Professional Documents
Culture Documents
10
MEMORY AID
IN
REMEDIAL LAW
CIVIL PROCEDURE
RULE 1
GENERAL PROVISIONS
Statutes regulating the procedure of
courts will be construed as applicable to
actions pending and undetermined at the
time of their passage so long as vested
rights will not be impaired.
Under the 1987 Constitution, the rulemaking power of the Supreme Court has
the following limitations:
1. shall provide a simplified and
inexpensive procedure for the
speedy disposition of cases;
2. Uniform for all courts of the
same grade, and
3. Shall not diminish, increase or
modify substantive rights (Art.
VIII Sec. 5[5]).
Section 3. Cases governed.
ACTION
CLAIM
An ordinary suit in a
court of justice
A right possessed by
one against another
CLASSIFICATION OF ACTIONS.
(A)
ORDINARY CIVIL
SPECIAL CIVIL
ACTION
ACTION
Governed by ordinary
rules
Also governed by
ordinary rules but
SUBJECT to specific
rules prescribed (Rules
62 to 71).
Formal demand of
Special features not
ones legal rights in a found in ordinary civil
court of justice in the
actions
manner prescribed by
the court or by the
law
(B)
ACTION IN
REM
Directed
against the
thing itself
ACTION IN
ACTION
PERSONAM QUASI IN REM
Directed
against
particular
persons
Directed
against
particular
persons
Judgment is
Judgment is
Judgment
binding on the binding only binding upon
whole world upon parties
particular
impleaded or persons, but
their
the real motive
successors in is to deal with
interest
real property
or to subject
said property
to certain
claims.
Ex. Land
Ex. action to Ex. Unlawful
registration
recover
detainer or
case; probate
damages;
forcible entry;
proceedings
action for
judicial
for allowance
breach of
foreclosure of
of a will.
contract
mortgage.
The
distinction
determining the
judgment.
(C)
REAL
ACTION
is
important
in
EFFECT of the
PERSONAL
ACTION
MIXED
ACTION
MEMORY AID
(D)
LOCAL ACTION
TRANSITORY
ACTION
Must be brought in a
particular place, in
the absence of an
agreement to the
contrary
Generally, must be
brought where the
party resides
regardless of where
the cause of action
arose
IN
REMEDIAL LAW
Section 6. Construction.
General Rule: Liberal construction .
Exceptions:
a. reglementary periods
b. rule on forum shopping
RULE 2
CAUSE OF ACTION
Section 2. Cause of Action, defined.
Essential elements of cause of action
1. Existence of a legal right of the
plaintiff;
2. Correlative legal duty of the
defendant to respect ones right;
3. Act or omission of the defendant
in violation of the plaintiffs
legal right; and
4. Compliance with a condition
precedent.
CAUSE OF ACTION
RIGHT OF ACTION
RELIEF
REMEDY
SUBJECT
MATTER
the redress,
the
the thing,
protection,
procedure or wrongful act,
award or
type of
contract or
coercive
action which property which
measure which
may be
is
MEMORY AID
IN
REMEDIAL LAW
availed of by
directly
the plaintiff involved in the
as the means
action,
to obtain the concerning
desired
which the
relief
wrong has
been done and
with respect
to which the
controversy
has arisen.
ENCOURAGED.
Minimizes multiplicity
of suits and
inconvenience on the
parties
MEMORY AID
Not a ground for dismissal of an action. A
misjoined cause of action may be
severed and proceeded with separately.
There is no sanction against non-joinder
of separate causes of action since a
plaintiff needs only a single cause of
action to maintain an action.
RULE 3
PARTIES TO CIVIL ACTIONS
Section 1. Who may
plaintiff and defendant.
be
IN
REMEDIAL LAW
parties;
CLASSIFICATION
OF
PARTIES
IN
INTEREST
1. Indispensable parties those without
whom no final determination can be had
of an action. (must be joined)
2. Necessary (or proper) parties those
who are not indispensable but ought to
be parties if complete relief is to be
accorded as to those already parties, or
for a complete determination or
settlement of the claim subject of the
action. (may or may not be joined)
3. Representative parties someone
acting in fiduciary capacity. Maybe a
trustee,
guardian,
executor
or
administrator, or a party authorized by
law or these Rules.
An agent acting in his own name and for
the benefit of an undisclosed principal
may sue or be sued without joining the
principal except when the contract
involves things belonging to the principal
4. Pro forma parties 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 those in whose behalf
a class or representative suit is brought.
Section 5.
persons.
Minor
or
incompetent
MEMORY AID
appoint a guardian ad litem. It is enough
that he be alleged to be incompetent.
The suit can be brought by or against the
minor or incompetent person personally
BUT with the assistance of his parents or
guardian.
Section
parties.
6.
Permissive
joinder
REMEDIAL LAW
them
of
NECESSARY
PARTIES
No valid judgment if
indispensable party is
not joined
IN
SOLIDARY
DEBTORS either is
indispensable and the other is not even a
necessary party because complete relief
may be obtained from either.
Section 9. Non-joinder of necessary
parties to be pleaded.
The non-inclusion of a necessary party
may be excused only on meritorious
grounds.
The court may order the inclusion of the
omitted necessary party if jurisdiction
over his person may be obtained by
ordering plaintiff to file an amended
complaint impleading the necessary
party therein as co-defendant.
The only sanction for failure to implead
a necessary party when ordered by the
court and jurisdiction can be obtained
over said party is a waiver of the claim
against him. This is considered as an
exception to the provision on penalties
imposed on a disobedient party under
Sec. 3 of Rule 17 which would have
entailed the dismissal of the complaint
itself.
Section 11. Misjoinder and non-joinder
of parties.
Neither misjoinder nor non-joinder of
parties is a ground for dismissal of the
action.
Objections to defects in parties should
be made at the earliest opportunity the
moment such defect becomes apparent
by a MOTION TO STRIKE THE NAMES OF
THE PARTIES impleaded.
MEMORY AID
If there is misjoinder, a separate action
should be brought against the party
misjoined.
The absence of an indispensable party
renders all subsequent actions of the
court null and void for want of authority
to act, not only as to the absent parties
but even as to those present.
IN
REMEDIAL LAW
Permissive Joinder
of Parties
MEMORY AID
administrator for the estate of the
deceased.
In case of minor heirs, the court may
appoint a guardian ad litem for them.
The substitute defendant need not be
summoned.
The
ORDER
OF
SUBSTITUTION shall be served upon the
parties substituted for the court to
acquire jurisdiction over the substitute
party
IN
REMEDIAL LAW
on
contractual
Requisites:
1. The action must primarily be for
recovery of money, debt, or
interest thereon, and not where
the money sought therein is
merely incidental thereto.
2. The claim, subject of the action,
arose from a contract, express or
implied, entered into by the
decedent in his lifetime or the
liability for which had been
assumed by or is imputable to
him.
If defendant dies before entry of final
judgment in the court where it was
pending at that time, the action shall
not be dismissed but shall be allowed to
continue until entry of final judgment
thereon.
However, execution shall not issue in
favor of the winning party. It should be
filed as a claim against the estate of the
decedent.
Section 21. Indigent party.
Indigent one who has no property or
income sufficient for his support aside
from his labor, even if he is selfsupporting when able to work and in
employment. He need not be a pauper
to entitle him to litigate in forma
pauperis.
While the authority to litigate as
an indigent party may be granted upon
an ex parte application and hearing, it
may be contested by the adverse party
at any time before judgment is
rendered.
RULE 4
VENUE OF ACTIONS
MEMORY AID
VENUE the place where an action must
be instituted and tried.
VENUE
JURISDICTION
Procedural
Substantive
IN
REMEDIAL LAW
MEMORY AID
IN
REMEDIAL LAW
court may
summon the
defendant
W/in 10 days
from receipt of
summons,
defendant
answers,
incoporating
compulsory
counterclaim or
crossclaim, and
serves a copy on
plaintiff
court may
dismiss the case
outright
If Defendant fails to
answer in 10 days
The court, motu propio
or on plaintiffs
motion, may render
judgment based on
facts alleged in the
complaint w/o
prejudice to
R9, S3 (c)
Answer to
counterclaim
and crossclaim
w/in 10 days
If plaintiff fails to
appear
in
prelim
conference, complaint
may be dismissed.
Defendant entitled to
decision based on his
counterclaim.
All
crossclaims dismissed.
Preliminary
conference w/in 30
days after last
answer is filed
If sole defendant
fails to appear,
plaintiff entitled to
judgment based on
complaint and
what is proved
therein
RULES ON SUMMARY
PROCEDURE
SUMMARY PROCEDURE
IN CIVIL CASES
Rendition
of judgment
CHAIRPERSON
: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
w/in 30 Jocelyn
days from
Ventura,
Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
receipt
of last
Special
Proceedings);
Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
affidavit, or w/in 15
days after last
clarificatory paper
MEMORY AID
10. Reply
11. Third party complaints
12. Interventions
IN
REMEDIAL LAW
CASES
NOT
COVERED
BY
THE
KATARUNGANG PAMBARANGAY LAW:
MEMORY AID
determine in the interest of
justice.
However, the court may, at any time
before trial, motu proprio refer the case
to the lupon concerned for amicable
settlement, non criminal cases not
falling within the authority of the latter.
While the dispute is under mediation,
conciliation,
or
arbitration,
the
prescriptive periods for offenses and
cause of action under existing laws shall
be interrupted upon filing of the
complaint with the punong barangay.
IN
REMEDIAL LAW
RULES
ON
VENUE
UNDER
THE
KATARUNGANG PAMBARANGAY LAW
1. Disputes between residents of
the same barangay shall be
brought for settlement before
lupon of said barangay
2. Residents of different barangays
within the same city or
municipality in the barangay
where the respondent or any of
the respondents reside at the
election of the complainant
3. Disputes involving real property
or any interest therein- where
real property or larger portion
thereof is situated
4. Disputes
arising
at
the
WORKPLACE
where
the
contending parties are employed
or at the INSTITUTION where
such parties are enrolled for
study in the barangay where
such workplace or institution
located.
CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE
22.
PLEADING
MOTION
MEMORY AID
It relates to the cause An application for an
of action; interested order not included in
in the matters to be
the judgment
included in the
judgment.
May be initiatory
Cannot be initiatory as
they are always made
in a case already filed
in court
statement of
insufficient.
IN
the
REMEDIAL LAW
cause
of
action
Section 4. Answer
ANSWER the pleading where the
defendant sets forth his affirmative or
negative defenses.
Section 3. Complaint.
COMPLAINT is a concise statement of
the ultimate facts constituting the
plaintiffs cause or causes of action, with
MEMORY AID
IN
REMEDIAL LAW
Issuance of
summons to
the parties
and the
witnesses
Parties agree to
submit the
dispute for
arbitration
Mediation (hearing)
Failure of
mediation
efforts
Constitution of the
Pangkat
Settlement
Execution
w/in 6
months from
date thereof
Repudiation of
arbitration
agreement
within 5 days
from date of
agreement
Award to be
made after the
lapse of the
period to
repudiate and
w/in 10 days
thereafter
Execution w/in
6 months from
the date of the
award
Conciliation
(hearing)
Settlement
Execution w/in 6
months from the
date of settlement
REMEDIAL LAW COMMITTEE
Repudiation of
settlement w/in 10
days from date
thereof
Failure of Conciliation
hearings at the Pangkat
ISSUANCE OF
Level
and of Arbitration
FOR EDPS: Martessa
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen CERTIFICATION
Farias, Maricris Oronea
Nuylan, Charissimae
hearings
shall and
also lead to
OF Alnaiza
A
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil FILING
Procedure);
Hasiman (Special
Civil Actions
the
issuance
of
Special Proceedings); Jeenice de Sagun (Criminal Procedure);
ElaineIN
Masukat
COMPLAINT
COURT(Evidence)
certification for filing a
complaint in court.
MEMORY AID
IN
REMEDIAL LAW
PERMISSIVE
COUNTERCLAIM
Need not be
answered; no default.
Must be answered,
otherwise, the
defendant can be
declared in default.
GENERAL
RULE:
A
compulsory
counterclaim not set up in the answer is
deemed barred.
EXCEPTION: If it is an after-acquired
counterclaim, that is, such claim
Section 8. Cross-claim
CROSS-CLAIM 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 counterclaim.
If it is not set up in the action, it is
barred, except:
1. when it is outside the jurisdiction of
the court or;
2. if the court cannot acquire
jurisdiction over third parties whose
presence is necessary for the
adjudication of said cross-claim.
In which case, the
considered permissive.
cross-claim
is
3rd-party
Complaint
MEMORY AID
IN
REMEDIAL LAW
counterclaim.
PARTY
COMPLAINT a claim that a defending
party may, with leave of court, file
against a person not a party to the
action for contribution, indemnity,
subrogation or any other relief, in
respect of his opponents claim.
THIRD-PARTY
COMPLAINT
COMPLAINT IN
INTERVENTION
Same
MEMORY AID
The signature of the counsel is a
certification that:
1. That he has read the pleading;
2. There is good ground to support
it; and
3. It is not interposed for delay
Only the original copies must be signed.
UNSIGNED PLEADING may be stricken
out as sham and false, and the action
may proceed as though the pleading has
not been served. It has no legal effect.
Section 4. Verification.
Pleadings need NOT be verified EXCEPT
when otherwise provided by the law or
rules.
A verification must now be based on
personal knowledge or based on
authentic records.
IN
REMEDIAL LAW
complaints
or
MEMORY AID
for failure to state a cause of
action)
2. Malice, intent, knowledge, or
other condition of the mind
3. Judgments of domestic or
foreign courts, tribunals, boards,
or officers (no need to show
jurisdiction)
4. Official document or act
FACTS THAT MUST BE AVERRED
PARTICULARLY:
1. Circumstances showing fraud or
mistake in all averments of
fraud or mistake
2. Capacity
ACTIONABLE DOCUMENT written
instrument upon which the action or
defense is based.
IN
REMEDIAL LAW
MEMORY AID
IN
REMEDIAL LAW
The
presence
of
these
grounds
authorizes the court to motu proprio
dismiss the claims. These grounds must,
however, appear from the pleadings or
the evidence on record.
Section 3.
JUDGMENT BY
DEFAULT
MEMORY AID
2. Non-compliance with the order
of the court to file a bill of
particulars or in case of
insufficient
compliance
therewith (Rule 12, Section 4)
3. Refusal to comply with the
modes of discovery (Rule 29,
Section 3, par. c)
4. Failure to furnish plaintiff with a
copy of the answer
IN
REMEDIAL LAW
notice
of
subsequent
proceedings.
2. He may still be called on as a
witness, in behalf of the nondefaulting defendants.
DEFAULT
EFFECT
OF
ORDER
OF
Motion denied:
Defendant
allowed to file an
answer
Defendant
answers
Motion granted:
Court issues order
of default and
renders judgment,
or require plaintiff
to submit evidence
ex parte.
DEFAULT:
1. While the party
in default cannot
take part in the
trial,
he
is
nonetheless
entitled
to
Court
maintains
Before judgment
by default is
rendered,
defendant may:
move to set aside
order of default
upon showing:
FAME
He has a
meritorious
defense
Avail of Rule 65 in
proper cases
order of
default
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
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.
Presentation
of plaintiffs
evidence exparte
If plaintiff
If plaintiff
CHAIRPERSON: Jinky Ann
Uy ASST. CHAIRPERSONS
: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
proves
failsObia
to prove
Ventura, Jocelyn Zabala
Shis
UBJECT HEADS: Jona
(Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
allegations,
his allegaSpecial Proceedings);
Jeenice de Sagun (Criminal
Procedure); Elaine Masukat (Evidence)
Case set for
pre-trial
judgment by
default.
tions, case is
dismissed.
MEMORY AID
Judgment by default
IN
REMEDIAL LAW
EXTENT OF RELIEF
IN
A
TO BE AWARDED
Annulment of Judgment
under Rule 47
JUDGMENT BY DEFAULT:
Shall not exceed the amount OR be
different in kind from that prayed for
NOR award unliquidated damages.
RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
AMENDMENTS
Section 1. Amendments in general.
When the complaint is amended, 2
situations may arise:
1. If the complaint merely corrects
or
modifies
the
original
complaint, then the action is
deemed commenced upon the
filing of the original complaint;
2. If the amended complaint
alleges a new cause of action,
then that cause of action is
MEMORY AID
action at the time the original complaint
was filed.
AMENDED
PLEADING
SUPPLEMENTAL
PLEADING
Refers to facts
Refers to facts arising
existing at the time of after the filing of the
the commencement
original pleading.
of the action.
Take the place of the Taken together with
original pleading.
the original pleading.
Can be made as a
Always with leave of
matter of right as
court
when no responsive
pleading has yet been
filed
IN
REMEDIAL LAW
MEMORY AID
IN
REMEDIAL LAW
EFFECTS OF MOTION
1. If the motion is granted, 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
which to file his responsive
pleading.
2. If his motion is denied, he will
still have such balance of the
reglementary period to do so,
counted from service of the
order denying his motion. In
either case, he will have at least
5 days to file his responsive
pleading.
Effect of non-compliance:
1. If the Order is not obeyed or in
case of insufficient compliance
therewith, the court:
a. may order the striking
out of the pleading or
the portion thereof to
which the order is
directed; or
b. make such order as it
may deem just.
2. If plaintiff, his compliant will be
stricken off and dismissed (Rule
12, sec. 4; Rule 17, sec. 3)
3. If defendant, his answer will be
stricken off and his counterclaim
dismissed, and he will be
declared in default upon motion
of the plaintiff (Rule 12, sec. 4;
Rule 17, sec. 4; Rule 9, sec. 3).
RULE 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
MEMORY AID
Notice given to a party who is duly
represented by counsel is a nullity,
unless service thereof on the party
himself was ordered by the court or the
technical defect was waived.
Section 3. Manner of filing.
1. Personally
2. by registered mail
Filing by mail should be through the
registry service which is made by deposit
of the pleading in the post office, and
not
through
other
means
of
transmission.
If registry service is not available in the
locality of either sender or addressee,
service may be done by ordinary mail.
If 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 delivery to the carrier, is deemed to
be the date of the filing of that
pleading.
NOTE: PERSONAL and SUBSTITUTED
service as applied to pleadings have a
different meaning compared to summons
under Rule 14.
MODES OF SERVICE
PLEADINGS
1. PERSONAL SERVICE
a. Delivering personally a copy to
the party or his counsel or;
b. Leaving a copy in counsels
office with his clerk or with a
person having charge thereof or;
c. Leaving the copy between 8 a.m.
and 6 p.m. at the partys or
counsels residence, if known,
with a person of sufficient age
and discretion residing therein--if no person found in his office,
or if his office is unknown, or if
he has no office.
2. SERVICE BY MAIL
IN
REMEDIAL LAW
MEMORY AID
If it is not in the record, and:
If filed personally: proved by the
written or stamped acknowledgment of
its filing by the clerk of court on a copy
of the same; or
If filed by registered mail: proved by
-the registry receipt and the affidavit of
the person who did the mailing.
Section 13. Proof of service
1. Proof of personal service:
a. Written admission of the party
served; or
b. Official return of the server; or
c. Affidavit of the party serving.
2. Proof of service by ordinary mail:
Affidavit of the person mailing;
3. Proof of service by registered mail:
a. Affidavit, and
b. Registry receipt issued by the
mailing office.
Section 14. Notice of lis pendens.
LIS PENDENS - a notice of a pendency of
the action between the parties involving
title to or right of possession over real
property.
It serves as a warning to all persons,
prospective
purchasers
or
encumbrancers of the property in
litigation to keep their hands off the
property in litigation unless they are
prepared to gamble on the result of the
proceedings.
The defendant may also record a notice
of lis pendens when he claims an
affirmative relief in his answer.
Notice of lis pendens CANNOT be
cancelled on an ex parte motion or upon
the mere filing of a bond by the party on
whose title the notice is annotated, as
section
14
provides
that
such
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
IN
REMEDIAL LAW
MEMORY AID
KINDS OF SERVICE OF SUMMONS:
1. personal service
2. substituted service
3. by publication
In actions in personam where the
defendant cannot be served with
summons personally or by substituted
service, the case must first be converted
into an in rem or quasi in rem action by
attaching the property of the defendant
found in the Philippines before summons
can be served by publication. If no
property can be found, the action shall
be archived but shall not be dismissed.
(Citizens Surety vs. Court Appeals)
Service upon
minors and
incompetents
In 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
when they are his legal
guardians
IN ANY EVENT, if the
minor or incompetent has
no legal guardian, the
REMEDIAL LAW
Service upon
public
corporations
Extraterritorial
service
Requisites
a. defendant does
not reside or is
not found within
the Phil.
b. he action either:
affects the personal
status of plaintiff;
relates to or the
subject of which is
property within the
Philippines in
which defendant
has a lien or
interest;
IN
Service upon
domestic private
juridical entity
ENTITY
To the president,
managing partner, general
manager, corporate
secretary, treasurer, or inhouse counsel.
NOTE: Service upon a
person other than those
mentioned is invalid and
MEMORY AID
demands a relief
which consists
wholly or in part in
excluding the
defendant from
any interest in any
property within the
Phil; or
property of
defendant has
been attached in
the Phil.
Mode of service
a. with leave of court
served outside the
Phil. By personal
service; or
b.with leave of court
serve by publication
in a newspaper of
general circulation,
in which case copy of
the summons and
order of court must
also be sent by
registered mail to
the last known
address of
defendant; or
c. any other manner the
court deem
sufficient.
Service upon a
resident
temporarily out of
the Phil.
Substituted service or
with leave of court,
personal service out of
the Phil. as under
extraterritorial service
Service upon an
unknown
defendant or
whose
whereabouts are
unknown
IN
REMEDIAL LAW
MEMORY AID
3. Motions agreed upon by the
parties to be heard on shorter
notice or jointly submitted by
the parties, and
4. Motions for summary judgment
which must be served at least 10
days before its hearing
5. Non-litigated motions.
Section 5. Notice of hearing.
NOTICE OF HEARING shall:
1. Be addressed to all parties
concerned
2. Specify the time and date of the
hearing which must not be later
than 10 days after the filing of
the motion
NOTE: Any motion that does not comply
with Sections 4, 5 and 6 of this Rule is a
mere scrap of paper, should not be
accepted for filing and, if filed, is not
entitled to judicial cognizance and does
not affect any reglementary period
involved for the filing of the requisite
pleading.
Omnibus Motion Rule - All available
grounds for objection in attacking a
pleading, order, judgment, or proceeding
should be invoked at one time,
otherwise, they shall be deemed
waived.
Motion for leave to file a pleading or
motion shall be accompanied by the
pleading or motion sought to be
admitted, otherwise, the latter will be
denied.
RULE 16
MOTION TO DISMISS
A Motion to Dismiss is NOT a responsive
pleading.
Section 1. Grounds.
1. No jurisdiction over the person
of the defending party
2. No jurisdiction over the subject
matter of the claim
3. Improper venue
4. No legal capacity to sue
5. Litis pendentia
6. Res judicata
IN
REMEDIAL LAW
7. Prescription
8. States no cause of action
9. Claim or demand has been paid,
waived,
abandoned,
or
otherwise extinguished
10. Claim is unenforceable under the
Statute of Frauds
11. Non-compliance with a condition
precedent for filing claim
based on insufficiency
of evidence.
MEMORY AID
EXCEPT:
1. Those cases where the court may
dismiss a case motu proprio
(Sec. 1, Rule 9)
2. Such ground appears in the
allegations of the complaint or in
plaintiffs evidence
REQUISITES OF LITIS PENDENTIA
1. Parties to the action are the
same
2. There is substantial identity in
the cause of action and relief
sought
3. The result of the first action is
determinative of the second in
any event and regardless of
which party is successful
Motion to dismiss may be filed in either
suit, not necessarily in the one instituted
first.
REQUISITES OF RES JUDICATA
1. Previous final judgment
2. Jurisdiction over the subject
matter and the parties by the
court rendering it
3. Judgment upon the merits
4. In a case prosecuted between
same parties
5. Involving the same subject
matter
6. Same cause of action
There could be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Section 3 of Rule 17.
When the ground for dismissal is that the
complaint states no cause of action, such
fact can be determined only from the
facts alleged in the complaint.
Where the plaintiff has not exhausted
all
administrative
remedies,
the
complaint not having alleged the fact of
such exhaustion, the same may be
dismissed for failure to state a cause of
action.
IN
REMEDIAL LAW
Non-compliance
with
P.D.
1508
(Katarungang Pambarangay Law) may
result to dismissal of the case on the
ground of non-compliance with a
condition precedent.
An action cannot be dismissed on the
ground that the complaint is vague or
indefinite. The remedy of the defendant
is to move for a bill of particulars or
avail of the proper mode of discovery.
GENERAL TYPES OF A MOTION TO
DISMISS
1. motion to dismiss before answer
under Rule 16
2. motion to dismiss under Rule 17
a. upon notice by plaintiff
b. upon motion of plaintiff
c. due to fault of plaintiff
3. motion to dismiss on demurrer to
evidence after plaintiff has rested
his case under Rule 33
4. motion to dismiss the appeal filed
either in the lower court (Rule
41,Sec. 13) or in the appellate
court (Rule 50, Sec.1 ).
EFFECTS OF
ACTION ON MTD
REMEDY
MEMORY AID
to dismiss, orders the amendment of the
pleading challenged by the motion, in
which case, the balance of the period to
answer runs from his receipt of the
amended pleading.
IN
REMEDIAL LAW
MEMORY AID
The approval of the court is necessary in
the dismissal or compromise of a class
suit.
Section 3. Dismissal due to fault of
plaintiff.
CAUSES FOR DISMISSAL
1. Plaintiff fails to appear for no
justifiable cause on the date of
the presentation of his evidence
in chief on the complaint
2. Plaintiff fails to prosecute his
action for an unreasonable
length
of
time
(NOLLE
PROSEQUI)
3. Plaintiff fails to comply with
these Rules or any order of the
court. Unjustifiable inaction on
the part of plaintiff to have the
case set for trial is a ground for
dismissal
for
failure
to
prosecute.
Complaint may be dismissed
1. Upon motion of the defendant,
or
2. Upon courts own motion.
Dismissal shall have the effect of an
ADJUDICATION UPON THE MERITS
(WITH PREJUDICE), unless otherwise
declared by the court.
SECTION 2
SECTION 3
Dismissal is at the
instance of the
plaintiff;
Dismissal is not
procured by plaintiff
though justified by
causes imputable to
him;
IN
REMEDIAL LAW
counterclaim in a
counterclaim on the
separate action unless
same or separate
w/in 15 days from
action.
notice of the motion
he manifests his
intention to have his
counterclaim resolved
in the same action
RULE 18
PRE-TRIAL
PRE-TRIAL- a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel.
The plaintiff must promptly move ex
parte that the case be set for pre-trial ,
and this he must do upon the service and
filing of the last pleading.
The pre-trial and trial on the merits of
the case must be held on separate
dates.
When non-appearance of a party may
be excused (Sec.4):
1. If a valid cause is shown
therefore
2. If a representative shall appear
in his behalf fully authorized in
writing to:
a. Enter into an amicable
settlement
b. Submit to alternative modes
of dispute resolution
c. Enter into stipulations or
admissions of facts and of
documents
A special authority for an attorney to
compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the
Civil Code, a special power of attorney
is required.
Dismissal is without
Dismissal is without
prejudice to the right prejudice to the right
of the defendant to
of the defendant to
prosecute his
prosecute his
MEMORY AID
EFFECT OF NON-APPEARANCE OF
PLAINTIFF:
Cause for dismissal of the action, with
prejudice, unless otherwise ordered
by the court.
No
Settlement
EFFECT OF NON-APPEARANCE
OF DEFENDANT:
Cause to allow the plaintiff
Agreements
to present evidence ex parte
made by parties;
and the court to render
Amendments to
judgment on the basis
pleading;
thereof.
Amicable
Settlement
Failure to Appear
If plaintiff is
Absent, when
so required to
attend, the
court may
dismiss the
case
REMEDIAL LAW
PRE-TRIAL
Schedule of trial
IN
Court
renders
decision
If defendant
is absent,
court may
hear evidence
of plaintiff
ex parte
If evidence is insufficient to
prove plaintiffs cause of
action or defendants
counterclaim, court rules in
favor of either one or
dismisses the case
MEMORY AID
IN
REMEDIAL LAW
RULE 19
INTERVENTION
WHO may intervene?
1. One who has legal interest in the
matter in litigation
2. One who has legal interest in the
success of either of the parties,
3. One who has an interest against
both parties
4. One who is so situated as to be
adversely
affected
by
a
distribution or other disposition
of property in the custody of the
court or of an officer thereof.
FACTORS TO BE CONSIDERED BY THE
COURT
1. Whether or not the intervention
will unduly delay or prejudice
the adjudication of the rights of
the original parties;
INTERVENTION
INTERPLEADER
An ancillary action.
An original action.
Defendants are
Defendants are being
already original
sued precisely to
parties to the pending
implead them
suit
of
MEMORY AID
If there is improper granting of
intervention, the remedy of the party is
certiorari.
RULE 21
SUBPOENA
SUBPOENA
SUMMONS
SUBPOENA AD TESTIFICANDUM a
process directed to a person requiring
him to attend and to testify at the
hearing or the trial of an action, or at
any
investigation
conducted
by
competent authority, or for the taking of
his deposition.
SUBPOENA DUCES TECUM a process
directed to a person requiring him to
bring with him books, documents, or
other things under his control.
Section 2. By whom issued
WHO may issue
1. Court before whom the witness
is required to attend
2. Court of the place where the
deposition is to be taken
3. Officer or body authorized by
law to do so in connection with
investigations conducted by said
officer or body
4. Any Justice of the SC or of the
CA in any case or investigation
pending within the Philippines.
SUBPOENA TO A PRISONER must be for a
valid purpose; if 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 4. QUASHING A SUBPOENA.
IN
REMEDIAL LAW
MEMORY AID
obtain before trial knowledge of relevant
facts and of material evidence in the
possession of the adverse party or of a
witness.
Rationale of discovery: to enable the
parties to obtain the fullest possible
knowledge of the issues and evidence
long before the trial to prevent such trial
from being carried on in the dark.
Modes of discovery under the Rules of
Court
1. Depositions pending action (Rule
23).
2. Depositions before action or
pending appeal (Rule 24).
3. Interrogatories to parties (Rule
25).
4. Admission by adverse party (Rule
26).
5. Production or inspection of
documents, or things (Rule 27).
6. Physical and mental examination
of persons (Rule 28).
Discovery before answer.
It is only in the exceptional or unusual
case that the need for discovery arises,
or that it should be allowed before
service of answer.
Modes of Discovery are intended to be
CUMULATIVE, and not alternative nor
mutually exclusive.
Discovery is NOT MANDATORY but failure
to avail carries sanctions in Rules 25 and
26.
RULE 23
DEPOSITIONS PENDING ACTION
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 examination or in
response to written interrogatories and
where an opportunity is given for crossexamination.
Depositions are intended as a means to
compel disclosure of facts resting in the
IN
REMEDIAL LAW
USE
Any person
MEMORY AID
the deposition was
an OFFICER,
DIRECTOR, or
MANAGING AGENT of
a public or private
corp., partnership,
or association which
is a party
Witness, whether or
not a party
IN
REMEDIAL LAW
Commission
COMMISSION
or
letters
LETTERS ROGATORY
MEMORY AID
Depositions under this Rule are also
taken conditionally, to be used at the
trial only in case the deponent is not
available.
Depositions under this Rule do not prove
the existence of any right and the
testimony perpetuated is not in itself
conclusive proof, either of the existence
of any right nor even of the facts to
which they relate, as it can be
controverted at the trial in the same
manner as though no perpetuation of
testimony was ever had. However, in the
absence of any objection 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.
Section 6. Use of deposition.
If deposition is taken under this Rule, it
may be used in any action involving the
SAME SUBJECT MATTER subsequently
brought.
Section 7. Depositions pending appeal.
Sec. 7 is the procedure in perpetuating
testimony AFTER JUDGMENT IN THE RTC
and DURING THE PENDENCY OF AN
APPEAL.
RULE 25
INTERROGATORIES TO PARTIES
PURPOSE of Written Interrogatories: 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 FILED and SERVED.
Interrogatories
Bill of Particulars
IN
REMEDIAL LAW
A
party
may
serve
written
interrogatories:
1. WITHOUT LEAVE OF COURT
after answer has been served,
for
the
first
set
of
interrogatories.
2. WITH LEAVE OF COURT before
answer
has
been
served
(REASON: at that time, the
issues are not yet joined and the
disputed facts are not yet clear,
when more than one set of
interrogatories is to be served.)
A judgment by default may be rendered
against a party who fails to answer
written interrogatories
Only one set of interrogatories by the
same party is allowed. Leave of court is
necessary for
succeeding
sets
of
interrogatories.
Section 6. Effect of failure to serve
written interrogatories.
Rule 25 and Rule 26 are directed to the
party who fails and refuses to RESORT to
the discovery procedures, and should not
be confused with the provisions of Rule
29 which provides for sanctions or other
consequences upon a party who refuses
or fails to COMPLY with discovery
procedures duly availed of by opponent.
MEMORY AID
The only exception is when the court
allows it for GOOD CAUSE shown and to
prevent a failure of justice.
Depositions Upon Interrogatories to
Written
Parties under Rule
Interrogatories to
25
Parties under Rule
23 Sec. 25
As to Deponent
Party or ordinary
witness
As to Deponent
party only
As to Procedure
As to Procedure
With intervention of
no intervention.
the officer authorized Written interrogatories
by the Court to take
are directed to the
deposition
party himself
As to Scope
Direct, cross, redirect,
re-cross
As to Scope
only one set of
interrogatories
Interrogatories
no fixed time
Interrogatories
15 days to answer
unless extended or
reduced by the court
RULE 26
ADMISSION BY ADVERSE PARTY
Section 1. Request for admission.
PURPOSE OF written request for
admission is to expedite trial and relieve
the parties of the costs of proving facts
which will not be disputed on trial and
the truth of which can be ascertained by
reasonable inquiry.
When request may be made: at any time
after the issues have been joined.
What request may include
1. Admission of the genuineness of
any material and relevant
document described in and
exhibited with the request.
2. Admission of the truth of any
material and relevant matter of
fact set forth in the request.
3. Under this rule, a matter of fact
not related to any documents
may be presented to the other
party for admission or denial.
IN
REMEDIAL LAW
SUBPOENA DUCES
TECUM
Essentially a mode of
discovery
The Rules is limited to
the parties to the
action
The order under this
Rule is issued only
upon motion with
notice to the adverse
means of compelling
production of evidence
may be directed to a
person whether a
party or not
may be issued upon an
ex parte application.
MEMORY AID
party
RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
The mental condition of a party is in
controversy
in
proceedings
for
GUARDIANSHIP over an imbecile or
insane person, while the physical
condition of the party is 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.
Section 4. Waiver of privilege.
Where the party examined requests and
obtains a report on the results of the
examination the consequences are:
1. he has to furnish the other party
a copy of the report of any
previous
or
subsequent
examination
of
the
same
physical and mental condition,
AND
2. he waives any privilege he may
have in that action or any other
involving the same controversy
regarding the testimony of any
other person who has so
examined him or may thereafter
examine him.
IN
REMEDIAL LAW
RULE 29
REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
SANCTIONS
1. Contempt;
2. Payment of reasonable fees;
3. The matters regarding which the
questions were asked, character
or description of land et al., be
taken to be in accordance with
the claim of party obtaining the
order;
4. Prohibition on the refusing party
to produce evidence or support
MEMORY AID
Section 5. Order of
directed by the court.
trial
unless
Plaintiff presents
evidence
Defendant presents
evidence to
support his
defense/countercla
im/crossclaim/
third party
complaint
Third
party
defendant
presents
eidence, if
any
Rebuttal
Evidence by
Parties
DECISION
Defendant files
demurrer to
evidence
If court
grants
motion:
Renders
dismisal
If court
denies
motion:
Continues
with
hearing
After
Presentation of
evidence:
oral arguments
submission of
memoranda
IN
REMEDIAL LAW
MEMORY AID
2. if filed with different branches
of a court and one of such cases
has NOT been partially tried.
REQUISITES FOR CONSOLIDATION:
1. When
actions
involving
a
common question of law or fact,
and
2. The actions are pending before
the same court
if filed with DIFFERENT
courts, authorization from
the SC is necessary.
3 WAYS OF CONSOLIDATING CASES:
1. by
RECASTING
THE
CASES
ALREADY
INSTITUTED,
conducting only one hearing and
rendering only one decision;
2. by CONSOLIDATING THE EXISTING
CASES and holding only one
hearing and rendering only one
decision; and
3. by HEARING ONLY THE PRINCIPAL
CASE and suspending the hearing
on the others until judgment has
been rendered in the principal
case. (TEST-CASE METHOD)
Consolidation of cases on appeal and
assigned to different divisions of the SC
and the CA is also authorized. Generally,
the case which was appealed later and
bearing the higher docket no. is
consolidated with the case having the
lower docket no.
RULE 32
TRIAL BY COMMISSIONER
COMMISSIONER- a person to whom a
cause 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.
Reference to a commissioner may be had
by the written consent of both parties.
Situations when reference to a
Commissioner may be made on motion
(Sec.2):
1. Examination of a long account
2. Taking of an account is necessary
IN
REMEDIAL LAW
DEMURRER TO
EVIDENCE
MOTION TO DISMISS
It is presented after
the plaintiff has
rested his case
presented before a
responsive pleading
(answer) is made by
the defendant
The ground is based it may be based on any
on insufficiency of
of those enumerated
evidence
in Rule 16
2 Scenarios
MOTION DENIED
MOTION GRANTED
BUT REVERSED ON
APPEAL
CIVIL CASES
CRIMINAL CASES
leave of court is
MEMORY AID
necessary so that the
accused could
present his evidence
if the demurrer is
denied
if the court finds
if the court finds the
plaintiffs evidence
prosecutions
insufficient, it will evidence insufficient,
grant the demurrer by
it will grant the
dismissing the
demurrer by
complaint. The
rendering judgment
judgment of dismissal is
acquitting the
appealable by the
accused. Judgment of
plaintiff. If plaintiff
acquittal is not
appeals and judgment appeallable; double
is reversed by the
jeopardy sets-in
appellate court, it will
decide the case on the
basis of the plaintiffs
evidence with the
consequence that the
defendant already loses
his right to present
evidence no res
judicata in dismissal
due to demurrer
if court denies
if court denies the
demurrer, defendant
demurrer:
will present his
If demurrer was with
evidence
leave, accused may
present his evidence
If the demurrer was
without leave,
accused can no
longer present his
evidence and submits
the case for decision
based on the
prosecutions
evidence
REMEDIAL LAW
IN
Motion to Dismiss
Motion for
judgment on the
pleadings
RULE 35
SUMMARY JUDGMENTS
SUMMARY JUDGMENT
MEMORY AID
One granted by the court for the prompt
disposition of civil actions wherein it
clearly appears that there exists NO
genuine issue or controversy as to any
material fact.
Who can File
1. Plaintiff: he must wait for the
answer to be filed and served, and
thus for the issue to be joined,
before he can move for summary
judgment.
2. Defendant: he can move for
summary judgment at anytime, that
is, anytime after filing and service of
the complaint even before he
answers
The motion for summary judgment must
be supported by (1) affidavit, (2)
depositions of the adverse party or a
third party, or (3) admissions of the
adverse party, all intended to show that:
a. there is no genuine issue as to
any material fact, except
damages which must always be
proved, and
b. the movant is entitled to a
judgment as a matter of law.
The summary judgment may be a
judgment on the merits, in which case,
an appeal may be taken therefrom.
SUMMARY
JUDGMENT
JUDGMENT
ON THE
PLEADINGS
JUDGMENT
BY DEFAULT
(Rule 9)
these are
irrelevant
IN
REMEDIAL LAW
allegations.
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF
JUDGMENT- final consideration and
determination by a court of the rights of
the parties, upon matters submitted to it
in an action or proceeding.
The date of finality of the judgment or
final order shall be deemed to be the
date of its entry.
REQUISITES OF A JUDGMENT:
1. It should be in writing, personally
and directly prepared by the judge
2. Must state clearly and distinctly the
facts and the law on which it is
based
3. It should contain a dispositive part
and should be signed by the judge
and filed with the clerk of court.
PROMULGATION- the process by which a
decision
is
published,
officially
announced, made known to the public or
delivered to the clerk of court for filing,
coupled with notice to the parties or
their counsel.
MEMORANDUM DECISION- a decision of
the appellate court which adopts the
findings and the conclusion of the trial
court.
JUDICIAL COMPROMISE
A judgment based
on a
compromise which has the force
of law and is conclusive between
parties.
Not appealable.
MEMORY AID
A JUDGMENT is considered RENDERED
Upon filing of the signed decision. This
includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.
IN
REMEDIAL LAW
1.
trial
or
Losing Party
Accepts
decision
without further
contest
Court
maintains
decision
PROMULGATION OF JUDGMENT
If no appeal is
taken or did
REMEDIAL
AW COMMITTEE
not availLof
CHAIRPERSON
: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
remedies,
Ventura,
Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
judgment
Special
Proceedings);
Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
becomes
final
Losing party may
and executory
appeal within the
remaining period
MEMORY AID
Judgment
upon
Agreement
or
Compromise
A compromise agreement between the
parties to a case on which the decision
of the court was based has upon the
parties the effect and authority of res
judicata. It is immediately executory.
Judgment by Confession
Judgment upon confession is one which
is rendered against a party upon his
petition or consent. It usually happens
when the defendant appears in court and
confesses the right of the plaintiff to
judgment or files a pleading expressly
agreeing to the plaintiffs demand.
Two kinds of judgment by confession
1. A judgment by COGNOVIT
ACTIONEM here, the defendant
after service instead of entering
a plea, acknowledged and
confessed that the plaintiffs
cause of action was just and
rightful.
2. A judgment by CONFESSION
RELICTA VERIFICATIONE after
pleading and before trial, the
defendant both confessed the
plaintiffs cause of action and
withdrew or abandoned his plea
or other allegations, whereupon
judgment was entere against him
without proceeding to trial.
Judgment upon
Compromise
Judgment by
Confession
IN
REMEDIAL LAW
Clarificatory Judgment
rendered by the court, upon motion,
when a judgment previously rendered is
ambiguous and difficult to comply with.
AMENDED OR
CLARIFIED
JUDGMENT
SUPPLEMENTAL
DECISION
It is an entirely new
decision and
supersedes the
original judgment
Court makes a
thorough study of the
original judgment and
renders the amended
and clarified judgment
only after considering
all the factual and
legal issues
Serves to bolster or
add to the original
judgment
RULE 37
NEW TRIAL OR RECONSIDERATION
Order denying
motion for new trial
MEMORY AID
WHERE to file: with the trial court
which
rendered
the
questioned
judgment.
MOTION FOR A NEW
TRIAL
MOTION FOR
RECONSIDERATION
The grounds are: fraud, The grounds are: the
accident, mistake or
damages awarded are
excusable negligence or excessive, that the
newly discovered
evidence is insufficient
evidence which could to justify the decision
not, with reasonable
or final order, or that
diligence, have
the decision or final
discovered and produced order is contrary to
at the trial, and which if
law.
presented would
probably alter the result
Second motion may be Second motion from
allowed
same party is
prohibited
If a new trial is granted if the court finds that
the trial court will set
excessive damages
aside the judgment or have been awarded or
final order
that the judgment or
final order is contrary
to the evidence or law,
it may amend such
judgment or final order
accordingly
IN
REMEDIAL LAW
MEMORY AID
WHERE to file: with the trial court
which rendered the judgment or final
order sought to be reconsidered
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
REMEDIES
AGAINST
FINAL
AND
EXECUTORY JUDGMENTS OR ORDERS
1. Petition
for
Relief
from
Judgment (Rule 38)
2. Annulment of judgments or final
orders or resolutions (Rule 47) on
the ground of:
o Extrinsic fraud, to be filed
within 4 years from the
discovery of the fraud;
o Lack of jurisdiction, before
it is barred by laches or
estoppel
3. Direct or collateral attack
against a void or voidable
judgment
o DIRECT ATTACK when the
validity of the judgment
itself is the main issue of the
action,
a
petition
for
certiorari and action to
annul judgment on the
ground of extrinsic fraud or
lack of jurisdiction
o COLLATERAL ATTACK if the
judgment can be resisted in
any other action in which it
is involved.
RULE 37
RULE 38
Available BEFORE
judgment becomes
final and executory
Applies to
JUDGMENTS or FINAL
ORDERS only
Available AFTER
judgment has become
final and executory
Applies to judgments,
final orders and other
proceeding:
1.Land Registration
2.Special Proceedings
3. Order of Execution
GROUNDS:
i. FAME
ii. Newly discovered
evidence
WHEN AVAILED OF:
GROUNDS:
FAME
WHEN AVAILED OF:
IN
REMEDIAL LAW
within 60 days from
knowledge of the
judgment AND
MEMORY AID
EXECUTION OF JUDGMENT
Judgment is
executed by
motion within
5 years from
date of its
entry
If the winning
party does not
move for
execution w/in
5 years but
before 10
years from the
date of entry
of judgment,
the same can
only be revived
by means of a
new action /
petition
Execution is a
matter of right
after
expiration of
period to
appeal and no
appeal is
perfected
Discretionary
execution upon
good reasons
stated in a
special order
after due
hearing
TEST
TO
DETERMINE
IN
REMEDIAL LAW
EXECUTION AS A
MATTER OF RIGHT
Discretionary upon
the court; there is
inquiry on whether
there is GOOD
REASON for
execution
Ministerial duty of
the court PROVIDED
there are no
supervening events
MEMORY AID
1. Insolvency of the judgment
debtor.
2. Wastage of asset by judgment
debtor.
Section 3. Stay of Discretionary
Execution. The party against whom an
execution is directed may file a
supersedeas bond to stay discretionary
execution.
SUPERSEDEAS BOND- one filed by a
petitioner and approved by the court
before the judgment becomes final and
executory and conditioned upon the
performance of the judgment appealed
from in case it be affirmed wholly or in
part.
Supersedeas
bond
guarantees
satisfaction of the judgment in case of
affirmance on appeal, not other things
like damage to property pending the
appeal
The court may, in its discretion, order an
execution before the expiration of the
time within which to appeal provided:
1. There is a motion for execution
filed by the winning party
2. There is notice of said motion to
the adverse party; and
3. There are good reasons stated in
a special order after due
hearing.
GENERAL RULE: an order of execution is
NOT appealable otherwise there would
be no end to the litigation between the
parties.
EXCEPTIONS:
1. When the terms of the judgment
are not very clear;
2. When the order of execution
varies with the tenor of the
judgment.
Section 4. Judgments NOT Stayed By
Appeal
1. INJUNCTION
2. RECEIVERSHIP
3. ACCOUNTING
4. SUPPORT
5.
Such
other
judgments
declared to be immediately
IN
REMEDIAL LAW
executory
unless
otherwise
ordered by the trial court.
Section 6. Execution By Motion Or
Independent Action.
MODE OF ENFORCEMENT
1. By motion within 5 years from
date of its entry
2. By independent action after 5
years from entry AND before it is
barred by statute of limitations
Judgment for support does not become
dormant, thus it can always be executed
by motion.
5-year period may be extended by the
conduct of judgment debtor.
A revived judgment is a new judgment
thus another 5/10-year period to
execute and revive is given the party.
Section 7. Execution In Case Of Death
Of Party.
If the obligor dies AFTER entry but
BEFORE LEVY on his property, execution
will be issued for recovery of real or
personal property or enforcement of a
lien thereon. But for a sum of money,
judgment cannot be enforced by writ
but as a claim against his estate/probate
proceedings.
If he dies AFTER a VALID LEVY has been
made, execution sale proceeds.
Section 8. Issuance, Form and Contents
of a Writ of Execution.
Remedies in an order granting or
denying the issuance of a writ of
execution
Appeal is the remedy for an order
denying the issuance of a writ of
execution.
Section 10. Execution Of Judgments
For Specific Act.
If party REFUSES TO VACATE PROPERTY,
remedy is NOT contempt. The Sheriff
must oust the party. But if demolition is
involved, there must be a special order.
MEMORY AID
If party REFUSES TO DELIVER, sheriff will
take possession and deliver it to winning
party.
When the party REFUSES TO COMPLY,
court can appoint some other person at
the expense of the disobedient party and
the act done shall have the same effect
as if the required party performed it,
the disobedient party incurs no liability
for contempt.
Section 11. Execution of Special
Judgments.
When
judgment
requires
the
performance of any act other than for
money and delivery of property.
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.
LEVY - act by which an officer sets apart
or appropriates a part of the whole of
the property of the judgment debtor for
purposes or the execution sale. The levy
on execution shall create a lien in favor
or the judgment creditor over the right,
title and interest of the judgment debtor
in such property at the time of the levy.
The levy on execution creates a lien in
favor of the judgment creditor subject
to prior liens and encumbrances.
GARNISHMENT - act of appropriation by
the court when property of debtor is in
the hands of third persons
The garnishee or the 3rd person who is in
possession of the property of the
judgment debtor is deemed a forced
intervenor.
ATTACHMENT
GARNISHMENT
IN
Refers to corporeal
property in the
possession of the
judgment debtor.
REMEDIAL LAW
refers to money,
stocks, credits and
other incorporeal
property which belong
to judgment debtor
but is in the possession
or under the control of
a third person
Section
16. Proceedings Where
Property Claimed By Third Person.
REMEDIES of THIRD PARTY CLAIMANT
1. Summary hearing before the
court which authorized the
execution;
2. TERCERIA or third party claim
filed with the sheriff;
3. Action for damages on the bond
posted by judgment creditors; or
4. Independent
reinvidicatory
action.
The remedies are cumulative and may be
resorted to by third party claimant
independently of or separately from the
others.
If winning party files a bond, it is only
then that the sheriff can take the
property in his possession. IF NO BOND,
cannot proceed with the sale.
SALE ON EXECUTION
Notice of sale is required before levied
property can be sold at public auction
(Sec. 15).
Remedy against an irregular sale is
MOTION TO VACATE OR SET ASIDE THE
SALE to be filed in the court which
issued the writ.
REDEMPTION (Secs. 27 & 28)
Right of Redemption:
1. Personal Property NONE; sale is
absolute
2. Real Property there is a right of
redemption
WHO may redeem (Sec. 27)
Only the following:
MEMORY AID
a. Judgment
obligor,
or
his
successor in interest, in whole or
any part of the property; OR
b. Redemptioner who is a creditor
having a:
1) Lien by attachment on
the
property
sold
subsequent to the lien
under
which
the
property was sold,
2) Lien by judgment on the
property sold subsequent
to the lien under which
the property was sold;
3) Lien by mortgage on the
property sold subsequent
to the lien under which
the property was sold.
WHEN CAN REDEMPTION BE MADE?
BY THE JUDGMENT OBLIGOR: Within one
(1) year from the date of registration of
the certificate of sale.
BY THE REDEMPTIONER:
1. Within one year from the date of
registration of the certificate of
sale; or
2. Within sixty days from the last
redemption
by
another
redemptioner
If the judgment obligor redeems, no
further redemption is allowed (Sec.
29).
The period of redemption is NOT
suspended by an action to annul the
foreclosure sale.
CAN REDEMPTION BE PAID IN OTHER
FORMS THAN CASH?
YES. The rule is liberality in allowing
redemption (aid rather than defeat the
right) and it has been allowed in the
case of a cashiers check, certified bank
checks and even checks.
The offer to redeem must be
accompanied with a bona fide tender or
delivery of the redemption price.
However, a formal offer to redeem with
a tender is not necessary where the right
to redeem is exercised through the filing
IN
REMEDIAL LAW
MEMORY AID
1. The purchaser or his successorin-interest FAILS TO RECOVER
POSSESSION of the property or;
2. Purchaser after having acquired
possession is evicted due to:
a. Irregularities
in
the
proceedings concerning the
sale.
b. Reversal or setting aside of
judgment.
c. The fact that the property
was exempt from execution.
d. A third person has vindicated
his claim to the property.
REMEDIES OF THE JUDGMENT CREDITOR
IN AID OF EXECUTION
1.
2.
3.
4.
5.
IN
REMEDIAL LAW
6.
7.
EFFECT: CONCLUSIVE
AS TO
Against a specific
thing
Probate of a will or
administration of
the estate of a
deceased person
Will or administration
However, ONLY prima
facie evidence of the
death of the testator
or intestate
MEMORY AID
In respect to the
personal, political,
or legal condition or
status of a
particular person
JUDGMENT
Condition, status or
relationship of the
person
REMEDIAL LAW
JUDGMENT
In both instances,
CONCLUSIVENESS OF JUDGMENT
has the effect of preclusion only of
issues.
parties in both actions may be the
same but the causes of action are
different.
may
IN
the
judgment
be
repelled
by
evidence of want
entered in the
book of entries
petition for
review with the
RTC
MEMORY AID
of jurisdiction, notice, collusion, fraud
or clear mistake of law or fact.
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL FROM MTC TO RTC
IN
REMEDIAL LAW
ORDINARY APPEAL
PETITION FOR
REVIEW
Matter of right
All the records are
elevated from the
court of origin
Notice of record on
appeal is filed with
the court of origin
Discretionary
No records are
elevated unless the
court decrees it
Filed with the CA
By Record on appeal:
1. for special proceedings such as
probate; and
2. in such other cases where
multiple appeals are allowed as
in
partition
and
in
expropriation.
MEMORY AID
2.
3.
4.
5.
2.
REMEDIAL LAW
A particular matter in a
judgment declared by the Rules
to be appealable.
4.
IN
5.
6.
Petition for
review on
certiorari
[Rule 45]
Case is decided
Case is
by the RTC in
decided by
its original
the MTC.
jurisdiction
Appealed to
Appealed to the
the RTC.
CA
Petition for
review with
the CA
The case
raises only a
question of
law
MEMORY AID
File a verified
petition for
review on
certiorari with
the SC (R 45)
Pay docket
and lawful
fees and P 500
for costs.
Submit proof
of service of a
copy to the
lower court
and adverse
party.
IN
REMEDIAL LAW
RULE 42
PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS
Petition for review is not a matter of
right but discretionary on the CA. It may
only give due course to the petition if it
shows on its face that the lower court
has committed an error of fact and/or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed; OR dismiss the
petition if it finds that it is patently
without merit, or prosecuted manifestly
for delay, or the questions raised therein
are too unsubstantial to require
consideration.
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
warrant of execution pending appeal and
in some cases such as ejectment and
those of Summary Procedure, the
judgments are immediately executory. It
is only when the CA deems it necessary
that the Clerk of the RTC will be ordered
to elevate the records of the case.
RULE 43
APPEALS FROM THE COURT OF TAX
APPEALS AND THE QUASI-JUDICIAL
AGENCIES TO THE CA
MEMORY AID
IN
REMEDIAL LAW
Ordinary appeals
Certiorari, Prohibition,
Mandamus, Quo
Warranto and Habeas
Corpus cases
within 30 days
RULE 44
ORDINARY APPEALED CASES
Section 9. Appellants reply brief.
Failure to file appellant's brief on time is
a ground for dismissal of the appeal.
If a motion to dismiss an appeal has been
filed, it suspends the running of the
period for filing the appellant brief, 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 page references to the record as
required in this section is a ground for
dismissal of his appeal.
Section 15. Questions that may be
raised on appeal.
The appeal can raise only questions of
law or fact that
1. were raised in the court below;
and
2. are within the issues framed by
the parties thereon.
BRIEF vs. MEMORANDUM
BRIEF
MEMORANDUM
RULE 45
APPEAL BY CERTIORARI TO THE
SUPREME COURT
RTC, Sandiganbayan or CA
renders decision
Section
1.
with Supreme
Filing of petition
Court
MEMORY AID
Appeals to the SC can be taken from a
judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or
such other courts as maybe authorized
by law and only by verified petition for
review on certiorari on questions of law
except only in appeals from judgments
of the RTC in criminal cases wherein the
penalty imposed is life imprisonment or
reclusion perpetua which shall be
elevated by ordinary appeal, or wherein
the death penalty is imposed which is
subject to automatic review.
IN
REMEDIAL LAW
QUESTIONS OF LAW
QUESTIONS OF
FACT
doubt or controversy
as to what the law is
on certain facts
doubt or difference
arises as to the truth
or falsehood of facts,
or as to probative
value of the evidence
presented
MEMORY AID
RULE 45
RULE 64/65
petition is based on
questions of law
It is a mode of appeal
Court exercises
original jurisdiction
IN
REMEDIAL LAW
appellate jurisdiction
and power of review
RULE 46
ORIGINAL CASES
Section 2. To what actions applicable.
Under B.P. Blg. 129, the CA has original
jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus
and quo warranto, and auxiliary writs or
processes, whether or not they are in aid
of its appellate jurisdiction, and it has
exclusive original jurisdiction over
actions for annulment of judgments of
Regional Trial Courts.
MEMORY AID
the reception of evidence on
such issues to any of its
members.
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
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 executed.
One important condition for the
availment of this remedy - the petitioner
failed to move for new trial in, or appeal
from, or file a petition for relief against,
or take other appropriate remedies
assailing the questioned judgment or
final order or resolution through no fault
attributable to him.
If 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.
Grounds for ANNULMENT OF JUDGMENT
1. extrinsic fraud or collateral
fraud;
2. lack of jurisdiction;
Extrinsic fraud shall not be a valid
ground if it was availed of, or could have
been availed of, in a motion for new
trial or petition for relief.
EXTRINSIC OR COLLATERAL FRAUD is
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.
EXTRINSIC
FRAUD
Period of
Filing
action
LACK OF
JURISDICTION
Effect of
judgment
IN
REMEDIAL LAW
Trial court
will try the
case
Original action
may be refiled
MEMORY AID
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of
appeal
With the exception of Section 1 (b)
dismissal of an appeal is directory and
not mandatory.
Other grounds for the dismissal of an
appeal are:
1. by agreement of the parties, as
where the case was amicably
settled by them.
2. where the appealed case has
become moot or academic.
3. where the appeal is frivolous or
dilatory.
Section 2. Dismissal of improper appeal
to the Court of Appeals
No transfer of appeals, erroneously
taken to it or to the Court of Appeals,
whichever of these tribunals has
appropriate appellate jurisdiction, will
be allowed. Also, elevating such appeal
by the wrong mode of appeal shall be a
ground for dismissal.
A resolution of the Court of Appeals
dismissing the appeal and remanding the
case to the trial court for further
proceedings is merely interlocutory,
hence a motion for its reconsideration
filed year later may be entertained and
granted
Section 3. Withdrawal of Appeal
Court of Appeals may dismiss the appeal
outright even without motion. The
remedy if dismissed for improper appeal
is to refile it in the proper forum but has
to be within the prescribed period.
RULE 51
JUDGMENT
Law of the Case the opinion delivered
on a former appeal. It means that
whatever
is
once
irrevocably
established, as the controlling legal rule
or decision between the same parties in
the same case, continues to be the law
of the case, whether correct on general
IN
REMEDIAL LAW
MEMORY AID
Even if the error complained of by a
party is not expressly stated in his
assignment of errors but the same is
closely related to or dependent on an
assigned error and properly argued in his
brief such error may now be considered
by the court.
RULE 52
MOTION FOR RECONSIDERATION
The rules now prohibit a second motion
for reconsideration.
Sec. 3 provides a time limit of 90 days
for the resolution of a motion for
reconsideration filed with the Court of
Appeals from the date the same was
submitted for resolution, which is
normally the filing of the last pleading
required by the rules of court or the
expiration of such period.
Rules now requires the service of the
motion
to
the
adverse
party
IN
REMEDIAL LAW
RULE 53
NEW TRIAL
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 case
The ground is newly discovered evidence
which could 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.
RULE 56
PROCEDURE IN THE SUPREME COURT
A. ORIGINAL CASES
Rule specifically states what cases may
be originally filed with the Supreme
Court
1. petition
for
certiorari,
prohibition, mandamus, quo
warranto, habeas corpus;
MEMORY AID
WHEN issued
1. In actions for recovery of a
specified sum of money or
damages, except moral and
exemplary, on a cause of action
arising from law, contract, quasicontract, delict or quasi-delict
against a party about to depart
from the Phils. with intent to
defraud his creditors;
2. In actions for recovery of money
or property embezzled or
fraudulently converted to his
own use by a public officer, or an
officer of a corp., or an
attorney, factor, broker, agent or
clerk, in the course of his
employment as such, or by any
person in a fiduciary capacity;
3. In actions to recover property
unjustly taken or concealed,
when the property or any of its
part, has been concealed or
disposed of to prevent its being
found by the applicant or any
authorized person;
4. In actions against a person guilty
of fraud in incurring or
performing an obligation upon
which the action is based;
5. In actions against a party who
has removed or disposed of his
property, or is about to do so,
with intent to defraud his
creditors;
6. In actions against non-residents
not found in the Phils., or on
whom summons is served by
publication.
RULE 58
PRELIMINARY INJUNCTION
Preliminary Injunction an order granted
at any stage of an action or proceeding
prior to the judgment requiring a party
IN
REMEDIAL LAW
MEMORY AID
Effectivity of TRO is not extendible.
There is no need of a judicial declaration
to that effect.
A TRO issued by the CA or any of its
members is effective for 60 days from
service on the party sought to be
enjoined.
A TRO issued by the SC or a member
therof is effective until further orders.
GROUNDS FOR OBJECTION
1. insufficiency;
2. if
injunction
would
cause
irreparable damage to the
person enjoined while the
applicant
can
be
fully
compensated for such damages,
PROVIDED the former files a
BOND.
Distinctions
INJUNCTION
PROHIBITION
directed against a
party in the action
Directed against a
court, tribunal or a
person exercising
judicial powers
Based on the ground
that the court against
whom the writ is
sought had acted
without or in excess of
jurisdiction
IN
REMEDIAL LAW
RULE 59
RECEIVERSHIP
WHEN MAY BE GRANTED
1. applicant has an interest in the
property or fund subject of the
proceeding and such property is
in danger of being lost or
materially injured unless a
receiver is appointed;
2. in foreclosure of mortgage, when
the property is in danger of
being wasted or dissipated and
that its value is probably
REPLEVIN
ATTACHMENT
Available even if
recovery of property is
only incidental to the
relief sought.
MEMORY AID
CANNOT be availed of
when property is in
custodia legis
Available before
defendant answers
Available from
commencement but
before entry of
judgment
IN
REMEDIAL LAW
RULE 61
SUPPORT PENDENTE LITE
When may be applied for: at the
commencement of the action or at any
time before judgment or final order.
Failure to comply with an order granting
support pendente lite may warrant the
issuance of an order of execution against
the non-complying party.
He may
likewise be liable for contempt.
See matrix on provisional remedies
more detailed information.