Professional Documents
Culture Documents
1
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
A3 S1
A6 S30 - Review
- Revise
No law shall be passed increasing the - Reverse
appellate jurisdiction of the SC as provided - Modify
in this Constitution without its advice and - Affirm
concurrence. o On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
A8 S5 P1
lower courts in:
The Supreme Court shall have the
1. All cases in which constitutionality
following powers:
or validity of any
a. treaty,
- Exercise original jurisdiction over
b. international or executive
cases affecting:
agreement
o Ambassadors
c. law
o Other public ministers and
d. presidential decree
consuls e. proclamation
- Over petitions for f. order
o Certiorari g. instruction
o Prohibition h. ordinance
o Mandamus i. regulation
o Quo warranto i. is in question
o Habeas corpus
2. all cases involving the legality of
any
a. tax
A7 S4 b. impost
c. assessment
The Supreme Court en banc shall be the d. toll
sole judge of all contests relating to the e. any penalty imposed in
election, returns, and qualification of the relation thereto
President or Vice President, and may
promulgate its rules for the purpose.
3
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3. all cases in which the jurisdiction of No law shall be passed reorganizing the
any lower court is in issue Judiciary when it undermines security of
tenure of its members.
4. all criminal cases in which the
penalty imposed is reclusion
perpetua or higher
A3 S16
5. all cases in which only an error or
question of law is involved All persons shall have the right to speedy
disposition of cases before before all
judicial, quasi judicial, administrative
bodies.
A8 S5 P5 (basis of Rules of Court)
4
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Appellate Jurisdiction
Power and authority conferred
Venue Jurisdiction upon a superior court to rehear and
determine causes which have been
Place where action Power of court to tried in lower courts, the
is instituted hear and decide a cognizance which a superior court
case takes of a case removed to it, by
May be waived Jurisdiction over appeal or writ of error, from the
subject matter and decision of a lower court or the
over nature of review by a superior court of the
action are conferred final judgment or order of some
by law and cannot lower courts
be waived
Concurrent / Confluent /
Procedural Substantive Coordinate Jurisdiction
Power conferred upon different
May be changed by Cannot be subject courts, whether of the same or
written agreement of the agreement of different ranks, to take cognizance
of the parties the parties at the same stage of the same case
in the same or different judicial
Not a ground for A ground for motu territories
motu proprio proprio dismissal
dismissal, except in E.g. CA, SC, Sandiganbayan, RTC-
Summary Procedure in HC cases, Writ of Amparo, Writ of
Habeas Data
Original Jurisdiction
General Jurisdiction Power of the court to take judicial
Power to adjudicate all cognizance of a case instituted for
controversies except those judicial action for the first time
expressly withheld from the under conditions provided by law
plenary powers of the court. and appellate jurisdiction, or the
authority of a court higher in rank
It extends to all controversies
to re-examine the final order or
which may be brought before a
judgment of a lower court which
court within the legal bounds of
tried the case or elevated for
rights and remedies.
judicial review. It is jurisdiction
5
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Rule 45 Rule 65
Delegated Jurisdiction
Petition is based on Petition is based on
6
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
7
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
8
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
9
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
10
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
11
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Original Distinctions:
12
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
13
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
successors resident
in interest defendant,
where he
Examples: Examples: Examples: may be
found, at
election of
Probate Action for Action for plaintiff (R4
proceeding, specific partition S2)
performance
Example: Example: Example:
cadastral Action to
proceeding, Action for foreclose
Accion Action for a Accion
breach of real estate
reivindicator sum of publiciana
contract mortgage
ia money with a claim
special for damages
proceedings
14
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
INITIATORY PLEADING
Real Action In rem action A pleading that initiates an action
Ownership or Action directed
possession of real against the thing
property is involved itself RESPONSIVE PLEADING
Filed in court where Not necessarily; A pleading that responds to
property or portion depends on whether allegations in the adverse partys
thereof is situated the action is real, pleading
personal, mixed
A proceeding A proceeding to
founded on privity determine state or Initiatory Pleadings
of real estate condition of a thing
Original complaint
Judgment may bind Judgment is binding Permissive counterclaim
whole world, or upon the whole Cross claim
particular persons, world Third party complaint
depending on 4th party complaint
Complaint in intervention
whether in rem, in
Petition
personam, quasi in In special civil actions
rem In special proceedings
Counter counter claim
Counter cross claim
PLEADING (R6 S1) Counter Counter Counter Cross
Claim Claim
Sworn written statements of the
respective claims and defenses of Any claim which Any claim which a
the parties submitted to the court defending party in a defending party in a
for appropriate judgment counterclaim may cross claim may
have against the have against the
original original cross
Complaint (R6 S3) counterclaimant claimant
15
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
16
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
17
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
18
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
19
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Jurisdiction
HOWEVER, with respect to SMALL CLAIMS
IF, court has no jurisdiction, M2D R16 S1b CASES,
20
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
21
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Defendant includes:
Motion to dismiss was denied.
Remedy for defendant? - Defendant in counter counterclaim
- Defendant in counter cross claim
Rule 16 S4 - An unwilling co plaintiff or one who
should be joined as plaintiff but
File an answer within the balance of the refuses to give consent thereto (R3
period prescribed by Rule 11 to which he S10)
was entitled at the time of serving his - A person necessary to a complete
motion but not less than 5 days in any determination or settlement of the
event, computed from his receiving of questions involved therein
notice of denial. Then, go to trial. When
the decision is adverse, file an appeal Plaintiff
raising as error the denial of the motion to
A person having an interest in the
dismiss. If the denial of the motion is
matter of the action or in obtaining
tainted with grave abuse of discretion
the relief demanded
amounting to lack or excess of jurisdiction,
file petition for certiorari under Rule 65. Defendant
22
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
23
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Quasi Party R3 S6
Parties in whose behalf a class or All persons in whom or against whom any
representative suit is brought right to relief in respect to or arising out of
the same or series of transactions is
alleged to exist, either jointly, severally, or
in the alternative, may, except as
Not a real party in interest: Remedy?
otherwise provided in these rules, join as
MOTION TO DISMISS on the ground of plaintiffs or be joined as defendants in one
failure to state cause of action complaint, where any question of law or
fact common to all such plaintiffs or to all
Granted- refile such defendants may arise in the action;
but the court may make such orders as
Denied: may be just to prevent any plaintiff or
defendant from being embarrassed or put
I will file an answer within the balance of
to expense in connection with any
the period prescribed by Rule 11 to which i
proceedings in which he may have no
am entitled at the time of serving my
interest.
motion, but not less than 5 days in any
event, computed from my receipt of notice
of denial. Then, proceed with the trial. In
case of adverse decision I will appeal the Non joinder/Misjoinder of parties- not a
judgment and assign as error the denial of ground for motion to dismiss
the motion to dismiss.
IF so, remedy:
However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction, Amendment of the pleading (Rule 3 in
then I will file petition for certiorari under relation to Rule 10
Rule 65.
Cause of Action
JOINDER OF PARTIES
Act or omission by which a party
Requisites: violates a right of another (R2 S2)
24
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. Correlative obligation the part of B. The joinder shall not include special
defendant to respect plaintiffs civil actions and actions governed
legal right by Special Rules
3. Defendant violates plaintiffs legal
right in a manner contrary to law, Special Civil Actions:
morals, good customs, public
1. Interpleader (R62)
order, public policy
2. Declaratory Relief (R63)
3. Review of Judgments and Final
*STATE ALL CAUSES OF ACTION in the
orders or resolutions of COMELEC,
PLEADING!
CoA (R64)
IF NOT, remedy: 4. Certiorari, Prohibition, Mandamus
(R65)
M2D R16 S1g- failure to state cause of 5. Quo Warranto (R66)
action 6. Expropriation (R67)
7. Foreclosure of Real Estate
GRANTED: refile; amend pleading Mortgage (R68)
8. Partition (R69)
Denied: 9. Forcible Entry and Unlawful
Detainer (R70)
I will file an answer within the balance of 10. Contempt (R71)
the period prescribed by Rule 11 to which i
am entitled at the time of serving my INCLUDES: SPECIAL PROCEEDINGS
motion, but not less than 5 days in any (SEGTARHHCVJCDC +)
event, computed from my receipt of notice
Sum of money + Foreclosure of Mortgage
of denial. Then, proceed with the trial. In
= CANNOT BE JOINED! (latter is a special
case of adverse decision I will appeal the
civil action)
judgment and assign as error the denial of
the motion to dismiss. Hence, sue in alternative / either or
However, if the denial is tainted with GAD C. Where the claims pertain to
amounting to lack or excess of jurisdiction, different venues or jurisdictions,
then I will file petition for certiorari under the joinder shall be allowed in the
Rule 65. RTC provided that it falls within the
jurisdiction of said court and the
venue lies therein
Joinder of Causes of Action (R2 S5)
D. Where the claims in all causes of
A party may in one pleading assert, in the action are principally for recovery
alternative or otherwise, as many causes of money, the aggregate amount
of action as he may have against an claimed shall be the test of
opposing party, subject to the following jurisdiction
conditions:
25
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
pleading is filed, or with leave of court judgment and assign as error the denial of
after a responsive pleading is filed if the the motion to dismiss.
amendment is substantialHere, di ko
alam kung substantial to...) R10 S2 and 3 However, if the denial is tainted with GAD
amounting to lack or excess of jurisdiction,
then I will file petition for certiorari under
Rule 65.
Splitting a Single Cause of Action:
DENIED: Paragraph
I will file an answer within the balance of The allegations in the body of a pleading
the period prescribed by Rule 11 to which i shall be divided into paragraphs so
am entitled at the time of serving my numbered as to be readily identified each
motion, but not less than 5 days in any of which shall contain a statement of a
event, computed from my receipt of notice single act of circumstances so far as can
of denial. Then, proceed with the trial. In be done with convenience.
case of adverse decision I will appeal the
26
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
27
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
What are the pleadings that need to Petitions for certiorari, prohibition,
be verified? mandamus (R65)
28
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Cancellation or Correction of
Entries in the Civil Registry (R108) The following pleadings or motion
with affidavit or affidavits of merit:
Voluntary Dissolution of
Corporations (Corporation Code Motion to postpone for absence of
) evidence (R30 S3)
Constitution of the Family Home Motion for new trial on the ground
(Family Code, ) of fraud, accident, mistake, or
excusable negligence or opposition
Declaration of Absence and thereto (r37 S2)
Presumptive
Petition for relief from judgment or
Death (R107 in relation to Civil and order (R38 S3)
Family Code )
Third party claim (R39 S16)
Petition for declaration of Nullity
and Annulment of Marriage ( Proof required of a redemptioner
) (R39 S30)
29
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
30
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Forum Shopping: R7 S5
Forum shopping is an act of malpractice of The plaintiff or principal party shall certify
filing multiple suits in different courts under oath in the complaint or other
either simultaneously or successively, initiatory pleading asserting a claim for
involving the same parties, and asking the relief, or in a sworn certification annexed
courts to rule on the same or related thereto and simultaneously filed
causes and/or to grant the same or therewith:
substantially the same relief
1. That he has not theretofore
commenced any action or filed any
claim involving the same issues in
3 ways of committing forum any court, tribunal or quasi judicial
shopping: agency and, to the best of his
knowledge, no such other action or
Filing multiple cases based on the
claim is pending therein
same cause of action and with the
2. If there is such other pending claim
same prayer the previous not
or action, a complete statement of
having been resolved (litis
the present status thereof
pendencia) 3. If he should thereafter learn that
the same or similar action or claim
Filing multiple cases based on the
has been filed or is pending, he
same cause of action and with the
shall report that fact within 5 days
same prayer, the previous having
therefrom to the court wherein his
been resolved with finality (res
aforeseaid complaint or initiatory
judicata)
pleading has been filed
Filing multiple cases based on
same causes of action but with
different prayers (splitting cause of States the effects of: (R7 S5)
action on the ground of litis
pendencia or res judicata) Failure to attach certification
against forum shopping
31
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
but shall be cause for dismissal of the that a condition precedent has not been
case without prejudice, unless otherwise complied with.
provided, upon motion and after hearing.
32
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Counterclaim
33
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
C (or) suit
A claim that a Pleading filed by an Does not arise out Arises out of or is
defending party intervenor if he of or is connected connected with the
may, with leave of answers a claim with the transaction transaction or
court, file against a against either or all or occurrence that occurrence that is
person not a party of the original is the subject the subject matter
to the action, called parties matter of the of the opposing
a 3rd 4th etc party opposing partys partys claim
defendant for claim
contribution,
Intervenor is any Needs verification Not
indemnity,
person who has a and certification
subrogation, or any
legal interest in the against forum
other relief in
matter in ligitation, shopping
respect of his
or in the success of
opponents claim Docket fee is Docket fees are
either of the parties,
or who has an required to be paid suspended
interest against Failure to file not
both parties, or who answer results in
is so situated as to declaration of
be adversely default
affected by the
distribution or other may require for its Does not require for
disposition of adjudication the its adjudication the
property in the presence of third presence of third
custody of the court parties over whom parties over whom
or of an officer the court cannot the court cannot
thereof acquire jurisdiction acquire jurisdiction
34
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
35
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
36
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- By verified complaint
37
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
38
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R13 S13
39
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
40
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
41
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
42
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
43
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- By way of motion
44
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. direct the delivery of the funds and b. That the property is wrongfully
other property in his possession to detained by adverse party, alleging
the person adjudged to be entitled cause of detention thereof
to receive them, according to the best of his
knowledge, information, and belief
3. and order the discharge of the
receiver from further duty as such c. That the property has not been
distrained or taken for a tax
The court shall allow the receiver such assessment or a fine pursuant to
reasonable compensation as the law, or seized under a writ of
circumstances of the case warrant, to be execution or preliminary
taxed as costs against the defeated party, attachment, or otherwise placed
or apportioned, as justice requires. under custodia legis, or if so
seized, that it is exempt from such
seizure or custody
45
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
46
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
The facts in issue shall be proved in the - issue an order of execution against
same manner as if proved for evidence on him,
motions. o without prejudice to his
liability for contempt.
The court shall determine provisionally - any third person who furnished that
support to the applicant may, after
1. the pertinent facts, and
due notice and hearing in the same
shall render such order as justice and case,
o obtain a writ of execution to
equity may require,
enforce his right of
- having due regard to the probable reimbursement against the
outcome and such other person ordered to provide
circumstances as may aid in the such support.
proper resolution of the question
involved.
S6- Support in criminal cases
If the application is granted,
In criminal cases
- the court shall fix
o the amount of money to be
1. where the civil liability includes
provisionally paid,
support for the offspring as a
o or such other forms of
consequence of the crime
support as should be 2. and civil aspect thereof has not
provided, been waived, reserved, or
taking into account
instituted prior to its filing,
the necessities of the a. the accused may be ordered
applicant and the to provide support pendente
resources or means
lite to the child born to the
of the adverse party,
offended party allegedly
and
because of the crime.
terms of payment or
mode for providing The application therefore may be filed
the support. successively by the
47
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
DENIED, VENUE
PARTS OF A PLEADING
48
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Whenever
Interpleader Intervention
Rule 61 Rule 19
Without leave of With leave of court S4- Motion to dismiss
court
Original / Special Ancillary to main Within the time for filing an answer, each
Civil action action claimant may
Filed by complaint If for plaintiff-
for interpleader complaint in - file motion to dismiss on the
intervention ground of impropriety of the
interpleader action or
If for defendant- - on other appropriate grounds
answer in specified in Rule 16.
intervention
At any time Before judgment The period to file the answer shall be
tolled and if the motion is denied, the
movant may file his answer within the
JURISDICTION:
remaining period, which shall not be
RTC or MTC 20-50 real 300-400 personal less than 5 days in any event,
higher lower reckoned from the notice of denial.
(See Rule 16 S4)
VENUE:
Real- R4 S1
S5- Answer and other pleadings
Personal- R4 S2
49
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
JURISDICTION/VENUE:
50
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Requirements:
REVIEW OF JUDGMENTS AND FINAL
S2- Parties
ORDERS OR RESOLUTIONS OF THE
All persons who have or claim any interest COMELEC AND COMMISSION ON
which would be affected by the AUDIT (Rule 64 [but applying Rule
declaration shall be made parties, and 65])
51
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Final orders or judgments of COA and - Within 10 days from notice of order
COMELEC or judgment, by respondent, or
else, dismissed
Pay, + 500 for costs Filing of certiorari will not stay execution of
judgment, FO, resolution sought to be
reviewed, unless SC shall direct otherwise
upon such terms as may be just
S5- Form/Contents
Petitioner may apply for TRO or
1. Verified petition, 18 copies, with
preliminary injunction to stay execution
certified true copy of judgment
2. Respondent is Comelec or CoA,
person interested in sustaining
3. Finding of fact supported by Rule 65 Rule 64
substantial evidence, final and non Applies to orders of Applies to
reviewable judicial, quasi judgments, final
4. State specific material dates judicial court or orders, resolutions
showing it was filed on time tribunals of CoA and
5. Accompanied by sworn certification COMELEC
against forum shopping 60 days from denial 30 days from notice
6. Proof of service of its copy on of motion for of judgment or final
commission and adverse party, and reconsideration (AM order or resolution
7-7-12-SC) sought to be
52
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
53
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
54
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
REQUIREMENTS:
Note: in the cases, in event of denial of
1. verified petition in 7 legible copies petition, and in exercise of original
jurisdiction, remedy is APPEAL
2. it should be filed not later than 60
days from notice of judgment, MTC to RTC- Rule 40
order or resolution sought to be
RTC to CA- Rule 41 (original), Rule 42
assailed or from denial of M4R
(appellate)
3. contain full names and addresses
CA to SC- Rule 45
of petitioners and respondents,
concise statement of matters The above-stated is the PRINCIPLE OF
involved, factual background of the HIERARCHY OF COURTS
case, grounds relied upon for the
relief prayed for - superior courts would not take
cognizance of a case brought
4. accompanied by clearly legible before it unless the case has been
duplicate originals or certified true
55
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
56
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Constitutional Basis:
57
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. assignments, if any
58
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- Here, under b, deemed to have 1. Total- all the things are divided
waived his right to proceed against among the participants
the property in a foreclosure
2. Partial- when some of the things
proceeding
are divided, the rest remaining in
community ownership
59
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
60
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
VERIFIED!
S7- Preliminary conference; appearance of
S4- Duty of the Court parties
After the court determines that the case Not later than 30 days after the last
falls under summary procedure, it may, answer is filed, a preliminary conference
from an examination of the allegations shall be held. The rules on pre trial in
therein and such evidence as may be ordinary cases shall be applicable to the
attached thereto, dismiss the case preliminary conference unless inconsistent
outright on any of the grounds apparent with the provisions of this Rule.
therefrom for the dismissal of a civil
action. If no ground for dismissal is found The failure of the plaintiff to appear in the
it shall forthwith issue summons which preliminary conference shall be cause for
shall state that the summary procedure dismissal of the complaint. The defendant
under this Rule shall apply. who appears in the absence of plaintiff
shall be entitled to judgment on his
counterclaim in accordance with S6
hereof. All cross claims shall be dismissed.
S5- Answer
Within 10 days from service of summons, If a sole defendant shall fail to appear, the
the defendant shall file his answer to the plaintiff shall be entitled to judgment in
complaint and serve a copy thereof on the accordance with S6 hereof. This Rule shall
plaintiff. Affirmative and negative not apply where one of 2 or more
defenses not pleaded therein shall be defendants sued under a common cause
deemed waived, except for lack of
61
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
of action who had pleaded a common it may, during the said period, issue an
defense shall appear at the preliminary order specifying the matter to be clarified,
conference. and require the parties to submit affidavits
or other evidence on the said matters
within 10 days from receipt of said order.
Judgment shall be rendered within 15 days
S8- Record of Preliminary Conference after the receipt of the last clarificatory
Within 5 days after the termination of the affidavits, or the expiration of the period
preliminary conference, the court shall for filing the same.
issue an order stating the matters taken
up therein, including but not limited to: The court shall not resort to the
clarificatory procedure to gain time for the
a. Whether the parties have arrived at rendition of the judgment.
an amicable settlement, and if so,
the terms thereof
62
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
l. Interventions
Injunction in FE and UD:
63
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Contempt of Court
(lower court)
- conduct which tends to bring
authority and administration of law F: not exceeding 200
into disrespect or to interfere with
I: not exceeding 1 day, OR BOTH
or prejudice parties litigant or their
witnesses during litigation
64
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Appeal to proper court as in criminal cases Only from the time of filing such notice for
record shall
a purchaser,
Direct Contempt Indirect Contempt
In presence of a or encumbrancer
judge, motu proprio
65
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
What are the papers required to be NOTE: NO TENDERING under Rule 13 S6!
filed and served under Rule 13?
Sa summons lang yon, when
(PAMNOJDORS) defendant refuses to accept the
same
Pleading subsequent to the
complaint Service by mail
Appearance
66
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
67
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
..after 5 days from the date he received The amount of docket and other lawful
the notice of the postmaster, whichever fees which the indigent was exempted
date is earlier from paying
68
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
the proper docket and other lawful fees 2. Alias Summons- issued by the
shall be branch clerk of court upon motion
of the plaintiff in case the
assessed and collected by the clerk of summons are lost, destroyed,
court improperly served, or there is
defect in the manner or form of
If payment is not made within the time
service
fixed by the court,
69
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
IN REM
Substituted Service of
Service in person Summons on defendant (R14
Substituted Service S7)
Publication
Extraterritorial Service Requisites;
70
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
71
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. By publication in a newspaper of
general circulation in such places Through process
and for such time as the court may server or upon
order, in which case a copy of the motion- by service
summons and order of the court of summons by
shall be sent by registered mail to substituted service
the last known address of
defendant, or
Defendants
residence with
some person of 3 options of the court:
suitable age and
discretion then 1. GRANT M2D- as plaintiff, refile the
residing therein or case, unless tainted with grave
abuse of discretion
By leaving the
copies at 2. DENY M2D
defendants office
72
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
As defendant, following Rule 16 S4, I will under the name by which they are
file an answer within the balance of the generally or commonly known, service
period prescribed by Rule 11 to which I am may be effected upon all the
entitled at the time of serving my motion, defendants by serving upon any one
but not less than 5 days in any event, of them, or upon the person in charge
computed from my receipt of notice of of the office or place of business
denial. Then proceed with the trial, and maintained in such name. But such
when the decision is adverse against me, I service shall not bind individually any
will file an appeal assigning as error the person whose connection with the entity
denial of the motion to dismiss. And when has, upon due notice, been severed before
the denial is tainted with grave abuse of the action was brought.
discretion amounting to lack or excess of
jurisdiction on the part of the court, I will
Upon Prisoners
file for certiorari under Rule 65.
R14 S9
73
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
74
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
75
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
76
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Rule 16 S1 states that within the time for Exclusive original jurisdiction of
but before filing the answer to the courts, if not within, then M2D is
complaint or pleading asserting a claim, a proper
motion to dismiss may be made on basis
of the following grounds: GRANTED:
77
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
DENIED:
GRANTED:
File an answer within the balance of the
period prescribed by Rule 11 to which Appeal
entitled at the time of serving motion, but
not less than 5 days in any event, DENIED:
computed from receipt of notice of denial.
File an answer within the balance of the
Then proceed with the trial, and when the
period prescribed by Rule 11 to which
decision is adverse, file an appeal
entitled at the time of serving motion, but
assigning as error the denial of the motion
not less than 5 days in any event,
to dismiss. And when the denial is tainted
computed from receipt of notice of denial.
with grave abuse of discretion amounting
Then proceed with the trial, and when the
to lack or excess of jurisdiction on the part
decision is adverse, file an appeal
of the court, file for certiorari under Rule
assigning as error the denial of the motion
65.
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
e. That there is another action of the court, file for certiorari under Rule
pending between parties for 65.
the same cause
78
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Jurisdiction over the subject matter File an answer within the balance of the
and the parties by the court period prescribed by Rule 11 to which
rendering it entitled at the time of serving motion, but
not less than 5 days in any event,
There must be identity of the computed from receipt of notice of denial.
parties, of subject matter, and of Then proceed with the trial, and when the
cause of action between the first decision is adverse, file an appeal
and second actions assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
Aka PRESCRIPTION 65.
GRANTED:
h. That the claim or demand set
Appeal forth in the plaintiffs pleading
has been paid, waived,
DENIED:
abandoned, or otherwise
File an answer within the balance of the extinguished
period prescribed by Rule 11 to which
GRANTED:
entitled at the time of serving motion, but
not less than 5 days in any event, Appeal
computed from receipt of notice of denial.
Then proceed with the trial, and when the DENIED:
decision is adverse, file an appeal
File an answer within the balance of the
assigning as error the denial of the motion
to dismiss. And when the denial is tainted period prescribed by Rule 11 to which
entitled at the time of serving motion, but
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part not less than 5 days in any event,
computed from receipt of notice of denial.
of the court, file for certiorari under Rule
65. Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
g. That the pleading asserting the with grave abuse of discretion amounting
claim states no cause of action to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
Aka FAILURE TO STATE CAUSE OF ACTION
65.
GRANTED:
Refile
i. That the claim on which the
Amend the pleading
action is founded is
DENIED: unenforceable under the
Statute of Frauds
79
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
GRANTED:
1. the court has no jurisdiction
General Rule: refile plus comply over the subject matter,
with condition precedent, EXCEPT:
2. that there is another action
In case of wilful and deliberate pending between the parties
forum shopping, which operates as for the same cause, or
dismissal with prejudice, hence,
3. that the action is barred by
In the latter case, Appeal prior judgment or by statute of
limitations,
In case of non exhaustion of
administrative remedies,
DENIED:
80
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
81
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Motion of course
Examples of non-litigated motions:
82
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Motion for writ of replevin May be filed before May be filed before
responding to a arraignment
Motion in support pendent lite pleading
83
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R12 S1 states that a bill of particulars is After service of the Bill of Particulars or of
filed before responding to a pleading, a more definite pleading, or after notice of
following the reglementary periods denial of his motion, the moving party
provided for under R11. (If the pleading is may file his responsive pleading within the
a reply, the motion must be filed within 10 period to which he was entitled at the time
days from service thereof) of filing his motion which shall not exceed
5 days in any event
3. The motion shall point out the (File a motion to strike out the pleading)
defects complained of, the
paragraphs wherein they are
contained, and the details desired
Motion for Bill of Particulars:
4. The motion is to be filed before the
Granted: Clarify, file bill of particulars
filing of responsive pleading
Denied, answer within the plenary period
5. In writing
84
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
85
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Relate to Rule 2
If there is no responsive pleading yet-
amendment as a matter of right - In case of non joinder of causes of
action,
Once- matter of discretion o AMEND the pleading
86
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Takes the place of Taken together with The court may either deny the
the original the original motion to dismiss, grant the motion
pleading pleading to dismiss, or ORDER THE
AMENDMENT OF THE PLEADING
Can be made as Always with leave of
matter of right court
when no responsive
pleading has yet Is there amendment of the pleading
been filed in summary procedure?
87
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
after the time fixed by these Rules - judgment rendered by the court
without trial if it clearly appears
that there exists no genuine issue
or controversy as to any material
Extend, BASED ON CAUSE
fact, except as to the amount of
damages
no need for hearing, notice, and Plaintiff- at any time after the pleading
filing in answer thereto has been served
DENIED:
Is bill of particulars allowed in Summary
- plead
Procedure? o there is issue, but there is
no genuine issue
NO (Prohibited pleading)
NO (prohibited pleading)
ORDER OF DEFAULT /
EXCEPT:
JUDGMENT BY DEFAULT (Rule 9)
1. lack of jurisdiction over the person
of the defending party Order of Default Judgment by
2. lack of jurisdiction over the person Default
of the defendant
Order issued by the Decision or
3. failure to comply with the Barangay
court where judgment by the
Conciliation Proceedings
defendant failed to court after order of
88
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
REMEDY:
ORDER OF DEFAULT
MOTION TO LIFT ORDER OF DEFAULT
Rule 9 S3 provides that a defending party
Verified, FAME, Affidavit of Merit
who fails to file an answer to an initiatory
(note what it is, and in what
pleading within the time allowed therefor
instances required [all FAME])
may be declared in default.
Granted: File answer
Denied,
DEFENDING PARTY INCLUDES:
FILE MOTION FOR RECONSIDERATION
In a permissive counterclaim-
original plaintiff - S4 R65
In a 3PC- 3rd party defendant - Interlocutory
In a cross claim- co defendant o NOT Rule 37 as basis
(because Rule 37 applies
Requirements for declaration of
only to Final orders)
default: (R9 S3)
Denied,
1. The court must have validly
acquired jurisdiction over the CERTIORARI RULE 65 with TRO or
person of the defendant either by injunction
service of summons or voluntary
appearance - Dahil pag wala, at may order of
default, tuloy tuloy na + judgment
2. Proof of service of summons on the of default
defendant
89
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
DENIED,
DENIED,
DENIED,
In case of motion to declare defendant in
CA M4R Rule 52
default, there is one more remedy:
DENIED,
- File motion to admit answer
o Mawawala ang motion to
SC R45 Petition for Review on Certiorari
declare defendant in default
apply Neypes, Hierarchy of courts
dahil may answer na eh
DENIED,
SC M4R Rule 52
Summary Proceedings
Higher courts will not entertain any As plaintiff in such a case, file MOTION TO
case brought before it unless the RENDER JUDGMENT
same is decided before the lower
As defendant, dont file motion to admit
courts
answer
90
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Denied. Remedy?
Summary Procedure
File a motion for reconsideration of the
Given 10 days to answer from judgment or final resolution within 15 days
receipt of service of summons from service thereof before the CA, with
proof of service on the adverse party.
Basis: R52 S1
JUDGMENT BY DEFAULT
Denied,
91
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
92
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R14 S15
5. Answer to 3rd 4th etc party
In case of summons by publication,
complaint
answer shall be filed within the time
specified in the order granting leave to R11 S5
serve summons by publication which shall
not be less than 60 days after notice, Time to answer a 3rd 4th etc party
within which the defendant must complaint shall be governed by the same
answer. rule as the answer to the complaint
(hence, follow R11 S1, 2 plus
In case of a non resident defendant in amendments)
whom extraterritorial service of summons
is made, the period to answer should be
at least 60 days.
6. Answer to complaint in
intervention
7. Reply
R11 S6
93
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
R11 S3
94
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Barred if not set up Not barred even if Negative defense is the specific denial of
in the action not set up in the the material fact or facts alleged in the
action pleading of the claimant essential to his
cause or causes of action.
Need not be Must be answered
answered, not result or else defendant 2. Affirmative defense
in default can be declared in
R6 S5
default
An affirmative defense is an allegation of
Not an initiatory Initiatory pleading
new matter which, while hypothetically
pleading
admitting the material allegations in the
Docket fees are With docket fees pleading of the claimant, would
suspended nevertheless prevent or bar recovery by
him. The affirmative defenses include:
a. Fraud
b. Statute of limitations
Omitted counterclaim or cross claim c. Release
d. Payment
REMEDY: amend the answer e. Illegality
f. Statute of frauds
g. Estoppel
h. Former recovery
Motion to dismiss with counterclaim i. Discharge in bankruptcy
95
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Ground for motion to dismiss (if M2D not With support dapat
filed or M2D denied), may be pleaded as
an affirmative defense in the answer Specifically deny par 2 __ for being untrue,
the truth of the matter is that...
Motion to set affirmative defense for
hearing,
2. Partial specific denial
- Equivalent to motion to dismiss
o During hearing, defending - Part admission and part denial
party to present evidence
With support dapat
first
INVERTED TRIAL
3. Disavowal of knowledge
- By an allegation of lack of
Affirmative defense is granted, case is knowledge or information sufficient
dismissed. Remedy? to form a belief as to the truth or
falsity of the averment in the
APPEAL (Because trial is on the merits)
opposing partys pleading
With respect too negative defenses, note Specific denial in par __ __ __ for lack of
SPECIFIC DENIALS knowledge to truth or belief of the same
1. Actionable Document
Plaintiffs remedy in such a case?
- Document which creates rights,
- JUDGMENT ON THE PLEADINGS which serves as basis for filing of
(Rule 34) the complaint
2. Usury in a complaint
96
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Not denied under oath an actionable May be taken with leave of court when:
document such as deed of sale or
mortgage, 1. After jurisdiction has been obtained
over any defendant or over the
Failure to verify = deemed property which is the subject of the
admitted action but before an answer has
HENCE, judgment on the pleadings been filed
2. Deposition of a person confined in
Except: prison
Scope of examinations:
After jurisdiction is acquired by court,
parties may resort to: 1. Matter which is relevant to the
subject of the pending action
VI. MODES OF DISCOVERY 2. Not privileged
3. Not restricted by a protective order
Rules 23-28
2. Depositions before action or
- Depositions pending action (under pending appeal (Rule 24)
R23)
- Depositions before action or Aka perpetuam rei memoriam
pending appeal (R24)
- Interrogatories to parties under - Objective is to perpetuate
R25 testimony of a witness for future
- Admission by adverse party (R26) use
- Production or inspection of o Taken conditionally, to be
documents or things under (Rule used at the trial only in case
27) deponent is not available
- Physical and mental examination of - Do not prove existence of any right
persons under (Rule 28) and the testimony perpetuated is
not in itself conclusive proof, either
of the existence of any right nor
Discussing each: even of the facts to which they
relate, as it can be controverted at
1. Depositions pending action the trial in the same manner as
(R23) though no perpetuation of
testimony was ever had
Deposition- a written testimony of a BUT, in the absence of any
witness given in the course of a judicial objection to its taking, and even if
proceeding in advance of the trial or the deponent did not testify at the
hearing upon oral examination or in hearing, the perpetuated testimony
response to written interrogatories and constitutes prima facie proof of
where an opportunity is given for cross facts referred to in the deposition
examination
97
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
98
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
99
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
100
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
the court may, on motion of that party, There is answer If filed by plaintiff,
direct judgment on such pleading filed filed at any time
101
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Answer
If filed by
defendant, may be Answer to permissive counterclaim
filed at any time
Answer to cross claim
even before answer
Answer to third party complaint
Answer to complaint in intervention
VII. REPLY (R6 S10)
Reply to answer
A pleading, the office or function of which
Reply to answer to permissive
is to deny or allege facts in denial or
counterclaim
avoidance of new matters alleged by way
of defense in the answer and thereby join Reply to answer to cross claim
or make issue as to such new matters.
Reply to answer to third party
If a party does not file such reply, all the complaint
new matters alleged in the answer are
deemed controverted. Reply to answer to complaint in
intervention
R11- may be filed within 10 days from
service of the pleading responded to Rejoinder
Second pleading on the party on If the motion is not filed, is the case
the part of defendant being his dismissed for failure to prosecute?
answer to the plaintiffs replication
Another form of responsive - Techinically, yes, but ff R1 S6
pleading (liberal construction,
o It is not dismissed
102
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Plea Possibility of
bargaining amicable
Non appearance Stipulation settlement
may be excused of facts or
only if valid cause is submission
shown, or Marking of
to
representative shall identification
alternative
appear in behalf of evidence
modes of
duly authorized in of the
dispute
writing to enter into parties
resolution
amicable
settlement, submit Waiver of
Simplificatio
to ADR, enter into objections to
n of the
stipulations of facts admissibility
issues
and of document of evidence
Necessity or
Failure of counsel of Failure of plaintiff to Modification
desirability
accused or appear, dismissal of of order of
of
prosecutor to the case with trial if
amendments
appear, and without prejudice, unless accused
to the
acceptable excuse otherwise ordered admits the
pleadings
for lack of by the court charge but
cooperation, court interposes a Possibility of
may impose proper lawful obtaining
sanctions or defense stipulations
Failure of defendant
penalties or
to appear, plaintiff Such
admissions
to present evidence matters as
of facts and
ex parte will promote
of
Presence of private a fair and
documents
offended party is expeditious
to avoid
not required (as trial of the
unnecessary
only required to criminal and
proof
appear at civil aspects
arraignment) of the case Limitation on
the number
103
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
104
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
g. The propriety of rendering Failure to file the pre trial brief shall have
judgment on the pleadings or the same effect as failure to appear at the
summary judgment or of pre trial.
dismissing the action should a valid
ground therefore the found to exist
S6- Pre trial brief (all remedies, may bayad, bawat pleading)
pagkakitaan
The parties shall file with the court and
serve on the adverse party, in such
manner as shall ensure their receipt
Failure to file at pre trial brief = failure to
thereof at least 3 days before the date of
appear at pre trial, same effect
the pre trial, their respective pre trial
briefs which shall contain, among others:
105
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
ones who make the decisions of the NOTE: Defendant WILL NOT BE DECLARED
corporation through Board Resolution-- IN DEFAULT! Likewise, there is no such
note that Board Resolution prevails over thing under the 1997 Rules on Civil
SPA) Procedure AS IN DEFAULT (sa luma to)
106
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
BAWAL accdg sa Manual of Clerk of Court - File a motion for new trial (Rule
(ugat ng corruption) 37)
The only time na pwede is when he Ground: FAME which ordinary prudence
is not an employee of a court could not have guarded against and by
reason of which such aggrieved party has
REMEDIES: been impaired in his right
107
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
- Order issued by the court stating Pre trial brief (see above) presented in
what transpired during the pre trial trial
conference
o Can be amended
accordingly
o By filing motion to amend or All witnesses in pre trial brief to be
correct the pre trial order, presented
within 5 days after receipt
Before witness is presented, offer of
of the pre trial order
testimony, in accordance with purpose in
o NO NEED for counsel to sign
pre trial brief
the pre trial order
The best part of law practice HOW, WHEN, WHERE, WHAT, WHY
Leading Questions
108
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Misleading questions
Re Direct Examination
Re Cross Examination
Cross Examination
Destroy what was re established in
Requires knowledge of: the re direct examination
- Facts NOTE: Identify all witnesses
- Evidence
- Defenses Offer of Offer of Evidence
Testimony
Leading questions are allowed
Made at the time After termination of
Totoo bang ikaw ay maganda? Leading
the witness is presentation of
Obtain affirmative answers- GOOD presented on the evidence of
witness stand prosecution
Line of questioning:
Comment or objection
109
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
In Criminal Cases,
110
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Judgment of Judgment of
dismissal is acquittal is not
appealable appealable; DJ sets Rule 33 Rule 119 S23
in With or without With LoC- if denied,
leave of court accused presents
If demurrer is evidence
granted but on
appeal, order of If granted, but on
dismissal is appeal is reversed, Without LoC- if
reversed, defendant defendant loses the denied, defendant
is deemed to have right to present cannot present
waived the right to evidence, case evidence
present evidence submitted for
decision
Re Cross Examination
111
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
3. REBUTTAL EVIDENCE
5. MEMORANDUM
112
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
113
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
JUDGMENT ON DEMURRER TO
SEPARATE JUDGMENT
EVIDENCE
R36 S5 R33
114
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
rested his case, on the ground that Res Judicata (note above)
upon the facts presented by
plaintiff and the law on the matter,
plaintiff has not shown any right to
relief
Stare Decisis
CONDITIONAL JUDGMENT
FINAL JUDGMENT
115
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Notice/Record on Appeal
Notice To RTC To CA To CA To CA To SC
or
M4R Record CA
Under on
Rule 37 appeal
under
Rule M4R Petitio
41 Under n 4
SC 117
Rule 52review
M4RSC
on
certior Rule
ari 52
under
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
9. When facts set forth in the petition Filed within 60 days from knowledge of
as well as in the petitioners main judgment and within 6 months from entry
and reply briefs are not disputed by of judgment
respondents
118
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Execution
AFTER 5 years
119
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
2. Issued against the wrong party - while it has jurisdiction over the
case and
3. Issued without authority
120
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1. Injunction
2. Receivership
Grounds: 3. Accounting
4. Support
1. Insolvency of judgment debtor 5. Other judgments declared to be
2. Wastage of asset by judgment immediately executory unless
debtor otherwise ordered by trial court
121
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
122
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
123
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
124
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
Res judicata
125
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
1. Want of jurisdiction
2. Want of notice
3. Collusion
4. Fraud
126
Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE
Notes by: Paul Lemuel E. Chavez
127