evidence. lt may anO Ooes
commonly refer to evidence already in

existence prior or during triat Out wiricir
could not have been secured

presented during the trial despite
"nO
on the part of 'the

(Tumans
vs.
Court of epi"iii,
[ig^anj
reasonabLe diligence
G.R. Nos.82 346-47, Aprit
Evjdence was noiavailable to a party

during the trial, and
was discovered onlv
thereafter.
7,
gilgi.
Evidence was atieaOy

available to a party and
was not able to present
it through inadvertence
or negligence of
counsel; not a ground
for new trial.
duly
not supported by the evidence or

contrary to law.
These standards, also known as the ,,Bern,,
ca;-if
or
motion for reconsideration must

point out the findings or conclusions
merely
collateral, cumulative or corroborative.
to the f ASf
witnesses
. A
must be material and not
rule, trace their origin
of
authenticated documents.
the action; and
Berry vs. State of Georgia.
A motion for new trial, based on newly
discovered evidence, must contain
,"(ni in"t
"rcn'
if
admitted, would probably alter ilie resutt of
4. lt
The facts constituting the movant,s good

and substantial defense or valid cause of
action;and
The evidence which he intends to present
N-ote: A motion suspends or tolls the running

of the reglementary period for appeal except
when the same is pro-forma.
An AFFIDAVTT OF |UER|TS is one
which
recites the nature and character of FAME on
which the motion
is based and stating the

movant's good and substantial cause of action
or defense and the evidence he intends to
present
the motion
granted, which
if
is
evidence should be such ls to warrant

reasonable belief that the result of the case
wotd probably be otherwise (paz vs. lnandan,
75 Phil. 608; Manita Surety vs. Det Rosario,
101 Phil.412).
Without an affidavit of merits, the motion for

new trial is a mere pro-forma motion
Note: New trial should be distinguished

from
the exercise of the discretionary
h;";;ith"
court to REOPEN a triatfor the'iniroduction
ot
additionat evidence,
to ctariff its OJrlis
on
material points. This discretion".V-por"r-i"
gubject to no rule other than tne'pirimount
interest of justice and wiil not U"
ieGweJin
appeal unless the exercise thereol,
i" ;il";;
(Arce vs. Arce, L-13O35, Nov.
new
ia,leisl----'
is not
* one
or
2.A
72
tn
a ground
motion
Sm
Frll
6ollrgr
of
Lnh
lndications ol a Pro-Forma Motion

1. lt is based on the same ground as that
2.
3.
raised in a denied motion under Ru/e 3Z;

lt contains the same arguments in the
opposition to a granted motion to dismiss
The new ground alleged in the second
motion for new trial already existed, was
available and could have been alleged in
the first motion for new trial which was
4.
5.
6.
issues, shall be used at the new trial taking the

same.
Specifically mentioned
in the Rules.
Not mentioned in the

Rules but is
nevertheless a
recognized
procedural recourse
deriving validity and
acceptance from long
established usage.
Note: lt is actually
mentioned in the
Rules of Criminal
Procedure (Ra/e
119,5ec. 24) and as
a prohibited pleading
in the 1991 Revised
Rules on Summary
Procedure (Sec.
Proper only after

promulgation of
judgment.
May properly be
presented only after
either or both the
parties have formally
offered and closed
their evidence before
judgment.
Based upon specific

grounds set forth under
Rule 37 in civil cases
and Rule 121 in
criminal cases.
Controlled by no
other rule than the
paramount interests
ofjustice, resting
entirely on the sound
discretion of a trial
court, the exercise of
which discretion will
not be rwkwed on
appeal UNLESS a
dear abuse thereof is
shown.
denied;
lt is based on the ground of insufficiency of
evidence or that the judgment is contrary
to law but does not specify the supposed
defects in the judgment;
lt is based on FAME but does not specify
the facts constituting these grounds andior
is not accompanied by an affidavit of merit;
and
Non-compliance with the requirements of

Rule 15.
Note: A motion for reconsideration, if based

on the same grounds as that of a new trial, is
considered a motion for new trial and has the
same effect (Rodriguez v. Rovira, G.R. No.
45252, 5ept.24,1936).
19c).
SECTION 3. ACTION UPON MOTION FOR

NEW TRIAL OR REGONSIDERATION
SECTION 4. RESOLUTION OF MOTION
SECTION
TRIAL
5. SECOND MOTION FOR
NEW
"Single motion" Rule - a party shall not be

allowed to file a second motion for
reconsideration of judgment or a final order.
(Riano,2009)
While a second motion for reconsideration is

not allowed, a second motion for new trial is
authorized by the rules. A motion for new trial
shall include
all
grounds then available
otheruvise they are deemed waived. A second
motion for new trial, based on a ground not

existing nor available when the first motion
was made within the period allowed but

excluding the time during which the first
motion had been pending.
SECTION
6.
EFFECT OF GRANTING OF
MOTION FOR NEWTRIAL
When motion is granted, the originaljudgment

is thereby vacated and the action stands for
trial de noyo, but the recorded evidence taken
upon the former trial so far as the same is
material and competent
to
establish the
ORDER
OR
REC
Not
the denial
judgment or
appeal from
appeal from the
73
REMEDIAL LAW
CIVIL PROCEDURE
Denial of the motion; the "fresh period"

rule- if the motion is denied, the movant
has a fresh period offifteen (15) days from
receipt or notice of the order denying or
dismissing the motion for reconsideration
within which to file a notice of appeal. This
"fresh period" rule applies not only to Rule
41, but also to Rule 40, Rule 42, Rule 43
and Rule 45. (Neypes vs Court of Appeals,
G.R. No. 141524, September 14,2005).
Available BEFORE
Available AFTER
iudgment becomes final judgment has become
and executory.
final and executory.
Applies to
Applies to judgments, final
JUDGMENTS oT FINAL orders and other
proceeding;
ORDERS only.
Land Registration;
Special Proceedings;
Order of Execution.
GROUNDS:
GROUNDS:
a. FAME
a. FAME; and
b. Newly discovered
evidence.
Note: This is not applicable to the Supreme

Court because it is not a TRIER of FACTS.
Filed within the time to

appeal.
judgment and
Within 6 months from
SECTION 1. PETITION FOR RELIEF FROM
JUDGMENT, ORDER
PROCEEDING
OR
entry of judgment.
OTHER
This remedy presupposes that judgment has

already become final and executory.
Filed within 60 days fom

knowledge of the
lf denied, the order of

denial is NOT
appealable, hence
remedy is appeal from
the judgment.
lf denied, the order

denying a petition for relief
is NOT appealable; the
remedy is appropriate civil
action under Rule 65.
Nature: Not an independent action but a

CONTINUATION of the otd case. tt is fited with
the same court which decided the case.
Grounds:
1.
When judgment or final order is entered

into or any other proceeding is thereafter
taken against the petitioner through

FAME.
The phrase "other proceeding', includes an

order or writ of execution, or an order
dismissing an appeat (Medran v. CA, g3
Phit 164)
2.
When petitioner has been prevented from

taking an appeatby FAME.
A party who has filed a timely motion for new

trial and/or reconsideration cannot file a
petition for relief after his motion has been
denied. These remedies'are exclusive of each
other. lt is only in appropriate cases where a
party aggrieved by the judgment has not been
motion for new trial and/or
reconsideration that a petition for relief can be
filed (Francisco vs. Puno, G.R.No. L-55694,
October 23, 1981).
able to file
SECTION 3. TIME FOR FILING PETITION;

CONTENTS AND VERIFICATION
Note:
A petition for relief has been held to be

applicable to all kinds of speciat proceedings,
such as land registration, intestate setfleme-nt
and guardians[ip proceedings (Regatado,
RemedialLaw Compendium, Vot. t, dh-fa., p.
A:
432).
SECTION 2. PETITION FOR RELIEF FROM

DENIAL OF AN APPEAL
The petitioh is, in effect, a second opportunity
for an aggrieved party to ask for a'new triai.
Hence, the grounds mentioned have the same
concepts that they have in motion for new trial.
74
Lines,
$er Bela CoIIege
ot
Lsb
201 1 CENTRALIZED BAR OPERATIONS
3.
6.
The affidavit of merit accompanying the
SECTION
facts
constituting the petitioner's good and
substantial cause of action or defense as
the case may be.
ANSWER IS FILED
petition must also show
the
Affidavit of Merit is one which recites the

nature and character of fraud, gccident,
gqistake or g,xcusable Negligence (FAME) on

which the motion is based.
It 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 verifled petition.
lnstances When an Affidavit of Merit is NOT
Necessary
1.
Where there
2.
3.
4.
5.
is no jurisdiction over the

subject matter;
Where judgnnent was taken by default;
Where judgment was entered by mistake
or was obtained by fraud; or
Other similar cases.
is no jurisdiction over the
defendant;
Where there
SECTION
4.
PROCEEDINGS AFTER
Two Hearings under Rule 38
1. Hearing to
2.
determine whether the
judgment should be set aside; and

lf in the affirmative, a hearing on the merits
of the case.
7.
SECTION
PROCEDURE WHERE THE
DENIAL OF AN APPEAL IS SET ASIDE
Remedies
it Rule 38 No Longer Available
1. Petition for Annulment of Judgment under

Rule 47; and
2. A direct or collateral attack if judgment is
void ab initio for lack of jurisdiction.
Note: Under A.M. No. 08-8-7 SG, otherwise

Known as the RULE OF PROCEDURE FOR
SMALL CLAIMS CASES, a Motion fOr New
Trial or Reconsideration (Ru/e 37),' and a
Petition for Relief ftom Judgment (Rule 38) are
prohibited pleadings.
Both remedies, likewise, are
prohibited
pleadings under the RULE ON SUMMARY

PROCEDURE.
ORDER TO FILE AN ANSWER
This remedy precludes the issuance
of
summons upon its filing. lf the petition is
sufficient in form and in substance, the court
shall issue an order requiring the adverse
parties to answer within 1S days from receipt
thereof.
Failure
Execution is a process provided by law for the

enforcement of a finaljudgment.
Against Whonr lssued: Execution can only
to file
answer does not warrant
declaration of default.
SECTION
5.
PRELIMINARY INJUNGTION
issue against a party and not against one who

has not had his day in court.
Writ of Execution is judicial writ issued to an
PENDING PROCEEDINGS
Rule: Execution of judgment is not stayed

a writ of preliminary injunction is
UNLESS
issued by the court.
Upon Filing of the Petition:

1. The court in which the petition is filed may
grant such PREL|MINARY TNJUNCTTON
as may be necessary for the preservation
o-f the right of the parties, upon the fiting by
. the petitioner of a bond in favor of ,the
2.
adverse party.
Such injunction shail NOT DTSCHARGE

ANY LIEN which the adverse party may
have acquired upon the property of thi
R$ffieffi#tftritof
;.
Of
or
the
which
or
or
court
been
petitioner.
75
REMEDIAL LAW
CIVIL PROCEDURE
Test to Determine Whether a Judgment or
Order is Final or lnterlocutory
lf the judgment or order leaves nothing more
for the court to do with respect to the merits of
the case, it is a FINAL ORDER. Otherwise, it
is an INTERLOCUTORY ORDER.
3. lquitable grounds like a change in

situation of the parties which makes
execution inequitable; (Supervening fact
4.
Classes of execution
A. As to their nature:
1. Compulsory execution Execution
(Section 1)
2.
B.
as a
Execution is gnjoined
e.g. Petition for Relief from Judgment or

Annulment of Judgment with TRO or writ
of prel i m i n ary inj u n ctio n
known as
Matter
of
Right
Discretionary execution
known as
Execution Pending Appeal (section 2)
2.
EXECUTTON
5.
Judgment has become dormant; except:
6.
support which can be executed by motion

Execution is gnjust or impossible.
Note: lssuance of'the corresponding writ of

execution upon a final and executory judgment
is a ministerial duty of the court to execute
which is compellable by mandamus. (Ebero
vs. Cafiizares,79 Phil. 152)
As to how it is enforced (Section 6):

'1. Execution by motion
Execution by independent action
SEGTlOirl 1.
doctrine)
JUDGMENTS AND FINAL ORDERS.
Take note that for the supervening event to

apply, the supervening event must happen
Execution as a Matter of Right
executory.
1.
UPON
after the judgment has become final and
On motion;
2. Upon a judgment or order that disposes of

the action or proceeding;
3. Upon expiration of the period to appeal
therefrom and NO appeal has been duly
perfected.
lnstances where execution is a matter of

right:
1. Secfircn 1, paragraph I - no appeal;
2.
Execution of Judgment
3.
Execution is a
matter of right after

expiration of period
to appeal and no
appeal is perfected.
Discretionary
execution upon
judgment becomes final;
Section 1, paragraph
2 - there is
final;
Section 4 - Judgment in an action for

injunction, receivership, accounting,
support, judgment declared
good reasons stated

in a special order
afterdue hearing.
4.
an
appeal; once the CA judgment becomes
to
be
immediately executory; and
Rule 70 - Judgments in Forcible Entry and
Unlawful Detainer cases.
Quashal of Writ of Execution When Proper:
(c-wwDss)
1. A ghange in the situation of the parties
Sheriff enforces writ of execution.
renders execution inequitable;

party is made to indemnify thru:
Payment with interest;
Levy and sale of personal property;
Levy and sale of ieal propertyi
Delivery of personal and real-property.
losilg
1.
?
9
4.
to
General Rule: lt is a matter of right on the part
of the
of the winning party. The court cannot refuse

execution.
Unless: (l- NEED - U)

1. Where the judgment turns out
2.
76
lncomplete or conditional;
Judgment govated by parties;
to
of
be
for
a decision
9il
Fets
@otbge ot
Lsb

decidendi (Mutual Security Ins. Corp. vs.
CA, GR /Vo. L-47018, September
2.
11,
1987); and
Where extensive and explicit discussion

and settlement of the issue is found in the
body of the decision (Witson Ong Ching
Kian Clzung, et al vs. Chinese National
Cereals Oil and Foodstuffs lmport and
Export Corp., et at., GR No 131502, June
8,20Aq.
Note: When the writ of execution varies the

terms of the dispositive portion, the defeated
party CAN FILE:
1. Motion to quash the writ of execution, if

denied; and
2. File petition for certiorari under Ru/e 65
with prayer for TRO (Atbano, Remediat
Law Reviewer).
SECTION 2. DISCRETIONARY EXECUTION
"The requirement of good reason is important

and must not be overlooked, because if the
judgment is executed and, on appeal, the
same
reversed, although there are
provisions for restitution, qftentimes damages
may arise which cannot be fully compensated.
Accordingly, execution should be granted only
when these considerations
clearly
outweighed
superior circumstances
demanding urgency, and the above provision
requires a statement of those circumstances
is
are
by
as a securig for their existence." (City of
Bacolod vs. Enriquez, 101 Phil. 644)

Examples of good reasons:
1.
When there is danger of the judgment

becoming INEFFECTU AL. (Scottish Union
vs. Macadaeg, 91 Phil. 891);
OLDAGE;
Where the appeal is for the purpose of
2.
3.
DELAY;
4. When the successful party files a'BOND
(but is not by itself alone, a good reason);
May issue before the

lapse of period to
appeal, and even
Discretionary upon the
court, there is inquiry
on whether there is
GOOD REASON for
execution.
Period to appeal has

already lapsed and no
Ministerial duty of the
court PROVIDED there

are no supervening
events.
Execution Pending Appeal

By the Appellate Gourt
It can order the execution of judgment pending
appeal for good reasons.
An award for actual and
compensatory
damages may be ordered executed pending
appeal, but not
an award for moral
or
exemplary damages.
Ratio: Moral and exemplary damages are

dependent on the outcome of the appeal.
While the amounts of actual damages are
fixed and certain (Radio Communications of
the Phils., lnc. v. Lantin, G.R. No. L-59311,
January 31, 1985).
SECTION
3. STAY OF DISCRETIONARY
EXECUTION
The party against whom an execution is
By the Trial Gourt

May also do so in the exercise of its residual
jurisdiction under Rule 41 and 42.
Grounds:
1. lnsolvency of the judgment debtor; and

2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time
within which to appeat, pROVtDED:

1. There is a motion for execution filed by the
winning party;
There is notice of said motion to the
adverse party; and
There are good reasons stated in a special
order after due hearing.
2.
3.
is NOT
77
REMEDIAL LAW
CIVIL PROCEDURE
Test to Determine Whether a Judgment or
Order is Final or Interlocutory
lf the judgment or order leaves nothing more
for the court to do with respect to the merits of
the case, it is a FINAL ORDER. Otherwise, it
is an INTERLOCUTORY ORDER.
3. lquitable grounds like a change in

situation of the parties which makes
execution inequitable; (Supervening fact
4.
Glasses of execution
A. As to their nature:
1. Compulsory execution Execution
known as
Matter
of
Right
Discretionary execution
known as
Execution Pending Appeal (Section 2)
1.
2.
EXECUTION
UPON
Execution as a Matter of Right
2.
3.
Execution of Judgment
matter of right after

expiration of period
to appeal and no
6.
support which can be executed by motion

Execution is unjust or impossible.
Note: lssuance of'the corresponding writ of
Take note that for the supervening event to

apply, the supervening event must happen
after the judgment has become final and
executory.
On motion;
Upon a judgment or order that disposes of
the action or proceeding;
Upon expiration of the period to appeal
therefrom and NO appeal has been duly
perfected.
Execution is a
Judgment has become dormant; except:
vs. Cafiizares,79 Phil. 152)
JUDGMENTS AND FINAL ORDERS.
1.
5.
exeeution upon a final and executory judgment

is a ministerial duty of the court to execute
which is compellable by mandamus. (Ebero
As to how it is enforced (Section 6):

Execution by motion
Execution by independent action
SEGTION 1.
Execution is gnjoined
e.g. Petition for Relief from Judgment or

Annulment of Judgment with TRO or writ
of pre li m in ary i nju n ctio n
(Section 1)
2.
B.
as a
doctrine)
lnstances where execution is a matter of

right:
1. Secfion f, paragraph I - no appeal;
2.
3.
Discretionary
execution upon
judgment becomes final;
Section 1, paragraph
2 - there is
final;
Section 4 - Judgment in an action for

injunction, receivership, accounting,
support, judgrnent declared
good reasons stated

in a special order
after due hearing.
4.
an
appeal; once the CA judgment becomes
to
be
immediately executory; and

Rule 70 - Judgments in Forcible Entry and
Unlawful Detainer cases.
Quashal of Writ of execution When Proper:
(c-wwDss)
1. A ghange in the situation of the parties
Sheriff enforces writ of execution.
renders execution inequitable;

Losing party is made to indemnify thru:
1.
?.
3
4.
Payment with interest;

Levy and sale ofpersonal property;
Levy and sale ofreal propertyl
Delivery of personal and real property.
General Rule: lt is a mafter of right on the part

of the winning party. The court cannot refuse
execution.
Unless: (l- NEED - U)

1. Where the judgment turns out
2.
76
lncomplete or conditional;
Judgment qovated by parties;
to
yof
be
for
9m Bela @olbgr ot Leb

decidendi (Mutual Security lns. Corp. vs.
CA, GR No. L-47018, September
2.
'The requirement of good reason is important

and must not be overlooked, because if the
judgment is executed and, on appeal, the
11,
1987); and
Where extensive and explicit discussion
same
is
reversed, although there are
and settlement of the issue is found in the

body of the decision (Wilson Ong Ching
Kian Chung, ef al ys. Chinese Nationat
Cereals Oil and Foodstuffs lmport and
Export Corp., et at., GR No 131502, June
provisions for restitution, ofientimes damages

may arise which cannot be fully compensated.
Accordingly, execution should be granted only
8,2000).
demanding urgency, and the above provision

requires a statement of those circumstances
when these considerations are clearly

outweighed by superior circumstances
Note: When the writ of execution varies the

terms of the dispositive portion, the defeated
Bacolod vs. Enriquez, 101 Phil. 644)
1.
Examples of good reasons:
as a security for their existence." (City of
party CAN FILE:
2.
Motion to quash the writ of execution, if
1.
denied; and
File petition for ceftiorai under Ru/e 65

with prayer for TRO (Albano, Remedial
When there is danger of the judgment
becoming INEFFECTU AL. (Scattish Union

vs. Macadaeg,91 Phil. 891);
OLDAGE;
Where the appeal is for the purpose of
2.
3.
DELAY;
4. When the successful party files a BOND
Law Reviewer).
SECTION 2. DISCRETIONARY EXECUTION
(but is not by itself alone, a good reason);

May issue before the
lapse of period to
appeal, and even
during appeal.
Period to appeal has

already lapsed and no
Discretionary upon the

court; there is inquiry
on whether there is
GOOD REASON for
execution,
court PROVIDED there
Ministerial duty of the

are no supervening
events.
Execution Pending Appeal

By the Appellate Gourt
It can order the execution of judgment pending
appeal for good reasons.
By the Trial Court
An award for actual and
compensatory
damages may be ordered executed pending
appeal, but not
an award for moral
or
exemplary damages.
Ratio: Moral and exemplary damages are

dependent on the outcome of the appeal.
While the amounts of actual damages are
fixed and certain (Radio Communications of
the Phils., lnc. v. Lantin, G.R. No. L-59311,
January 31, 1985).
SECTION
3. STAY OF
DISCRETIONARY
EXECUTION
The party against whom an execution

directed may
is
fi[,-_
May also do so in the exercise of its residual

jurisdiction under Rule 41 and 42.
Grounds:
1. lnsolvency of the judgment debtor; and

2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time
within which to appeat, pROV|DED:

1. There is a motion for execution filed by the
winning party;
There is notice of said motion to the
adverse party; and
There are good reasons stated in a special
order after due hearing.
2.
3.
is NOT
77
REMEDIAL LAW
CIVIL PROCEDURE
Exceptions:
1. When the terms of the judgment are not
2.
very clear; and
When the order of execution varies with
the tenor of the judgment.
SECTION 4. JUDGMENTS NOT STAYED BY
APPEAL
Exceptions: lnstances when judgment

immediately executory: 0RASO)
lnjunction;
declared
to be
favorable to the ptaintiff (Sec- 19 Rute 70).
The REASON for the non-stay of judgment for
is because support is immediately

needed and its delay may unduly prejudice the
one in need of it. .
support
Note: The rule on immediate execution of
judgment in an injunction case does not apply
judgment in an action for prohib'ition

(Embroidery & Apparet Controt Board v.
Cloribel, June 2A 1967).
SECTION
5.
DORMANT judgment
o A revived judgment
is a new judgment
thus another five or ten (5/10) - year
period lo execute and revive is given the
The five (5) - year period is to be counted not

from the date the judgment became final in the
sense that no appeal could be taken therefrom
but when it became executory in the sense
that it could already be enforced (Tan Ching Ji
v. Mapalo, G.R. No. 21933, Feb.22, 1971).
SEC.6 DOES NOT APPLY IN:
1.
Judgments for support;
2.
Contempt Orders in unauthorized reentry

on the land by an ejected defendant;
lssuance of Writs of Possession; and
Special Proceedings (i.e. land registration
cases)
3.
4.
EFFECT OF REVERSAL OF
lf reversed totally or partially, or annulled (Rr,r/e

47), on appeal or otherwise, the trial court
may, on motion, issue orders of restitution or
reparation of damages as equity and justice
may warrant under the circumstances.
6. EXECUTION BY MOTION
INDEPENDENT ACTION
OR
Modes of Enforcement
1. By motion within S years from date of its
entry;
2. By
independent action
for revival of
judgment after five (5) years from entry

AND before it is barred by statute of
is ten (10i years from

of Civit Code
is a person al one and not
limitations which
entry under Arf. 1144 (3)
(This action
quasiin rem.).
Note: The independent action
to
revive
judgment will not necessa;ily be filed

with the
78
not
Five (5) - year period may be extended if

delay is traceable to the f;autt of the
EXECUTED JUDGMENT
SECTION
is one that was
executed within five (5) years.
party. That second revived judgment can

again be enforced under Sec. 6.
ordered by the trial court. e.g. A judgment

in forcible entry or untawful detaineiwhen
to_
judgment debtor.
is
immediately executory unless otherwise
venue in Rule 4.
Rule: Judgment is stayed by appeat
1.
2. leceivership;
3. {ccounting;
4. $upport;and
5. Such gther judgments
same court that decided the case. lt shalt be

filed in the RTC as one incapable of pecuniary
estimation. lt must also satisfo requirements of
It is canied out through

the filing of a motion in
court.Assumes that there is no

execution within the first
five (5) years.
Assumes that a
judgment is executed
within the first five (5)
$sn Eels Oolleqe of fub

B. ln case of death of
JUDGMENT
The sheriff can validJy levy any property of
disposed of for value but not exempt from

execution. The judgment obligor has the
option to choose which property to levy
upon.
lf he does not exercise the option, the
officer shall FIRST levy on the personal
properties, if any, and then on the real
properties if the personal properties are
OBLIGOR
1.
BEFORE LEW:
Execution will issue if the action is
for the recovery of real or personal
property or any lien thereon.
Execution will NOT issue if the
action is for the recovery of a sum
of money. ln this situation, the
o
.
judgment obligee should file a

claim against the estate of the
judgment obligor under Rule 86.
2.
'
o
AFTER LEVY
valid levy, the property is

already separated from the estate of the
deceased and is deemed tN CUSTODIA
LEGlS.
SECTION
8.
ISSUANCE, FORM AND

CONTENTS OFA WRIT OF EXECUTION
.
.
Note: Appeal is the remedy for an order

DENYING the issuance of a writ of execution,
However, an order GRANTING the issuance
of a writ of execution of a final judgment is not
appealable under Ru/e 41; lhe remedy is to file
an appropriate special civil action under Rule
65.
SECTION 9- EXECUTION OF JUDGMENTS

FOR MONEY, HOW ENFORCED
lf Award is for Payment of Money:
The judgment obligor shail pay in cash, or

bertified bank ;heck payable to the judgment
or any other form of
to
answer for the judgment
(Sec 9[b]).
Real or personal property or any interest in
either may be levied upon in like manner
attachment.
Real Propefi: by filing with the Register of
Deeds a copy of the order together with
the description of the property and a notice
that it is attached (Secfion 7(a) Rule 57).
Personal Property: lf capable of. manual
delivery, by taking and safely keeping it in'
the custody of the sheriff after isuuing the
conesponding receipt therefor (Secfibn
7(b) Rule 57).
Garnishment
It is an act of appropriation by the court when
the property of debtor is in the hands of a third
person.
A specie of attachment for reaching
The sheriff may levy on debts due the

judgrnent obligor and other credits,
any
property or credits pertaining or payable to
a judgment debtor.
including bank deposits, financial interests,

royalties, commissions and other personal
property not capable of manual delivery in
the possession or control of third parties
1. lmmediate payment on demand;

2. Satisfaction by levy;
3. Garnishment of debts and credits.
obligee
insufficient
be
and with like effect as under a writ of
Execution will issue in any case.
Ratio: After
the judgment obligor which may
(Sec.
payment
acceptable to the obligee (Sec 9[a/).
Levy
It is an act by which an officer sets apart or

a part of the whole property of
the judgment debtor for purposes of the
appropriates
execution sale.
Levy is a pre-requisite to the auction sale. ln

order that an execution sale may be valid,
there must be a previous valid levy. A sale not
a valid levy is void and the

purchaser acquires no title. (Valenzuela vs. De
Aguilar, L-18083-84, May 31, 1963)
preceded by
79
REMEDIAL LAW
CIVIL PROCEDURE
SECTION 10. EXECUTION OF JUDGMENTS
FOR SPECIFIC ACT
1.
the judgment shall be attached to the writ.
5.
Conveyance, delivery of deeds, or other

specific acts, vesting tiile;
Sale of real or personal property;
Delivery or restitution of real property;
Removal of improvements on property
subject of execution;
Delivery of personal property.
A.
lf the party REFUSES TO VACATE THE
2.
3.
4.
PROPERTY:
The remedy is NOT CONTEMpT. The

Sheriff must oust the party. But if
demolition is involved, there must be a
specialorder.
B.
lf the party REFUSES TO DELTVER:
A writ of execution direciing the sheriff to

cause the defendant to vacate is in the
nature of a habere facias possessionern
and authorizes the sheriff to break open
the premises where there is no occupant
therein (Arcadio v. ytagan, A.C. No. 2754,
July 30, 1986).
C.
judgments for specific act, a certified copy of
When the party REFUSES TO COMpLy:

.The court can appoint some other person
at the expense of the disobedieni party
and the act done shall have the same
effect as if the required party performed it.
The writ of execution shall be served upon the

party required to obey the same and such
party may be punished for CONTEMPT if he
disobeys.
Note: A specialjudgment may be enforced by

contempt if the defendant refuses to comply
with the judgment. But if it is an ordinary

judgment and the defendant refuses to
comply, it is not a ground for contempt.
SECTION 12. EFFECT
OF LEVY ON
EXECUTION AS TO THIRD PERSONS
The levy on execution creates a lien in favor of

the judgment obligee over the right, title and
in
of the judgment obligor such

property at the time of the levy, subjec-t to liens
and encumbrances then existing.
interest
SECTION
{3.
PROPERTY EXEMPT FROM
EXECUTION
EXCEPT as othenrise expressly provided by

law, the following property, and no other, shall
be exempt from execution:
1.
The judgment obligor's famity home as

provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
General Rute: The judgment debtor CANNOT

be
.cited in contempt of court. Generally,
2.
Ordinary tools and implements personally

used by him in his trade, employment, or
judgment.
3.
Three horses, or three cows, or three
contempt
is not a
remedy
to
enforce a
Exceptions:
1. Refusal
^
2.
to perform a particular act or

Special Judgments under Sec. 11 where
he may be cited in contempt;and
ln case of the provisio-nal remedy of
support,pendente lite under Ru/e 6t; the
judgment debtor may stilt be cited for
contempt even
if the
decision
is not
livelihood;
carabaos, or other beasts of burden, such
judgment obligor may select
necessarily used by him in his ordinary
occupation;
as the
4.
His necessary clothing and articles for
specialjudgment and requires the latter to
pay money.
SECTION 11. EXECUTION OF SPECIAL
JUDGMENTS
Specialjudgment is one which can only be

complied yit! by the judgment obiigor
oecause of his personal qualifications -or
circumstances.
When judgment requires the performance of

any act other than judgment for money and
80
other
not
5sr
Seta Gollegr of {.sb
selected
lawful use of which he earns his livelihood'
Filipino, or any major regional language

published, edited and circulated or, in the
So much of the salaries, wages, or"

personal services within the
preceding the tevy as are necessary for

10. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
11.
to receive legal support, or

or property obtained as such
The right
money
support, or any pension or gratuity from
general
circulation in the province or city).
months
the support of his family;

Lettered gravestones;
English,
absence thereof, having
earnings of the judgment obligor for his
9.
by raffle (whether in
pesos owned by a fisherman and by the
Note: lN ALL CASES, a written notice of the

sale shall be given to the judgment obligor, at
least three (3) days before the sale, except as
provided in par (a,) hereof where notice shall
be given at any time before the sale.
SECTION 16.
PROCEEDINGS WHERE
PROPERTY CLAIMED BY THIRD PERSON
the Government; and
12. Properties specially exempted by law.
Remedies of a third-party claimant

1. Summary hearing before the court which
But no article or species of property mentioned
in this section shall be exempt from execution

issued upon a judgment recovered for its price
or upon a
judgment
of
foreclosure
of
mortgage hereon.
SECTION 14. RETURN OF THE WRIT OF

EXECUTION
The lifetime of such writ corresponds to the

period within which the judgment may be
enforced by motion, that is, within 5 years from
entry thereof.
SECTION
15.
NOTICE
OF SALE
2.
3.
4.
authorized the execution;
TERCERIA or third-party claim filed with

the sheriff;
Action for damages on the bond posted by
judgment creditors, or
lndependent reivindicatory action.
The remedies are cumulative and
may be resorted to by the third party
or
claimant independently
separately from the others.
of
lf the winning party files a bond, it is

only then that the sheriff can take the
properly in his possession. lF THERE
lS NO
OF
BOND,
the sale
cannot
proceed.
PROPERTY ON EXECUTION
Notice Requirement
A.
lf perishable property:
By posting written notice of the time and
place of the sale in three (3) public places,
preferably in conspicuous areas of the
municipal or city hall, post office and public
market where the sale is to take place, for
such time
may
reasonable,
considering the character and condition of
the property;
as
Note: The officer shall not be liable for

damages to any third-party claimant if such
bond is filed for the taking or keeping of the
property.
However, the judgment obligee can claim

damages against
third-party claimant who
be
B. Other personal property:

By posting similar notice in three (3) public
places above-mentioned for not less than
five (5) days;
C. lf real property:
By posting for 20 days in three (3) pubtic
places particularly describing the property
and stating where the property is to be

sold, and if the assessed value of the
property exceeds P50,000, by publishing a
copy of the notice once a week for two (2)

consecutive weeks in one (1) newspaper
81
REMEDIAL
tAW
CIVIL PROCEDURE
SECTION 17. PENALTY FOR SELLING

WTHOUT NOTICE, OR REMOVING OR
DEFACING NOTICE
Title acquired after the
The following are liable for actual and
expiration of the
redemption period
when final deed of
conveyance is
executd
punitive damages:
'1. An officer selling without the
2.
notice
prescribed by Sec. 15;' and
A person willfully removing or defacing the
notice posted, if done before the sale, or
before the satisfaction
of judgment
if
satisfied before the sale.

SECTION 18. NO SALE IF JUDGMENT AND
COSTS PAID
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
SECTION 20. REFUSAL OF PURCHASER

TO PAY
The officer may AGAIN SELL the property to
the highest bidder and shall not be responsible
for any loss occasioned thereby.
But the court may order the refusing purchaser
to pay to the court the amount of such loss,

with costs, and may punish him for contempt if
incurred therein.
he disobeys the order.
SECTION ,l9. HOW PROPERry SOLD ON

EXECUTION; WHO MAY DTRECT MANNER
AND ORDER OF SALE
SECTION
All sales of property under execution must be

made:
1. At public auction;
To the highest bidder;
2.
3.
notice.
After sufficient property has been sold

to satisfy the execution, NO more shall
be sold and any EXCESS shall be
promptly delivered
obligor or
representative,
to the judgment
his
authorized
unless otherwise
directed by the judgment or order of

the court.
Need not be confirmed

by the court
be confirmed by
the court in order to
divest the rights in the
property of the parties
and to vest the rights in
There is no riqht of
redemption, exceptby
Right of redemption
exists
82
21. JUDGMENT
OBLTGEE AS
PURCHASER
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. lf it
does, he shall pay only the excess.
To start at the exact time fixed in the
Title acquired upon the

confirmation and
registration of the
foreclosure sale
the mortgagor where

the mortgagee is a
bank or a banking
institution
SECTION 22. ADJOURNMENT OF SALE
lF with written consent of the judgment
obligor and obligee: To any date and time

agreed upon.
lF without such agreement: From day to
day if it becomes necessary to do so for

lack of time.
SECTION
PURCHASER
23.
CONVEYANCE TO
OF PERSONAL PROPERTY
9en Fele Gollege
of
Ldo

SECTION 25. CONVEYANCE OF REAL
PROPERTY; CERTIFICATE THEREOF
GIVEN TO PURCHASER AND FILED WTH
the judgment debtor of any further rights to the

property.
REGISTRY OF DEEDS
Right of Redemption:
1.
CONTENTS of the certificate of sale:

1. A particular description of the real property
2.
sold;
2. The price paid for each distinct tot or

parcel;
3. The whole price paid by him; and
4. A statement that the right of redemption
expires one (1) year from the date of the
registration of the certificate of sale.
v.
NONE; Sale
Real Property
-'
There
is a right of
1.
2.
Judgment obligor, or his successor rn

interest, in the whole or any part of the
property;OR
Redemptioner who is a creditor having a
lien by virtue
of an ATTACHMENT
JUDGMENT oT MORTGAGE on the

property sold, SUBSEQUENT to the lien
is
under which the pi'operty was sold.
Sunico, G.R. No. 8241, Sept.
May the validity

attacked?
General Rule:
of an auction sale be
Note: lf his lien is PRIOR to the judgment, he

is not a redemptioner because his interests in
his lien are fully protected (relate to'Section
12).
NO
of
because
the
presumption of regular performance of duty by
the sheriff.
When can redemption be made (Sec.28):
Exception:
B.
1.
is
Who may redeem (Sec.27):
Confirmation of the sale is not needed

unlike in judicial foreclosure of mortgage. The
certificate
sale
merely provisional
of
Property
redemption.
Note:
(Raymundo
27, 1913).
Personal
ABSOLUTE.
When from the nature of the irregularity or

resulted
therefrom (Navano vs. Navarro, 76 phil.
from intrinsic facts, injury

122).
2. When the price obtained is
shockingly
inadequate and it is shown that a better
price can be obtained at a resale (Barrozo
vs. Macadaeg, 83 Phit. 378).
Exception to the Exception: The rule that

you can question the validity of the auction
gle if the price obtained is shockingly
inadequate does not apply when the property
sold is realproperty.
SECTION 26. CERTIFICATE
A.
BY THE JUDGMENT OBLIGOR:
Within one (1) year from the date of

registration of the certificate of sale.
BY THE REDEMPTIONER:
Within one (1) year from the date of

registration of the certificate of sale if he is
the first redemptioner; or
Within sixty (60) days from the last

redemption, if he be a subsequent
redemptioner, provided that the judgment
debtor has not exercised his right of
redemption.
BUT, in all cases the judgment obligor shall

(1) year from the
to redeem
have the entire
date of
*
OF
SALE
WHERE PROPERW CLAIMED BY THIRD
ffiffi
&*eaW{
PERSON
The certificate of sale to be issued shall make

express mention of the existence of such thirdparty claim.
not
may,
SECTIONS 27 &28= REDEMpTtoN
This right of redemption is transferable and

may be voluntarily sold, but it cannot be levied
upon by the judgment creditor so as to deprive
83
REMEDIAL LAW
CIVIL PROCEDURE
Redemption Price (Sec.28)
A.
8y The Judgment Obligor:
1. Purchase price;
2. 1% interest thereon, up to the time of
redemption;
3. Any amount of assessments or taxes
4.
TO WHOiI
Redemption
thereon after purchase and interest on

such last named amount at the same
foreclosure sale by the judgment mortgagor

eliminates from his title thereto the lien created
by the levy on attachment or the registration of
the mortgage thereon (Javellana v. Mirasol,
G.R. No. L-14881, February 5,1920).
rate; and
lF the purchaser be also a creditor

having a prior lien to that of the
made, the amount of such other lien,

with interest.
By The Redemptioner:
1. Amount paid on the last redemption;
2% interest thereon;
3. Any amount of assessments or taxes
which the last redemptioner may have
paid thereon after redemption by nim
with interest on such last-named
amount; and
Amount of any liens held by said last
redemptioner prior to his own, with
interest.
2.
4.
'
RECORDED THEREUPON;
PAYMENTS ON REDEMPTION MADE
which the purchaser may have paid
redemptioner, other than the judgment

under which such purchase was
B.
SECTION 29. EFFECT OF REDEMPTION BY
JUDGMENT OBLIGOR, AND A

CERTIFICATE TO BE DELIVERED AND
The redemption price for subsequent
redemption shall
SECTION
30.
PROOF REQUIRED
OF
Redemptioner must produce to the officer, or

person from whom he seeks to redeem, and
serve with his notice to the officer:
1. A copy of the judgment or final order
certified by the clerk of court wherein the
judgment or final order is entered; OR
2. lf he redeems upon a mortgage or other
lien, a memorandum of the record thereof,
certified by the RD; OR
3. An original or certified copy of any
assignment necessary
4.
to establish his
claim;OR
An affidavit executed by him or his agent
showing the amount then actually due on
the lien.
SECTION
31.
MANNER
PREMISES PENDING
May redemption be paid in any form other

than cash?
WASTE RESTRAINED
YES. The rule is construed liberally in allowing

redemption (to aid rather than def6at the rightJ
SECTION
and it has been allowed in the case ol a

cashieds check, certified bank checks and
property sold under a
REDEMPTION
be the
same
(redemption price becomes higher and
higher).
of the
OF
USING
REDEMPTION;
32. RENTS, EARNINGS AND

OF PROPERTY PENDING
INCOME
REDEMPTION
even checks.
Rights of the judgment debtor: (RE-UNUC)
The offer to redeem must be accompanied

with a bona fide tender or delivery of the
2.
redemption price.
HOWEVER, a formal offer to redeem with a

tender is not necessary where the right to
redeem is exercised through the filing of a
complaint to redeem in the courts, within the
period to redeem.
Note: The periods for redemption in Sec. 2g

are not extendible or interrupted. The parties
may, however, agree on a longer peiioO ot
redemption but in such case, ii would be a
matter of conventionat redemption (Lazo v.
l."pyUic Surety & lnsurance Co., tnc., G.R.
No. 27365, Jan. 30, 1 970).
84
1.
Remain in possession of the property;
5sn Prtu Gollege of {lh

201 1 CENTRALIZED BAR OPERATIONS
SECTION 33. DEED AND POSSESSION TO
BE GIVEN AT
EXPIRATION
REDEMPTION PERIOD;
BY
2.
OF
WHOM
EXECUTED OR GIVEN
The
PURCHASER
is
entitled
to
ls evicted due to:
a. lrregularities in the proceedings

concerning the sale; or
b. Judgment has been reversed or set
aside; or
c. The property sold was exempt from
execution; or
d. A third person has vindicated his claim
CONVEYANCE AND POSSESSION of the

property if there is no redemption made within
1 year from date of the registration of the
certificate of sale, or LAST REDEMPTIONER
whenever 60 days have elapsed and no other
When the sale was not effective under the
redemption has been made.
circumstances
to the propefi.
in this section, the
purchaser may:
He is substituted to and acquires all the rights,
title, interest and claim of the judgment obligor
to the property at the time of levy.
Two (21 documents which the sheriff

executes in case of real property:
1.
2.
CERTIFICATE OF SALE. After the auction

sale, he will execute in your favor the
certificate of sale under Section 25, by the
time you register that, you start counting
the one year. "
DEED OF CONVEYANCE. tf after one (1)
is no redemption, a deed of
year there
conveyance is executed. (Section 33)
The deed of conveyance is what operates

to transfer to the purchaser whatever
rights the judgment debtor had in the

property. The certificate of sale after
execution sale merely is a memorial of the
fact of sale and does not operate as a
conveyance.
The purchaser acquires no better right
1.
File a motion in the same action or file a
2.
3.
judgment creditor the price paid;

File a motion for revival of judgment in his
name against the judgment debtor; or
Bring an action to recover possession of
the
property executed prior to the levy and no
longer has an interest in the property, the
execution purchaser acquires no right
(Pacheco
CA, G.R. No. L-48689,
v.
to
recover from the
property.
SECTION 35. RIGHT TO CONTRIBUTION

OR REIMBURSEMENT
Contribution and reimbursement may be

obtained in a separate action, unless crossclaims have been filed and adjudicated in the
same action, in which case, execution may
issue to compel contribution or reimbursement
(Feia, Civil Procedure Annotated, Vol. 2, 2001
Ed., p. 108}
Remedies of the Judgment Greditor in aid
of execution or if Judgment is not fully
Satisfied
1.
than what the judgment debtor had in the

property levied upon" Thus, if the judgment
debtor had already transferred
separate action
2.
lf the execution is retumed unsatisfied, he
may cause examination of the iudgment

debtor as to his property and income'
(Sec. 36)
He may cause exalnination of the debtor
of
the
as to any debt
of the
August31,1987).
When a third person is in possession: The
procedure is for the court to order a hearing
and determine the nature of such adverse
:in
the
the
possession.
34. RECOVERY OF PRICE IF

SALE lS NOT EFFECTIVE; REVTVAL OF
SECTION
JUDGMENT
The purchaser may necover the purehase
price when:
1. The purchaser or his successor-in-interest
FAILS TO RECOVER pOSSESSTON of
the property; or
of the
sufficient
85
REMEDIAL !.AW
CIVIL PROCEDURE
7.
8.
exempt from execution or forbid a transfer

or disposition or interference with such
property. (See.41)
lf the court finds that the judgment debtor
has an ascertainable interest
real
property either as mortgagor, mortgagee,
or otherwise, and his interest can be
ascertained without controversy, the court
may order the sale of such interest. (Sec.
in
property, or denies the debt, the court may

authorize the judgment-creditor to institute
an action to recover the property, forbid its
transfer and may punish disobedience for
contempt. (Sec.43)
The inalterability of
SEGTION 46. WHEN PRINCIPAL BOUND BY

JUDGMENT AGAINST SURETY
The principal is bound by the same jpdgment

from the time he has notice of the action or
proceeding and has been given an opporlunity
at the surety's request, to join the defense.
SECTION 47. EFFECT OF JUDGIUENT OR

FINAL ORDERS
This refers to judgments which are considered

as conclusive and may be rebutted direcfly by
means of relief from judgment or annulment of
judgment
or
indirecily
by offering them
in
evidence under the parole evidence rule.
lt
Public Policy Principle:
final and executory
judgment. The decisions of the court must be

immutable at some definite period of time, no
matter how erroneous a judgment may be.

Otherwise, there would be no end to litigation.
Res Judicata (A Matter Adjudged)
It is a rule that a finaljudgment rendered by a

court of competent jurisdiction on the merits is
conclusive as to the rights of the parties and
their privies, and, as to them, constitutes an
absolute bar to a subsequent action involving
the same claim, demand or causes of action
(Black's Law Dietionary).
Requisites:
1. A FINAL judgment or order;
2.
3.
4.
the subject matter

and the parties by the court rendering it;
Judgment UPON THE MERITS;
Between the two cases:
There is identi$ of PARTIES; and
ldentity of SUBJECT MATTER; and
ldentity of CAUSE OF ACTION.
JURISDICTION over
a.
b.
c.
THERE IS IDENTIry OT CNUSC OF ACTION

when the two actions are based on the same
delict or wrong committed by the defendant
even if the remedies are different.
Two Parts
Res Judicata * also known as Bar by

Former Judgment or Direct Estoppel by
Judgment. lt covers paragraphs (a) and
(b) of Section 47.
The decision is
conclusive upon title of
the thing, the will or
administration or the
condition, status or
relationship of the
person.
of
paragraph (c).
SECTION 45. ENTRY OF SATISFACTION

I'IIITH OR WTHOUT ADMISSION
The judgment or final

order is conclusive
between parties and
their successors in
interest, litigating for
the same thing and
under the same title
and in the same
caDacitv.
86
of Judgment also
known as Estoppel by Verdict, or Estoppel
by Record, or Collateral Estoppel by
Judgment or Preclusion of lssues or Rule
covers
Auter Action Pendant.
Conclusiveness
lf the person alleged to have the property

of the judgment debtor or be indebted to
SECTION 44. ENTRY OF SATISFACTION

OF JUDGi,IENT BY CLERK OF COURT
1.
2.
42)
him, claims an adverse interest in the
e.9. accrcn
reinvindicatoria
e.g. Iand registration

cases
5en Fele
@ollege of
Lslr

Under the doctrine of res judicafa, no matter
how erroneous a judgment may be, once it
SECTION
48. EFFECT OF
FOREIGN
JUDGMENT OR FINAL ORDERS
becomes final, it cannot be corrected.
Gonclusiveness of judgment
The issues actually and directly resolved in a
former suit cannot again be raised in any
future case between the same
parties
involving a different cause of action.
r lt has the effect of preclusion only of

issues.
. The parties in both actions may be the
same but the causes of action are
Public Policy Principle: A judgment by a

court is enforceable only within its territorial
jurisdiction.
Effect of Foreign Judgments
Provided that
jurisdiction:
1. ln
2.
different.
the foreign tribunal
case of judgment against
had
specific
thing, the judgment is conclusive upon the

title to the thing; or
ln case of a judgment against a person,
the judgmenlis presurnptive evidence of a
right as between the parties and their
successors-in-interest by a subsequent
title.
There is identity of
parties, subject matter
and causes of action.
There is ONLY
identity of PARTIES
AND SUBJECT
MATTER.
The first judgment

constitutes as an
ABSOLUTE BAR TO
ALL MAfiERS direcfly
adjudged and those
that might have been
adjudged.
The first judgment is

conclusive only as to
matters directly
adjudged and actually
litigated in the first
action. Second action
can be prosecuted.
It has the effect of

preclusion of claims.
It has the effect of

preclusion only of
issues.
'
Doctrine of law of the case - according to

this principle, whatever is once irrevocably
established as the controlling legal rule or
decision between the same parties in the case
continues to be the law of the case whether

correct on general principles or not, so long as
the facts on which such decision \ /as
There are two ways of giving effect to a foreign
judgment (a) an ordinary action to enforce the

foreign judgment may be filed in court or (b) it
may be pleaded in an answer or a motion to

dismiss (Herrera, Remedial Law, Vol. ll, 2007
Ed., p. 5*31).
Note: ln BOTH instances, the judgment may

be repelled by evidence Of (JN CFC)
Want of iurisdiction;
Want of notice;
Qollusion;
Fraud; or
Qlear mistake of law or fact.
a.
b.
c.
d.
e.
Three Modes of Appeal:

1. Ordinary Appeal (Rule 40 and 41)
a.
Notice on appeal
predicated continue to be the facts of the case

before the court. (RCPI vs. Coutt of Appeats,
G.R. /Vo. 139763, Aprit26, 2006)
Note: This rule DOES NOT AppLy to

resolutions rendered in connection with the
case wherein no rationale has been
expounded on the merits of that action
(Jarantilla v. CA, G.R. No. 80194, Mar. 21,
is
ap#&#ffiffiffip;s612
1ege).
poses
Sfare Decrsis
It means the decision of the court should stand
as precedents for future guidance.
judgment
to
the
87
REMEDIAL LAW
CIVIL PROCEDURE
Note: Only FlNALjudgments or orders can be
appealed as distinguished from interlocutory
judgments ororderswhich are not appealable.
motion for reconsideration (Neypes vs.
CA,
G.R. No. 141524, September 14, 2005).
Ratio and Basis:

Pursuant to its sole prerogative to amend
procedural rules,
Ordinary Appeal is an appeal by notice of

appeal from a judgment or final order of a
provided
part of due process.
lt is merely
Aprill7,2002).
Note: A
question that was never raised in
the court below cannot be allowed to be raised

for the first time on appeal, without offending
basic rules of fair play, justice and due process
ys. Sps
(Villanueva
139436, January
Satvador, G.R
No.
*
25,2006).
SECTION 1. WHERE TO APPEAL
Appeal to the RTG

Mode of Appieat - Notice
of Appeal
fifteen (15) days from receipt of decision.
cases.
The fresh period shall apply to:
Rule 40
1.
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45
Note: No motion for extension of time to file a

motion for new trial or reconsideration shall be
allowed. But if the appeal requires the filing of
a record on appeal, a motion for extension to
submit record on appeal is allowed.
SECTION 3. HOW TO APPEAL
within
A.
Afier an appeal to the RTC has
been
perfected, the MTC loses its jurisdiction over
the judgment should be fited with the RTC.
Note: The
Rule on Summary procedure no
ij
on appeal.
SECTION 2. WHEN TO APPEAL
1. Within 15 days after notice of judgment or
2.
final order;
Where
record on appeal
is
required,
with.in 30 days from notice of judgment or
final order by filing a notice of apleal and

a record on appeal.
Note: Sec. 2
period
of
Rule 40 provides that the

intem.rpted by a
of appeal shalt be
timely motion for new trial or reconsideration.
But, under the ,,Fresh period Rule", a party

litigant may either fite his notice oi aipeat
within 15 days from receipt of the niC,s
decision or file it within 15 days from receiptof
the order denying his motion for new trial or
88
By Notice of Appeal:
1.
2.
the case and any motion for the execution of
longer applies when the case
be
any final order or resolution) and to afford

litigants fair opportunity to appeal their
statutory privilege and may be exercised

only in the manner and in accordance with
the provisions of the law (producers Bank
of the Philippines ys. CA, GR No 126620,
in the Rules of Court, to
the motion for new trial dr motion for

reconsideration (whether full or partial or
The right to appeal is not a natural right or
it
counted from receipt of the order denying
lower court on questions of fact and law.
the SC deems
necessary to change the afore-stated rule

in order to standardize the appeal periods
'
File a notice of appeal with the trial

court;
The notice of appeal must indicate:
Parties;
Judgment or final order appealed
from;
Material date showing timeliness
of appeal.
A copy served on the adverse party;
and
a.
b.
c.
3.
4- Pffifeesand
9en Fels Gollege ot lxnn

APPEAL FROITIIMTC TO RTC
Notice and record on
appeal are filed with
the court of origin.
The case was decided

by the RTC pursuant
to its original
jurisdiction. The case
was originally filed in
the
Appeai decision of MTC by filing notice of

appeal and pay within 15 days from
receipt of judgment.
The case was decided

by the RTC pursuant
to its appellate
jurisdietion
15 days from perfection of appeal, MTC
RTC.
clerk transmits record to RTC
MaterialData Rule
The notice of appeal must also

accompanied by
a statement of the
be
Notice to parties that an appeal is being

taken from the decision of MTC
material
dates showing the timeliness of the appeal.
SECTION
4.
PERFECTION
EFFECT THEREOF
OF
APPEAL;
Within 15 days from notice of appeal:
r Appellant submits memorandum to the

Governed by the provisions of Section 9, Rule
41.
of appellate court
15 days from receipt of
appellants'
memnranrfirm
SEGTION 5. APPELLATE COURT DOCKET

AND OTHER LAWFUL FEES
Payment
RTC
Appellee files his own memorandum
lf uncontested,
judgment is
entered in the
docket fees is
jurisdictional. Failure to do so is a ground for

dismissal of appeal (Sec.1c Rute S0).
book of entries.
Any party may

appeal by filing a
petition for
review with the
cA.
However, non-payment of docket fees does

not automatically result in dismissal of appeal,
the dismissal being discretionary in the court if
there are justifications
for
non-payment
(Fontanarvs. Bonsubre, G.R. No. 56315, Nov.

25, 1986).
SEGTION
6. DUTY OF THE CLERK
SECTION
Within 15 days fom the perfection of the
PROCEDURE
IN
THE
1.
Upon receipt of the complete record or
2.
record on appeal, clerk of court of the RTC

shall notify the parties of such fact;
Within 15 days from such notice, it shall be
the duty of the appellant to submit a
OF
COURT
7,
REGIONAL TRIAL COURT
appeal, the clerk of court or the branch clerk of

court of the lower court shall transmit the
original record or the record on appeal,
together with the transcripts and exhibits, to
the appellate courU RTC.
89
REMEDIAL LAW
CIVIT PROCEDURE
SECTION
8.
APPEAL FROM ORDERS

DISMISSING CASE WITHOUT TRIAL; LACK
OF JURISDICTION
A, lf the lower court dismissed the case
without trial on the merits, RTC MAy:

1. Affirm, if ground of dismissal is lack of
jurisdiciion over the subject matter, the
RTC, if it has jurisdiction, shafi TRy
the case on the merits as if the case
2.
was originally filed therein;
Gases wherc multiple appeals
L
2.
3.
4.
5.
in which case, it shall

remand the case for further
Reverce,
over the subject matter:

. RTC shall not dismiss the case
has original jurisdiction, but
if it
shall
DECIDE the case, and shail ADMTT

amended pleadings or additional
evidence.
SECTION 9. APPLICABILITY OF RULE 4{
By virtue of this provision, the inferior courts

also exercise residual jur.isdiction in the same
manner provided under par. 5 Sec. g of Rute
41.
Specialproceedings;
Actions for recovery of property with
accounting;
Actions for partition of property with

accounting;
Special civil actions
of
eminent
domain (expropriation) ;
Special civil actions for foreclosure of
mortgage. (Roman Catholic

of Manita v. CA, 2Sg
Archbishop
scRA 186)
proceedings.
B. lf the case was tried on the merits by

the lower court without jurisdiction
ane
allowed:
SECTION 1. SUBJECT OF APPEAL
Appealable Cases:
1. Judgments or final orders that completely
2.
disposes of the case;
A particular matter in a judgment declared

by the Rules to be appealable.
Non-Appealable Gases (PtDSES-D)

1. An order denying a getition for relief or any
similar motion seeking relief
from
judgment;
An lnterlocutory order;
2.
3. An order glisallowing or dismissing an
appeal;
4. An order denying a motion to get aside a
judgment by consent, con6ssion or
compromise on the ground of faud,
mistake or duress, or any other ground
Note: As amended by A.M. No. 07_7_12 SC,

effective December 27 ,2OOT
Three modes of appeal from decisions of
the RTC
1.
2.
3.
Or(inary appeal or appeal by writ of error,

where judgment was rendered in a civil or
criminal action by the RTC in the exercise
of original jurisdiction;
5.
o.
vitiating consent;
An order of gxecution;
A judgment or final order for or against

one or more of several parties or in
geparate claims, counterclaims, crossclaims and third parg complaints, while
the main case is pending, unless the court
allows an appealtherefrom; and
An order glismissing an action
without
Petition for review, where judgment was

rendered by the RTC in the exercise of
appellate jurisdiction; and
Petition
for review on ceftiorari to
Supreme Court.
the
##*q-ffi4xffi mp.f.Akru-
mode of appeat, govemed by Rute

}e .nrs!
41,
is taken to the Court of Appeils on
questions of fact or mixed questions of fact
and l"y, _T!e second mode of appeat,
covered
by Rute 42, is brought to the Cdurt of

Appeals on questions of faci of law, or mixed
questions of fact and law. The third mode
of
appeal, provided for by Rule 45, is elevated to
the Supreme Court only on questions of law.
90
which
leave
SEn
8r!l
Gollege of
Ltr

TAKE NOTE:
The term 'finalt has two (2) possible meanings
in Civil Procedure:
1. Flnal in the sense that is already
executory and that happens if there is no
it
appeal. And that
2.
is for purposes
of
applying rule 39 on execution.
Final in the sense that it is not merely

interlocutory because it completely
disposes of the case or a particular matter
therein and there is nothing more for the
court to do after its rendition (Bairan vs.
Tan Sui Lay, L-19460, Dec. 28, 1966).
File a notie of
appeal or a
record on
appeal with
the court of
origin (RTC)
and give a
copy to the
adverse party.
TEST for determining whether a judgment
or order is final or interlocutory:
Does lf
leave something to be done in the triat court

with respect to the merits of the case? lf it
does, it is interlocutory, hence, you cannot
appeal yet;
does not, is final and
therefore you can appeal. (Reyes vs. De Leon,
L-3720, June 24, 1952)
if it
.
r
it
A judgment based on compromise is not

appealable and,is immediately executory.
This rule refers to appeals from
RTC
exercising ORIcINAL JURtSDICTION. An

appeal on pure question of law CANNOT
be taken to the CA and such improper

appeal will be dismissed pursuant to Sec.
2, Rule 50 (Regalado, F. Remediat Law
Compendium Vot 1. dn ed. p. 526).
SECTION
2.
MODES OF APPEAL
Within 15
days from the
jurisdiclion.
Appealed to
the CA.
Case is
decided by
the RTC in
the exercise
of its
appellate
iurisdiction.
Petition for
review with
the CA.
Case is
decided by the
RTC, CA, CTA
and
Sandiganbayan
days from
notice of the
decision to be
reviewed or
from the
denial of a
MR or new
trial.
notice of the
appeal and
within 30 days
for records on
appeal.
3.
PERIOD
File a verified
petition for
review on
certiorari with
the SC (RuIe
45l Pay docket
and lawful fues
and P 500 for
costs.
Submit proof of
service of a
copy to the
lower court and
adverse party.
Within 15 days
from notice of
the judgment or
order oi denial
of the MR or
new trial.
OF
ORDINARY
APPEAL
The appeal shall be taken within:
1.
2.
3.
Case is
decided by the
RTC in its
original
500 as
deposit for
costs with the
CA. Furnish
RTC and
adverse party
copy ofsuch
(Rule 42).
Within 15
judgment for
notice of
SECTION
File a verified
petition for
review with
the CA. Pay
the docket
and lawful
fees, and P
Fifteen (15) days trom notice
of
the
Thirly (30) days from notice
of
the
judgment or final order appealed from;
judgment or final order where a record on

appeal is required;
Forty-eight (48) hours from notice of the

judgment or final order appealed from in
habeas corpus cases.
DOCKET
Appealed to
the SC.
91
REMEDIAL LAW
CIVIL PROCEDURE
SECTION 6. RECORD ON AppEAL; FORM
AND CONTENTS THEREOF
'1. Full names of all the parties to the

proceedings stated in the caption of the
record;
2. lnclude the judgment or final order from

which the appeal is taken;
3. ln chronological order, copies of only such
pleadings, petitions, motions and all

interlocutory orders as are related to the
appealed judgment for the proper
4.
5.
understanding of the issue involved;

Together with such data as will show that
the appeal was perfected
time
(Material Data Rute);
Every record on appeal exceeding 20
pages must contain a suUfect index.
on
SECTION 7. APPROVAL OF RECORD ON

APPEAL
Procedure if the appeal is through a record on
appeal:
1. File record on appeal;
Appellee may file an objection within five
(5) days from his receipt thereof;
lf there is no objectionihe court may:
Approve it as presented; OR
Direct its amendment on its own or
upon the motion of the adverse party.
lf an amendment is ordered the appellant
must redraft the record within the time
ordered or if there is no time, within ten
(10) days from receipt;
Submit the record for approval with notice
on the adverse party.
2.
3.
a.
b.
4,
5.
SECTION 8. JOINT REGORD ON APPEAL
Where both parties are appellants, they may

file a joint record on appeal within the time
provided.
SECTION 9. PERFECTION OF APPEAL;

EFFECT THEREOF
Appeal is Deemed perfected

1. BY NOTTCE OF AppEAL: As to him, upon
2.
the filing of the notice of appeal in bue

time; and
BY RECORD ON AppEAL:As to him, with
respect to the subject matter thereof, upon
the approval of the record on appeal filed

in due time.
Effect of a perfected appeal
ln APPEALS By NOTTCE OF AppEAL, the
court loses jurisdiction over the case upon the

92
perfection of the appeal filed in due time and

the expiration of the time to appealof the other
parties.
ln APPEALS BY RECORD ON APPEAL, the

court loses jurisdiction only over the subject
matter thereof upon approval of the records on
appeal filed in due time and the expiration of
the time to appeal of the other parties.
Residual power of the court afier losing
jurisdiction but prior to the transmittal of the

original record or record on appeal: [O PAPAI
1.
Qrder execution pending appeal under
Rule 39, Sec.2 (motion for execution was

filed before the expiration of the period to
appeal);
2. To issue orders for the preservation of the

rights of the parties which do not involve
' matters
litigated by appeal;
3. To gpprove compromise prior to the
transmittal of the record;
4. lermit appeal by an indigent;
5.
{llow withdrawal of the appeal.
Duration of Residual Powerc
Until the records are

transmitted to the
appellate court.
Until the Court of

Appeals gives due
course to the petition.
SECTIOITI
DUTY OF THE GLERK oF
COURT OF'0.
THE LOWER COURT
Within 30 days after perfectio-n of the appeat, it

shall be the duty of the clerk of court:
1. To verify the correctness of the original
reeord or record on appeal, as the case
may be, and to make certification of its
$cn 8e!s Gollege of {.ab

SECTION 11. TRANSCRIPT
Upon perfection of the appeal, the clerk shall

direct the stenographer concemed:
1. To attach to the record of the case 5

copies of the transcript of testimonial
evidence;
2. Transcribe such testimonial evidence;

3. Shall affix an index containing the names
SECTION
The party desiring to appeal from a decision of

rendered in the exercise of its
APPELLATE JURISDICTION may:
File a verified petition for review with the
1.
CA:
a. Within 15 days from notice of decision;

or
b. Within 15 days denial of petitione/s
testimonies are found; and
List of the exhibits and pages wherein
each appears.
SECTION 12. TRANSMITTAL
The clerk of the trial court shall transmit to the

appellate court the original record or approved
record on appeal:
Within 30 days from perfection of appeat;
Proof of payment of the appellate court
docket and other lawful fees;
Certified copy of the minutes of the
1
2.
3.
proceedings;
4. Order of approval;
5. Certificate of correctness;
6. Original documentary evidence; and
7. Original and three (3) copies of the
transcript.
TIME
the RTC
of the witnesses and pages where their
4.
1. HOw APPEAL TAKEN;
FOR FILING
Motion for New Trialor MR.
2. Pay the corresponding docket and other

lawfulfees, depositing P 500;
3. Furnish the RTC and the adverse party
with a copy of the petition.
The CA may grant an additional period of
15
days 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.
SECTION 2. FORM AND CONTENTS
The petition shall be filed in seven (7) legible

copies, with the original copy intended for the
court being indicated and shall:
1.
State the full names of the parties to the

case;
SECTION 13. DISMISSAL OF APPEAL

Prior to the transmittal of the original record or
the record on appeal, the trial court may, mofa
proprio or on motion disiniss the appeal for:

Having been taken out of time, or
Non-payment of the docket and other
lavyfulfees within the reglementary period.
1.
2.
The requirement regarding the perfection of

the appeal within the reglementary period is
2. lndicate the specific material dates

showing that it was filed on time;
3. Set forth concisely a statement of the:
a. Matters involved;
b. lssues raised;
c. Specification of errors of facl or law, or
d.
both, allegedly commifted by the RTC;

and
Reasons or arguments relied upon for
the allowance of the appeal;
not only mandatory but jurisdictional.
Nature: This mode of appeal is not a matter of

right. lt is a matter of discretion on the part of
CA on whether or not to entedain the appeal.
93
$m
FeLs Gollrge of Leb

14. Employees Compensation Commission;
15. Agricultural lnventions Board;
16. lnsurance Commission;
17. Philippine Atomic Energy Commission;
18. Board of lnvestments;
19. Construction lndustry Arbitration
Commission; and
20. Voluntary arbitrators authorized by law.
A party adversely affected by a
decision or
ruling of the CTA may file with the Supreme
Court a verified petition for review on certiorari
pursuant to Rute 45 (Sec. 12, RA g2g2 and
A.M. 07-7-12-SC).
No further extension shall be granted

except for the most compelling reason and
in no case shall exceed 15 days.
SECTION 5. HOW APPEAL TAKEN
1. By filing a verified petition for review in

seven (7) legible copies;
2. With proof of service of a copy thereof on
the adverse party and on the court or
agency a quo;
3. Pay to the clerk of court of CA docket and

other lawfulfees; and
4. Deposit the sum of P 500 for costs.
Note: The Court of Appeals has jurisdiction

over orders, directives and decisions of the
Offtce of the Ombudsman in administrative
disciplinary cases only. lt cannot, therefore,
review the orders, directives or decisions of
the Office of the Ombudsman in criminal and
Decision is immediately
executory; not stayed

by an appeal.
Factual findings are
conclusive upon CA if
supported by
substantial evidence.
non-administrative cases (Golangco vs. Fung,
Office of the Ombudsman, G,R.-Nos i4764'G

1
47762, October-l 2, 2006|
Findings
of fact of the agency
concemed,
when supported by substantial evidence, shall

be binding on the CA.
State the full names of the parties to the

case;
2. Set forth concisely a stalement of the facts
and issues involved and the grounds relied
upon for review;
3. Accompanied by clearly legible duplicate
originals or certified true copy of the
award, judgment, final order or resolution
appealed from;
4. Certificate of non-forum shopping; and
5. State the specific material dates showing
that it was filed on time.
1.
SECTION 2. GASES NOT COVERED
Judgments and final orders or resolutions of

the NLRC are reviewabte by the COURT OF
APPEALS in an original action for certiorari
under RuIe 65 (St Maftin Funeral Home vs.
NLRC, GR. No. 130A66, Sept.16,199B).
SECTION 3. WHERE TO APPEAL
Appeal under this Rule may be taken to the

CA within the period and in ihe manner herein
provided, whether
SECTION 6. CONTENTS OF THE PETITION
the
appeal
SECTION
7.
involves
questions of fact, of law, or mixed question of

law and fact.
SECTION 4. PERIOD OF APPEAL

Fifteen (15) days from:
Notice of the award, judgment, final order
or resolution; or
1.
2, Date of publication, if publication is
by law for its effectivity; or
- lequired
3.
p_e1i1l of petitioner's MNT or tr,tR (Onty 1
MR shatt be ailowed).
The.CA may grant additionat 15 days only

within which to file the petition for ieview,
upon proper motion and payment in full of
petition
has
docket fee.
95
REMEDIAL LAW
CIVIL PROCEDURE
original or a legible certified copy of the entire
record of the proceeding under review.
SECTION 12. EFFECT OF APPEAL
Generat Rule: Appeal shall NOT stay the

award, judgment, final order or resolution
sought to be reviewed.
Exception: When the CA shall

otherwise upon such terms as
just.
direct
it may deem
sEcTloN 13. SUBiIilSStON FOR DECIS|ON

Similar to Secfibn 9 of Rute 42.
SECTION 7. APPELLANT'S BRIEF
It shall be filed, within FORTY-FIVE (45)

DAYS from receipt of the notice of the clerk of
court that all the evidence is attached to the
record:
his legibly
1. SEVEN (7) COPIES
printed
typewritten, mimeographed
brief; and
With proof of service of two (2) copies
thereof upon the appellee.
of
as appellant and the adverse party as the
or
2.
.
o
SECTION 1. TITLE OF CASES

ln all cases appealed to the CA under Rule 41,
the title of the case shall remain the same but
party appealing the case shall be referred to
May declare that the record and its

accompanying transcripts and exhibits are
already sufficient to decide the issues.
Failure to file appellant's brief on time is a

ground for dismissal of the appeal.
lf a motion to dismiss an appeal has been
filed, it suspends the running of the period
for filing the appellant's briel as the same
would be unnecessary should the motion
be granted.
The failure of the appellant to make
specific assignment of errors in his brief or
appellee.
page referenies to the record as re{uired

in this sec;tion is a ground for dismissal of
SECTION 2. COUNSEL AND GUARDIAN
his appeal.
Counsel and guardians ad litem in the court of

origin, shall be considered as such in the CA.
When others appear or are appointed, notice

shall be served on the adverse party and filed
SECTION 8, APPELLEE'S BRIEF

It shall be filed similar to appellant's brief upon
receipt thereof.
with the court.
SECTION 9. APPELLANT'S REPLY BRIEF
SECTION 3. ORDER OF TRANSMITTAL OF
Within 20 days from receipt of the appellee's

brief, appellant may file a rdply brief answering
RECORD
lf not transmitted within 30 days after
perfection of the appeal, either party may file a

motion with trial court, with notice to the other
for the transmittal.
SECTION 4. DOCKETING OF THE CASE
SECTION 5. COMPLETION OF RECORD
SECTION 6. DISPENSING WTH COMPLETE
RECORD
lf
of
completion
the record cannot be
accomplished within a sufficient period due to
insuperable or extremely difficult cause:
1. The court on its own motion; or
On motion of any of the parties
2.
96
points not covered in his main brief.
SECTION
10. TIME FOR
MEi'IORANDA IN SPEGIAL CASES
FILING
Sstt Fela Gollege of I'lb

8. ln cases not br:ought up by record on
appedt, appellant's brief shall contain, as

an appendix, a gopy of the judgment or
Contents specified by
Rules.
Shorter, briefer, only

one issue involved No subject index or
assignment of enors
just facls and law
applicable.
final order aPPealed from.
SECTION 14. CONTENTS OF APPELLEE'S

BRIEF
1.
EACH PARTY
2.
upon any of them.
3.
CONTENTS
2,
3.
references to the record' Authorities relied

upon shall be cited.
RAISED ON APPEAL,
OF
APPELLANT'S BRTEF (SAC FIARC)
1.
Under the heading "Argument," appellee

shall set forth his arguments in the case
SECTION 15. QUESTIONS THAT MAY BE
Exception: For good and sufficient cause.
SECTION 13.
appellant's statement of facts; and
on each assignment of error with page
SEGTION 12. EXTENSION OF TIME FOR

FILING BRIEFS .
General Rule: NOT allowed.
statutes cited with references to the pages

where they are cited;
Under the heading "statement of Facts',
appellee shall state that he accepts the
siatement of facts in the appellanfs brief,

or under the heading 'Counter-Statement
of Facts", point out such insufficiencies or
inaccuracies as he believes exist in the
briefs.
Several counsels represent one appellant or

appellee, copies of the brief may be served
references, and a table of cases

alphabetically arranged, textbooks and
SECTION {1. SEVERAL APPELLANTS OR

APPELLEES OR SEVERAL COUNSEL FOR
Several appellants or appellees each counsel
representing one or more but not all of them shall be served with only ONE (1) copy of the
Subjec't index of the matter in the brief with

digest of the arguments and Page
Subject index of the matter in the brief with
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;
lssignment of errors;
Under heading of "Statement of the gase",
clear and concise statement of the nature
of the action, summary of the proceedings,
appealed rulings and orders of the court,
nature of the judgment and any matters
necessary to an understanding of the
nature of the controversy;
The appeal can raise only questions of law or

tuct that:
1. Has been raised in the court below; and
2.
Which is within the issues framed by the

parties.
Rule: The reversal of a judgment on appeal is
generally binding only on the parties. in the

ippeatei case and does not affecl or inure to
the benefit of those who did not join or were
not made parties to the aPPeal.
t^fr".ffi,ffiH ffiW *&W:
Under the heading "statement of facts,'

clear.and concise statement in a narrative
form of the facts admifted by both parties
5.
6.
7.
and ofthose in controversy;

Clear and concise statement of the lssues
of fact or law;
Under the heading "$rgument," appellant's
arguments on each assignment of error.
Authorities relied upon shallbe cited;
Under the headin$ '$elief," specification of
the order or judgment which the appellant
seeks; and
97
REMEDIAL LAW
CIVIL PROCEDURE
Note: The petition shall raise ONLY

OF LAW which must be
QUESTIONS
distinctly set forth.

RTC, Sandrgan bayan, CTA or
CA renders decision
Any party files a pelition for review on

certiorari within 1S days from notice of
final judgment or order of lower court or
notice of denial of motion for
reconsideration or new trial.
Appellant serves copies of petition on

adverse parties and to the lower court,
and pay the conesponding docket fees.
Doubt or controversy
as to what the law is on
certain facts.
or difference as
to the truth or.
falsehood of facts, or
as to probative value of
the evidence
lf the appellate court

can determine the
issue raised without
reviewing or evaluating
the evidence.
Can involve questions
of interpretation of the
lawwith respect to
certain set of facts.
The determination
involves evaluation or
review of evidence.
SC may dismiss the petition or require

the,apDellee to comment.
Query invites
calibration of the whole
evidence considering
mainly the credibility of
witnesses, existence
and relevancy of
specific surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation.
General Rule: The findings of f;act of the CA
are final and conclusive and cannot
be
reviewed on appealto the SC.
Sq
Exceptions to Conclusivenesi of Facts

When the finding is grounded entirely on
1.
affirm, reverse, or modi!

iudqment of the lower court.
SECTION
m_ay
specul ations, su rmise or conjectu re;
1. FILING OF PETITION wlTH
SUPREME COURT
Appeals
to the SC can be taken from
judgment or final order or resolution

of the CA,
S31{tOanbayan, the Court of Tax Appeats,
]fre
the RTC or such other courts as 'mavbe
authorized by law and only by verified pefiiion
for review on certiorari.
The petition may include an application for a
writ
preliminary injunction
other
provisional remedies. The petitioner may
seek
of
or
provisionat remedies by VEitFtED

!19Lry"
MOTION filed in the same action or
proceeding at any time during its pendencv

/as
amended by A.M. 07-7-12-SC).
EXCEPT as provided in criminal cases in Sec

13(c) Rule 124 in retation fo Sec 3(e) Rute
122, whenever the CA imposes iectusion
perpetua, life imprisonmeni
lesser
pel?Ltyr judgment may be appeated to the SC
by NOTICE OF AppEAL filei'with the CA.
or a
98
2. When inference made is manifesfly

absurd, mistaken or impossible;
3. When the judgment is premised on a
m isreprese ntation of facts;
4. When there is grave abuse of discretion in
A
the appreciation of facts;

When the findings of fact are conflicting;
6.
When the CA in making its findings wenf
gstl Ftta ollege
of {,^rb

contradicted by the evidence on record;
and
11.
When certain material facts
Note: SC may dismiss the petition
motu
proprio.
and
circumstances have been oyerlooked by

the trial court which, if taken into account,
would after the result of the case in that
SEGTION 6. REVIEW DISCRETIONARY
to
special and important reasons therefore.
they would entitle the accused
Review will be granted only when there are
acquittal.
SECTION 2. TIME FOR FtLlNc; EXTENSTON
Within 15 days from notice of the judgment or
final order or resolution appealed from or

denial of the petitioner's motion for new trial or
MR filed in due time.
The SC may for justifiable reasons grant an

extension of 30 days only within which to file
the petition.
SECTION
3.
DOCKET
AND
OTHER
LAWFUL FEES; PROOF OF SERV|GE
Unless he has theretofore done so, petitioner

shall pay the corresponding docket and other
lawful fees to the clerk of court of SC and
deposit P500 for costs.
Proof of service of a copy thereof on the lower

court concerned and on the adverse party
shall be submitted together with the petition.
SECTION 4. CONTENTS OF THE PETITION
1.
2,
3.'
4.
5.
State the full names of the appealing party

as the petitioner and the adverse party as
respondent,
lndicate
specific material dates
showing that it was filed on time;
Set forth concisely a statement of the:
Matters involved;
Reasons or arguments relied upon for
the allowance of the appeal;
Accompanied by cteady legibte dupticate
original or certified true copy of the
judgment or final order or iesolution; and
Certificate of non-forum shopping.
the
a.
b.
SECTION
5.
The following, while neither controlling nor fully

measuring the court's discretion, indicate the
character
the reasons which will be
considered:
of
a.
Court a quo has decided a question of

substance, not theretofore determined by
the SC, or has decided it in a way
probably in accord with law or with the
b.
applicable decisions of the SC; or
Court a gao 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 supervisibn.
SECTION 7,
PLEADINGS AHD
DOCUMENTS THAT MAY BE REQUIRED;
SANCTIONS
For purposes of determining Sec. 5 or Sec.
SC may require or allow the filing of such

pleadings, briefs, memoranda or documents
within such periods and under such conditions
as it may consider appropriate.
SC may impose the corresponding sanctions

in case of non-filing or unauthorized filing or
non-compliance with the conditions.
SEGTION 8. DUE COURSE; ELEVATION OF
RECORDS
SECTION 9. RULE APPLICABLE TO BOTH
DISMISSAL OR DENIAL OF
PETITION
1.
2.
3.
4.
Failure of the petitioner to comply with any

of the foregoing requirements;
Appeal is without merit; or
ls prosecuted manifesfly for delay; or
That the questions raised therein are too

unsubstantial to require consideration.
99
REMEDIAL LAW
CIVIL PROCEDURE
lnvolves the
review of the
judgment
award or final
order on the
merits.
Filed within 15
days from
notice of
judgment,
final order or
resolution
appealed
ftom.
Stays the
judgment or
order
appealed
from.
The appellant
and the
appellee are
the original
parties to the
action, and
the lower
court or quasi-
judicial
agency is not
impleaded.
lnvolves the
review of
judgments,
final orders or
resolutions of
COMELEC
and COA.
Directed
against an
interlocutory
order of the
court or where
there is no
appeal or any
other plain,
speedy or
adequate
remedy.
Filed within 30
days from
notice of
judgment, final
order or
resolution
sought to be
reviewed.
Filed not later

than 60 days
from notice of
judgment,
order or
resolution
sought to be
reviewed.
Shail not stay

the execution
unless SC
shall direct
otherwise
upon such
terms as it
may deem,
just.
Unless a writ
of preliminary
injunction or
temporary
restraining
order is issued
does not stay
the challenged
proceeding.
The judge,
court, quasi-
The
COMELEC
and COA shall
be public
respondents
who are
impleaded in
the action.
judicial
agency,
tribunal,
corporation,
board, officer
or person
shall be public
respondents
who are
impleaded in
the action.
Motion for
reconsideration
Motion for
reconsideration
is not
required.
The filing of a
motion for
reconsideratio
n or new trial,
if allowed
under the
procedural
rules of the
Commission,
shall interrupt
period fixed.
or for new trlal

is required;
lf a motion for
reconsideration
or new trial is
filed, the
period shall
not only be
interrupted but
another 60
days shall be
given to the
petitioner. (SC
Admin. Mafter
The court is in
the exercise
of its appetlate
jurisdiction
and power of
review.
The Court is in
the exercise of
its appellate
jurisdiction and
power of
review.
The petition
The petition
shall be filed
with the
shall be filed
with the
Supreme
Court.
Note:
Supreme
Court.
Court
exercises
original
jurisdiction.
The petition
shall be filed
with the RTC,
cA,
Sandiganbayan
and
COMELEC.
Rule on Writ of Amparo and Habeas
Data
Any party may appeal from the finaljudgment

or order to the Supreme Court under Rule 45.
The appeal may raise questions of fact or law
or both. The period of appeal shall be five (5)
working days from the date of notice of the
judgment or order.
SECTION 1. TITLE OF CASES.
ln all cases originally filed in the CA, the party

instituting the action shall be called petitioner
and the opposing party the respondent.
sEcTroN
APPLICABLE.
2.
TO Wnar
Original actions for
#{}L{*ffq$h
AcTtoNs
$en
Fell @oUegt ot Aab
5.
ln actions filed under Rule 65, indicate the

material dates showing when notice of the
judgment or final order or resolution was
received;
6. Filed in seven (7) legible copies, with proof

of service on the respondent;
7. Accompanied by clearly legible duplicate
original
8.
9.
or
certified true copy
such issues to any of its members or to an
appropriate court, agency or office (Sec.
6.
Payment of docket and other lawful fees;

and
to
comply with the foregoing

requirements shall be sufficient ground for
the dismissal of the petition.
Failure
court itself may conduct hearings or

delegate the reception of evidence on
of the
judgment or final order or resolution;

Gertificate of non-forum shopping;
10. Deposit the amount of P500.
4. Court may require the filing of a REPLY or

other pleadings as it may deem
. such
necessary;
5. Determination of FACTUAL ISSUES, the
and
Submission of Memoranda.
6,);
Note: The reception of evidence'may be

delegated to a member of the Court of
Appeals or a judge of the lower court who is
not a public respondent.
SECTION 7. EFFECT OF FAILURE TO FILE

COMMENT
Substantial Compliance Rule

Rule 46 applies to actions for ceftiorarifiled in
the Court of Appeals but Rale 65 generally
supplements the same. Mere duplicate

originals are sufficient under Rule 46 even if
Rule 65 requires only certified true copies
(Republic v. Carmel Development, lnc., G.R.
No.1
The case may be decided on the basis of the
record, without prejudice
to any disciplinary
action which the court may take agalnst the

disobedient party.
42572, Feb. 20, 2002).
SECTION
4. JURISDICTION OVER
PERSON, HOW AGQUIRED
SECTION
Jurisdiction ls Acquired
1. Over the PETITIONER - By filing of the
Annulment of judgment is a remedy in law

independent of the case where the judgment
sought to be annulled was rendered and may
be availed of though the judgment has been
2.
petition;
Over the RESPO/VDENf - By the service

on the latter of the order or resolution
indicating the courts initial action on the
petition or by his voluntary submission.
{. COVERAGE
executed.
Nature: lt is not a mode of appeal but an

independent civil action.
SECTION 5. ACTION BY THE COURT
Where Filed:
The court may:

1. Dismiss the petition outright with specific
2.
reasons for such dismissal; or

Require the respondent to file a comment
on the same.
SECTION
6.
DETERMINATION OF
FACTUAL ISSUES
Procedural outline (original cases

court of appeals)
in
the
1. Filing of the petition;

2. Order to acquire jurisdiction over
3.
respondents OR outright dismissal for

failure to comply with the requirements as
to form and payment of docket and other
legalfees;
Require respondents to file COMMENT
within ten (10) days from NOTICE;
this
The
trial in, or
relief against,
101
REMEDIAL LAW
CIVIL PROCEDURE
3.
Contents of the documents, which should

accompany the petition.
SEGTION
SECTION 4. ACTION ON THE PETITION
1.
The CA may:
Require the respondent to file a comment
on the petition, NOT a motion to dismiss,
within 10 days from notice; OR
Dismiss the petition if it finds the same to
2.
1.
2.
be:
a. Patently without merit;

b. Prosecuted manifesily for delay; or
c. The questions raised therein are too
unsubstantial to require consideration.
8. PERFECTION OF APPEAL;
EFFECT
Deemed perfected as to the petitioner

upon the timely filing of the petition for
review and payment of the coresponding
fees; and
Court loses jurisdiction over the case upon
perfection of appeal on time and expiretion
of the period to appeal.
Residual Power of the court before the CA

gives due course to the petition (Same as in
Sec. 9, Rule 41).
SECTION 5. CONTENTS OF COMMENT
Except in civilcases decided under the Rule

on Summary Procedure, the appeal shall stay
Comment of the respondent shall be filed in
the judgment or final order unless the CA, the

law, or these Rules shall provide otherwise
seven (7) legible copies, accompanied by
certified true copies of such material portions

of the record refened to therein together with
other supporting papers and shall: (AlR)
1" Strate whether or not he gccefts the
of matters involved in the

petition;
2. Point out such lnsufficiencies or
inaccuracies as he believes exist in
petitioner's statement of matters but
without repetition; and
3. Reasons why the petition should not be
statement
(Sec.8[b]).
SECTION 9. SUBMISSION FOR DECISION
lf the petition is given due course:
1. Case may be set for oral argument; or
2.
3.
The parties may be required to submit

memoranda within 15 days from notice;
Case shall be deemed submitted for

decision upon filing of the last pleading or
memorandum.
given due course.
SECTION 6. DUE COURSE
.Petition for review is not a matter

of right but
discretionary on the CA. tt may onty giie due
course to the petition if it shows on its face
(CA finds prima facie) that the lower court has
commifted an error of fact and/or law that will
warrant
reversal or modification of the

decision or judgment sought to be reviewed.
sEcTtoN {. scoPE
Appeals from awards, judgrirents, final orders
or resolution of or authorized by any quasi-
judicial agency in the exercise of its quasi-
judicial functions.
SECTION 7. ELEVATION OF RECORD
It is merely discretionary on the CA to order

the elevation of the records. This is because
until the petition is given due course, the trial
court may still issue a wanant of execution
pending appeal and in some cases such as
ejectment and those of Summary procedure,
the judgments are immediately exbcutory.
It is only when the bn 0""r, it necessary that

the Clerk of the RTC will be ordered to elivate
the records ofthe case.
The
entralB#$dffi
4.
5.
o.
7.
8,
9.
10.
11.
12,
under RA
665
13. GSIS;
94
REMEDIAL LAW
CIVIL PROCEDURE
the questioned judgment or final order or
the case with the active participation of

said party invoking the plea (Tijam vs.
Sibonghanoy, G.R. No. L-21450, April 15,
resolution through no fault attributable to him.
lf he failed to avail of those other
remedies
without sufficient justification, he cannot resort

to annulment provided in this Rule, otherwise
he would benefit from his own inaction or
negligence.
Note: Annulment of Judgment does not apply
to
judgments rendered
by
1968).
Attack of a Void Judgment

When the judgment is null and void on its very
face, the judgment may be attacked:
DIRECTLY; or
COLLATERALLY;
1.
2.
quasi-judicial
bodrbs. lt does nbt apply also to decisions or

orders of the Ombudsman in administrative
cases whose decisions or orders may be

appealed to the Court of Appeals under Rule
43 (Macalalag v. Ombudsman, G.R. No"
147995, Mar.5,2A04.
When the nullity is not apparent on the face of
the judgment, the judgment can only
be
DIRECTLY attacked.
DIRECT ATTACK
An
independent action must
be filed to
challenge the validity of the judgment whose
SECTION 2. GROUNDS FOR ANNULMENT
1.
Extrinsic fraud or collateral fraud;
nullity is not patent on its face.
COLLATERAL ATTACK
A collateral attack is made when, in another

Extrinsic or Collateral Fraud refers to any
fraudulent act of the prevailing party in the
litigation which is committed outside of the
trial of the case, whereby the defeated
party has been prevented from exhibiting
fully and fairly presenting his side of the
case.
action to obtain a different relief, an attack on

the judgment is made as an incident in said
action. This is proper only when the judgment
is on its face null and void such as in cases of
lack of jurisdiction to render the judgment.
SECTION 3. PERIOD FOR FILING ACTION
Note: Extrinsic ftaud shall not be a valid

ground if it was availed of, or could have
been availed of, in a motion for new trial or
petition for relief.
2.
Lack of jurisdiction over the subject
matter and over the person.
a right at a proper time.
Note: The rule is that jurisdiction over the

subject matter is conferred upon the courts
exclusively by law, and as lack of it affects
the very authority of the court to take
cognizance of the case, the objection may
be raised at any stage of the proceedings.
However, considering the facts and

circumstances of the present case, a party
may be baned by /aches from invoking
this plea for the first time on appeal for the
ta2
of annulling everything done
Effect of
judgment
Lack of jurisdiction
The defense of lack of jurisdiction may be
barred by esfoppe/ by laches, which is that
failure to do something which should be
done or to claim or enforce a right at a
proper time or a neglect to do something
which one should do or to seek or enforce
purpose
Before it is barred
by laches or
estoppel.
in
Court may on
motion order the
trial court to try
the case as if a
timely MNT had
been granted.
Set aside the

questioned
judgment and
render the same
null and void,
without prejudice
to the original
being rethe proper
5sn 8e[s
@ollege ot
Atb
2O1 1 CENTRALIZED BAR OPERATIONS
5.
SECTION 10. ANNULMENT

OR FINAL ORDERS
Certificate of non-forum shopping.
JUDGMENTS
SECTION.5. ACTION BY THE COURT
MUNICIPAL TRIAL COURTS
'
Two stages:
'1. A preliminary evaluation of the petition for
2.
prima facie merit therein; and
The issuance of summons as in ordinary
civil cases and such
appropriate
proceedings thereafter as contemplated in
Sec. 6 (Regalado, p.572).
The rule allows the CA to dismiss the petition
outright as in special civil actions.
For the court to acguire jurisdiction over the

respondent, the rule requires the issuance of
summons should prima facie merit be found in
the petition and the same is given due course.
Note: Res judicata is not a bar to an action

for annulment of the judgment sought to be
annulled (Orbeta v. Sendiong, G.R. No.
155236, July 8, 2005).
SECTION 6. PRObEDURE
Procedure
observed.
in
ordinary cases shall
OF
OF
be
.
o
Filed in the RTC having jurisdiction over

the MTC.
RTC is a court of general jurisdiction. All

cases, the jurisdiction over which is not
specifically provided for by law to be within
the jurisdiction of any other court fall under
its jurisdiction (Durisol Philippines, lnc. vs.
CA, G.R. No. 121106, Feb.20,2002).
General Rule: Annulment of judgment
is
available only to a litigant.
Exception: A person need not be a party to

the judgment sought to be annulled. What is
essential is that he can prove his allegation
that the judgment was obtained by the use of
fraud and collusion and he would be adversely
affected thereby (lslamic Da'wah Council vs.
Court of Appeals, G.R, No. 80892 September
29,1e.89).
Note: Where a petition for annulment of

judgment was dismissed by the Court of
Appeals, the Supreme Court is without
jurisdiction to entertain another petition for
The reception of evidence may be referred to

a member of the court or a judge of RTC.
annulment in the guise of a special civil action

tor certiorari under Rule 65. The remedy of
the petitioner is to file a petition for review on
SECTION 7. EFFECT OF JUDGMENT
Developmenf v. Rrsos, G.R. 118633, Sepf.
SEGTION 8.
SUSPENSION
certiorari under Rule
45
(Lapu-lapu
6,
1996).
OF
PRESCRIPTIVE PERIOD
Prescriptive period for the re,filing of the

aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
Nature: Preliminary conference before the

appellate court is not mandatory. lts calling is
within the discretion of said court.
annulment.
HOWEVER, the prescriptive period shall not

be suspended where the extrinsic fraud is
attributable to the plaintiff in the originat action.
SECTION 9. RELIEF AVAILABLE
Judgment may include award
of
damages,
attorney's fees and other relief.
lf
already executed, the court may issue

ORDERS OF RESTITUTION or other retief as
justice and equity may warrant.
which may
103
REMEDIAL LAW
CIVIL PROCEDURE
Failure to appear at the preliminary conference
is ground for dismissal of the petition
(Sec.l[h], Rule 50; Sec SIeJ, Rule 56).
SECTION
2. RECORD OF
THE
CONFERENCE
SECTION 3. BINDING EFFECT OF THE

RESULTS OF THE CONFERENCE
ln the CA, this procedural device may
5.
6.
7.
be
availed of not only in original actions but also

in cases on appeal wherein a new trial was
granted on the ground of newly discovered
8.
evidence.
The CA can act as a trier of facts. HENCE, the
preliminary conference authorized is a

convenient adjunct to such power and
Failure of appellant to gerve and file the

required number of copies of his brief or
memorandum within the time provided by
these Rules;
fbsence of specific assignment of errors
in the appellant's briel or of
page
references to the record as required in Sec
13, par a, c, d and f, Rule 44;
Failure
the appellant to take the
lecessary steps for the conection or
completion of the record within the time
limited by the court in its order;
Failure of the appellant to eppear at the
preliminary conference under Rule 48 or to
comply with the orders, circulars, or
of
directives of the court without justifiable
cause; and
The fact that the order or judgment

appealed from is 4ot appealable.
function.
Note: With the
exception
of
Section
1 (b),
dismissal of an appeal is DIRECTORY and not

mandatory (Advincula v. lAC, G.R. No.75310,
Dec. 10, 1987).
SECTION 1. WHEN ALLOWED
At its own instance or upon motion of a party,
the court may hear the parties in orit

argument on the merits of a case or any
material incident in connection therewith.
2.
CONDUCT
OF
ORAL
SECTION 3. NO HEARING
OR
ORAL
SECTION
ARGUMENT
ARGUMENT FOR MOTIONS
Motions in the SC and the CA do not contain

notices of hearing as no oral arguments will be
heard in support thereof; anO if the appellate
court desires to hold a hearing thereon, it will
itself set the date with notice to the parties.
3.
4.
to4
Where the appealed case has become

gqoot or academic; and
Where the appeal is frivolous or dilatory.
Not jurisdictionat,
maybe waived by the
padies
Decision becomes
FINAL AND
EXECUTORY upon
Results in
abandonment of
appeal, which could
lead to D/SM/SSAL
Failure of the gecord on appeal to show on
its face that the appeal was taken within
2.
2,
3.
z.#&$fuffi&ff4or
APPEAL (RF-PUSANAN)
OTHER GROUNDS for the dismissal of an

appealare: (AMF)
1. By ggreement of the parties, as where the
case was amicably seitled by them;
the period fixed by these ruleg;
Failure to lile the notice of appeal or the
record
on
appeal within
prescribed by these rules;
the
period
Failure of the appellant to pay the docket

and other lawfulfees as provide in Sec. 5,
Rule 40 and Sec 4, Rule 41;
lnauthorized alterations, omissions or
additions in the approved record on appeal
as provide in Sec 4, Rule 44;
to it
these
5un
Fell
Gottege of
Lsb

A resolution of the Court of Appeals dismissing
the appeal and remanding the case to the trial
court for further proceedings
merely
INTERLOCUTORY. Hence, a motion for its
reconsideration filed year later may be
entertained and granted.
The Court of Appeals may dismiss the appeal
outright even without motion.
is
SECTION 3. QUORUITI AND VOTING IN THE

COURT
To be binding, a judgment must be duly signed
and promulgated during the incumbency of the
judge who signed it.
Note: Where the decision was promulgated

after two of the three justices necessary to
The remedy if dismissed for improper appeal:

To re-file it in the proper forum but has ta be
conptitute a quorum in a division had lost their

authority to act as justices, said decision is nUll
within the prescribed period.
and void (Lao

Feb.26, 1988).
v.
To-Chip, G.R. No. 76594,
SECTION 3. WTHDRAWAL OF APPEAL
matter
of right before the filing of
SECTION 4. DISPOSITION OF THE CASE
the
appellee's brief.
SECTION 5. FORM OF DECISION
Note: While under this section, an appeal

may be withdrawn by the appellants as a
matter of right at any time before the filing of
The requirement for the statement of facls and

the law refers to a decision or for that 4after a
final resolution. The same are not required on
minute resolutions since these usually dispose
of the case not on its merits but on procedural
the appellee's brief; however the rule does not

apply where the notice of withdrawal fited by
new counsel did not bear the appellant's

conformity (Pioneer Insurance and Surety
Corp. v. De Dios Transportation, G.R. No.
147010, July 18,2003).
or technical considerations.
With respect to petitions for review and

motions for reconsideration, the Constitution
merely requires a statement of the legal basis
for the denial thereof or refusal of due course
SECTION
1.
WHEN CASE
DEEII'IED
SUBMITTED FOR JUDGMENT
A.
ln ordinary appeals
1.
No hearing on the merits
memorandum;
2.
B.
Upon the
filing of the last pleading, brief, or
or
expiration
of
the
period for its filing;

Hearing is held Upon its termination
or upon the filing of the last pteading
or memorandum as may be required
or permitted to be filed by the court; or
expiration of the period for its filing;
thereto. The court may opt, but it is not

required to issue an extended resolution
thereon.
Decisions and resolutions of a court in

appealed cases shall clearly and distinctly
state the findings of fact and the conclusions
of law on which they are 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
ln original actions and petitions for review
1. No comment is filed - Upon expiration

of the period to comment;
2. No hearing is held - Same as in A(1);
3. Hearing is held - Same as in A(2).
SEGTION 2. BY WHOM RENDERED
Members who participated in the deliberation

on the merits of the case before its assignment
to a member for the writing of the decision.
does
parties
of
105
REMEDIAL LAW
CIVIL PROCEDURE
General Rulei The appellate court can only
rule on the basis of grounds raised as erors
on appeal.
affecting jurisdiction over the
subject matter;
2. Evidently plain and clerical errors within

the contemplation of law;
3. ln order to subserve the ends of justice;
4. Matters raised in the trial court having
some bearing on the issue which the
parties failed to raise or which the lower
5.
court ignored; and
Matters closely related

assigned.
SECTION
to an
7, JUDGMENT WHERE
ARE SEVERAL PARTIES
SECTION
2.
SECOND MOTION FOR
RECONSIDERATION
The rules prohibit
Exceptions:
1. Those
SECTION
8.
DECIDED
eror
or
second motion for
Note: The prohibition does not include

v. CA, G.R. No.
interlocutory orders (Dizon

96296, June 18. 1992).
SECTION 3. RESOLUTION OF THE MOTION
Ninety (90) days from the date the CA

declares it submitted for resolution.
This time limit applies only to MR in CA. lt

does not apply to MR in SC, pursuant to the
THERE
QUESTIONS THAT MAY BE
Unless assigned
reconsideration by the SAME party.
closely-related
to
exception in Sec. 2 (b), Rule 56.

SECTION 4. STAY OF EXECUTION
or
dependent on an assigned erior, no enor shall

be considered.
.SECTION 1. PERIOD FOR FILING; GROUND
Exceptions:
1, Error in the jurisdiction over the subject
Filing of a motion for new trial is at any time

after the perfection of the appeal from the
decision of the lower court and before the
Court of Appeals loses jurisdiction over the
2.
matter; or
Validity of the judgment appeated from or
the proceedings therein.
SECTION 9. PROMULGATION AND NOTIGE

OF JUDGMENT
ln justifiable situations or by agreement in the
division, the fiting of diss6ntiig or' ."p"r"t"
opinions may
be reserved oi tne majority

the' subsequent Esuance of 'a 'more
opinion may be promulgated without preiuOice
to
extended opinion, provided the requisite votes

promulgation of judgment irave been
obtained and recorded.
tor
SECTION 10. ENTRY OF JUDGMENTS AND

FINAL RESOLUTIONS
SECTION 1{. EXECUTION OFJUDGMENT
SECTION 1. PERIOD FOR FILING
.
o
Within 15 days from notice.

The rules now require the service of the
motion to the adverse party.
106
case.
. The ONLY GROUND is
rueWly
DISCOVERED EVIDENCE which coutd
not have been,discovered prior to the trial

in the court below by the exercise of due
diligence and of such character as would
probably alter the result thereof. A second
motion for new trial in the CA would not be
possible, unlike in Sec. 5 Rule 37.
Note: Rule 53 is not applicable to the SC. lt
9m Fell
ollege of Lslo
2011 CENTRATIZED BAR OPERATIONS

SECTION 4. PROCEDURE
SECTION
1.
DISTRIBUTION
OF
CASES
AMONG DIVISIONS
SECTION 2. QUORUi'I OF THE COURT
SECTION 5. GROUNDS FOR DISilIISSAL OF

- PReGEN)
APPEAL (TM
1.
2.
3.
SECTION ,l. PUBLTCATION
4.
regarding proof of service and contents of
and the documents which should

accompany the petition;
Failure to gomply with any circular,
directive or order of the SC without
SECTION 2. PREPARATION OF OPINTONS

FOR PUBLICATION
SECTION
3.
VOLUMES
Failure to lake the appeal within the

reglementary period;
Lack of gqerit in the petition;
Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs;
Failure to comply with the ggquirements
GENERAL MAKE-UP OF
Official reports of court decisions which are

published by the Govemment and, therefore,
constitute primary authority thereon, are those

in the Philippine Reports, Official Gazette and
Court of Appeats Reports, all of which are
authorized by law (Regatado, F. RemediatLaw
Compendium Vol1.9th ed. p.659).
6.
7.
justifiable cause;
Error in the choice or mode of appeal; and

Fact that the case 4ot appealable to the
sc.
Note: The dismissal of the appeal may be

motu proprio or on motion of the respondent.
SECTION 6. DISPOSITION OF IMPROPER

APPEAL
lmproper appeal means the choice or mode

of appeal is correct but the appellant raises
A.
issues which the court could not resolve (E g.

Where petition for review on cefiiorari was
ORIGINAL CASES
sEcTtoN
1.
OOGNIZABLE
ORIGINAL
taken but factual issues are invoked for

CASES
The rule specifically states what cases may be

originally filed with the Supreme Court.
Petition
ceftiorari, prohibition,
mandamus, qua warranto, habeas corpus;
Disciplinary proceedings against members
of the judiciary and attorneys;
Cases affecting ambassadors, other public
ministers and consuls; and
Petitions for writ of amparo and habeas
1.
2.
3.
4.
for
data.
resolution).
ln this instance the case may be referred to

the CA, although the SC may also dismiss the
appeal.
Erroneous appeal means error in the choice

or mode of appeal.(F9,"*yy[ere appeal taken to
*1*,ll,ffisteadora
ffi*",nln&{ti-,a ffiFgg,ffi
ffifff,,r#d3b--S## ffiS
a,ffi".
" trffi
A,",qWs"
SECTION 2. RULES APPLICABLE
Rules 46, 48, 49, 51, 52 and

certain exceptions.
B.
56 subject to
APPEALEDCASES
toa
SECTION 3. MODE OF APPEAL
of
An appeal to the Supreme Cou.rt may be taken
only by a petition for review on ceftiorari (Rule
45).
his
pending
p.a36).
ro7
REMEDIAL LAW
CIVIL PROCEDURE
The FOLLOWING are the provisionat

remedies provided for in the Rules of Court:
1. Preliminary Attachment (Rute S7);
2. Preliminary lnjunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60);and
5. Support Pendente Lite (Rule 61).
These provisional remedies are also available
in criminal cases (Ru/e 127), and in
some
special civil actions and special proceedings.
Purpose of Provisional Remedies:
Provisional remedies
are resorted to
. Being
in
provisional
character,
attachment depends for its existence and
effectivity upon
the pendency of
principal action in court.
r lt does not affect the decision on the

merits; the right to recover judgment on
the alteged indebtedness and the right to
attach the property of the debtor are

entirely separate and distinct, and the
judgment in the main action neither

changes the nature nor determines the
validity of the attachment.
by
litigants for any of the following reasons:
1. To preserve or
SECTION
1.
GROUNDS UPON WHICH
protect the rights or

interests of litigants while the main action
ATTACHMENT MAY ISSUE
is pending;
The proper party may have the property of the

adverse party attached at the commencement
of the action or at any time before entry of
2. To secure the judgment;

3. To preserve the stafus quo; and
4. To preserve the subject matter of the
judgment.
action.
OTHER PROVISIONAL REMEDIES
A. lssued by a family court
1. Temporary Custody of Minor Children
2.
B.
Order allowing Visitation Rights of
Parents
lnterim Reliefs in a Petition for a Writ of
Amparo
1. Temporary Protection Order
Inspection Order
Production Order
Witness Protection Order
2.
3.
4.
Note; PD 1818 prohibits the issuance of
injunctive writs not only against govemment

entities but also against any person or entity
involved in the execution, implementation, and
operatjon
projects.
of
govemment
inftastructure
lnferior courts can grant all appropriate

pgovisional remedies, provided the main
Parties entitled to attachment:
1. Plaintiff
2. Any proper party
The term plaintiff or "any other plaintif in

whose favor an attachment is granted under
the rule, includes also the defendant whenever
he asserts a counterclaim against the plaintiff,
whether or not such counterclaim arises out of
the same transaction which is the subject

matter of plaintiffs original claim. lt also
includes defendant in interpleader when he
asserts a counterclaim against the plaintiff; in
this case, he may attach the funds in dispute.
When issued: (REPoGReS)

1. ln actions for gqcovery of a specified sum
of money or damages, except moral and
exemplary, on a cause of action arising
delict or
case is within its jurisdiction (Sec. 33 [1]

BP 12e).
Preliminary attachment
is a
provisional
remedy issued upon order of the court where

an action is pending to be levied upon the
property of the defendant so that it may be
held as security for the satisfaction of
whatever judgment may be rendered in the
case (Davao Light and Power, lnc. v. CA, 204
scRA 343).
108
of
taken,
property
$un
Fell GoIIep of Lcb
4.
,
disposed of to prevent its being found by

the applicant or any authorized person;
ln actions against a person guilty of fraud
in contracting the debt (dolo causante) or
incurring or performing an obligation upon
which the action is based (dolo incidente);
actions against
party who has
removed or disposed of his property, or is
about to do so, with intent to defraud his
creditors;
ln actions against non-residents not found
in the Philippines, or on whom summons
is served by publication.
5. ln
6.
Note: The foregoing
enumeration
Purposes;
1. To seize the property of the debtor in
2.
advance of final judgment and to hold it for
purposes of satisfying the said judgment

(lnsular Bank of Asia and America v. CA,
t90SCRA 629);and
To enable the court to acquire jurisdiction
over the action
by the
constructive seizure
actual or
of the property in
those instances where personal service of
summons
on the creditor cannot
ed., p.
THREE
(3) STAGES in the grant of
Preliminary Attachment
1. The court issues the order granting the
application;
2. The writ of attachment issues pursuant

the order granting the writ;
3. The writ is implemented.
to
Note: For the initial two stages, it is NOT

necessary that jurisdiction over the person of
the defendant be first obtained.
is
EXCLUSIVE. Except for No. 6, all the grounds

contemplate the commission of fraud by the
person against whom it is issued.
Remedial Law Compendium Vot 1.

622).
be
effecled.
HOWEVER, once the implementation of the

writ commences, the court must have acquired
jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority
to act in any manner against the defendant
(Mangila vs. CA, GR /Vo. 125027, August 12,
2002).
Methods to procure attachment:

Writ may be prayed for in the complaint
itself providing that allegations warranting
a.'
its issuance are made therein.
b. May be
issued pursuant to a separate

motion for attachment whenever the writ
is not prayed for in the original complaint
SECTION
2.
ISSUANCE AND CONTENTS
OF ORDER
lssued either ex-parfe
or upon motion with
notice and hearing by the court in which the

It is an auxiliary remedy
to give security for a
judgment still to be
rendered.
It is a means for the

execution of a final
judgment,
There is no sale
because a decision has
not yet been rendered.
It should always be
accompanied by a sale
at public auction.
Resorted to at the
commencement of the
action or at any time
before entry of
judgment, for the
temporary seizure of
property of the adverse
party.
The proceeds of the

safe are in custodia
legis.
action is pending.
However, when issued ex-parte, the writ

cannot be enforced and may not be validly
Available after the
judgment in the main

action had become
executory, and for the
satisfaction of said
judgment.
The prooeeds ofthe

.
sale are turned over to

the aftaching creditor.
the writ
Proceeding in aftachment is in rem where the

defendant does not appear, and rh personam
where he appears in the action (Regalado, F.
109
REMEDIAL LAW
CIVIL PROCEDURE
the writ totally defective as the judge issuing it
acts in excess of jurisdiction
SECTION 7. ATTACHMENT OF REAL AND
Ratio: No notice to the adverse party or

hearing of the application is required, as the
What may be the subject of attachment:
enough to enable the defendant to abscond or

dispose of his property before the writ issues
(Regalado, F. Remedial Law Compendium Vot
1. dh ed., p.624).
3.
time which the hearing wiil entail could be
PERSONAL PROPERTY
1. Real property or any interest therein;

2. Personal property capable of manual
4.
of which is entitled to recover is as much

as the sum for which the order is granted
Par. (3) and (4) refer to gamishment. By such
above all legal counterclaims.
jurisdiction over the garnishee and the latter
BOND
Bond posted by the attaching creditor answers
be
adjudged to the adverse party arising from and
by reason of the aftachment.
for the damages and costs which may
SECTION
5.
MANNER OF ATTAGHING
(Rule on prior or
Contemporaneous Service)
PROPERTY
Note: Levy shall not be made unless preceded
contemporaneously accompanied by:
(scABo)
1.
$ervice of summons,
A copy of the comptaint;
2.
3. Application for attachment;
Affidavit and lond of the appticant; and
1
5. Qrder and writ of attachment.
BUT'prior or contemporaneous service of
Apply when:
summons shall NOT
1.
Summons could not be served personally

or by substituted service;
2. Defendant is a resident of the philippines

tempor4rily absent therefrom;
3. Defendant is a non-resident; and
4. The action is one rn rem or quas-in rem.
Note: All properties exempt ftom execution
are likewise exempt from attachment (Sec. J
Rule 57;Sec. 73, Rute 39).
SECTION 6. SHERIFF'S RETURN
110
of
lnterest
the party against whom
attachment is issued in properg belonging
to the estate of the decedent, whether as
heir, legatee, or devisee.
5.
SECTION 4. CONDITION OF APPLICANT'S
not capable of manual delivery; or
A sufficient cause of action exists;

Case is one of those mentioned in Sec. i;
No other sufficient security for the claim
2.
3.
sought to be enforced by action;
4. Amount due to the applicant or possession
Debts and credits, 'including bank

deposits, financial interest, royalties,
commissions and other personal property
Contents of the Affidavit
1.
delivery;
Stocks or shares or interest therein;
notice
of
gamishment,
the court
acquires
becomes a foreed intervenor in the case.
Debt means some definite amount of money,

ascertained or capable of being ascertained,
which may be paid over to the sheriff or to the
court, while credits and perconal property
are something belonging to the defendant, but
in possession and under the control of the
garnishee (Feria, Civil Procedure Annotated,
Vol.2, 2001 Ed., p.294).
Property legally attached is property in

custodia legrs and cannot be interfered
with without the permission of the proper
court, but this is confined to cases where
the property belongs to the defendant or

one in which the defendant has proprietary
interest.
Principle of Seniority of Liens

Where the property attached by the judgment
that of the
$sn 8t!s GoIIrge ot Leb

2OI1 CENTRALIZED BAR OPERATIONS
(Perla Compania de Seguros v. Ramolete,
GR. No. 60884, Nov.13,1991).
SECTION 9, EFFECT OF ATTACHMENT OF
INTEREST IN PROPERTY BELONGING TO
4.
5.
Attachment is gxcessive, but the discharge
shall be limited to the excess (Sec.

and
Property attached
is
13);
g,xempt from
execution.
THE ESTATE OF A DECEDENT
SECTION {0. EXAMINATION OF PARTY

WHOSE PROPERTY IS ATTACHED AND
PERSONS INDEBTED
TO HIM
OR
CONTROLLING HIS PROPERW; DELIVERY

OF PROPERTY TO SHERIFF
Note: The examination in Rule 39 is proper

only when the writ of execution is returned
An ex-pafte discharge or suspension of the

attachment is a disservice to the orderly
administration of justice and nullifies the
underlying role and purpose of preliminary
attachment in preserving the rights of the
parties pendente /rte as an ancillary remedy.
SECTION 14.
.PROCEEDINGS
WHERE
unsatisfied-
Examination under
this section is
Remedy of the third person:
not
to a preliminary condition but is
subject
anticipatory in nature and may be resorted
to even if the writ of aftachment was not

returned because no property could be
found to be levied upon thereunder.
lf the
garnishee does not admit the

indebtedness or he claims the property, the
controversy must be determined in an
independent action (Bucra Corp. v. Macadaeg,
84 Phit493).
SEGTION 11. WHEN
ATTACHED
PROPERTY MAY BE SOLD AFTER LEVY
ON ATTACHTUENT AND BEFORE ENTRY

OF JUDGMENT
1. File a terceria or third party claim

(similarto Sec. 16, Rule 39);
2. File independent action to recover
his property; or
3. File a motion for intervention (Ihts is
availabld only before a iudgment ls
rendered, hence,
under
Note: A third-party claim may be filed with

the sheriff while he has possession of the
properties levied upon, this being the only time
fixed for the purpose (Mangaoang v. Provincial
Sheriff of La Union, G.R. No. L-4869, May 26,
1952).
SECTION 15. SATISFACTION
OF
PROPERTY
ATTACHED; RETURN OF SHERIFF
JUDGMENT
ln case the property attached is perishable in
nature, or that the interests of all the parties
will be subserved.
not allowed
Rule 39.).
OUT OF
SECTION 16. BALANGE DUE COLLECTED
UPON AN EXECUTION;
EXCESS
DELIVERED TO JUDGMENT OBLIGOR
The proceeds will be in cusfodr'a /egrs.
SECTION 12. DISCHARGE OF

ATTAGHMENT UPON GIVING
COUNTERBOND
SECTION 13.
DISCFTARGE
OF
ATTACHMENT ON OTHER GROUNDS
Grbunds
for
discharge
attachment: ICIJEEI
of
preliminary
1. Debtor has posted a counter-bond or has

made the requisite cash deposit (Sec. 12);
2. Attachment was improperly or lrregularly
issued (Sec. 13) as where there
is
no
ground for attachment, or affidavit and/or
bond filed therefore are defective or
ACHED
IS
insufficient (Sec.3);
3. i[udgment is rendered against
the
FOR
PARTY
attaching credltor (Sec. 19);
tlL
REMEDIAL LAW
CIVIL PROCEDURE
SECTION 20. CLAIM FOR DAMAGES ON
ACCOUNT OF IMPROPER, IRREGULAR OR
EXCESSIVE ATTACHMENT
When must application for damages be

Before the trial or before appeal is
perfected, or before the judgment becomes
filed;
executory.
Preliminary Mandatory lnjunction (PMI) is

requiring the performance of a
an order
particular act or ac{s.
Purpose is to prevent a
person from the
performance of a
Purpose is to require a
person to perform a
particular act.
The act has already
tt shall be awarded after hearing and inctuded
been performed and this

act has violated the
in the judgment.
lf the judgment of the appettate court be

favorable to the party against whom the
attachment was issued, he must claim
damages during the pendency of the appeal.
Procedure for claiming damages ouilined in

Sec. 20 is EXCLUSIVE. Hence, such claims
for damages cannot be the subject of
an
independent action.
Exception:
1. Where the principal case was dismissed
for lack of jurisdiction by the trial court
without giving an opportunity to the party
whose property was attached to apply for
2.
'
and prove his claim; and
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.
Note: Any award of damages for the

wrongful issuance of a provisional remedy
should be recovered in the SAME CASE. The
recovery
of
damages cannot be had
separate action.
in a
Requisites: (lRU)
1.
INJUNCTION
material and
writ to prevent serious damages.
lnjunction may be an action in itself, brought

specifically to restrain or command the
performance of an act. As an action, it is
immediately executory under Sec" 4, Rule 39.
General rule: lt will not issue against acts
already consummated.
Exception:
lf the acts complained of are
continuing in nature and were in derogation of

plaintiffs rights at the outset.
Where writ is not available:
1.
1. PRELIMINARY
of the right is
2. light of the complainant is clear and

unmistakable; and
3. prgent and paramount necessity for the
2.
SECTION
lnvasion
substantial;
Foreclosure
of a
mortgage
government bank (PD 385);
Commencement
and
lnjunction
is a
performance of
party or a court, agency or a person to refiain

from a particular act or acts.
Purpose: To preserve the sfafus guo or to

prevent future wrongs during the pendency of
the main action.
172
patents or
judicial writ, process or
Preliminary lnjunction (pl) is an order

granted at any stage of an action or
proceeding prior to the judgment requiring a
infrastructure projects by the government

(RA 8795); and
DEFINED; GLASSES
proceeding whereby a party is ordered to do or
reftain from doing a particular act.
by
#$L{*#{frffi #ffi **e\M
Seir Fels GoIIege sf Ilb

It may be the main

action itself or just a
provisional remedy.
Note: lf the main ac-tion is one for injunction,

an inferior court cannot grant the preliminary
Always the main action.
injunction.
Ratio: An action for injunction is one incapable
of pecuniary estimation, hence, cognizable by

the RTC.
Does not exceed
20
days.
Restrains or requires the
performance
of
particular acJs.
Limitations as to Power of RTC to lssue

Writ of Preliminary lnjunction
1, lt could restrain acts being or about to be
committed within its tenitorial jurisdiction
only;
2.
Status Quo means the last, actual, peaceable
and uncontested state of things
which
3.
preceded the controversy.
Status Quo Order is not a TRO. lt is more in

the nature of a cease and desist order. lt has
no specified duration and does not specifically
direct the performance of an act. lt lasts until it
is revoked. lts duration may even be subject to
agreement of the pgrties. NO bond is required
for its issuanc"e. (Riano, 2009, Bar 2006)
Note: lt 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
case for a
TRO.
It could not issue said writ in unfair labor

practices;
It could not issue said writ against the

Securities and Exchange Commission
(SEC), Bureau of Patents, Trademarks
and Technology Transfer, or the
COMELEC; ahd
It could not interfere by injunction with the
judgment
of a court of
concurrent or
coordinate jurisdiction.
SECTION 3. GROUNDS FOR ISSUANCE OF

PRELIMINARY INJUNCTION
(EnGoD)
1.
is gtitled to the
@mmission, continuance or
Applicant
relief
demanded; or
2.
performance
non-
of the act complained
of
would work injustice to the applicant; or

Party, court, agency or a person is gloing,
threatening, or is attempting to do, or is

procuring or suffering to be done, some
act or acts probably in viqlation of the
rights of the applicant respecting the
subject of the action or proceeding.
Good for 20 days
including the first 72
hrs.
SECTION
2. WHO MAY
TION AND
toR
BOND
GRANT
PRELIMINARY INJUNCTION
1.
sEcTroN 4.
Supreme Court in its original and appellate

jurisdiction;
2. Court of Appeals whether or not in aid of

its appellate jurisdiction;
3. Trial court in cases pending before it within
its territorial jurisdic,tion;
4. Sandiganbayan; and
5. Court of Tax Appeals.
person
before
resuft
can be
temporary
only for 20
party sought
113
REMEDIAL LAW
CIVIL PROCEDURE
B.
IF the matter is of extreme urgency and

the applicant will suffer grave injustice and
ineparable injury:
o The judge may issue ex parfe a TRO
effective only
for 72 hours
from
such damages
as he may suffer.
PROVIDED, the defendant files a BOND

to pay all the damages which the applicant
may suffer.
lts effectivity may be extended afier

conducting
a summary hearing Win
SECTION 7. SERVICE OF COPIES OF

BONDS; EFFECT OF DISAPPROVAL OF
THE SAME
the 72-hour period until the application

for preliminary injunction can be
heard.
SECTION
issuance.
8.
JUDGMENT
TO
INCLUDE
DAMAGES AGAINST PARTY
AND
SURETIES
The total period of effectivity of the TRO shall

not exceed 20 days, including the 72 hours.
The procedure for claiming damages on the
Note: lf application is denied or not resolved

within said period, the TRO is deemed
attachment.
automatically
v acated.
The effectivity of TRO is not extendible. There

is no need of a judicial declaration to that
bond
is the same as that in
preliminary
Recovery of damages for irregular issuance of

injunclion, as where the main se is
dismissed and the injunction is dissolved, is
limited to the amount of the bond.
effect.
A TRO issued by the CA or any of its

members is effective for 60 days from
notice to the party sought to be

enjoined.
A TRO issued by the SC or a member
thereof is effective until further orders.
SECTION
9: WHEN FINAL
INJUNCTION
GRANTED
lf after the trial of the action it appears that the

applicant is entitled to have the act or acts
complained of permanently enjoined.
lnjury is considered .tRREPARABLE" 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 (SSC
Bayona, G.R. No" L-ISSSS, May 30,i5A4.
v.
Granted at any stage of
an action prior to
the
judgment or final order

therein.
issued in the
in the case
judgment
permanently restraining
the defendant or
making the preliminary
Note: The triat court, the CA,
the
Sandiganbayan or the CTA that issued a writ
of preliminary injunction against a lower court,
!o"19, officer, or quasi-judiciat agency shail

decide the main case or petition iithin'six (6)
months from the issuance of the writ (As

Amended by A.M. No. 07-7-12-SC effeciive
SECTION 1. APPOINTMENT OF RECEIVER
Dec.27,2007).
SECTION
6.
actionffif'6,#ffp6#ked
GROUNOS FOR OBJECTION
TO, OR FOR MOTION OF DISSOLUTION

OF, INJUNCTION OR RESTRAINING
or
the
by
tbe)4suq$ i$ ipqTHFs.iFqw
Ty or
ORDER:
such
1. lnsufficiency;
2. On other grounds upon affidavits
3Sa
lost,
of the
party or person enjoined, which may be
op9s9d by the appticant atso

affidavits; and
3. lf
by
injunction would cause irreparable

damage to the person enjoined wirite the
applicant can be fully compensated for
It4
the
or
is
the
agreed
9m Fels Gollege ot Ltrb

3.
4.
SECTION
to aid execution;
SECTION
\I/hen appointment of receiver is the most
RECEIVER.
the property in litigation.
(BTRC2'MPD2|)
gonvenient
and feasible means of

preserving, administering or disposing of
Note: The property must be under litigation.
Purpose: For the preservation of the property

involved in the suit and to protect the rights of
all the parties under the direction of the court.
A receiver is a person appointed by the court

in behalf of all the parties to an action for the
purpose of preserving the property involved in
the suit and to protect the rights of all the
parties under the direction of the court (Mallari
v. CA, G.R. No. L-26467, Juty 15, 1981).
A receiver is not a representative party under

Rule 3 but a real party in interest, BUT he
cannot file a case without the consent of the
receivership court.
o
.
5.
After judgment, to preserve the property

during the pendency of an gppeal or to
dispose of it according to the judgment or
SERVICE OF COPIES OF
BONDS; EFFECT OF DISAPPROVAL
6.
GENERAL POWERS OF
Powerc of the Receiver lncludes:
1. Bring and defend, in such capacity,

actions in his own name;
2. Take and keep possession of the property
in controversy;
3.
4.
[eceive rents;
Qollect debts due to himself as receiver or
to the fund, property, estate, person, or

5.
6.
7.
8.
9.
corporation of which he is the receiver;

Sompound for and compromise the same;
flake transfers;
lay
outstanding debts;
pivide the money and other property that

shall remain among the persons legally
entitled to receive the same;
Generally to glg such acts respecting the

property as the court may authorize; and
10. lnvest funds in his hands, only by order of
the court upon the written consent of all
the parties.
Receivership, like injunction, may be the

principal action itself or just an ancillary
remedy.
Such appointment of the RTC, during the

perfection of an appeal, is covered by its
residual jurisdiction under Sec. 9 of Rule
41 , since this does not involve any matter
litigated by the appeal.
Note: This provisional remedy may
No action may be brought by or

against a receiver without leave of the
court which appointed him.
SECTION 7.'LIABILITY FOR REFUSAL OR
NEGLECT
TO DELIVER
PROPERTY TO
RECEIVER
be
resorted lo during the pendency of an appeal

or even after the judgment has become final
and executory.
A person who refuses or neglects to deliver a

property, within his control and which is the
subject of the action, to the receiver may be
punished for CONTEMPT and liable to the
SECTION 2. BOND ON APPOINTMENT OF

RECEIVER
SECTION 3. DENIAL OF APPLICATION OR

DISCHARGE OF RECEIVER
Receivership may be denied or lifted:
1. lf the appointment sought or granted is

without sufficient cause (Sec. 3,);
2. Adverse party files a sufficient bond to
answer for damages (Sec. 3,);
3. Bond posted by the applicant for grant of
receivership is insufficient (Sec. 5,); or
4. Bond of the receiver is insufficient (Sec.
5).
SECTION
RECEIVER
4.
OATH AND BOND
OF
115
REMEDIAL LAW
CIVIL PROCEDURE
and may be recovered in a separate action

(De la Rosa & Co. v. De Borja, G.R. No. L28611, January 30, 1929).
d.
3.
Actual market value of the property.
Applicant must give a bond, executed to

the adverse party and double the value of
the property.
SECTION 3. ORDER
SECTION 1. APPLICATION
A writ of replevin must be applied for at the

commencement of the action or at any time
before the defendant files his answer, for
which reason there can be no replevin before
the appellate courts.
when the principal

action is recovery of
recovery of property is
only incidental to the
Gan be sought only

when defendant is in
actual possession of
May be resorted to
even if the property is
'in possession of a third
Cannot be availed of
when property is in
custodia legis.
Can be availed of even

if property is in
custodia legis.
SEGTION 4, DUTY OF THE SHERIFF

SECTION 5. RETURN OF THE PROPERTY
SEGTION
6. DISPOSITION OF
PROPERTY
BY SHERIFF
The sheriff shall retain the property for five (5)

days. Within such period, the adverse party
may object to the sufficiency of the applicant's
bond
or surety or he may file a
redelivery
bond.
After five (5) days and the adverse party faited

to object or his redelivery bond is insufficient,
the sheriff shall deliver the property to the

applicant.
DEFENDANT is ENTITLED to the return of the
property under a Writ of Replevin:
1. Seasonably posts a redelivery bond;
Plaintiff's bond is found to be insufiicient or
defective and is not replaced with proper
bond; or
Property is not delivered to the plaintiff for
any reason.
2.
3.
Note: There can
be no
replevin
and
preliminary aftachment in the same case

because the purposes are different. ln Rule
52, it is for security.

recovery of possession.
ln
Rute 60,
it is for
SECTION
7.
PROCEEDINGS WHERE
Similar as in third-party ctaims in execution
and in aftachment.
SEGTION 2. AFFIDAVIT AND BOND
Procedure for the application for Replevin:

1. File an application at the commencement
Note: ln Secfion
14
of
Rute
5Z the affidavit
of the action or at any time before
2.
defendant answers.
Application must contain an affidavit.
The affidavit MUST SHOW that:

Applicant is the owner of the property
claimed, particularty describing it, or is
entitled to the possession thereof;
Property is wrongfully detained by the
adverse party;
a.
b.
c. Property has not been distrained or
for a tax assessment or a fine
' taken
pursuant to law, or seized
of execution or
and
116
under a writ
under custodia tegis;
of
the
in DOES
NOT
nor does
$sn Fsls
@ollege of
{.eb

the property, as they only hold the property
Note: Where the right to support is put in issue
subject to the finaljudgment in the action.
by the pleading or the fact from which the right
Surety's liability under the replevin bond

should be included in the final judgment to
prevent duplicity of suits or proceedings.
is in controversy or has not been established,

the court cannot grant support pendente lite
(Francisco v. Zandueta, G.R. No. L-43794
August 9, 1935).
Provisions of Secfion 20 of Rule 57 are

applicable not only to the replevin bond ol
the plaintiff but also to the redelrvery bond
posted by the defendantfor the lifting of
SECTION 2. GOMMENT
the writ.
SEGTION 4. ORDER
Note: The judgment may be in
the
SECTION 3. HEARING
Note:
lncludes "other forms
of
meaning medical attendance,
support",
housing,
ALTERNATIVE, i.e., for the detivery of the

property to the party entitled to it, or for the
value of the property in case the same cannot
cloth ing, education, etc.
be delivered plus damages.
SECTION 5. ENFORCEMENT OF ORDER
Replevin Bond
is
simply intended
to
indemnify the defendant against loss that he

may suffer by being compelled to surrender
the possession of the disputed
property
pending trial of the action.
Failure
to comply with an order granting
support pendente lite may warrant:
. The issuance of an
EXECUTION against
the
ORDER OF
non-complying
party; and
Note: A writ of replevin may be
. May
served
anywhere in the Philippines.
likewise make him liable for
contempt.
Note: Support pendente lite
is
INTERLOCUTORY, thus, the same may be

modified at any stage of the proceedings.
Support Pendente Lfie is an amount of
support provisionalty fixed by the court in favor

of the person or persons entifled thereto
during the pendency ol an action for support.
SECTION
6.
SUPPORT
Att. 345 RPC, in crimes against chastity, "(3)

SECTION 7. RESTITUTION
Where filed: lt is exclusively cognizable by a
compelled to
Family Court.
Remedies of party who was enoneously
1.
Except: ln criminal actions, where right to
CRIMINAL
ln every case to support the offspring."
Note: Under Sec/lon 4 of Rule 39, the

judgment in an action for support is
immediately executory.
IN
CASES
A
by
support arises by reason of crime and as long

as the civil aspect is tried together with it, the
RTC and MTC having jurisdiction may atso
issue this remedy.
SECTION 1. APPLICATION
At the commencement of the action or at any

time before judgment or final order.
This provisional remedy is availablg ONLY /n

an Action for Support, or where one of the
reliefs sought is Support for the Appticant
(Coquia
v.
Baftazar, G.R.
December 29, 1949).
No.
L-2942
r77
r.18
REMEDIAL LAW
CIVIL PROCEDURE
1.
To have the property

of the adverse party
attached as security
for the satisfaction of
judgment that may be
recovered in cases
falling under Sec. /,
Rule 57.
2.
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.
To require a party or a
court, agency or a person
to refrain from doing a
particular act or acts or to
require the performance of
a particular act or acts.
To place the property

subject of an action or
proceeding under the
control of a third party for
its preservation and
administration pendente
/ife or as an aid to
execution.
To recover possession of
personal property.
M
qws
ffief.
ffi
Personal and Real
Property
At the commencement of
the action or any time prior
to the entry of judgment.
Particular acUacts
At any stage prior to the

judgment or final order.
Personal and Real

Prooertv
At any time prior to
satisfaction of judgment.
Note: /f rnay be availed of
even afterjudgment
becomes final under Sec.
41 Rule39
To compel adverse party

to provide support while
action is pending in court.
Tr'n
e#
r" t dS
ee'.sonffikffiotof:
itr"$frff"fuftYY*
ffi
of
ffi
ffiffi
;nt
w.
u'ffi1
manua&Wiverfu s
q3
At the cor$
the actiorffi
answer ist
ffi
wre5
of
ime
ffiffiffiffiwd*ffi tor
&ffiT
w,
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ffi
File affidavits and

applicant's bond.
File verified application

and applicant's bond; if
application is included in
the initiatory pleading, the
adverse party should be
served with summons
together with a copy of the
initiatory pleading and the
applicant's bond
File verifi ed application

and applicant's bond;
application may also be
included in initiatory
pleading in actions for
foreclosure of mortgage.
File affidavits and

applicant's bond.
File verified application;

bond not required,
Required.
Not required. May be

issyed ex parfe.
Courts where action is

pending, the CA or the
SC even if action is
pending in the lower court.
.
o
o
r
Sufficient cause of
aclion;
Case is covered by
Sec.l Rule 57;

No other sufficient
security for the claim
exists; and
Amount due to
Except: Great or
irreparable injury would
result/ extreme urgency
and applicant will suffer
grave injustice and
irreparable injury (Sec. 5
Rule 58).
Only the court where the
action is pending; Lower
court, CA or SC provided
action is pending in the
same court which issues
the injunction. Also with
Sandiganbayan and CTA.
.
.
r
Applicant is entitled to
the relief demanded;
Act/s complained of
would work injustice
to the applicant if not
enjoined; and
Acts sought to be
Not required. May be

issued ex parfe.
Court where action is

pending, the CA or the
SC even if action is
pending in the lower court.
Appellate court may allow
application for receivership
to be decided by the court
{3tr fu&Bfe
Applicant has interest

in the property or
fund, subject matter of
the action or
proceeding;
Properly or fund is in
danger of being lost
or removed or
9en 8dE @ollegt ot Lslo

119
ffi#&rnot
entitled to
adverse
720
REMEDIAL
tAW
CIVIL PROCEDURE
property he is entitled
to recover is equal to
the sum which the
order of attachment is
grantbd.
violates applicant's
rights respec'ting the
subject of the action
or proceeding;
Threatened injury
incapable of
pecuniary estimation.
.
Appointment of
receiver is the most
convenient and
feasible means of
preserving,
administering or
disposing of the
properg in litigation.
When third-party claimant

makes an affidavit of his
title to the property or his
right to the possession
thereof, and serves such
affidavit to the sheriff and
a copy thereofto the
aftaching party, the sheriff
shall not be bound to keep
lhe property unless the
attaching party files a
bond approved by the
court to indemnify the
third-party claimant in a
sum NOT LESS THAN
THE VALUE OF THE
Property is not
distrained or taken for
a tax assessment or a
fine pursuant to law.
When third-party claimant

makes an affidavit of his
title.to the property or his
right to the possession
thereof, and serve such
affidavit to the sheriff and
a copy thereof to the
attaching party, the sheriff
s"l t;+*#ff5
w,
PROPERry bvied upon.

.
Claim for damages for the

taking or keeping the
property must be filed
within 120 days from filing
ofthe bond.
Bond executed to the adverse party in the amount fixed by the court to cover the costs
which may be adjudged to the adverse party and all damages that he may sustain by
reason of the granting of provisional remedy prayed for, if the court shall finally
adjudge that the applicant was not entitled thereto.
property to the
parg if such return
## g*ew
payment to the adverse

party ofsuch sum as he
may recover from the
By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge of the
provisional remedy granieO Oy filing a counter-bond in an amount equal to that fix'ed by the court to the value of the
property if with reipect to a particular property to secure the payment of any judgment that the adverse party may
recover in the action.
Cash deposit may be

made in lieu of the
counter-bond.
Other grounds: improper

or irregular issuance or
enforcement or
insufficiency of bond.
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof would
cause ireparable damage
to the party or person
enjoined while the
applicant can be fullY
compensated for such
damages as he may
suffer; counter-bond alone
will not suffice to discharge
the injunction.
2 BOND requirement:
Bond filed by the
applicant; and
Bond filed by the
receiver.
lnsufficiency of the
application.
Appointment was
obtained without sufficient
cause.
1.
2.
Not applicable.
Amount of counter-bond
should also be double the
s&fld
n\t\1
;.kF?:
*f
rt"a
ktu
dkffi I
Wi
ld
9sn Dell @ollegt of Aeb

tzt
122
REMEDIAL LAW
CIVIL PROCEDURE
When judgment or final

order finds the person who
has been providing
support pendenfe /ife not
liable therefor:
r
r
.
.
Owner of the property attached must file before trial or before perfection of appeal or before judgment
becomes executory an application for damages.
Party who availed of provisional remedy and his surety or sureties must be notified, showing right to
damages and amount thereof.
Damages awarded only after proper hearing; included in judgment of the main case.
lf judgment of appellate court is favorable to the party against whom provisional remedy was effected:
.
r
.
Application must be filed with the appellate court before the judgment of the appellate court becomes
executory.
Appellate court may allow application to be heard and decided by the trial court.
lf bond or deposit given by the party availing of the provisional remedy be insufficieffi fail to
award.
Adverse party may recover damages in the same
action.
"ffiff-
*'&
fl?*?**9"-ffi
l@
Court shall order the

recipient to return the
amounts already
received with interest
from the dates of actual
payment.
Recipient may obtain
reimbursement from
the person legally
obliged to give support
(separate action must
ffiffiffirse
the

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$.unTBe},u @ollege of 1Luft

2O11 CENTRALIZED BAR OPERATIONS

It is that part of the

accurate because only jurisdiction over the

It has NO vested rights.

It governs acts and

The Supreme Court is

REQUTSITES FOR THE VALID EXERCISE

must have jurisdiction over the

persons of the Parties.

Judicial Power includes the duty of the courts

must have iurisdiction over the

subiect mafter ol lhe controversY.

the subject matter is

The power of judicial review is the Supreme

international or executive agreement,

Jurisdiction (Latin: 'juris" and'dico" - I speak

carry its judgments into effect.

o The statement that 'Jurisdiction

pro@edings before the trial court and

relief (Soliven vs.

Fastforms, lnc. G.R. No. 139031, Oct.

and extends only

Jurisdiction is governed by the law

That it must haye jurisdiction over the res

result of the institution

decide cases previously decided by a

As to Nature and Extent of EXERGISE:

a particular court to the exclusion of

must have jurisdiction over the

As to NATURE of the Cause:

at the time the action is

exclusion of the others (also referred

Any act of the court

Where there is an exercise of jurisdiction

in the absence of jurisdiction, the court

One where the court,

One that the court may

EXTRA-TERRITORIAL jurisdiction Exercised beyond the confines of the

Where on the other hand, the court acted

GENERAL jurisdiction - Exercised

COURTS OF LAW vs. COURTS OF EQUITY

2011 CENTRALIZED BAR OPERATIONS

Once jurisdiction has been acquired, the court

General Rule: Law enacted during

Ex. The Gourt of Tax

SUPERIOR COURT vs. INFERIOR COURT

1. When the new law

2. When the change of

The court first acquiring jurisdiction excludes

Those whose proceedings are enrolled and

This policy means that a higher court will not

DOCTRINE OF PRIMARY JURISDICTION

Under this doctrine, courts will not resolve a

controversy involving a question which is

technical and intricate matters of fact (Villaflor

While it is true that the SC, CA, and the RTC

which the application for the writ may be

It involves the inherent or implied powers of

Under its aneillary jurisdiction, a court may

General Rule: No court has the authority to

(lndustrial Enterprises lnc. vs. CA, G.R. Na.