A

GENERAL PRINCIPLES
I. GENERAL PRINCIPLES 7. Court decisions (Herrera, Vol. I, p. 2, 2007

ed.)
A. CONCEPT OF REMEDIAL LAW
Q: What is procedural rule?
Q: What is the concept of remedial law?
A: Procedural rule is the judicial process for
A: It is a branch of public law, which prescribes the enforcing rights and duties recognized by
procedural rules to be observed in litigations, substantive law and for justly administering remedy
whether civil, criminal, or administrative, and in and redress for their disregard or infraction.
special proceedings, as well as the remedies or
reliefs available in each case. (2006 Bar Question) Note: If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right
Q: What is the importance of remedial law? to appeal, it may be classified as substantive matter;
but if it operates as a means of implementing an
A: It plays a vital role in the administration of existing right, then the rule deals merely with
justice. It lies at the very core of procedural due procedure (Fabian v. Desierto, G.R. No. 129742, Sept.
16, 1998).
process, which means a law which hears before it
condemns, which proceeds upon inquiry and
renders judgment only after trial, and contemplates Q: How are remedial laws implemented in our
an opportunity to be heard before judgment is system of government?
rendered (Herrera, Vol. I, p. 1, 2007 ed.)
A: They are implemented through the judicial
B. SUBSTANTIVE LAW AS DISTINGUISHED FROM system, including the prosecutory service of courts
REMEDIAL LAW and quasi-judicial agencies. (2006 Bar Question)
Q: Distinguish substantive and remedial law C. RULE-MAKING POWER OF THE SUPREME COURT
A: 1. LIMITATIONS ON THE RULE-MAKING POWER OF

Substantive Law Remedial Law THE SUPREME COURT
Part of the law which Refers to the legislation
creates, defines or providing means or Q: What are the limitations on the rule-making
regulates rights concerning methods whereby causes power of the Supreme Court?
life, liberty or property or of action may be
the powers of agencies or effectuated, wrongs A:
instrumentalities for the redressed and relief 1. It shall provide a simplified and
administration of public obtained (also known as inexpensive procedure for the speedy
affairs. Adjective Law). disposition of cases.
Does not create vested 2. The rules must be uniform for all the
Creates vested rights.
rights courts of the same grade.
Retroactive in 3. The rules must not diminish, increase or
Prospective in application.
application modify substantive rights (Cruz, Philippine
The Supreme Court is Political Law, p. 281, 2002 ed.)
expressly empowered to
Cannot be enacted by the
promulgate procedural
Supreme Court. 2. POWER OF THE SUPREME COURT TO AMEND
rules. (2006 Bar
AND SUSPEND PROCEDURAL RULES
Question)
Q: May the Supreme Court suspend the
Q: What are the principal sources of remedial law? application of the Rules of Court and exempt a
case from its operation?
A:
1. Constitution A: Yes. In the interest of just and expeditious
2. Different laws creating the judiciary, proceedings, the Supreme Court may do so because
defining and allocating jurisdiction to the Rules were precisely adopted with the primary
courts of different levels objective of enhancing fair trial and expeditious
3. Procedural laws and rules promulgated by justice. (Republic v. CA, G.R. No. L-31303, May 31,
the Supreme Court 1978)
4. Circulars
5. Administrative orders
6. Internal rules
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
Fac ul tad de D e re c ho Ci vi l 1
UST GOLDEN NOTES 2011
D. NATURE OF PHILIPPINE COURTS 5. COURTS OF GENERAL AND SPECIAL

1. MEANING OF A COURT JURISDICTION
Q: What is a court? Q: Distinguish Courts of general jurisdiction from

special jurisdiction.
A: It is an organ of the government, belonging to
the judicial department, whose function is the A:
application of laws to controversies brought before Courts of General Courts of Special
it and the public administration of justice. (Black’s jurisdiction jurisdiction
Law Dictionary) Takes cognizance of all Takes cognizance of
cases , civil or criminal, special jurisdiction for a
2. COURT AS DISTINGUISHED FROM A JUDGE of a particular nature, or particular purpose, or are
courts whose judgment clothed with special
Q: Distinguish court from a judge is conclusive until powers for the
modified or reversed on performance of specified
direct attack, and who duties, beyond which
Court Judge
are competent to decide they have no authority of
Entire body in which the Only an officer or on their own jurisdiction any kind
judicial power is vested member of the court
May exist without a There may be a judge
present judge without a court 6. CONSTITUTIONAL AND STATUTORY COURTS
Disqualification of a
judge does not affect May be disqualified Q: Distinguish constitutional court from statutory
the court court.
3. CLASSIFICATION OF PHILIPPINE COURTS A:

Constitutional Court Statutory Court
Q: What are the classifications of Philippine Created by the constitution Created by law
courts? e.g. SC e.g. CTA
May be abolished by
A: Cannot be abolished by Congress by just simply
Congress without amending repealing the law
1. Regular courts (Supreme Court, Court of
the Constitution which created those
Appeals, Regional Trial Courts,
courts
Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts ,
7. COURTS OF LAW AND EQUITY
Municipal Circuit Trial Courts)
2. Special courts (Sandiganbayan, Court of
Q: Distinguish Courts of law from equity.
Tax Appels, Shari'a District Courts, Shari'a
Circuit Courts)
A:
3. Quasi-courts or Quasi-judicial agencies
Courts of Law Courts of Equity
(e.g Civil Service Commission)
Any tribunal duly Any tribunal administering
administering the justice outside the law, being
4. COURTS OF ORIGINAL AND APPELLATE
laws of the land ethical rather than jural and
JURISDICTION belonging to the sphere of
morals rather than of law. It is
Q: Distinguish Courts of original jurisdiction from grounded on the precepts of
Courts of appellate jurisdiction. conscience and not on any
sanction of positive law, for
A: equity finds no room for
Courts of Original Courts of Appellate application where there is law.
jurisdiction jurisdiction (Herrera, Vol. I, p. 18, 2007 ed.)
Courts exercising Superior Courts reviewing
Decides a case Adjudicates a controversy
jurisdiction in the first and deciding cases
according to what according to the common
instance previously decided by a
the promulgated precepts of what is right and
lower court
law is just without inquiring into the
terms of the statutes
REMEDIAL LAW TEAM:

2 ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
GENERAL PRINCIPLES
Q: What are courts of record?
A: These are courts whose proceedings are enrolled

and which are bound to keep written records of all
trials and proceedings handled by them. R.A. No.
6031 mandates all Municipal Trial Courts to be
courts of record.
8. PRINCIPLE OF JUDICIAL HIERARCHY
Q: What is the policy of Judicial Hierarchy or

hierarchy of courts?
A: A higher court will not entertain direct resort to

it unless the redress desired cannot be obtained in
the appropriate courts. The Supreme Court is a
court of last resort and must so remain if it is to
satisfactorily perform assigned to it. (1996 Bar
Question)
9. DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
Q: What is Doctrine of Non-Interference or Judicial

Stability?
A: Courts of equal and coordinate jurisdiction

cannot interfere with each other’s orders. Thus, the
RTC has no power to nullify or enjoin the
enforcement of a writ of possession issued by
another RTC. The principle also bars a court from
reviewing or interfering with the judgment of a co-
equal court over which it has no appellate
jurisdiction or power of review.
Note: GR: No court has the authority to interfere by

injunction with the judgment of another court of
coordinate jurisdiction or to pass upon or scrutinize
and much less declare as unjust a judgment of another
court.
XPN: The doctrine does not apply where a third party

claimant is involved (Santos v. Bayhon, G.R. No. 88643,
July 23, 1991).

II. JURISDICTION Q: Distinguish jurisdiction over the subject matter

from jurisdiction over the person.
Q: What is jurisdiction?
A:
A: It is the power and authority of a court to try, Jurisdiction Over the Subject Jurisdiction Over the
hear, and decide a case and to carry its judgments Matter Person
into effect (Latin: “juris” and “dico,” which literally Determined by the allegations Acquired by the filing
means “I speak of the law”). of the complaint (Riano, Civil of the petition in case
Procedure: A Restatement for of the plaintiff or by
Q: Is the statement that “Jurisdiction is conferred the Bar, p. 144, 2009 ed.) arrest (Rule 113), by
by substantive law“ accurate? valid service of
XPN: Where the real issues summons or voluntary
are evident from the record submission to the
A: No, because only jurisdiction over the subject
of the case, jurisdiction over court’s authority in
matter is conferred by substantive law. Jurisdiction the subject matter cannot be case of the defendant
over the parties, issues and res is governed by made to depend on how the (Ibid. p. 158)
procedural laws. parties word or phrase their
pleadings (Herrera, Vol. I, p. 2,
A. JURISDICTION OVER THE PARTIES 2007 ed.) e.g. in ejectment
cases in which the defendant
1. HOW JURISDICTION OVER THE PLAINTIFF IS averred the defense of the
ACQUIRED existence of tenancy
relationship between the
Q: How is jurisdiction over the plaintiff acquired? parties (Ibid p.148)
A: It is acquired from the moment of filing the Note: Tenancy relationship is

complaint, petition or initiatory pleading. not presumed and it is not
enough that it is alleged. There
must be evidence to prove that
2. HOW JURISDICTION OVER THE DEFENDANT IS it exists and that all its
ACQUIRED elements are established
(Salmorin v. Zaldivar, G.R. No.
Q: How is jurisdiction over the defendant 169691, July 23, 2008).
acquired? It is sometimes made
Conferred by law which may
to depend, indirectly
be either the Constitution or
A: It is acquired either: at least, on the party’s
a statute (Ibid. p. 143)
a. By his voluntary appearance in court and volition
his submission to its authority Cannot be conferred by the GR: The appearance of
b. By service of summons agreement of the parties, by the defendant in
c. Other coercive process upon him contract or by parties’ silence whatever form is
or acquiescence Ibid. p. 144) submission to the
Note: Jurisdiction over the defendant is not essential jurisdiction of the
in actions in rem or quasi in rem as long as the court court
has jurisdiction over the res (Herrera, Vol. I, p. 114,
2007 ed.) XPN: If the
appearance is to
object or question the
B. JURISDICTION OVER THE SUBJECT MATTER
court’s jurisdiction
(Ibid. p. 161)
1. MEANING OF JURISDICTION OVER THE SUBJECT
MATTER Note: In criminal cases,
jurisdiction over the
Q: What is jurisdiction over the subject matter? accused is always
required
A: It is the power to deal with the general subject
involved in the action, and means not simply
jurisdiction of the particular case then occupying
the attention of the court but jurisdiction of the
class of cases to which the particular case belongs.
It is the power or authority to hear and determine
cases to which the proceeding in question belongs.
REMEDIAL LAW TEAM:

JURISDICTION
2. JURISDICTION VERSUS THE EXERCISE OF

JURISDICTION 5. DOCTRINE OF PRIMARY JURISDICTION
Q: Distinguish jurisdiction from exercise of Q: What is Doctrine of Primary Jurisdiction?

jurisdiction.
A: Courts will not resolve a controversy involving a
A: Jurisdiction is the authority to hear and decide question which is within the jurisdiction of an
cases. On the other hand, exercise of jurisdiction is administrative tribunal, especially where the
any act of the court pursuant to such authority, question demands the exercise of sound
which includes making decisions. administrative discretion requiring the special
knowledge and experience of said tribunal in
3. ERROR OF JURISDICTION AS DISTINGUISHED determining technical and intricate matters of fact
FROM ERROR OF JUDGMENT (Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).
Q: Distinguish error of jurisdiction from error of Q: What is Doctrine of Ancillary Jurisdiction?

judgment.
A: It involves the inherent or implied powers of the
A: court to determine issues incidental to the exercise
Error of Jurisdiction Error of Judgment of its primary jurisdiction.
One where the court, One that the court may
officer or quasi-judicial commit in the exercise of Note: Under its ancillary jurisdiction, a court may
body acts without or in jurisdiction; it includes determine all questions relative to the matters
excess of jurisdiction, or errors of procedure or brought before it, regulate the manner in which a trial
with grave abuse of mistakes in the court’s shall be conducted, determine the hours at which the
discretion findings witnesses and lawyers may be heard, and grant an
Renders a judgment void Does not make the court’s injunction, attachment or garnishment.
or at least voidable decision void
Correctible by certiorari Correctible by appeal 6. DOCTRINE OF ADHERENCE TO JURISDICTION
The court acted with
jurisdiction but Q: What is Doctrine of Adherence to Jurisdiction or
There is an exercise of
committed procedural Continuity of Jurisdiction?
jurisdiction in the
errors in the appreciation
absence of jurisdiction
of the facts or the law
A:
(1989 Bar Question)
GR: Jurisdiction, once attached, cannot be
ousted by subsequent happenings or events
4. HOW JURISDICTION IS CONFERRED AND although of a character which would have
DETERMINED prevented jurisdiction from attaching in the first
instance, and the court retains jurisdiction until
Note: discussion on how jurisdiction is conferred is on
it finally disposes of the case.
page 4.
XPNs:
Q: What are the instances in which jurisdiction
1. Where a subsequent statute expressly
cannot be conferred?
prohibits the continued exercise of
jurisdiction;
A:
2. Where the law penalizing an act which is
1. By the administrative policy of any court;
punishable is repealed by a subsequent
2. A court’s unilateral assumption of
law;
jurisdiction;
3. When accused is deprived of his
3. An erroneous belief by the court that it
constitutional right such as where the
has jurisdiction;
court fails to provide counsel for the
4. By the parties through a stipulation e.g.
accused who is unable to obtain one and
contract;
does not intelligently waive his
5. The agreement of the parties acquired
constitutional right;
through, or waived, enlarged or
4. Where the statute expressly provides, or
diminished by, any act or omission of the
is construed to the effect that it is
parties;
intended to operate as to actions pending
6. Parties silence, acquiescence or consent
before its enactment;
(Riano, Civil Procedure: A Restatement for
the Bar, p. 143, 11th ed.).

5. When the proceedings in the court because it cannot be tolerated by reason

acquiring jurisdiction is terminated, of public policy (Filipinas Shell Petroleum
abandoned or declared void; Corp. v. Dumlao, G.R. No. L-44888, Feb. 7,
6. Once appeal has been perfected; 1992).
7. Curative statutes (Herrera, Vol. I, p. 106,
2007 ed.). 3. A party who invokes the jurisdiction of
the court to secure affirmative relief
Q: Does retroactivity of a law affect jurisdiction? against his opponents cannot repudiate
or question the same after failing to
A: No. Jurisdiction being a matter of substantive obtain such relief (Tajonera v. Lamaroza,
law, the established rule is that statute in force at G.R. No. L-48907, 49035, Jan. 19, 1982).
the time of the commencement of the action
determines jurisdiction. (Herrera, Vol. I, p. 105, Note: Under the Omnibus Motion Rule, a motion
2007 ed.) attacking a pleading like a motion to dismiss shall
include all grounds then available and all objections
7. OBJECTIONS TO JURISDICTION OVER THE not so included shall be deemed waived. The defense
SUBJECT MATTER of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke
Q: What is the effect of lack of jurisdiction over the same in a motion to dismiss already filed. Even if a
the subject matter? motion to dismiss was filed and the issue of
jurisdiction was not raised therein, a party may, when
he files an answer, raise the lack of jurisdiction as an
A: When it appears from the pleadings or evidence
affirmative defense because this defense is not barred
on record that the court has no jurisdiction over the under the omnibus motion rule.
subject matter, the court shall dismiss the same.
(Sec. 1, Rule 9). The court may on its own initiative Q: Will the failure to exhaust administrative
object to an erroneous jurisdiction and may ex remedies affect the jurisdiction of the court?
mero motu take cognizance of lack of jurisdiction at
any point in the case and has a clearly recognized A:
right to determine its own jurisdiction (Riano, Civil GR: No. It is not jurisdictional but the case will
Procedure: A Restatement for the Bar, p. 154, 2009 be dismissed on the ground of lack of cause of
ed.). action. It only renders the action premature.
(Carale v. Abarintos, G.R. No. 120704, March 3,
Q: May jurisdiction of the court be raised or 1997; Pestanas v. Dyogi, 81 SCRA 574)
questioned at any time?
XPN:
A: Before a party may be allowed to invoke the
GR: Yes. The prevailing rule is that jurisdiction jurisdiction of the courts, he is expected to have
over the subject matter may be raised at any exhausted all means of administrative redress
stage of the proceedings (Riano, Civil Procedure: (Herrera, Vol. I, p. 267, 2007 ed.).
A Restatement for the Bar, p. 154, 2009 ed.).
XPNS TO THE XPN:
Note: Jurisdiction can be questioned even for the first 1. Question raised is purely legal;
time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)
2. When the administrative body is in
estoppels;
XPNs:
3. When the act complained of is patently
1. Estoppel by laches. SC barred a belated illegal;
objection to jurisdiction that was raised 4. When there is need for judicial
only after an adverse decision was intervention;
rendered by the court against the party 5. When the respondent acted in disregard
raising the issue of jurisdiction and after of due process;
seeking affirmative relief from the court 6. When the respondent is the alter-ego of
and after participating in all stages of the the President, bear the implied or
proceedings(Tijam v. Sibonghanoy, G.R.
assumed approval of the latter;
No. L-21450, Apr. 15, 1968).
7. When irreparable damage will be
suffered;
2. Public policy – One cannot question the 8. When there is no other plain, speedy and
jurisdiction which he invoked, not adequate remedy;
because the decision is valid and
conclusive as an adjudication, but
REMEDIAL LAW TEAM:

JURISDICTION
9. When strong public interest is involved; involving the status of the parties or suits
and involving the property in the Philippines
10. In quo warranto proceedings (Herrera, of non-resident defendants.
Vol. I, p. 268, 2007 ed.)
E. JURISDICTION OF COURTS
Note: The rule on exhaustion of administrative
remedies and doctrine of primary jurisdiction applies Q: Which court has jurisdiction over the following?
only when the administrative agency exercises quasi-
judicial or adjudicatory function (Associate A:
Communications and Wireless Services v. Dumalao, 1. Boundary dispute between municipalities
G.R. 136762, Nov. 21, 2002).
RTCs are courts of general jurisdiction. Since
there is no legal provision specifically
governing jurisdiction over boundary disputes
8. EFFECT OF ESTOPPEL ON OBJECTIONS TO
between a municipality and an independent
JURISDICTION
component city of the same province, it
follows that RTCs have the power and
Q: What is the effect of estoppel by failure to
authority to hear and determine such
object lack of jurisdiction?
controversy (Municipality of Kananga v.
Madrona, G.R. No. 141375, Apr. 30, 2003).
A: The active participation of a party in a case is
tantamount to recognition of that court’s
2. Expropriation
jurisdiction and will bar a party from impugning the
It is within the jurisdiction of the RTC because
court’s jurisdiction. This only applies to exceptional
it is incapable of pecuniary estimation. It does
circumstances. (Francel Realty Corp. v. Sycip, 469
not involve the recovery of sum of money.
SCRA 424; Concepcion v. Regalado, GR 167988, Feb.
Rather, it deals with the exercise by the
6, 2007).
government of its authority and right to take
property for public use.
C. JURISDICTION OVER THE ISSUES
3. Labor dispute
Q: What is jurisdiction over the issues?
An action for damages for abuse of right as an
incident to dismissal is within the exclusive
A: It is the power of the court to try and decide
jurisdiction of the labor arbiter. But the labor
issues raised in the pleadings of the parties or by
arbiter has no jurisdiction for claims of
their agreement in a pre-trial order or those tried
damages based on quasi-delict which has no
by the implied consent of the parties. It may also be
reasonable connection with the employer-
conferred by waiver or failure to object to the
employee relations claims under the Labor
presentation of evidence on a matter not raised in
Code (Ocheda v. CA, G.R. No. 85517, Oct. 16,
the pleadings
1992).
D. JURISDICTION OVER THE RES OR PROPERTY IN
Note: Where no employer-employee relationship
LITIGATION
exists between the parties and no issue involved
may be resolved by reference to the Labor Code,
Q: How is jurisdiction over the res acquired? other labor statutes or any collective bargaining
agreement, it is the regular courts that has
A: It is acquired either by: jurisdiction (Jaguar Security Investigation Agency
1. The seizure of the property under legal v. Sales, G.R. No. 162420, Apr. 22, 2008).
process.
2. As a result of the institution of legal 4. Forcible entry and unlawful detainer
proceedings, in which the power of the The MTC has exclusive original jurisdiction. In
court is recognized and made effective. such cases, when the defendant raises the
(Banco Español Filipino vs. Palanca, 37 question of ownership in his pleadings and the
Phil. 291). question of possession cannot be resolved
3. The court by placing the property of thing without deciding the question of ownership,
under its custody (custodia legis). the issue of ownership shall be resolved only to
Example: attachment of property. determine the issue of possession. All
4. The court through statutory authority ejectment cases are covered by the Rule on
conferring upon it the power to deal with Summary Procedure and are within the
the property or thing within the court’s jurisdiction of the inferior courts regardless of
territorial jurisdiction. Example: suits whether they involve questions of ownership.
The courts in ejectment cases may determine for reconsideration in accordance with Rule 45
questions of ownership whenever necessary to of the Rules of Court (Sec. 27, R.A. 6770).
decide the question of possession (Gayoso v.
Twenty-Two Realty Development Corp., G.R. 7. Public school teachers
No. 147874, July 17, 2006; Santiago v. Pilar Generally, the Ombudsman must yield to the
Development Corp., G.R. No. 153628, July 20, Division School Superintendent in the
2006). investigation of administrative charges against
public school teachers (Ombudsman v. Galicia,
5. Authority to conduct administrative G.R. No. 167711, Oct. 10, 2008).
investigations over local elective officials
and to impose preventive suspension 8. Enforcement of a money claim against a
over elective provincial or city officials local government unit
It is entrusted to the Secretary of Local Commission on Audit (COA) has the primary
Government and concurrent with the jurisdiction to pass upon the money claim. It is
Ombudsman upon enactment of R.A. 6770. within the COA's domain to pass upon money
There is nothing in the Local Government Code claims against the government or any subdivision
of 1991 to indicate that it has repealed, thereof as provided for under Section 26 of the
whether expressly or impliedly, the pertinent Government Auditing Code of the Philippines.
provisions of the Ombudsman Act (Hagad v. Courts may raise the issue of primary jurisdiction
Dadole, G.R. No. 108072, Dec. 12, 1995). sua sponte (on its own will or motion; means to
act spontaneously without prompting from
6. Appeals involving orders arising from another party) and its invocation cannot be
administrative disciplinary cases originating waived by the failure of the parties to argue it as
from the Office of the Ombudsman the doctrine exists for the proper distribution of
It may be appealed to the Supreme Court by power between judicial and administrative
filing a petition for certiorari within 10 days bodies and not for the convenience of the parties
from receipt of the written notice of the order, (Euro-Med Laboratories, Phil., Inc. v. Province of
directive or decision or denial of the motion Batangas, G.R. No. 148106, July 17, 2006).
1. SUPREME COURT
Civil Cases Criminal Cases

Exclusive Original
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following: prohibition and mandamus against the following:
1. Court of Appeals 1. Court of Appeals
2. Commission on Elections En Banc 2. Sandiganbayan
3. Commission on Audit
4. Sandiganbayan
Appellate
1. Appeal by petition for review on certiorari: 1. In all criminal cases involving offenses from
a. Appeals from the CA; which the penalty is reclusion perpetua or life
b. Appeals from the CTA; imprisonment and those involving other
c. Appeals from RTC exercising original jurisdiction in offenses, which although not so punished
the following cases: arose out of the same occurrence or which
i. If no question of fact is involved and the case may have been committed by the accused on
involves: the same occasion
a) Constitutionality or validity of treaty,
Note: In criminal cases, when the penalty imposed
international or executive agreement, law,
is life imprisonment or reclusion perpetua, appeal
presidential decree, proclamation, order,
is automatic to the CA. (A.M. No. 04-9-05-SC;
instruction, ordinance or regulation
People v. Mateo y Garcia, G.R. No. 147678-87, July
b) Legality of tax, impost, assessments, or toll, 7, 2004)
or penalty in relation thereto
c) Cases in which jurisdiction of lower court is 2. Criminal cases in which the death penalty is
in issue imposed by the Sandiganbayan
ii. All cases in which only errors or questions of 3. Appeals from the CA;
law are involved. 4. Appeals from the Sandiganbayan;
2. Special civil action of certiorari – filed within 30 days against 5. Appeals from RTC in which only errors or
the COMELEC / COA questions of law are involved.
REMEDIAL LAW TEAM:

JURISDICTION
Concurrent
With CA
1. Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following: prohibition and mandamus against the RTC and
a. NLRC under the Labor Code. lower courts.
Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed. (St. Martin Funeral Home v. CA, G.R.
No. 130866, Sept. 16, 1998).
b. Civil Service Commission

c. Quasi-judicial agencies (file with the CA first)
d. RTC and lower courts;
2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,

A.M. No. 09-6-8-SC).
With CA and RTC
1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari,
2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts
mandamus against the lower courts or other bodies or bodies.
With CA, SB and RTC
1. Petitions for the issuance of writ of amparo
Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the action involves
of habeas data
public data or government office
With RTC With Sandiganbayan
Actions affecting ambassadors and other public ministers and Petitions for mandamus, prohibition, certiorari,
consuls injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that
may arise in in cases filed under EO Nos. 1, 2, 14 and
14-A
Note: g. P.D. No. 1433 - Plant Quarantine Law

1. The following cases must be decided by the of 1978;
SC en banc: h. P.D. No. 1586 - Establishing an
a. All cases involving the constitutionality Environmental Impact Statement
of a treaty, international or executive System Including Other Environmental
agreement, or law; Management Related Measures and
b. Cases involving the constitutionality, for Other Purposes;
application or operation of presidential i. R.A. 3571 - Prohibition Against the
decrees, proclamations, orders, Cutting, Destroying or Injuring of
instructions, ordinances and other Planted or Growing Trees, Flowering
regulations; Plants and Shrubs or Plants of Scenic
c. A case where the required number of Value along Public Roads, in Plazas,
vote in a division is not obtained; Parks, School Premises or in any Other
d. A doctrine or principle laid down in a Public Ground;
decision rendered en banc or by j. R.A. 4850 - Laguna Lake Development
division is modified, or reversed; Authority Act;
e. All other cases required to be heard en k. R.A. 6969 - Toxic Substances and
banc under the Rules of Court (Sec. 5, Hazardous Waste Act;
Art. VIII, 1987 Constitution). l. R.A. 7076 - People’s Small-Scale Mining
2. Environmental laws and regulations covered Act;
by the writ of kalikasan includes but not m. R.A. 7586 - National Integrated
limited to the following: Protected Areas System Act including
a. Act No. 3572 - Prohibition Against all laws, decrees, orders, proclamations
Cutting of Tindalo,Akli, and Molave and issuances establishing protected
Trees; areas;
b. P.D. No. 705 - Revised Forestry Code; n. R.A. 7611 - Strategic Environmental
c. P.D. No. 856 - Sanitation Code; Plan for Palawan Act;
d. P.D. No. 979 - Marine Pollution Decree; o. R.A. 7942 - Philippine Mining Act;
e. P.D. No. 1067 - Water Code; p. R.A. 8371 - Indigenous Peoples Rights
f. P.D. No. 1151 - Philippine Act;
Environmental Policy of 1977; q. R.A. 8550 - Philippine Fisheries Code;
r. R.A. 8749 - Clean Air Act; of directors, business associates, its

s. R.A. 9003 - Ecological Solid Waste officers or partnership, amounting
Management Act; fraud or misrepresentation which may
t. R.A. 9072 - National Caves and Cave be detrimental to the interest of the
Resource Management Act; public and/or the stockholders,
u. R.A. 9147 - Wildlife Conservation and partners, members of the associations
Protection Act; or organizations registered with the
v. R.A. 9175 - Chainsaw Act; Security and Exchange Commission;
w. R.A. 9275 - Clean Water Act; b. Controversies arising out of intra-
x. R.A. 9483 - Oil Spill Compensation Act corporate or partnership relations,
of 2007; between and among stockholders,
y. Provisions in CA No. 141, The Public members or associates, respectively;
Land Act; R.A. 6657, Comprehensive and between such corporation,
Agrarian Reform Law of 1988; R.A. partnership or association and the
7160, Local Government Code of 1991; state in so far as it concerns their
R.A. 7161, Tax Laws Incorporated in the individual franchise or right to exist as
Revised Forestry Code and Other such entity;
Environmental Laws (Amending the c. Controversies in the election or
NIRC); R.A. 7308, Seed Industry appointments of directors, trustees,
Development Act of 1992; R.A. 7900, officers or managers of such
High-Value Crops Development Act; corporation, partnerships or
R.A. 8048, Coconut Preservation Act; associations; and
R.A. 8435, Agriculture and Fisheries d. Petitions of corporations, partnerships
Modernization Act of 1997; R.A. 9522, or associations to be declared in the
The Philippine Archipelagic Baselines state of suspension of payments in
Law; R.A. 9593, Renewable Energy Act cases where the corporation,
of 2008; R.A. 9637, Philippine Biofuels partnership or association posses
Act; and sufficient property to cover all its debts
z. Other existing laws that relate to the but foresees the impossibility of
conservation, development, meeting them when they respectively
preservation, protection and utilization fall due or in cases where the
of the environment and natural corporation, partnership or association
resources (Sec. 2, Rule 1, A.M. No. 09- has no sufficient assets to cover its
6-8-SC). liabilities but is under the management
3. The following are intra-corporate of a Rehabilitation Receiver or
controversies within the jurisdiction of the Management Committee (Sec. 5.2,
RTC: SRC).
a. Cases involving devises or schemes
employed by or any acts, of the board
2. COURT OF APPEALS

Exclusive Original
Actions for annulment of judgments of RTC based upon 1. Actions for annulment of judgments of RTC (Sec. 9
extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129). B.P. 129).
2. Crimes of Terrorism under the Human Security Act
of 2007 or R.A. 9372
Appellate
1. Final judgments, decisions, resolutions, orders, Judgments or decisions of RTC (except those appealable
awards of: to the SC or SB):
a. RTC a. exercising its original jurisdiction;
i. In the exercise of its original jurisdiction; b. exercising its appellate jurisdiction; and
ii. In the exercise of its appellate jurisdiction; c. where the imposable penalty is:
b. Family Courts; i. life imprisonment or reclusion perpetua;
c. RTC on the questions of constitutionality, ii. a lesser penalty for offenses committed on
validity of tax, jurisdiction involving questions of the same occasion or which arose from the
fact, which should be appealed first to the CA; same occurrence that gave rise to the offense
d. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life
which are not a matter of right. imprisonment (Sec. 3, Rule 122).
2. Appeal from MTC in the exercise of its delegated iii. Death (Sec. 10, Rule 122).
REMEDIAL LAW TEAM:

JURISDICTION
jurisdiction (R.A. 7691).

3. Appeals from Civil Service Commission;
4. Appeals from quasi-judicial agencies under Rule 43;
5. Appeals from the National Commission on
Indigenous Peoples (NCIP); and
6. Appeals from the Office of the Ombudsman in
administrative disciplinary cases (Mendoza-Arce v.
Office of the Ombudsman, G.R. No. 149148, Apr. 5,
2002).
Concurrent
With SC
1. Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition
certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts.
the following:
a. NLRC under the Labor Code.
b. Civil Service Commission
c. Quasi-judicial agencies
d. RTCs and other lower courts.
2. Petitions for issuance of writ of
kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC).
With SC and RTC
1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, prohibition
2. Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies.
prohibition and mandamus against the lower courts
With SC, SB and RTC
1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of
2. Petition for writ of habeas data, where the action habeas data
involves public data or government office
3. COURT OF TAX APPEALS
Tax Cases Criminal Cases

Exclusive Original
In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the
assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws
the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal
charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and
proper MTC, MeTC and RTC. penalties claimed is less that P1M or where there is no
specified amount claimed (the offenses or penalties shall
be tried by the regular courts and the jurisdiction of the
CTA shall be appellate)
Appellate
In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or
assessments for taxes, fees, charges and penalties where orders of the RTC in tax cases originally decided by
the principal amount of taxes and fees, exclusive of them, in their respective territorial jurisdiction,
charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments,
proper MTC, MeTC and RTC. resolutions or orders of the RTC in the exercise of
their appellate jurisdiction over tax cases originally
decided by the MeTCs, MTCs, and MCTCs in their
respective jurisdiction
Concurrent
With CIR
1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or
other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied
denial;
With RTC
Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their
original or appellate jurisdiction;

With Commissioner of Customs

1. Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of
property affected, fines, forfeitures or other penalties in relation thereto, or
2. Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC;
With Central Board of Assessment Appeals
Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property
originally decided by the provincial or city board of assessment appeals;
With Secretary of Finance
Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs
which are adverse to the government under Sec. 2315 of the Tariff and Customs Code;
With Secretary of Trade and Industry and the Secretary of Agriculture
Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the
Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures
under RA 8800, where either party may appeal the decision to impose or not to impose said duties.
4. SANDIGANBAYAN

Exclusive Original
Cases involving violations of: 1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices
a. EO No. 1 (Creating the PCGG); Act) where one or more of the accused are officials
b. EO No. 2 (Illegal Acquisition and occupying the following positions in the government,
Misappropriations of Ferdinand Marcos, Imelda whether in permanent. Acting or interim capacity, at the
Marcos their close relatives, subordinates, time of the commission of the offense:
business associates, dummies, agents or a. Officials occupying a position classified as Grade 27
nominees); or higher of the Compensation and Position
c. EO No. 14 [Cases involving the ill-gotten wealth Classification Act of 1989 (R.A. 6758) in the:
of the immediately mentioned persons (Marcos i. Executive branch including those occupying
and dummies)]; and the position of regional director; and
d. EO No. 14-A (amendments to EO No. 14) (Sec. 2, ii. All other national or local officials.
R.A. 7975 as amended by R.A. 8294). b. Members of Congress
c. Members of the judiciary without prejudice to the
Constitution; and
d. Chairmen and members of the Constitutional
Commissions without prejudice to the Constitution.
2. Felonies or offenses, whether simple or complexed with
other crimes committed by the public officials and
employees above mentioned in relation to their office;
and
3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2,
R.A. 7975 as amended by R.A. 8249).
Appellate
Appeals from final judgments, resolutions or orders of the
RTC, whether in the exercise of their original or appellate
jurisdiction, in cases involving public officials or employees
not otherwise mentioned in the preceding enumeration.
Concurrent
With SC
Petitions for certiorari, prohibition, mandamus, Petitions for certiorari, prohibition, mandamus, habeas
habeas corpus, injunction and other ancillary writs in corpus, injunction and other ancillary writs in aid of its
aid of its appellate jurisdiction, including quo appellate jurisdiction, including quo warranto arising in cases
warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A.
Nos. 1, 2, 14 and 14-A.
With SC, CA and RTC
Petitions for the issuance of writ of amparo and writ Petitions for the issuance of writ of amparo and writ of
of habeas data. habeas data.
Q: Governor Charles of Tarlac was charged with accepting a car in exchange for the award of a
indirect bribery before the Sandiganbayan for series of contracts for medical supplies. The
REMEDIAL LAW TEAM:

JURISDICTION
Sandiganbayan, after going over the information,

found the same to be valid and ordered the A: Yes. Charles’ suspension is mandatory, although
suspension of Charles. The latter contested the not automatic. It is mandatory after the
suspension claiming that under the law (Sec. 13, determination of the validity of the information in a
3019), his suspension is not automatic upon the pre-suspension hearing. The purpose of the
filing of the information and his suspension under suspension is to prevent the accused public officer
Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the from frustrating or hampering his prosecution by
Decentralization Act of 1967 (R.A. 5185). The intimidating or influencing witnesses or tampering
Sandiganbayan overruled Charles’ contention with evidence or from committing further acts of
stating that the suspension under the malfeasance while in office. (2001 Bar Question)
circumstances is mandatory. Is the court's ruling
correct?
5. REGIONAL TRIAL COURTS

Exclusive Original
1. Criminal cases not within exclusive jurisdiction of
1. Actions in which the subject of litigation is incapable
any court, tribunal or body (Sec. 20, BP 129).
of pecuniary estimation;
a. Includes criminal cases where the penalty
2. Actions involving title to or possession of real
provided by law exceeds 6 years imprisonment
property or any interest therein where the assessed
irrespective of the fine (R.A. 7691).
value exceeds P20,000 or P50,000 in Metro Manila,
b. Includes criminal cases not falling within the
except forcible entry and unlawful detainer;
exclusive original jurisdiction of the
3. Actions in admiralty and maritime jurisdiction where
Sandiganbayan where the imposable penalty is
demand or claim exceeds P300,000 or P400,000 in
imprisonment more than 6 years and none of
Metro Manila;
the accused is occupying positions classified as
4. Matters of probate, testate or intestate, where gross
“Grade 27” and higher (Sec. 4, P.D. 1606 as
value of estate exceeds P300,000 or P400,000 in
amended by R.A. 8249).
Metro Manila;
2. Cases where the only penalty provided by law is a
5. Cases not within the exclusive jurisdiction of any
fine exceeding P4,000;
court, tribunal, person or body exercising judicial or
3. Other laws which specifically lodge jurisdiction in
quasi-judicial function;
the RTC:
6. Civil actions and special proceedings falling within
a. Law on written defamation or libel;
exclusive original jurisdiction of Juvenile and
b. Decree on Intellectual Property;
Domestic Relations Court and Court of Agrarian
c. Violations of Dangerous Drugs Act regardless
Reforms;
of the imposable penalty except when the
7. Other cases where the demand, exclusive of interest,
offender is under 16 and there are Juvenile and
damages, attorney’s fees, litigation expenses and
Domestic Relations Court in the province.
costs, or value of property in controversy exceeds
4. Cases falling under the Family Courts in areas where
P300,000 or P400,000 in Metro Manila (Sec. 19, BP
there are no Family Courts (Sec.24, B.P. 129).
129 as amended by R.A. 7691); and
5. Election offenses (Omnibus election code) even if
8. Intra-corporate controversies under Sec. 5.2 of the
committed by an official with salary grade of 27 or
Securities and Regulation Code.
higher
Concurrent
With SC, SB and CA
1. Writ of amparo Petitions for the issuance of writ of amparo and writ of
2. Writ of habeas data habeas data
With SC
Actions affecting ambassadors and other public ministers
and consuls [Sec. 21 (2) of BP 129]
With SC and CA
1. Certiorari, prohibition and mandamus against lower
courts and bodies;
2. Habeas corpus and quo warranto;
With MTC
Cases involving enforcement or violations of
environmental and other related laws, rules and
regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).
Special

SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special
cases in the interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
Q: What is the test to determine whether an However, where the basic issue is something other
action is capable of pecuniary estimation? than the right to recover a sum of money, where
the money claim is purely incidental to, or a
A: The criterion is the nature of the principal action consequence of, the principal relief sought like
or the remedy sought. If it is primarily for the specific performance suits and in actions for
recovery of a sum of money, the claim is considered support, or for annulment of a judgment or
capable of pecuniary estimation, and whether foreclosure of mortgage, such actions are incapable
jurisdiction is in the MTCs or in the RTCs would of pecuniary estimation, and are cognizable
depend on the amount of the claim. exclusively by the RTCs (Barangay Piapi v. Talip,
G.R. No. 138248, Sept. 7, 2005).
6. FAMILY COURTS

Exclusive Original
1. Where one or more of the accused is/are below 18
1. Petitions for guardianship, custody of children, habeas
years of age but not less than 9 years of age;
corpus in relation to minor;
2. When one or more of the victims is a minor at the time
2. Petitions for adoption of children and its revocation;
of the commission of the offense (R.A. 8369, Act
3. Complaints for annulment and declaration of nullity of
establishing the family courts);
marriage and those relating to marital status and
3. Cases against minors cognizable under the Dangerous
property relations of spouses or those living together
Drugs Act, as amended; and
under different status and agreements; and petitions
4. Violations of R.A. 7610 or the Special Protection of
for dissolution of conjugal partnership of gains;
Children Against Child Abuse, Exploitation and
4. Petitions for support and/or acknowledgment;
Discrimination Act, as amended by R.A. 7658; and
5. Summary judicial proceedings under the Family Code
5. Cases of domestic violence against:
of the Philippines;
a. Women – involving acts of gender-based violence
6. Petitions for declaration of status of children as
that result, or likely to result in physical, sexual or
abandoned, dependent or neglected children,
psychological harm or suffering to women; and
petitions for voluntary or involuntary commitment of
other forms of physical abuse such as battering or
children, the suspension, termination, or restoration of
threats and coercion which violate a woman’s
parental authority and other cases cognizable under
personhood, integrity and freedom of movement;
PD 603, EO 56 (Series of 1986) and other related laws;
b. Children – which include the commission of all
and
forms of abuse, neglect, cruelty, exploitation,
7. Petitions for the constitution of the family home
violence and discrimination and all other
8. (rendered unnecessary by Art. 153, Family Code) (Sec.
conditions prejudicial to their development (Sec.
5, R.A. 8369).
5, R.A. 8369)
7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Exclusive Original
1. Actions involving personal property where the value of the 1. All offenses punishable with imprisonment not
property does not exceed P300,000 or, in Metro Manila exceeding 6 years irrespective of the amount of
P400,000; fine and regardless of other imposable
2. Actions for claim of money where the demand does not accessory or other penalties;
exceed P300,000 or, in Metro Manila P400,000; 2. In offenses involving damage to property
3. Probate proceedings, testate or intestate, where the value through criminal negligence where the
of the estate does not exceed P300,000 or, in Metro Manila imposable fine does not exceed P10,000 (Sec.
P400,000; 32, BP 129 as amended by R.A. 7691);
3. Where the only penalty provided by law is a
Note: In the foregoing, claim must be exclusive of interest, fine not exceeding P4,000 (Admin. Circular No.
damages, attorney’s fees, litigation expense, and costs (Sec. 33, 09-94, June 14, 1994); and
BP 129 as amended by R.A. 7691). 4. Those covered by the Rules on Summary
Procedure, i.e.
REMEDIAL LAW TEAM:

JURISDICTION
4. Actions involving title to or possession of real property or a.

Violations of traffic laws, rules and
any interest therein where the value or amount does not regulations;
exceed P20,000 or, in Metro Manila P50,000 exclusive of b. Violations of the rental law;
interest damages, attorney’s fees, litigation expense, and c. Violations of municipal or city ordinances;
costs; (2008 Bar Question) d. Violations of BP 22 (A.M. No. 00-11-01-SC);
5. Maritime claims where the demand or claim does not e. All other criminal cases where the penalty
exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP is imprisonment not exceeding 6 months
129 as amended by R.A. 7691); and/or a fine of P 1,000 irrespective of
6. Inclusion or exclusion of voters (Sec. 138, BP 881); other penalties or civil liabilities arising
7. Those covered by the Rules on Summary Procedure: therefrom.
a. Forcible entry and unlawful detainer; 5. All offenses committed by public officers and
b. Other civil cases except probate where the total amount of employees in relation to their office, including
the plaintiff’s claims does not exceed P100,000 or, in Metro government-owned or –controlled
Manila P200,000 exclusive interest and costs (as amended corporations, and by private individuals
by A.M. No. 02-11-09-SC). charged as co-principals, accomplices or
8. Those covered by the Rules on Small Claims, i.e. actions for accessories, punishable with imprisonment not
payment of money where the claim does not exceed more than 6 years or where none of the
P100,000 exclusive of interest and costs. accused holds a position classified as “Grade
27” and higher (Sec. 4, P.D. 1606 as amended
by R.A. 8249).
Delegated
Cadastral or land registration cases covering lots where:
a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000 (Sec.
34, BP 129 as amended by R.A. 7691).
Note: The value shall be ascertained by the affidavit of the

claimant or agreement of the respective claimants (Sec. 34, BP 129
as amended by R.A. 7691).
Special
Petition for habeas corpus in the absence of all RTC judges in Application for bail in the absence of all RTC judges in
the province or city (Sec. 35, BP 129). the province or city.
Concurrent
With RTC
Cases involving enforcement or violations of environmental
and other related laws, rules and regulations (Sec. 2, Rule 1,
A.M. No. 09-6-8-SC).
8. SHARIAH COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature or
aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which
law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and
processes in aid of its appellate jurisdiction.
Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an
asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit
Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.

F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND
BARANGAY CONCILIATION
Katarungang Pambarangay Law Rule on Small Claims Cases Rules on Summary Procedure
Purpose / Object
To effect an amicable settlement of To provide a simpler and more To achieve an expeditious and
disputes among family and barangay inexpensive and expeditious means inexpensive determination of the
members at the barangay level without of settling disputes involving purely cases defined to be governed by
judicial recourse and consequently help money claims than the regular civil the Rules on Summary Procedure
relieve the courts of docket congestion. process
(Preamble of P.D. 1508) (1999 Bar
Qestion)
Where to file
1. For disputes between residents of 1. Metropolitan Trial Courts 1. Metropolitan Trial Courts
the same barangay: the dispute must 2. Municipal Trial Courts in Cities 2. Municipal Trial Courts in Cities
be brought for settlement in the said 3. Municipal Trial Courts 3. Municipal Trial Courts
barangay. 4. Municipal Circuit Trial Courts 4. Municipal Circuit Trial Courts
2. For disputes between residents of
different but adjoining barangays
and the parties agree to submit their
differences to amicable settlement:
within the same city or municipality
where any of the respondents reside
at the election of the complainant.
3. For disputes involving real property
or any interest when the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon therein shall
be brought in the barangay where
the real property or larger portion
thereof is situated.
4. For disputes arising at the workplace
where the contending parties are
employed or at the institution where
such parties are enrolled for study
shall be brought in the barangay
where such workplace or institution
is located.
Cases Covered
Civil Cases
All disputes involving parties who Small claims cases – civil claims 1. All cases of forcible entry and
actually reside in the same city or which are exclusively for the unlawful detainer irrespective of
municipality may be the subject of the payment or reimbursement of a the amount of damages or unpaid
proceedings for amicable settlement in sum of money not exceeding rentals sought to be recovered.
the barangay. P100,000 exclusive of interest and Where attorney’s fees are
costs, either awarded, the same shall not
1. Purely civil in nature where exceed P20,000; and
the claim or relief prayed for 2. All other civil cases, except
by the plaintiff is solely for probate proceedings, where the
payment or reimbursement of total amount of plaintiff’s claim
sum of money, or does not exceed P100,000 or
2. The civil aspect of criminal does not exceed P200,000 in
actions, either filed before the Metro Manila, exclusive of
institution of the criminal interests and costs (A.M. No. 02-
action, or reserved upon the 11-09-SC, Nov. 25, 2005).
filing of the criminal action in
court, pursuant to Rule 111 of
the Revised Rules of Criminal
Procedure.
REMEDIAL LAW TEAM:

JURISDICTION
These claims or demands may be:

1. For money owed under any of
the following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of Mortgage
2. For damages arising from any
of the following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable settlement
or an arbitration award
involving a money claim
covered by this Rule pursuant
to Sec. 417
Criminal Cases
When punishable by imprisonment of 1. Violations of traffic laws, rules
not more than 1 year or fine of not more and regulations;
than 5,000. (Sec. 408, LGC) 2. Violations of the rental law;
3. Violations of municipal or city
ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law (A.M. No.
00-11-01-SC, Apr. 15, 2003);
5. All other criminal cases where
the penalty is imprisonment not
exceeding 6 months and/or a
fine of P 1,000 irrespective of
other penalties or civil liabilities
arising therefrom; and
6. Offenses involving damage to
property through criminal
negligence where the imposable
fine is not exceeding P10,000.
Cases excluded
1. Where one party is the government 1. Criminal actions are excluded This Rule shall not apply to a civil
or any subdivision or pursuant to certain case where the plaintiff's cause of
instrumentality thereof; Constitutional limitations action is pleaded in the same
2. Where one party is a public officer granting the accused in all complaint with another cause of
or employee, and the dispute criminal prosecutions “the action subject to the ordinary
relates to the performance of his right to be heard by himself procedure; nor to a criminal case
official functions; and counsel” (Sec. 14[2], Bill where the offense charged is
3. Offenses punishable by of Rights). An example is a necessarily related to another
imprisonment exceeding 1 year or a case for libel or slander. criminal case subject to the
fine exceeding P5,000.00; However, the civil aspect of a ordinary procedure.
4. Offenses where there is no private criminal action which seeks
offended party; recovery of money as
5. Where the dispute involves real damages may be heard as a
properties located in different cities small claim if reserved or
or municipalities unless the parties instituted separately prior to
thereto agree to submit their the filing of the criminal case.
differences to amicable settlement 2. Some civil cases regardless of
by an appropriate lupon; how little the amount
6. Disputes involving parties who involved cannot be filed as
actually reside in barangays of small claims. Examples are a
different cities or municipalities, suit to force a person to fix a
except where such barangay units damaged good or a demand
adjoin each other and the parties for the fulfillment of an
thereto agree to submit their obligation which is not purely

differences to amicable settlement for money.
by an appropriate lupon;
7. Such other classes of disputes
which the President of the
Philippines may determine in the
interest of justice; and
8. Violations of R.A. 9262, VAWC Act.
G. TOTALITY RULE
Q: What is the Aggregate or Totality Rule?
A: Where there are several claims or causes of

actions between the same or different parties
embodied in one complaint, the amount of the
demand shall be the totality of the claims in all
causes of action irrespective of whether the causes
of action arose out of the same or different
transaction (Rule 2, Sec.5 [d]).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
III. CIVIL PROCEDURE

Court
A. ACTIONS Heard by courts of Heard by courts of limited
general jurisdiction jurisdiction
1. MEANING OF ORDINARY CIVIL ACTIONS Procedure
Initiated by a pleading Initiated by a petition and
Q: What is an ordinary civil action? and parties respond parties respond through an
through an answer opposition
A: It is a formal demand of one’s legal rights in a
court of justice in the manner prescribed by the 5. REAL ACTIONS AND PERSONAL ACTIONS
court or by law. It is governed by ordinary rules.
Q: Distinguish real actions from personal actions.
2. MEANING OF SPECIAL CIVIL ACTIONS
A:
Q: What is a special civil action? Real Action Personal Action
Scope
A: It has special features not found in ordinary civil When it affects title to or Personal property is
actions. It is governed by ordinary rules but subject possession of a real sought to be recovered
to specific rules prescribed Rules 62-71. property, or an interest or where damages for
therein (Sec. 1, rule 4) breach of contract are
sought
3. MEANING OF CRIMINAL ACTIONS
Basis
When it is founded upon the Founded on privity of
Q: What is a criminal action?
privity of a real estate. That contract such as
means that realty or interest damages, claims of
A: It is one by which the state prosecutes a person therein is the subject matter money, etc.
for an act or omission punishable by law (Sec.3 (b), of the action.
Rule1).
Note: It is important that the
4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS matter in litigation must also
involve any of the following
Q: Distinguish action from special proceeding. issue:
1. Title to
2. Ownership
A:
3. Possession
Action Special Proceeding 4. Partition
Purpose 5. Foreclosure of mortgage
Civil action: To establish a status, a right 6. Any interest in real
1. To protect a right or a particular fact (Sec. 3 property.
2. Prevent or redress a Rule 1). Specific kinds of Venue
wrong. special proceedings are Venue of action shall be Venue of action is the
found in rule 72 – rule 109 commenced and tried in the place where the
Criminal action: E.g. settlement of estate, proper court which has plaintiff or any of the
Prosecute a person for escheat, guardianship, etc. jurisdiction over the area principal plaintiffs
an act or omission (Riano, Civil Procedure: A wherein the real property resides or any of the
punishable by law (Sec. Restatement for the Bar, p. involved, or a portion defendants resides, at
3, Rule 1) 121, 2009 ed.) thereof is situated. (Rule 4, the election of the
Application sec 1) plaintiff (Rule 2 sec 2)
Where a party litigant Where his purpose is to Example
seeks to recover seek the appointment of a An action to recover Action for a sum of
property from another, guardian for an insane possession of real property money
his remedy is to file an person, his remedy is a plus damages
action. special proceeding to
establish the fact or status Note: An action to annul or
of insanity calling for an rescind a sale of real property
appointment of has as its fundamental and
guardianship. (Herrera, Vol. prime objective the recovery
I, p. 370, 2007 ed.) of real property (Emergency
Governing Law Loan Pawnshop, Inc. vs. Court
Ordinary rules Special rules supplemented of appeals, 353 SCRA 89;
supplemented by special by ordinary rules Riano, p. 122, 2009 ed.)
rules
6. LOCAL AND TRANSITORY ACTIONS

Privity of contract
Q: Distinguish local action from transitory actions. No privity of contract and Founded on privity of
the action is founded on contract between the
A: privity of estate only parties whether debt or
Local Action Transitory Action covenant (Paper Industries
Venue Corporation of the
Must be brought in a Dependent on the place Philippines v. Samson, G.R.
particular plac where the where the party resides No. L-30175, Nov. 28,
subject property is regardless of where the 1975).
located, unless there is cause of action arose. Example
an agreement to the Subject to Sec. 4, Rule 4 Action to recover real Action to recover sum of
contrary. property money
7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM
Q: Distinguish actions in rem, in personam and quasi in rem
A:
Action In Rem Action In Personam Action Quasi In Rem
Nature
A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of
of such persons to the discharge of personal rights and obligations the named defendant or his interests
the claims assailed. brought against the person therein to the obligation or lien
burdening the property.
Purpose
A proceeding to determine the state An action to impose a Deals with the stauts, ownership or
or condition of a thing responsibility or liability upon liability of a particular property but
a person directly which are intended to operate on these
questions only as between the particular
parties to the proceedings and not to
ascertain or cut-off the rights or
interests of all possible claimants.
(Domagas vs. Jensen, 448 SCRA 663)
Scope
Directed against the thing itself Directed against particular
Directed against particular persons
Directed against the whole world persons
Required jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the
defendant is not required. the defendant is required defendant is not required as long as
Jusrisdiction over the RES is required jurisdiction over the res is acquired
through publication in a newspaper
of general circulation.
Effect of judgment
Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the
world. parties impleaded or their litigants, privies, successor in interest
successors-in-interest but the judgment shall be executed
against a particular property. The RES
involve will answer the judgment.
Example
1. Probate proceeding 1. Action for specific 1. Action for partition
2. Cadastral proceeding performance 2. Action to foreclose real estate
3. Land registration proceeding 2. Action for breach of mortgage attachment
contract
3. Action for ejectment
4. Action for a sum of money;
for damages (Riano, Civil
Procedure: A Restatement
for the Bar,p.130, 2009 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
B. CAUSE OF ACTION 3. FAILURE TO STATE A CAUSE OF ACTION
1. MEANING OF CAUSE OF ACTION Q: Distinguish failure to state cause of action from

absence or lack of cause of action
Q: What is a cause of action?
A:
A: It is the act or omission by which a party violates
a rights of another (Sec. 2, Rule 2). Failure to state cause of
Lack of cause of action
action
2. CAUSE OF ACTION VERSUS RIGHT OF ACTION Insufficiency in the Failure to prove or
allegations of the establish by evidence
complaint one’s stated cause of
Q: Distinguish cause of action from right of action
action
As a ground for dismissal
A:
Raised in a motion to Raised in a demurrer to
Cause of Action Right of Action dismiss under Rule 16 evidence under Rule 33
It is the act or omission Remedial right or right to before a responsive after the plaintiff has
by which a party relief granted by law to a pleading is filed rested his case
violates the rights of party to institute an action Determination
another ( Sec. 2, Rule 2) against a person who has Determined only from Resolved only on the basis
committed a delict or the allegations of the of the evidence he has
wrong against him pleading and not from presented in support of his
Requisites evidentiary matters claim
1. The existence of a 1. There must be a good
legal right of the cause (existence of a 4. TEST OF THE SUFFICIENCY OF A CAUSE OF
plaintiff cause of action) ACTION
2. A correlative duty of 2. A compliance with all
the defendant to the conditions precedent Q: What is the test of sufficiency of the statement
respect one’s right to the bringing of the of a cause of action?
3. An act or omission of action
the defendant in 3. The action must be A:
violation of the instituted by the proper 1. Whether or not admitting the facts
plaintiff’s right. party. alleged, the court could render a valid
Nature verdict in accordance with the prayer of
It is actually predicated It is procedural in the complaint (Misamis Occidental II
on substantive law or character is the Coop., Inc. vs. David, 468 SCRA 63; Riano,
on quasi delicts under consequence of the p. 92, 2009 ed.)
NCC. violation of the right of the
plaintiff (Riano, Civil
2. The sufficiency of the statement of cause
Procedure: A Restatement
for the Bar , p. 4, 2009 ed.) of action must appear on the face of the
Basis complaint and its existence is only
Based on the allegations Basis is the plaintiff’s cause
determined by the allegations of the
of the plaintiff in the of action complaint (Viewmaster Construction Corp.
complaint vs. Roxas, 335 SCRA 540; Riano, Civil
Effect of Affirmative defense Procedure: A Restatement for the Bar, p.
Not affected by Affected by affirmative 93, 2009 ed)
affirmative defenses defenses
(fraud, prescription, Note: The truth or falsity of the allegations is beside
estoppel, etc.) the point because the allegations in the complaint are
hypothetically admitted. Thus a motion to dismiss on
the ground of failure to state a cause of action,
Note: The rule is “There is no right of action where
hypothetically admits the matters alleged in the
there is no cause of action”. (Ibid p.4)
complaint (Riano, Civil Procedure: A Restatement for
the Bar, p92, 2009 ed.)

5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS Note: When the causes of action accrue in favor of the
EFFECTS same plaintiff and against the same defendant, it is not
necessary to ask whether or not the causes of action
Q: What is splitting a cause of action? arose out of the same transaction or series of
transactions. Also a joinder of causes of action is only
A: It is the act of instituting two or more suits on permissive not compulsory, hence a party may desire
the basis of the same cause of action (Sec. 4, Rule to file a single suit for each of his claims.
2). It is the act of dividing a single or indivisible
cause of action into several parts or claims and Q: Is misjoinder of causes of action a ground for
bringing several actions thereon. It is a ground for dismissal?
the dismissal of others. The rule against splitting of A: No. A misjoined cause of action may, on motion
a cause of action aims to avoid multiplicity of suits, of a party or on initiative of the court, be severed
conflicting decisions and unnecessary vexation and and proceeded with separately (Sec. 6 Rule 2).
harassment of defendants. It applies not only to
complaints but also to counterclaims and cross- Q: The complaint filed before the RTC states two
claims. (1999 Bar Question) causes of actions, one for rescission of contract
and other for the recovery of 100, 000.00 both of
Note: An action for forcible entry should include not which arose out of the same transaction. Is the
only the plea for restoration of possession but also joinder of the two causes of action proper?
claims for damages arising out of the forcible entry
(Progressive Development Corporation, Inc. vs. CA, 301 A: Yes. Both are ordinary civil actions and thus,
SCRA 637; Riano, Civil Procedure: A Restatement for neither requires special rules. Since the action for
the Bar, p. 108, 2009 ed.) rescission falls under the jurisdiction of the RTC, the
joinder may be made in said court provided the
Q: What are the rules on splitting a single cause of venue lies therein (Sec. 5, Rule 2; 1996 Bar
action? Question; Riano, Civil Procedure: A Restatement for
the Bar, p.120, 2009 ed.)
A:
1. Prohibited by the Rules of Court. “A party C. PARTIES TO CIVIL ACTIONS
may not institute more than one suit for a
single cause of action.” (Sec.3, Rule 2) 1. REAL PARTIES IN INTEREST; INDISPENSABLE
2. The rule against splitting a single cause of PARTIES; REPRESENTATIVES AS PARTIES;
action applies not only to complaints but NECESSARY PARTIES; INDIGENT PARTIES;
also to counterclaims and cross-claims. ALTERNATIVE DEFENDANTS
(Mariscal vs. Court of Appeals, 311 SCRA 51)
Q: What are the kinds of parties in a civil action?
6. JOINDER AND MISJOINDER OF CAUSES OF
ACTION A:
1. Real parties in interest
Q: What is a joinder of causes of action? 2. Indispensable parties
3. Representatives as parties
A: It is the assertion of as many causes of action a 4. Necessary parties
party may have against another in one pleading 5. Indigent parties
alone (Sec. 5, Rule 2). 6. Pro-forma parties
Note: Joinder of causes of action must be subject to Q: Who is a real party in interest?
the following conditions:
1. The party shall comply with the rules on joinder A: He is the party who stands to be benefited or
of parties; injured by the judgment in the suit, or the party
2. The joinder shall not include special civil actions entitled to the avails of the suit (Sec. 2 Rule 3).
governed by special rules;
3. Where causes of action pertain to different Q: Distinguish an indispensable party from a
venues, the joinder may be allowed in the RTC necessary party.
provided one of the causes of action falls within
the jurisdiction of said court and venue lies
A:
therein Indispensable Parties Necessary Parties
4. Where claims in all causes of action are for
Parties in interest A necessary party is one
recovery of money, the aggregate amount
without whom no final who is not indispensable but
claimed shall be the test for jurisdiction. (Sec 5,
determination can be who ought to be joined as a
Rule 2)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
had of an action shall party if complete relief is to right to relief against one may be inconsistent with
be joined either as be accorded as to those a right to relief against the other (Sec. 13, Rule 3).
plaintiffs or already parties, or for a
defendants. (Sec.7, complete determination or Q: May an action be prosecuted in the name of
Rule 3) settlement of the claim other party other than the real party in interest?
subject of the action. (Sec.8,
Must be joined under Rule 3) A: No. Every action must be prosecuted and
any and all conditions
defended in the name of the real party-in-interest
because the court Note: Should be joined
whenever possible, the action (Sec. 2, Rule 3). Even where the action is allowed to
cannot proceed
can proceed even in their be prosecuted or defended by a representative
without him (Riano,
Civil Procedure: A absence because his interest party or someone acting in a fiduciary capacity, the
Restatement for the is separable from that of beneficiary shall be included in the title of the case
Bar, p. 224, 2009 ed.) indispensable party (Ibid and shall be deemed to be a real party-in-interest
p.224) (Sec.3 Rule 3; Riano, p. 219, 2009 ed.)
No valid judgment if The case may be
they are not joined determined in court but the Note: An agent acting in his own name and for the
judgment therein will not benefit of an undisclosed principal may sue or be sued
Note: In the absence of resolve the entire without joining the principal except when the contract
an indispensable party controversy if a necessary involves things belonging to the principal.
renders all subsequent party is not joined
actions of the court null
Q: Who is an indigent party?
and void for want of Note: Whenever in any
authority to act, not pleading in which a claim is
only as to the absent A: He is one who has no money or property
asserted a necessary party is
parties but even as to not joined, the pleader shall sufficient and available for food, shelter and basic
those present (Riano, set forth his name, if known, necessities for himself and his family. (Sec. 21 Rule
Civil Procedure: A and shall state why he is 3)
Restatement for the omitted. Should the court find
Bar, p. 221, 2009 ed.) the reason for the omission Note: Indigent litigants (a) whose gross income and that
unmeritorious, it may order of their immediate family do not exceed an amount
the inclusion of the omitted double the monthly minimum wage of an employee and
necessary party if jurisdiction (b) who do not own real property with a fair market value
over his person may be as stated in the current tax declaration of more than three
obtained. The failure to hundred thousand (P300,000.00) pesos shall be exempt
comply with the order for his from payment of legal fees. (Sec. 19, Rule 141).
inclusion, without justifiable
cause, shall be deemed a Q: What is the rule on indigent litigants?
waiver of the claim against
such party.
A: If the applicant for exemption meets the salary
The non-joinder of an indispensable or a necessary and property requirements under Sec. 19, Rule 141,
party is not by itself ipso facto a ground for the then the grant of the application is mandatory. On
dismissal of the action. The court should order the the other hand, when the application does not
joinder of such party and non-compliance with the satisfy one or both requirements, then the
said order would be a ground for the dismissal of the application should not be denied outright; instead,
action (Feria, Civil Procedure Annotated, Vol. I, p. 239, the court should apply the “indigency test” under
2001 ed.) Sec. 21, Rule 3 and use its sound discretion in
determining the merits of the prayer for exemption
Note: Parties may be dropped or added by order of the (Algura v. LGU of Naga, G.R. No. 150135, Oct. 30,
court on motion of any party or on its own initiative at 2006).
any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and
Note: While the authority to litigate as an indigent
proceeded with separately. (Sec. 11, Rule 3)
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 (Sec. 21, Rule
Q: May a party sue the defendants in the 3).
alternative?
Q: What does the authority include, if one is
A: Yes. Where the plaintiff is uncertain against who authorized as an indigent party?
of several persons he is entitled to relief, he may
join any or all of them in the alternative, although a A: An exemption from the payment of:
1. Docket fees and other lawful fees

2. Transcript of stenographic notes. (Sec. 21, and allows the amendment of the complaint at any
Rule 3) stage of the proceedings, through motion or on
order of the court on its own initiative (Sec. 11, Rule
Note: The amount of the docket and other lawful fees 3; Republic v. Sandiganbayan, G.R. No. 152154, July
which the indigent was exempted from paying shall be 15, 2003). However, when the order of the court to
a lien on any judgment rendered in the case favorable implead an indispendable party goes unheeded, the
to the indigent, unless otherwise provided (Sec. 21, court may order the dismissal of the case. The court
Rule 3). is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when,
The basis for the exemption from legal and filing fees is among others, he does not comply with the order
the free access clause embodied in Sec. 11, Art. III,
of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No.
1987 Constitution. (Re: Query of Mr. Roger C.
166519; Riano, Civil Procedure: A Restatement for
Prioreschi re exemption from legal and filing fees of
the Bar p. 223, 2009 ed.)
The Good Shepherd Foundation, Inc., A.M. No. 09-6-9-
SC, Aug. 19, 2009)
4. CLASS SUIT
Q: Who is a pro forma party?
Q: What is a class suit?
A: One who is joined as a plaintiff or defendant, not
because such party has any real interest in the A: It is an action where one or some of the parties
subject matter or because any relief is demanded, may sue for the benefit of all if the requisites for
but merely because the technical rules of pleadings said action are complied with. (Riano, Civil
require the presence of such party on the record. Procedure: A Restatement for the Bar, p. 236, 2009
(Samaniego vs. Agulia, G.R. No. 125567, June 27, ed.)
2000)
Q: What are its requisites?
2. COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES A:
1. Subject matter of the controversy is one
Q: When is there a compulsory joinder of parties? of common or general interest to many
persons;
A: The joinder of parties becomes compulsory when 2. Parties affected are so numerous that it is
the one involved is an indispensable party. Clearly, impracticable to bring them all before the
the rule directs a compulsory joinder of court;
indispensable parties, (Riano, Civil Procedure: A 3. Parties bringing the class suit are
Restatement for the Bar, p. 222, 2009 ed.) sufficiently numerous or representative of
the class and can fully protect the
Q: What are the requisites of permissive joinder of interests of all concerned (Sec. 12 Rule 3);
parties? and
4. Representatives sue or defend for the
A: benefit of all (Sec.12, Rule 3)
1. Right to relief arises out of the same
transaction or series of transactions 5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL
(connected with the same subject matter PERSONALITY
of the suit);
Q: What is the rule on suits against entities
2. There is a question of law or fact common
without juridical personality?
to all the plaintiffs or defendants; and
3. Joinder is not otherwise provided by the
A: When two or more persons not organized as an
provisions of the Rules on jurisdiction and
venue (Sec. 6, Rule 3). entity with juridical personality enter into a
transaction, they may be sued under the name by
3. MISJOINDER AND NON-JOINDER OF PARTIES which they are generally or commonly known. In
the answer of such defendant, the names and
Q: Is the misjoinder or non-joinder of an addresses of the persons composing said entity
indispensable party a ground for the dismissal of must all be revealed (Sec. 15, Rule 3).
the action or annulment of judgment?
Note: Persons associated in an entity without juridical
personality may be sued under the name by which they
A: No. The Rules prohibit the dismissal of a suit on are generally or commonly known, but they cannot sue
the ground of non-joinder or misjoinder of parties under such name.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Question)
6. EFFECT OF DEATH OF PARTY LITIGANT
Establishes a relation Establishes a relation
Q: What is the effect of the death of a party upon between plaintiff and between the court and
a pending action? defendant, or petitioner the subject matter.
and respondent.
A: GR: Not a ground for a It is a ground for a motu
1. Purely personal – the death of either of motu proprio dismissal proprio dismissal. (Riano,
the parties extinguishes the claim and the Civil Procedure: A
action is dismissed. XPN: In cases subject to Restatement for the Bar,
summary procedure. p. 210, 2009 ed.)
2. Not purely personal – claim is not
extinguished and the party should be Q: Can a complaint be dismissed by the court motu
substituted by his heirs, executor or proprio based on improper venue?
administrator. In case of minor heirs, the
court may appoint a guardian ad litem for A: No. Improper venue is not one of the grounds
them. wherein the court may dismiss an action motu
3. Action for recovery of money arising from proprio. (Universal Corp. vs. Lim, G.R. No. 154338,
contract and the defendant dies before Oct. 5, 2007). Unless and until the defendant
entry of final judgment – it shall not be objects to the venue in a motion to dismiss, the
dismissed but instead shall be allowed to venue cannot be truly said to be improperly laid,
continue until entry of judgment. A because the venue although technically wrong may
favorable judgment obtained by the be acceptable to the parties for whose convenience
plaintiff shall be enforced in the manner the rules on venue have been devised. (Dacuycuy
provided in the rules for prosecuting vs. Intermediate Appellate Court, 195 SCRA 641)
claims against the estate of a deceased
person. (Sec. 20, Rule 3, 1999 Bar 2. VENUE OF REAL ACTIONS
Question)
Q: What is the venue of real actions?
Note: The substitute defendant need not be
summoned. The order of substitution shall be served A: The venue is local, hence the venue is the place
upon the parties substituted for the court to acquire where the real property involved or, any portion
jurisdiction over the substitute party. (Riano, Civil thereof, is situated (Sec. 1, Rule 4).
Procedure: A Restatement for the Bar, p. 232, 2009 ed.)
If there is notice of death, the court should await 3. VENUE OF PERSONAL ACTIONS
appointment of legal representative; otherwise,
subsequent proceedings are void. Q: What is the venue of personal actions?
D. VENUE A: The venue is transitory, hence the venue is the

residence of the plaintiff or defendant at the option
1. VENUE VERSUS JURISDICTION of the plaintiff. (Sec. 3, Rule 4).
Q: Distinguish venue from jurisdiction. 4. VENUE OF ACTIONS AGAINST NON-RESIDENTS
A: Q: Where should the action be commenced and

Venue Jurisdiction tried if the defendant is a non-resident?
The place, or Power of the court to
geographical area where hear and decide a case A:
an action is to be filed 1. Defendant does not reside and is found in
and tried. the Philippines:
May be waived by: Cannot be waived a. Personal actions – shall be
1. Failure to object commenced and tried in the court of
through a motion to the place where the plaintiff resides
dismiss or through an
b. Real actions – shall be commenced
affirmative defense.
and tried in the court of the place
2. Stipulation of the
parties. where the property is located.
Procedural Substantive
May be changed by the Cannot be the subject of
2. Defendant does not reside and is not
written agreement of the the agreement of the found in the Philippines:
parties parties. (2006 Bar
a. If the action affects the personal 2. Solely

status of the plaintiff – the action 3. Exclusively in this court
may be commenced and tried in the 4. In no other court save –
court of the place where the plaintiff 5. Particularly
resides. 6. Nowhere else but/except
b. If it involves any property of the non-
resident defendant – the action may Q: When is stipulation on venue void?
be commenced and tried where the
property or any portion thereof is A: It is void and unenforceable when it is contrary
situated (Sec. 3, Rule 4). to public policy (Sweet Lines v. Teves, G.R. No.
28324, Nov. 19, 1978)
5. WHEN THE RULES ON VENUE DO NOT APPLY
Note: When the action is no longer based on the
Q: In what instances does the rule on venue of agreement but on the tortuous act of sending
action inapplicable? collection telegrams despite the fact that the
obligation had already been paid, venue is no longer
A: based on the written stipulation but at the election of
1. In cases where a specific rule or law the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No.
provides otherwise (e.g. an action for L-58080, Feb. 15, 1982)
damages arising from libel).
2. Where the parties have validly agreed in E. PLEADINGS
writing before the filing of the action on
the exclusive venue (Sec. 4, Rule 4). Q: What are pleadings?
6. EFFECTS OF STIPULATIONS ON VENUE A: Pleadings are the written statements of the

respective claims and defenses of the parties
Q: What is rule on the stipulations on venue? submitted to the court for appropriate judgment.
(Sec.1, Rule 6)
A: The parties may agree on a specific venue which
Note: Pleadings cannot be oral because they are
could be in a place where neither of them resides
clearly described as “written” statements. (Riano, Civil
(Universal Robina Corp. vs. Lim, 535 SCRA 95). The
Procedure: A Restatement for the Bar, p. 51, 2009 ed.)
parties may stipulate on the venue as long as the
agreement is in writing, made before the filing of
1. KINDS OF PLEADINGS
the action, and exclusive. (Sec.4[b], Rule 4)
Q: What are the kinds of pleadings?
Q: What makes a stipulation on venue exclusive?
A:
A: Venue is exclusive when the stipulation clearly
1. Complaint
indicates, through qualifying and restrictive words
2. Counterclaim
that the parties deliberately exclude causes or
3. Cross-claim
actions from the operation of the ordinary
4. Third party claim
permissive rules on venue and that they intended
5. Reply
contractually to designate a specific venue to the
6. Answer
exclusion of any other court also com petent and
accessible to the parties under the ordinary rules on
a. COMPLAINT
venue of actions (Philippine Banking Corp. v.
Tensuan, G.R. No. 106920, Dec. 10, 1993)
Q: What is a complaint?
Note: A stipulation that the parties agree to sue and
A: It is a concise statement of the ultimate facts
be sued in the courts of Manila is not restrictive or
exclusive to prevent the filing of the suit in the places constituting the plaintiff’s cause or causes of action,
provided for by the rules (Riano, Civil Procedure: A with a specification of the relief sought, but it may
Restatement for the Bar, p. 205, 2009 ed.) add a general prayer for such further relief as may
be deemed just or equitable.
Q: What are examples of words with restrictive
meanings? Note: A pleading alleging the plaintiff’s cause or causes
of action. The names and residences of the plaintiff
A: and defendant must be stated. (Sec. 3, Rule 6)
1. Only
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
b. ANSWER A denial in a form of negative pregnant is an

ambiguous pleading, since it cannot be ascertained
Q: What is an answer? whether it is the fact or only the qualification that is
intended to be denied (Galofa v. Nee Bon Sing, G.R.
A: It is the pleading where the defendant sets forth No. L-22018, Jan. 17, 1968).
his affirmative or negative defenses (Sec. 4 Rule 6).
It may likewise be the response to a counterclaim c. COUNTERCLAIMS
or a cross-claim.
Q: What is counterclaim?
Note: An answer Is a compulsory pleading. This
pleading may be an answer to the complaint, an A: It is any claim which a defending party may have
answer to counter claim or an answer to a cross-claim against an opposing party (Sec. 6, Rule 6). It
(Riano, Civil Procedure: A Restatement for the Bar, p. partakes of a complaint by the defendant against
323, 2009 ed.) the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No.
118192, Oct. 23, 1997)
(1) NEGATIVE DEFENSES
(2) NEGATIVE PREGNANT Note: The filing of counterclaim gives rise to
(3) AFFIRMATIVE DEFENSES complaints, namely, the one filed by plaintiff by way of
original complaint and the one filed by defendant by
Q: What are the two kinds of defenses that may be way of a counterclaim (Riano, Civil Procedure: A
set forth in the answer? Restatement for the Bar, p.330, 2009 ed.) A
counterclaim may be asserted against an original
A: counter-claimant and a cross-claim may also be filed
against an original cross-claimant. (Sec.9, Rule 6)
1. Affirmative defenses – allegation of a
new matter which while hypothetically
(1) COMPULSORY COUNTERCLAIM
admitting the material allegations in the
pleading would nevertheless prevent or (2) PERMISSIVE COUNTERCLAIM
bar recovery by the claiming party. It is in
Q: Distinguish the two kinds of counterclaim.
the nature of confession and avoidance
2. Negative defenses – specific denial of the
A:
material facts or facts alleged in the
Compulsory Permissive Counterclaim
pleading essential to establish the
Counterclaim
plaintiff’s cause of action (Sec. 5, Rule 6).
One which arises out of It does not arise out of nor
or is necessarily is it necessarily connected
Q: What are insufficient denials or denials
connected with the with the subject matter of
amounting to an admission? transaction or the opposing party’s claim
occurrence that is the
A: subject matter of the
1. General denial opposing party’s claim
2. Denial in the form of a negative pregnant (Sec.7, Rule 6)
It does not require for It may require for its
Q: What is negative pregnant? its adjudication the adjudication the presence
presence of third parties of third parties over
A: A denial which does not qualify as a specific of whom the court whom the court cannot
denial. It is conceded to be actually an admission cannot acquire acquire jurisdiction
(Riano, Civil Procedure: A Restatement for the Bar, jurisdiction
p. 327, 2009 ed.). It is a form of denial which, at the Barred if not set up in Not barred even if not set
same time, involves an affirmative implication the action (Sec. 2, Rule up in the action
favorable to the opposing party. It is in effect an 9)
admission of the averment to which it is directed. It Need not be answered; Must be answered,:
is said to be a denial pregnant with an admission of No default Otherwise, default
the substantial facts in the pleading responded to. Not an initiatory Initiatory pleading. (Riano,
(Regalado, Remedial Law Compendium, Vol. I, p. pleading. Civil Procedure: A
Restatement for the Bar,
177, 2005 ed.)
p. 336, 2009 ed.)
Need not be Must be accompanied by
Note: Where a fact is alleged with some qualification
accompanied by a a certification against
or modifying language and the denial is conjunctive, a
certification against forum shopping and
negative pregnant exists, and only the qualification or
forum shopping and whenever required by
modification is denied, while the fact itself is admitted.
certificate to file action law, also a certificate to
by the Lupong file action by the Lupong the right of the defendant to prosecute
Tagapamayapa. Tagapamayapa (Santo his counterclaim in the same or separate
Tomas University v. Surla, action (Sec. 3, Rule 17; Riano, Civil
G.R. No. 129718, Aug. 17, Procedure: A Restatement for the Bar, p.
1998) (2007 Bar 340, 2009 ed.)
Question).
The court has Must be within the Q: Fe filed a suit for collection of P387,000 against
jurisdiction to entertain jurisdiction of the court Ramon in the RTC of Davao City. Aside from
both as to the amount where the case is pending alleging payment as a defense, Ramon in his
and nature (Sec. 7, Rule and cognizable by regular
answer set up counterclaims for P100,000 as
6; Ibid p.331) courts of justice
damages and P30,000 as attorney's fees as a result
otherwise, defendant will
have to file it in separate of the baseless filing of the complaint, as well as
proceeding which requires for P250,000 as the balance of the purchase price
payment of docket fee of the 30 units of air conditioners he sold to Fe.
Suppose that instead of alleging payment as a
Note: A plaintiff who fails or who chooses not to defense in his answer, Ramon filed a motion to
answer a compulsory counterclaim may not be dismiss on that ground, at the same time setting
declared in default, principally because the issues up his counterclaims, and the court grants his
raised in the counterclaim are deemed automatically motion. What will happen to his counterclaims?
joined by the allegations of the complaint (Gojo v.
Goyala, G.R. No. 26768, Oct. 30, 1970). A: Since Ramon filed only a motion to dismiss, not
an answer, the dismissal of the complaint would
In an original action before the RTC, the counterclaim also bring about the dismissal of his counterclaims
may be considered compulsory regardless of the but he can file a separate action for his permissive
amount (Sec. 7, Rule 6). counterclaims. The compulsory counterclaims are
deemed waived when he filed a motion to dismiss
(3) EFFECT ON THE COUNTERCLAIM WHEN THE the complaint instead of answering the same
COMPLAINT IS DISMISSED (Financial Building Corp. v. Forbes Park Association,
Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Q: What is the effect of the dismissal of a Question)
complaint on the counterclaim?
d. CROSS-CLAIMS
A:
1. If no motion to dismiss has been filed, any Q: What are the requirements for a cross-claim?
of the grounds for dismissal under rule 16
may be pleaded as an affirmative defense A:
in the answer, and in the discretion of the 1. A claim by one party against a co-party;
court, a preliminary hearing may be had 2. It must arise out of the subject matter of
thereon as if a motion to dismiss has been the complaint or of the counterclaim; and
filed (Sec. 6, Rule 16). After hearing, when 3. The cross-claimant is prejudiced by the
the complaint is dismissed, the claim against him by the opposing party.
counterclaim, compulsory or permissive is (Sec. 8, Rule 6)
not dismissed.
2. When the plaintiff himself files a motion Q: What is the effect if a cross-claim was not set
to dismiss his complaint after the up?
defendant has pleaded his answer with a
counterclaim. If the court grants the A:
motion, the dismissal shall be limited to GR: Barred if not set up. (Sec.2, Rule 9)
the complaint. It shall be without
prejudice to the right of the defendant to XPN: If it is not asserted through oversight,
prosecute his counterclaim in a separate inadvertence, or excusable negligence, it may still
action unless within 15 days from notice be set up with leave of court by amendment of the
of the motion, manifests his preference to pleadings. (Sec.10, Rule 11)
have his counterclaim resolved in the
same action (Sec. 2, Rule 17).
3. When the complaint is dismissed through
the fault of the plaintiff and at a time
when a counterclaim has already been set
up, the dismissal is without prejudice to
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS Surety & Insurance Co., G.R. No. L-27802, Oct. 26,
1968).
Q: What is a third (fourth, etc.) party complaint?
A third party complaint is not proper in an action for
A: A third (fourth, etc.) party complaint is a claim declaratory relief. (Commissioner of Customs v.
that a defending party may, with leave of court, file Cloribel, G.R. No. L-21036, June 30, 1977).
against a person not a party to the action, called
Note: The court is vested with the discretion to allow
the third (fourth, etc.) party defendant, for
or disallow a party to an action to implead an
contribution, indemnity, subrogation or any other
additional party. Thus, a defendant has no vested right
relief, in respect of his opponent's claim. (Sec.11,
to file a third party complaint (China Banking
Rule 6) Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007;
Riano, p. 342, 2009 ed.).
Q: Distinguish a third-party complaint from the
rules on bringing in new parties. Q: Abby obtained a favorable judgment against
UNICAP for a sum of money. For failure to get full
A: A third-party complaint is proper when not one payment, Abby went after UNICAP’s debtor Ben.
of the third-party defendants therein is a party to Ben is a policy holder of Insular. The court’s sheriff
the main action. Whereas in bringing in new then served a notice of garnishment to Insular
parties, if one or more of the defendants in a over several account receivables due to Ben.
counterclaim or cross-claim is already a party to the Insular refused to comply with the order alleging
action, then the other necessary parties may be adverse claims over the garnished amounts. The
brought in under the rules on bringing in new trial court ordered Insular to release to Abby the
parties said account receivables of Ben under the policies.
Insular then filed a petition for certiorari with the
Q: Why is leave of court necessary in third (fourth, CA alleging that the trial judge gravely abused his
etc.) -party complaint? discretion when he issued the garnishment order
despite its adverse claim on the garnished
A: To obviate delay in the resolution of the amounts. The CA gave due course to the petition
complaint such as when the third-party defendant and annulled the order of the trial court. Is the
cannot be located; or unnecessary issues may be Court of Appeals correct?
introduced; or the introduction of a new and
separate controversy. (Herrera, Vol. I, p. 705, 2007 A: No. Neither an appeal nor a petition for certiorari
ed.) is the proper remedy from the denial of a third-
party claim. Since the third-party claimant is not
Q: What are the tests to determine whether the one of the parties to the action, he could not,
third-party complaint is in respect of plaintiff’s strictly speaking, appeal from the order denying its
claim? claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint
A: for damages against the bond filed by the judgment
1. Whether it arises out of the same creditor in favor of the sheriff. The rights of a third-
transaction on which the plaintiff’s claim party claimant should be decided in a separate
is based, or, although arising out of action to be instituted by the third person (Solidum
another or different transaction, is v. CA, G.R. No. 161647, June 22, 2006).
connected with the plaintiff’s claim;
2. Whether the third-party defendant would f. COMPLAINT-IN-INTERVENTION
be liable to the plaintiff or to the
defendant for all or part of the plaintiff’s Q: What is a complaint-in-intervention?
claim against the original defendant; and
3. Whether the third-party defendant may A: An intervention pleading filed for the purpose of
assert any defenses which the third-party asserting a claim against either or all of the original
plaintiff has or may have to the plaintiff’s parties.
claim.
g. REPLY
Note: Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the third party
Q: Is the filing of a reply necessary?
complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central A:
GR: No.

Note: If a party does not file such reply. All the 3. PARTS OF A PLEADING
new matters that were alleged in the answer are
deemed controverted (Sec. 10, Rule 6) a. CAPTION
XPNs: Q: What should the caption contain?

1. Where the answer alleges the defense of
usury in which case a reply under oath A: The caption sets forth the name of the court, the
should be made. Otherwise, the title of the action, and the docket number if
allegation of usurious interest shall be assigned. (Sec. 1, Rule 7)
deemed admitted.
2. Where the defense in the answer is based Q: What should the title of the caption indicate?
on an actionable document, a reply under
oath pursuant to Sec. 8 of Rule 8 must be A: It should indicate the names of the parties. They
made. Otherwise, the genuineness and shall all be named in the original complaint or
due execution of the document shall be petition but in subsequent pleadings, it shall be
deemed admitted. sufficient if the name of the first party on each side
be stated with an appropriate indication when
2. PLEADINGS ALLOWED IN SMALL CLAIM CASES there are other parties. (Sec. 1, Rule 7)
AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE b. SIGNATURE AND ADDRESS
Q: What are the pleadings allowed in a summary Q: What is the rule regarding the signature and
procedure? address?
A: A: The complaint must be signed by the plaintiff or

1. Complaint counsel representing him indicating his address.
2. Compulsory counterclaim This address should not be a post office box. An
3. Cross-claims pleaded in the answer unsigned pleading produces no legal effect.
4. Answer to these pleadings (Sec. 3, Rules However, the court may, in its discretion, allow
on Summary Procedure; Riano, p. 177, such deficiency to be remedied if it shall appear
2009 ed.) that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately
Q: What are the prohibited pleadings, motions and files an unsigned pleading, or signs a pleading in
petitions in small claims? violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly report
A: to the court a change of his address, shall be
1. Motion to dismiss the complaint except subject to appropriate disciplinary action (Sec. 3,
on the ground of lack of jurisdiction. Rule 7)
2. Motion for a bill of particulars.
3. Motion for new trial, or for c. VERIFICATION AND CERTIFICATION AGAINST
reconsideration of a judgment, or for FORUM SHOPPING
reopening of trial.
4. Petition for relief from judgment. Q: How are pleadings verified?
5. Motion for extension of time to file
pleadings, affidavits, or any other paper. A: It is verified by an affidavit. This affidavit declares
6. Memoranda. that the:
7. Petition for certiorari, mandamus, or 1. Affiant has read the pleading; and
prohibition against any interlocutory 2. Allegations therein are true and correct of
order issued by the court. his personal knowledge or based on
8. Motion to declare the defendant in authentic records (Sec. 4, Rule 7)
default.
9. Dilatory motions for postponement. Q: Is verification necessary in pleadings?
10. Reply.
11. Third-party complaints. A: No, except when otherwise specifically required
12. Interventions. (Sec.14 of A.M. No. 08-8-7- by law or rule, pleadings need not be under oath,
SC) verified or accompanied by affidavit. (Sec. 4, Rule 7)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What is the significance of verification? 2. It does not necessarily render the

pleading defective. It is only a formal and
A: it is intended to secure an assurance that the not a jurisdictional requirement. The
allegations in a pleading are true and correct and requirement is a condition affecting only
not the product of the imagination or a matter of the form of the pleading (Benguet Corp. v.
speculation, and that the pleading is filed in good Cordillera Caraballo Mission, Inc., G.R. No.
faith. The absence of a proper verification is cause 155343, Sept. 2, 2005) and non-
to treat the pleading as unsigned and dismissible compliance therewith does not
(Chua vs. Torres, 468 SCRA 358; Riano, Civil necessarily render it fatally defective
Procedure: A Restatement for the Bar, p. 60, 2009 (Sarmiento v. Zaranta, G.R. No. 167471,
ed.) Feb. 5, 2007)
3. The absence of verification may be
Q: What are the pleadings that should be verified? corrected by requiring an oath. The rule is
in keeping with the principle that rules of
A: The following should be verified: procedure are established to secure
1. Petition for relief from judgment substantial justice and that technical
2. Petition for review from the RTCs to the requirements may be dispensed with in
CA meritorious cases (Pampanga Sugar
3. Petition for review from the CTA and Development Co., Inc. v. NLRC, G.R. No.
quasi-judicial agencies to the CA 112650, May 29, 1997)
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or Q: What is the nature of the certification against
final orders and resolutions non-forum shopping?
6. Complaint for injunction
7. Application for appointment of receiver A: It is a mandatory requirement in filing a
8. Application for support pendente lite complaint and other initiatory pleadings asserting a
9. Petition for certiorari against the claim or relief (Sec. 5, Rule 7). This rules applies as
judgments, final orders or resolutions of well to special civil actions since a since rules for
constitutional commissions ordinary civil action are suppletory (Riano, Civil
10. Petition for certiorari, prohibition, Procedure: A Restatement for the Bar, p. 63, 2009
mandamus, quo warranto ed.).
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful Q: Who executes certification against forum-
detainer shopping?
13. Petition for indirect contempt
14. Petition for appointment of general A: It is the plaintiff or principal party who executes
guardian the certification under oath (Sec. 5, Rule 7). It must
15. Petition for leave to sell or encumber be signed by the party himself and cannot be signed
property of an estate by a guardian by his counsels. (Digital Microwave Corp. v. CA, G.R.
16. Petition for the declaration of No. 128550, Mar. 16, 2000). It is the plaintiff who is
competency of a ward in the best position to know whether he or it
17. Petition for habeas corpus actually filed or caused the filing of a petition. (Far
18. Petition for change of name Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1,
19. Petition for voluntary judicial dissolution 1998)
of a corporation;
20. Petition for correction or cancellation of Q: What are the undertakings of a party under the
entries in Civil Registry. (1996 Bar certification against forum shopping?
Question)
A:
Q: What are the effects of lack of verification? 1. That the party has not commenced or
filed any claim involving the same issues
A: in any court, tribunal, or quasi-judicial
1. A pleading required to be verified but agency and, to the best of his knowledge,
lacks the proper verification shall be no such other action or claim is pending
treated as an unsigned pleading (Sec. 4 as
amended by A.M. 00-2-10, May 1, 2000). 2. That if there is such other pending action
Hence, it produces no legal effect (Sec. 3, or claim, a complete statement of the
Rule 7) present status thereof

3. That if he should therefore learn that the filing of the certification 14 days before the
same or similar action or claim has been dismissal of the petition. In Uy v. LandBank,
filed or is pending, he shall report that supra, the Court had dismissed Uy’s petition for
fact within five days therefrom to the lack of verification and certification against non-
court wherein his aforesaid complaint or forum shopping. However, it subsequently
initiatory pleading has been filed (Sec. 5, reinstated the petition after Uy submitted a
Rule 7) motion to admit certification and non-
forum shopping certification. In all these cases,
Q: What is the effect of non-compliance with the there were special circumstances or compelling
rule on certification against forum shopping? reasons that justified the relaxation of the rule
requiring verification and certification on non-
A: It is not curable by mere amendment and shall forum shopping.
be a cause for the dismissal of action (Sec.5, Rule 7).
Q: Is substantial compliance allowed by the
Note: When the case is dismissed due to non- courts?
compliance with the certification, filing fees cannot be
recovered. A:
GR: No. The rule is that the certificate of non-
Q: What is the effect of non-compliance with the forum shopping must be signed by all the
undertakings? petitioners or plaintiffs in a case and the signing
by only one of them is insufficient.
A: It has the same effect as the submission of false
certification. Hence, such failure shall constitute XPN: However, the Court has also stressed that
indirect contempt of court without prejudice to the the rules on forum shopping, which were
corresponding administrative and criminal designed to promote and facilitate the orderly
sanctions. (Sec. 5 Rule 7). administration of justice, should not be
interpreted with such absolute literalness as to
Q: What is the effect of submission of a false subvert its own ultimate and legitimate
certification? objective. The rule of substantial compliance
may be availed of with respect to the contents
A: It shall constitute indirect contempt of court, of the certification. This is because the
without prejudice to the corresponding requirement of strict compliance with the
administrative and criminal actions (Sec. 5, Rule 7) provisions regarding the certification of non-
forum shopping merely underscores its
Q: What is the effect of willful and deliberate mandatory nature in that the certification
forum shopping of the party or his counsel? cannot be altogether dispensed with or its
requirements completely disregarded. It does
A: It shall be a ground for summary dismissal. This not thereby interdict substantial compliance
dismissal is with prejudice and shall constitute with its provisions under justifiable
direct contempt as well as cause for administrative circumstances. (Cavile v. Heirs of Clarita Cavile,
sanctions (Sec. 5, Rule 7). 448 Phil 302, 2003)
Q: Is belated filing allowed by the courts? Q: When should the rule on forum shopping be
invoked?
A:
GR: No. The lack of certification against A:
forum shopping is generally not curable by the GR: It should be raised at the earliest
submission thereof after the filing of the opportunity in a motion to dismiss or a similar
petition. pleading.
XPN: In certain exceptional circumstances, Note: Invoking it in the later stages of the
however, the Court has allowed the belated proceedings or on appeal may result in the
filing of the certification. In Loyola v. Court of dismissal of the action which invokes forum
Appeals, et al. (245 SCRA 477 [1995]), the Court shopping.
considered the filing of the certification one day
after the filing of an election protest XPNs: It may be invoked in the later stages only
as substantial compliance with the requirement. if the violation arises from or will result in:
In Roadway Express, Inc. v. Court of Appeals, et 1. The loss of jurisdiction over the subject
al. (264 SCRA 696 [1996]), the Court allowed the matter
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
2. The pendency of another action between

the same parties for the same cause A: No. When the petitioner in a case is a
3. Barring of the action by a prior judgment corporation, the certification against forum
4. The Statute of Limitations has been shopping should be signed by its duly authorized
crossed (Young v. Keng Seng, G.R. director or representative. The authorized director
No.143464, Mar. 5, 2003). or representative of the corporation should be
vested with authority by a valid board resolution. A
Q: Mayor Miguel, Mayor of City Koronadal, filed proof of said authority must be attached with the
an action against RD Corporation for the certification (PAL v. FASAP, G.R. No. 143088, Jan.
annulment of the deed of absolute sale over 24, 2006).
several real properties of City of Koronadal
alleging irregularities thereto with the RTC. The d. EFFECT OF THE SIGNATURE OF COUNSEL IN A
said deed of absolute sale was authorized by PLEADING
Mayor Miguel’s predecessor, Mayor de Jesus. The
RTC dismissed the petition because the Q: What is the effect of lawyer’s signature?
certification against forum shopping was signed by
the City Legal Officer of City of Koronadal and not A: The signature of counsel constitutes:
by Mayor Miguel. Is the RTC correct? 1. A certificate by him that he has read the
pleadings;
A: Yes. It is the mayor, not the City Legal Officer, 2. That to the best of his knowledge,
who has the authority to file suits for the recovery information and belief there is good
of funds and property on behalf of the city even ground to support it; and
without the prior authorization from the 3. That it is not interposed for delay. (Sec. 3,
Sanggunian. Here, Mayor Miguel had the authority Rule 7)
to institute the action against RD Corporation.
However, being the proper party to file such suits, 4. ALLEGATIONS IN A PLEADING
Mayor Miguel must necessarily be the one to sign
the certification against forum-shopping, and not a. MANNER OF MAKING ALLEGATIONS
the City Legal Officer, who, despite being an official
of the City, was merely its counsel and not a party Q: What is the rule when making a pleading?
to the case (City of Caloocan v. CA, G.R. No. 145004,
May 3, 2006). A: Every pleading shall contain in a methodical and
logical form a plain, concise and direct statement of
(1) REQUIREMENTS OF A CORPORATION the ultimate facts, omitting the statement of mere
EXECUTING THE VERIFICATION/CERTIFICATION OF evidentiary facts. (Sec. 1, Rule 6)
NON-FORUM SHOPPING
Q: What are Ultimate facts?
Q: What is the rule when the plaintiff is a juridical
person? A: They refer to the essential facts of the claim. A
fact is essential if it cannot be stricken out without
A: The certification against forum shopping where leaving the statement of the cause of action
the plaintiff is a juridical entity like a corporation, insufficient. (Ceroferr Realty Corporation vs. Court
may be executed by properly authorized person. of Appeals, 376 SCRA 144)
This person may be a lawyer of a corporation. As
long as he is duly authorized by the corporation and (1) CONDITION PRECEDENT
has personal knowledge of the facts required to be
disclosed in the certification, such may be signed by Q: What is condition precedent?
the authorized lawyer (National Steel Corporation
vs. CA, 388 SCRA 85; Riano, Civil Procedure: A A: It refers to matters which must be complied with
Restatement for the Bar, p. 70, 2009 ed.) before a cause of action arises. (Riano, Civil
Procedure: A Restatement for the Bar, p. 97, 2009
Q: Corporation XYZ is the petitioner in a civil case. ed.)
Alexander, president of corporation XYZ, signed
the certification against forum shopping in behalf Q: What is the rule on conditions precedent?
of said corporation without presenting any proof
of authority from the corporation. Is the A: When a claim is subject to a condition precedent,
certification against forum shopping valid? If not, the compliance of the same must be alleged in the
how may it be cured? pleading. Otherwise it will be a ground for dismissal

for failure to state a cause of action. Such as tender Q: How are actionable documents pleaded?
of payment before consignation, prior resort to
barangay conciliation when necessary, and etc A: By setting forth:
(Riano, Civil Procedure: A Restatement for the Bar, 1. The substance of such document in the
p. 97, 2009 ed.). pleading and attaching said document
thereto as an exhibit
(2) FRAUD, MISTAKE, MALICE, INTENT, 2. Said document verbatim in the pleading
KNOWLEDGE AND OTHER CONDITION OF THE (Sec. 7, Rule 8).
MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
ACTS Note: A variance in the substance of the document set
forth in the pleading and the document annexed
Q: What is the rule in making averments of fraud thereto does not warrant the dismissal of the action
or mistake? (Convets, Inc. v. National Development Co., G.R. No. L-
10232, Feb. 28, 1958). However, the contents of the
A: The circumstances constituting such fraud or document annexed are controlling.
mistake must be stated with particularity (Sec. 5,
Rule 8). The complaint must state with particularity c. SPECIFIC DENIALS
the fraudulent acts of the adverse party. These
particulars would necessarily include the time, Q: What are the kinds of specific denial?
place, and specific acts of fraud committed against
him (Riano, Civil Procedure: A Restatement for the A:
Bar, p. 98, 2009 ed.). 1. Absolute denial – defendant specifies
each material allegation of fact the truth
Q: What is the rule in making averments of malice, of which he does not admit and,
intent, knowledge or other conditions of the mind whenever practicable, shall set forth the
of a person? substance of the matters upon which he
relies to support his denial.
A: The circumstances constituting such may be 2. Partial denial – defendant denies only a
averred generally (Sec.5, Rule 8). part of an averment. In this kind he shall
specify so much of it as is true and
Q: What is the rule in pleading an official material and shall deny only the
document or act? remainder.
3. Disavowal of knowledge – defendant
A: It is sufficient to aver that the document was alleges that he is without knowledge or
issued in compliance with law. With respect to an information sufficient to form a belief as
act, it is likewise sufficient to allege that the act was to the truth of a material averment made
done also in compliance with law (Sec.9, Rule 8; in the complaint.
Riano, Civil Procedure: A Restatement for the Bar, p.
98, 2009 ed.). (1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS
b. PLEADING AN ACTIONABLE DOCUMENT Q: What is the effect of failure to make specific

denial?
Q: What is an actionable document?
A: Material averments except as to the amount of
A: Referred to as the document relied upon by unliquidated damages, not specifically denied are
either the plaintiff and the defendant. (Araneta, Inc. deemed admitted. If the allegations are deemed
vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A admitted, there is no more triable issue between
promissory note in an action for collection of a sum the parties and if the admissions appear in the
of money. (Riano, Civil Procedure: A Restatement answer of the defendant, the plaintiff may file a
for the Bar, p. 101, 2009 ed.) motion for judgment on the pleadings under Rule
34 (Riano, Civil Procedure: A Restatement for the
Note: This manner of pleading a document applies Bar, p. 324, 2009 ed.)
only to an actionable document, i.e., one which is the
basis of an action or a defense. Hence, if a document
does not have the character of an actionable
document, it need not be pleaded strictly in the
manner prescribed by the rules (Ibid p.102)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
(2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH 6. DEFAULT
Q: When is a specific denial must be coupled with a. DECLARATION OF DEFAULT

an oath?
Q: When is a declaration of default proper?
A:
1. A denial of an actionable document (Sec. A: If the defending party fails to answer within the
8, Rule 8) time allowed therefor, the court shall upon motion
2. A denial of allegations of usury in a of the claiming party with notice to the defending
complaint to recover usurious interest (Sec. 11, party, and proof of such failure, declare the
Rule 8) defending party in default (Sec. 3, Rule 9, Rules of
Court). (Riano, p. 507, 2005 ed.)
5. EFFECT OF FAILURE TO PLEAD
Q: In what situations where declaration of default
a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS is proper?
Q: May defenses not pleaded in a motion to A: It is proper in 3 situations:

dismiss or in the answer still be raised? 1. Defendant did not file any answer or
responsive pleading despite valid service
A: of summons;
GR: No, they are deemed waived. 2. Defendant filed an answer or responsive
pleading but beyond the reglementary
XPNs: These defenses may be raised at any period; and
stage of the proceedings even for the first time 3. Defendant filed an answer to the court
on appeal (Tijam v. Sibonghanoy, G.R. No. L- but failed to serve the plaintiff a copy as
21450, Apr. 15, 1968): required by the Rules.
1. Lack of jurisdiction over the subject
matter; b. EFFECT OF AN ORDER OF DEFAULT
Note: It may however, be barred by laches.
Q: What are the effects of an order of default?
2. Litis pendentia;
3. Res judicata; and A:
4. Statute of limitations (Sec. 1, Rule 9) 1. The party declared in default loses his
standing in court. The loss of such
b. FAILURE TO PLEAD A COMPULSORY standing prevents him from taking part in
COUNTERCLAIM AND CROSS-CLAIM the trial [Sec. 3(a), Rule 9];
2. While the defendant can no longer take
Q: May a compulsory counterclaim or cross-claim part in the trial, he is nevertheless
not set up in the answer still be raised entitled to notices of subsequent
subsequently? proceedings [Sec. 3 (a), Rule 9]. It is
submitted that he may participate in the
A: trial, not as a party but as a witness; and
GR: A compulsory counterclaim or cross-claim 3. A declaration of default is not an
not set up in the answer is deemed barred (Sec. admission of the truth or the validity of
2, Rule 9). the plaintiff’s claims (Monarch Insurance
v. CA, G.R. No. 92735, June 8, 2000).
XPN: If the compulsory counterclaim or cross-
claim is an after-acquired counterclaim, that is, c. RELIEF FROM AN ORDER OF DEFAULT
such claim matured after filing of the answer, it
may be pleaded by filing an amended answer or Q: What are the reliefs from an order of default?
a supplemental answer or pleading (Sec. 9, Rule
11). A:
1. After notice of order and before judgment
Note: Counterclaims or cross-claims omitted through – The defendant must file a verified
oversight, inadvertence, or excusable neglect or when motion to set aside the order of default
justice requires may be set up by amendment before upon proper showing that:
judgment. Leave of court is necessary (Sec. 10, Rule
11).

a. His failure to answer was due to f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED
fraud, accident, mistake or excusable
negligence; and Q: When is default not allowed?
b. That he has a meritorious defense.
[Sec. 3(b), Rule 9] (2000 & 1999 Bar A:
Question) 1. Actions for annulment;
2. Declaration of nullity of marriage and
2. After judgment and before judgment legal separation [Sec. 3(e), Rule 9]; and
becomes final and executory – He may file 3. In special civil actions of certiorari,
a motion for new trial under Rule 37. He prohibition and mandamus where
may also appeal from the judgment as comment instead of an answer is
being contrary to the evidence or the law required to be filed.
(Talsan Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919, Sept. 11, 7. FILING AND SERVICE OF PLEADINGS
2009)
Q: What papers are required to be filed and
3. After the judgment becomes final and served?
executory – he may file a petition for
relief from judgment under Rule 38 A: Every judgment, resolution, order, pleading
(Balangcad v. Justices of the CA, G.R. No. subsequent to the complaint, written motion,
83888, Feb. 12, 1992) (2006, 1998 Bar notice, appearance, demand, offer of judgment or
Question) similar papers shall be filed with the court, and
served upon the parties affected. (Sec.4, Rule 13)
4. Where the defendant has however, been
wrongly or improvidently declared in a. PAYMENT OF DOCKET FEES
default, the court can be considered to
have acted with grave abuse of discretion Q: What is the significance of paying the docket
amounting to lack or excess of jurisdiction fees?
and when the lack of jurisdiction is patent
in the face of the judgment or from the A: A complaint is not considered filed unless the
judicial records, he may avail of the proper amount of the docket fee is paid. Thus, if the
special civil action of certiorari under Rule proper docket fee is not paid, the period of
65 (Balangcad v. Justices of the CA, G.R. prescription continues to run.
No. 83888, Feb. 12, 1992)
b. FILING VERSUS SERVICE OF PLEADINGS
d. EFFECT OF A PARTIAL DEFAULT
Q: What is filing?
Q: What is the effect of partial default?
A: It is the act of presenting the pleading or other
A: paper to the clerk of court. (Sec. 2, Rule 13)
GR: The court will try the case against all
defendants upon the answer of some. Q: What is service?
XPN: Where the defense is personal to the one A: It is the act of providing a party with a copy of
who answered, in which case, it will not the pleading or paper concerned. If any party has
benefit those who did not answer e.g. forgery. appeared by counsel, service upon him shall be
(1995 Bar Question) made upon his counsel or one of them, unless
service upon the party himself is ordered by the
e. EXTENT OF RELIEF court. (Sec. 2, Rule 13)
Q: What is the extent of relief? c. PERIODS OF FILING OF PLEADINGS
A: The judgment shall not exceed the amount or be Q. When should a responsive pleading be filed?
different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However, A:
if the court orders submission of evidence, Periods for Filing an
unliquidated damages may be awarded based on Answer
such. Answer to an original Within 15 days after
complaint service of summons,
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
unless a different period is d. MANNER OF FILING

fixed by the court (Sec. 1,
Rule 11). Q: What are the modes of filing?
Defendant is a foreign Within 15 days after
private juridical entity service of summons (Sec.6, A:
and has a resident in relation to Sec.5[a], Rule 1. By presenting the original copies thereof,
agent 2, A.M. NO. 00-8-10-SC plainly indicated as such, personally to
2000-11-21)
the clerk of court; or
Defendant is a foreign Within 15 days after 2. By sending them through registered mail
private juridical entity service of summons to
(Sec. 3, Rule 13)
and has no resident said agent or officer (Sec.6,
agent but has an agent in relation to Sec.5[b], Rule
Note: Filing by mail should be through the registry
/ officer in the 2, A.M. NO. 00-8-10-SC
service which is made by deposit of the pleading in the
Philippines 2000-11-21)
post office, and not through other means of
Defendant is a foreign Within 30 days after
transmission.
private juridical entity receipt of summons by the
and has no resident home office of the foreign
agent nor agent/ private entity e. MODES OF SERVICE
officer.
(Summons to be served Q: What are the modes of service?
to SEC which will then
send a copy by
registered mail within A:
10 days to the home 1. Personal service (Sec. 6, Rule 13);
office of the foreign 2. Service by registered mail (Sec. 7, Rule
private corporation) 13); or
Service of summons by Within the time specified 3. Substituted service (Sec. 8, Rule 13).
publication in the order which shall
not be less than 60 days (1) PERSONAL SERVICE
after notice (Sec. 15, Rule
14) Q: How is personal service done?
Non-resident defendant Not be less than 60 days
to whom after notice (Sec. 15, Rule A: By:
extraterritorial service 14) 1. Delivering personally a copy to the party
of summons is made
or his counsel;
Answer to amended Within 15 days from
2. Leaving a copy in counsel’s office with his
complaint (Matter of service of amended
clerk or with a person having charge
right)* complaint (Sec. 3. Rule 11)
thereof; or
Answer to amended Within 10 days counted
3. Leaving the copy between 8 a.m. and 6
complaint (Not a from notice of the court
matter of right)* order admitting the same p.m. at the party’s or counsel’s residence,
(Sec. 3, Rule 11) if known, with a person of sufficient age
Counterclaim or cross- Within 10 days from and discretion residing therein if no
claim service (Sec. 4, Rule 11) person found in his office, or if his office is
Third (fourth, etc.) Like an original defendant unknown, or if he has no office (Sec. 6,
party complaint – 15, 30, 60 days as the Rule 13).
case may be (Sec. 5;
Regalado, Vol. I, p. 212, (2) SERVICE BY MAIL
2005 ed.)
Supplemental Within 10 days from Q: How is service by mail done?
complaint notice of order admitting
the same unless a different A:
period is fixed by the court 1. By depositing the copy in the post office
(Sec. 7, Rule 11) in a sealed envelope, plainly addressed to
the party or his counsel at his office, if
Note: Upon motion and on such terms as may be just, known, otherwise at his residence, if
the court may extend the time to plead provided in known, with postage fully prepaid, and
these Rules. The court may also, upon like terms, allow
with instructions to the postmaster to
an answer or other pleading to be filed after the time
return the mail to the sender after 10
fixed by these Rules. (Sec.11, Rule 11)
days if undelivered; or

2. If no registry service is available in the 2. Service by ordinary mail – upon expiration

locality of either the sender or the of 10 days after mailing, unless the court
addressee, service may be done by otherwise provides.
ordinary mail (Sec. 7, Rule 13). 3. Service by registered mail – upon actual
receipt by the addressee, or 5 days from
(3) SUBSTITUTED SERVICE the date he received the first notice of the
postmaster, whichever date is earlier
Q: How and when is substituted service made? (Sec. 10, Rule 13).
4. Substituted service – at the time of such
A: If service of pleadings, motions, notices, delivery (Sec. 8, Rule 13).
resolutions, orders and other papers cannot be
made under the two preceding sections, the office (7) PROOF OF FILING AND SERVICE
and place of residence of the party or his counsel
being unknown, service may be made by delivering Q: What are the proofs of filing?
the copy to the clerk of court, with proof of failure
of both personal service and service by mail (Sec. 8, A:
Rule 13). GR: Filing is proven by its existence in the
record of the case.
(4) SERVICE OF JUDGMENTS, FINAL ORDERS OR
RESOLUTIONS XPN: If it is not in the record, and:
1. If filed personally – proved by the written
Q: How is service of judgment of final orders or or stamped acknowledgement of its filing
resolutions done? by the clerk of court on a copy of the
same; or
A: By: 2. If filed by registered mail – proved by the
1. Personal service; registry receipt and the affidavit of the
2. Registered mail; or person who did the mailing with a full
3. Publication, if party is summoned by statement of:
publication and has failed to appear in the a. The date and place of depositing the
action (Sec. 9, Rule 13) mail in the post office in a sealed
envelope addressed to the court;
Note: No substituted service. b. With postage fully paid; and
c. With instructions to the postmaster
(5) PRIORITIES IN MODES OF SERVICE AND FILING to return the mail to the sender after
10 days if undelivered. (Sec. 12, Rule
Q: What are the priorities in modes of service and 13)
filing?
Q: What are the proofs of service?
A:
GR: Whenever practicable, the service and filing A:
shall be done personally. 1. Proof of personal service:
a. Written Admission of the party
XPN: With respect to papers emanating from served; or
the court, a resort to other modes must be b. Official return of the server or
accompanied by a written explanation why the c. Affidavit of the party serving,
service or filing was not done personally (Sec. containing the date, place and
11, Rule 13) manner of service.
2. Proof of service by ordinary mail:
Note: A violation of this rule may be cause to consider a. Affidavit of mailer showing
the paper as not filed (Sec. 11, Rule 13). compliance of Sec. 7, Rule 13; and
b. Registry receipt issued by the mailing
(6) WHEN SERVICE IS DEEMED COMPLETE officer (Sec. 13, Rule 13)
3. Registered mail:
Q: When is service deemed complete? a. Affidavit; and
b. Registry receipt issued by the mailing
A: office.
1. Personal service – upon actual delivery.
Note: The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
thereof the unclaimed letter together with the Note: Plaintiff may amend his complaint even if the
certified or sworn copy of the notice given by the same was dismissed on motion of the defendant
postmaster to the addressee. (Sec. 13, Rule 13) provided that the dismissal order is not yet final.
(Arranz vs. Manila Surety and Fidelity Co., Inc., L-
Q: What is a notice of lis pendens? 128441, June 30, 1960)
A: In an action affecting the title or the right of c. FORMAL AMENDMENT

possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his Q: What is the rule on formal amendments?
answer, may record in the office of the registry of
deeds of the province in which the property is A: A defect in the designation of the parties and
situated a notice of the pendency of the action. other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of
Note: Only from the time of filing such notice for the action, at its initiative or on motion, provided
record shall a purchaser, or encumbrancer of the no prejudice is caused thereby to the adverse party
property affected thereby, be deemed to have (Sec. 4, Rule 10).
constructive notice of the pendency of the action, and
only of its pendency against the parties designated by d. AMENDMENTS TO CONFORM TO OR
their real names. (Sec.14, Rule 13) AUTHORIZE PRESENTATION OF EVIDENCE
8. AMENDMENT Q: When may amendment be made to conform to

or authorize presentation of evidence?
Q: How are pleadings amended?
A:
A: By: 1. When issues not raised by the pleadings
1. Adding or striking out an allegation or the are tried with the express or implied
name of any party; or consent of the parties.
2. Correcting a mistake in the name of a Note: Failure to amend does not affect the
party or a mistaken or inadequate result of the trial of said issue.
allegation or description in any other
respect (Sec. 1, Rule 10) 2. Amendment may also be made to
authorize presentation of evidence if
a. AMENDMENT AS A MATTER OF RIGHT evidence is objected to at the trial on the
ground that it is not within the issues
Q: When is amendment considered as a matter of made by the pleadings, if the
right? presentation of the merits of the action
and the ends of substantial justice will be
A: It is considered as a matter of right at any time subserved thereby (Sec. 5, Rule 10).
before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) days e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS
after it is served (Sec. 2, Rule 10).
Q: Distinguish an amended pleading from a
Note: A motion to dismiss is not a responsive pleading supplemental pleading.
and its filing does not preclude the exercise of the
plaintiff’s right to amend his complaint. (Riano, p. 246, A:
2009 ed. Amended Pleading Supplemental Pleading
Refer to the facts existing Refers to facts occurring
b. AMENDMENTS BY LEAVE OF COURT
at the time of filing of after the filing of the
original pleading original pleading.
Q: When is leave of court required?
Supersedes the original Merely supplements the
original pleading.
A: May be amended without Always with leave of
1. If the amendment is substantial (Sec. 3, leave of court before a court
Rule 10); and responsive pleading is
2. A responsive pleading had already been filed.
served (Siasoco v. CA, G.R. No. Amendment must be There is no such
132753. Feb. 15, 1999) (1994 Bar appropriately marked. requirement in
Question) supplemental pleadings
(Herrera, Vol. I, p. 854,

2007 ed.) Note: Voluntary appearance cures the defect in

the service of summons.
f. EFFECT OF AMENDED PLEADING XPN: Special appearance in court to challenge

its jurisdiction over the person of the defendant
Q: What is the effect of an amended pleading? and the inclusion in a motion to dismiss of other
grounds shall not be deemed a voluntary
A: An amended pleading supersedes the pleading it appearance (Sec. 20, Rule 15; La Naval Drug
amends. However, admissions in the superseded Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).
pleading can still be received in evidence against
the pleader. Claims or defenses alleged therein but 3. PERSONAL SERVICE
not incorporated or reiterated in the amended
pleading are deemed waived (Sec. 8, Rule 10). Q: When is personal service of summons proper?
F. SUMMONS A: Only if the suit is one strictly in personam. The

service of summons must be made by service in
1. NATURE AND PURPOSE OF SUMMONS IN person on the defendant. This is effected by
RELATION TO ACTIONS IN PERSONAM, IN REM handing a copy of the summons to the defendant in
AND QUASI IN REM person, or if he refuses to receive it, by tendering
the copy of the summons to him (Sec. 6, Rule 14).
Q: What is the nature of summons? (Riano, p. 423 , 2005 ed.)
A: It is the writ by which the defendant is notified of 4. SUBSTITUTED SERVICE

the action brought against him (Gomez vs. Court of Q: When is substituted service of summons
Appeals, G.R. No. 127692, March 10, 2004). An proper?
important part of that notice is a direction to the
defendant that he must answer the complaint A: In our jurisdiction, for substituted service of
within a specified period, and that unless he so summons to be valid, it is necessary to establish the
answers, plaintiff will take judgment by default and following:
may be granted the relief applied for (Sec. 2, Rule 1. The impossibility of service of summons in
14). (Riano, p. 411 , 2005 ed.) person within a reasonable time;
2. The efforts exerted to locate the person to
Q: What are the purposes of summons? be served; and
3. Service upon a person of sufficient age and
A: discretion in the same place as the
1. Actions in personam defendant or some competent person in
a. To acquire jurisdiction over the charge of his office or regular place of
person of the defendant; and business (Sabio, Jr., 339 SCRA 243 [2000];
b. To give notice to the defendant that Hamilton vs. Levy, G.R. No. 139283,
an action has been commenced November 15, 2000). (Riano, p. 427 , 2005
against him (Umandap v. Sabio, Jr., ed.)
G.R. No. 140244, Aug. 29, 2000)
2. Actions in rem and quasi in rem – not to 5. CONSTRUCTIVE SERVICE (BY PUBLICATION)
acquire jurisdiction over the defendant
but mainly to satisfy the constitutional Q: Is leave of court required in constructive service
requirement of due process (Gomez v. CA, of summons?
G.R. No. 127692, Mar. 10, 2004).
A: This service always requires permission of the
2. VOLUNTARY APPEARANCE court.
Q: What is the effect of voluntary appearance

before the court? Explain.
A:
GR: The defendant’s voluntary appearance shall
be equivalent to service of summons and the
consequent submission of one’s person to the
jurisdiction of the court (Sec. 20, Rule 14).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
a. SERVICE UPON A DEFENDANT WHERE HIS by any other manner the court may deem
IDENTITY IS UNKNOWN OR WHERE HIS sufficient. (Riano, p. 439-440, 2005 ed.)
WHEREABOUTS ARE UNKNOWN
b. SERVICE UPON RESIDENTS TEMPORARILY 7. SERVICE UPON PRISONERS AND MINORS
OUTSIDE THE PHILIPPINES
Q: How is service of summons upon prisoner
Q: When is constructive service of summons made?
proper?
A: Service shall be effected upon him by the officer
A: having the management of such jail or institution
1. Service upon a defendant where his who is deemed deputized as a special sheriff for
identity is unknown or where his said purpose. (Sec. 9, Rule 14)
whereabouts are unknown. When the
defendant is designated as an unknown Q: How is service of summons upon minors made?
and cannot be ascertained by diligent
inquiry, Sec. 14, Rule 14 allows service of A: Service shall be made upon him personally and
summons by publication in a newspaper on his legal guardian if he has one, or if none, upon
of general circulation and in such places his guardian ad litem whose appointment shall be
and for such time as the court may applied for by the plaintiff. In the case of a minor,
order. (Riano, p. 432 , 2005 ed.) service may also be made on his father or mother.
(Sec. 10, Rule 14)
2. Service upon residents temporarily
outside the Philippines. When any action 8. PROOF OF SERVICE
is commenced against a defendant who
ordinarily resides within the Philippines, Q: How is proof of service done?
but who is temporarily out of it, service
may, by leave of court, be also effected A: It shall be made in writing by the server and shall
out of the Philippines (Sec. 16, Rule 14). set forth the manner, place, and date of service;
shall specify any papers which have been served
6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED with the same; and shall be sworn to when made by
a person other than a sheriff or his deputy (Sec 18,
Q: When is extra-territorial service of summons Rule 14).
allowed?
Q: How is proof of service by publication done?
A: The defendant must be a non-resident defendant
who is at the same time not found in the Philippines A: It is done through the following:
at the time summons is to be served. In addition, 1. Affidavit of the printer, his foreman or
the action commenced against him must be any of principal clerk, business or advertising
the following: manager, to which affidavit a copy of the
publication shall be attached; and
1. An action that affects the personal status 2. Affidavit showing the deposit of a copy of
of the plaintiff; the summons and order for publication in
2. An action that relates to, or the subject of the post office (Sec. 19, Rule 14).
which is the property within the
Philippines in which the defendant has or G. MOTIONS
claims a lien or interest, actual or
contingent; 1. MOTIONS IN GENERAL
3. An action in which the relief demanded
consists, wholly or in part, in excluding a. DEFINITION OF A MOTION
the defendant from any interest therein;
4. An action where the property of the Q: What is a motion?
defendant has been attached in the
Philippines. A: It is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Note: In any of the above instances,
extraterritorial service is permissible with
leave of court and may be effected by
personal service, summons by publication or

b. MOTIONS VERSUS PLEADINGS

Q: What is the rule on hearing of motions?
Q: Distinguish a motion from a pleading.
A:
A: A pleading is a written statement of the GR: Every written motion shall be set for
respective claims and defenses of the parties hearing by the applicant.
submitted to the court for appropriate XPN: Motions which the court may act upon
judgment (Sec. 1, Rule 6). It may be in the form of a without prejudicing the rights of the adverse
complaint, counterclaim, cross-claim, third-party party (Sec. 4, Rule 15).
complaint, or complaint-in-intervention, answer or
reply (Sec. 2, Rule 6). e. OMNIBUS MOTION RULE
A motion on the other hand is an application for Q: What is the Omnibus Motion Rule?
relief other than a pleading(Sec. 1, Rule 15).
A:
c. CONTENTS AND FORMS OF MOTIONS GR: All available grounds for objection in
attacking a pleading, order, judgment, or
Q: Should a motion be in writing? proceeding should be invoked at one time;
otherwise, they shall be deemed waived (Sec. 8,
A: Rule 15).
GR: Yes.
XPN: The court may dismiss the case motu
XPN: Those made in open court or in the course proprio based on:
of hearing or trial (Sec. 2, Rule 15). 1. Lack of jurisdiction over the subject
matter;
Q: What are the contents of a motion? 2. Litis pendentia;
3. Res judicata; and
A: The contents of a motion are: 4. Barred by statute of limitations (Sec. 1,
1. the relief sought to be obtained; Rule 9)
2. the ground upon which it is based; and
3. if required by the Rules or necessary to f. LITIGATED AND EX-PARTE MOTIONS
prove facts alleged therein, shall be
accompanied by supporting affidavits and Q: What is a litigated motion?
other papers. (Sec. 3, Rule 15)
A: It is a motion which affects the substantial rights
Q: May a motion pray for judgment? of the parties. A hearing is required.
A:
GR: No. Q: What is an ex-parte motion?
XPN: Motion for: A: It is taken or granted at the instance and for the
1. judgment on the pleadings; benefit of one party, and without notice to or
2. summary judgment; or contestation by any party adversely affected
3. Judgment on demurrer to evidence. (Regalado, Remedial Law Compendium, p. 264,
2009 ed.)
d. NOTICE OF HEARING AND HEARING OF
MOTIONS g. PRO-FORMA MOTIONS
Q: What shall the notice of hearing specify? Q: What is a pro-forma motion?
A: It shall specify the time and date of the hearing A: It is that which does not comply with the rules on
which shall not be later than ten (10) days after the motion and is considered as one filed merely to
filing of the motion and it shall be addressed to the delay the proceedings (Marikina Development
parties concerned (Sec. 5, Rule 15). Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).
Note: Failure to comply with the mandatory

requirements of the rule regarding notice of hearing is
pro forma and presents no question which merits the
attention of the court (Bacelonia v. CA, G.R. No.
143440, Feb. 11, 2003).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
2. MOTIONS FOR BILL OF PARTICULARS 2. If plaintiff, his compliant will be stricken

off and dismissed (Sec. 3, Rule 17)
a. PURPOSE AND WHEN APPLIED FOR 3. If defendant, his answer will be stricken
off and his counterclaim dismissed, and
Q: What is a bill of particulars and when can it be he will be declared in default upon
availed of? motion of the plaintiff (Sec. 4, Rule 17;
Sec. 3, Rule 9).
A: Before responding to a pleading, a party may
move for a definite statement or for a bill of Note: If the plaintiff failed to comply with the period,
particulars of any matter which is not averred with the court upon motion of the defendant may strike out
sufficient definiteness or particularity to enable him the paragraph where ambiguity lies. If the entire
properly to prepare his responsive pleading. If the complaint is ambiguous, such is striken out and there
pleading is a reply, the motion must be filed within is no more case.
10 days from service thereof (Sec. 1, Rule12). (2003
Bar Question) d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE
PLEADING
Note: Its purpose is to aid in the preparation of a
responsive pleading. An action cannot be dismissed on Q: What is the effect of a motion for bill of
the ground that the complaint is vague or definite. particulars on the period to file a responsive
(Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973). pleading?
b. ACTIONS OF THE COURT A: After service of the bill of particulars or of a more

definite pleading, or after notice of denial of his
Q: What are the actions taken by the court motion, the moving party may file his responsive
regarding the motion for bill of particulars? pleading within the period to which he was entitled
at the time of filing his motion, which shall not be
A: The court may either: less than five (5) days in any event (Sec. 5, Rule12).
1. Deny it;
2. Grant it outright; or Q: Within the period for filing a responsive
3. Allow the parties the opportunity to be heard pleading, the defendant filed a motion for bill of
(Sec. 2, Rule 12). particulars that he set for hearing on a certain
date. However, the defendant was surprised to
c. COMPLIANCE WITH THE ORDER AND EFFECT OF find on the date set for hearing that the trial court
NON-COMPLIANCE had already denied the motion on the day of its
filing, stating that the allegations of the complaint
Q: When must be the compliance be effected? were sufficiently made.
1. Did the judge gravely abuse his
A: If the motion is granted, either in whole or in discretion in acting on the motion
part, it must be effected within ten (10) days from without waiting for the hearing set for
notice of the order, unless a different period is fixed the motion?
by the court (Sec. 3, Rule 12). 2. If the judge grants the motion and orders
the plaintiff to file and serve the bill of
Note: Bill of particulars may be filed either on a particulars, can the trial judge dismiss
separate or in an amended pleading, serving a copy the case if the plaintiff does not comply
thereof on the adverse party. with the order?
Q: What is the effect of non-compliance with the A:

order of a bill of particulars? 1. No. Sec. 2, Rule 12 authorizes the court to
either deny or grant said motion outright
A: or allow the parties an opportunity to be
1. If the order is not obeyed or in case of heard. The court is not mandated to
insufficient compliance therewith, the conduct a hearing.
court: 2. Yes. Sec. 4, Rule 12 authorizes the court
a. May order the striking out of the to order the striking out of the pleading
pleading or the portion thereof to affected, hence the dismissal of the
which the order is directed; or complaint. To the same end is the
b. Make such order as it may deem just provision of Sec. 3, Rule 17 when the
(Sec. 4, Rule 12) plaintiff fails to comply for no justifiable

cause with any order of the court or with 8. That the claim or demand set forth in the
the Rules. (2008 Bar Question) plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
3. MOTION TO DISMISS
9. That the claim on which the action is
a. GROUNDS founded is unenforceable under the
provisions of the statute of frauds;
Q: What are the grounds for a motion to dismiss
under Rule 16? 10. That a condition precedent for filing the
claim has not been complied with.(Sec. 1,
A: Rule 16)
1. That the court has no jurisdiction over the Note: Not jurisdictional in nature, hence,
person of the defending party; deemed waived if not raised.
b. RESOLUTION OF MOTION
2. That the court has no jurisdiction over the
subject matter of the claim;
Q: What are the three courses of action which the
trial court may take in resolving a motion to
3. That venue is improperly laid;
dismiss?
4. That the plaintiff has no legal capacity to
A:
sue;
1. Dismiss the action or claims;
Note: The issue of the plaintiff’s lack of legal
2. Deny the motion; or
capacity to sue cannot be raised for the first
time on appeal where the defendant dealt
3. Order the amendment of the pleading
with the former as a party in the (Sec. 3, Rule 16).
proceeding.
Note: The court shall not defer the resolution of the
5. That there is another action pending motion for the reason that the ground relied upon is
not indubitable. In every case, the resolution shall
between the same parties for the same
state clearly and distinctly the reasons therefor (Sec. 3,
cause;
Rule16).
Note: Litis pendentia requires concurrence
c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT
of the following requisites:
a. Identity of the parties IS DISMISSED
b. Identity of rights asserted and reliefs
prayed for, being founded on the same Q: What are the remedies of the plaintiff when the
facts complaint is dismissed?
c. Identity with respect to the two
preceding particulars, such that any A: If the dismissal is without prejudice, the plaintiff
judgment that may be rendered in the may re-file the complaint. If the dismissal is with
pending case would amount to red prejudice, the plaintiff may file an appeal. (Riano,
adjudicate in the other case. (Lim vs. Civil Procedure: A Restatement for the Bar, p. 319-320,
Vianzon, G.R. No. 137187, Aug.3, 2006) 2009 ed.)
6. That the cause of action is barred by a d. REMEDIES OF THE DEFENDANT WHEN THE
prior judgment or by the statute of MOTION IS DENIED
limitations;
Note: The requisites of res judicata include: Q: What are the remedies of the defendant when
The former judgment must be final the motion is denied?
a. The court which rendered it has
jurisdiction over the subject matter A: File an answer and proceed with the trial. If
and the parties decision is adverse, appeal therefrom and raise as
b. Judgment must be on the merits error the denial of the motion to dismiss. If there is
c. There must be identity of parties, grave abuse of discretion amounting to lack or
subject matter and causes of action excess of jurisdiction, certiorari or prohibition may
lie under Rule 65. If there is unlawful neglect of the
7. That the pleading asserting the claim performance of an act which the law specifically
states no cause of action; enjoins, mandamus is the proper remedy. (Riano,
Note: Curable by amendment Civil Procedure: A Restatement for the Bar, p. 319,
2009 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
e. EFFECT OF DISMISSAL OF COMPLAINT ON g. BAR BY DISMISSAL

CERTAIN GROUNDS
Q: What are the grounds for dismissal that may
Q: What is the effect of dismissal on the following bar the refiling of the same action or claim?
grounds:
1. Cause of action is barred by prior judgment or A:
by the statute of limitations; 1. Res judicata;
2. Claim or demand has been paid, waived, 2. Prescription;
abandoned, or otherwise extinguished; and 3. Extinguishment of the claim or demand;
3. Claim is unenforceable under the statute of and
frauds? 4. Unenforceability under the State of
Frauds. (Sec. 5, Rule 16)
A: Dismissal is with prejudice and constitutes res
judicata. The language of the rule, particularly on h. DISTINGUISH FROM DEMURRER TO EVIDENCE
the relation of the words “abandoned” and UNDER RULE 33
“otherwise extinguished” to the phrase claim or
demand deemed set forth in the plaintiff’s Q: Distinguish motion to dismiss under Rule 16
pleading” is broad enough to include within its from motion to dismiss under Rule 33.
ambit the defense of bar by laches. However, the
trial court must set a hearing on the motion where A:
the parties shall submit not only their arguments on Rule 16 (Motion to Rule 33 (Demurrer to
the questions of law but also their evidence on the Dismiss) Evidence)
questions of fact involved (Pineda v. Heirs of Eliseo Grounded on Based on insufficiency of
Guevarra, G.R. No. 168557, Feb. 19, 2007). preliminary objections evidence
May be filed by any May be filed only by the
f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE defending party defendant against the
DEFENSES against whom a claim complaint of the plaintiff
is asserted in the
Q: When can the grounds for motion to dismiss be action
pleaded as affirmative defense? Should be filed within May be filed only after the
the time for but prior plaintiff has completed the
to the filing of the presentation of his evidence
A: If no motion to dismiss has been filed, any of the
answer (Regalado, Remedial Law,
grounds for dismissal provided for in the Rules may
Compendium Vol. I, p. 267,
be pleaded as an affirmative defense in the answer 2005 ed.)
and, in the discretion of the court, a preliminary If denied, defendant If denied, defendant may
hearing may be had thereon as if a motion to answers, or else he present evidence.
dismiss had been filed. may be declared in If granted, but on appeal
default. the order of dismissal is
The dismissal of the complaint shall be without reversed, the defendant
prejudice to the prosecution in the same or If granted, plaintiff loses his right to present
separate action of a counterclaim pleaded in the may appeal or if evidence (Riano, Civil
answer. (Sec. 6, Rule 16) subsequent case is not Procedure: A Restatement
barred, he may re-file for the Bar, p. 399, 2009 ed.)
the case

H. DISMISSAL OF ACTIONS
1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE

2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM
3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF
Q: Distinguish the different types of dismissal under Rule 17.
A:
Dismissal upon notice by plaintiff (Sec. 1, Dismissal upon motion of plaintiff Dismissal due to fault of
Rule 17) (Sec. 2, Rule 17) plaintiff (Sec. 3, Rule 17)
A complaint may be dismissed by the After service of the answer or a motion 1. If, for no justifiable cause,
plaintiff by filing a notice of dismissal at for summary judgment by the adverse the plaintiff fails to appear
any time before service of the answer or party. on the date of the presen-
of a motion for summary judgment. tation of his evidence in
Upon such notice being filed, the court chief on the complaint.
shall issue an order confirming the 2. If the plaintiff fails to
dismissal. Unless otherwise stated in the prosecute his action for an
notice, the dismissal is without prejudice, unreason-nable length of
except that a notice operates as time (nolle prosequi).
adjudication upon the merits when filed 3. If the plaintiff fails to
by a plaintiff who has once dismissed in a comply with the Rules or
competent court an action based on or any order of the court.
including the same claim.
It is a matter of right. Matter of discretion upon the court. A Matter of evidence.
complaint shall not be dismissed at the
GR: A dismissal without prejudice i.e. the plaintiff's instance save upon approval GR: Dismissal is with prejudice
complaint can be re-filed of the court and upon such terms and because it has an effect of an
conditions as the court deems proper adjudication on the merits.
XPNs: (Sec. 2, Rule 17).
1. The notice of dismissal by the XPN: Unless otherwise declared
plaintiff provides that the dismissal is GR: It is a dismissal without prejudice, by the court (Sec. 3, Rule 17)
with prejudice; or
2. The plaintiff has once dismissed in a XPN: If the order of dismissal specifies
competent court an action based on that it is with prejudice (Sec. 2, Rule 17)
or including the same claim (Two-
dismissal rule) (Sec. 1, Rule 17) Note: A class suit shall not be dismissed
3. Even where the notice of dismissal or compromised without the approval of
does not provide that it is with the court.
prejudice but it is premised on the If a counterclaim has been pleaded by a
fact of payment by the defendant of defendant prior to the service upon him
the claim involved (Serrano v. of the plaintiff's motion for dismissal, the
dismissal shall be limited to the
Cabrera, G.R. No. L-5189, Sept. 21,
complaint.
1953)
Since there is no answer yet filed by the GR: It is also without prejudice to the Dismissal upon motion of the
adverse party, no counterclaim right of defendant to prosecute his defendant or upon the court's
recoverable counterclaim in a separate action. own motion is without
prejudice to the right of the
XPN: Unless within 15 days from notice defendant to prosecute his
of the motion he manifests his counterclaim on the same or
preference to have his counterclaim separate action
resolved in the same action (Sec. 2,
Rule 17).
Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine
and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this
rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: When does the two-dismissal rule apply? I. PRE-TRIAL
A: It applies when the plaintiff has: 1. CONCEPT OF PRE-TRIAL

1. Twice dismissed the actions;
2. Based on or including the same claim; and Q: What is pre-trial?
3. In a court of competent jurisdiction
(Riano, Civil Procedure: A Restatement for A: It is a procedural device by which the court is
the Bar, p. 265, 2009 ed.) called upon, after the filing of the last pleading, to
compel the parties and their lawyers to appear
Note: The second notice of dismissal will bar the re- before it, and negotiate an amicable settlement or
filing of the action because it will operate as an otherwise make a formal statement and embody in
adjudication of the claim upon the merits. In other a single document the issues of fact and law
words, the claim may only be filed twice, the first involved in the action, and such other matters as
being the claim embodied in the original complaint. may aid in the prompt disposition of the action
(Riano, Civil Procedure: A Restatement for the Bar, p. (Herrera, Vol. I, p. 1074, 2007 ed.).
265, 2009 ed.)
Q: When is pre-trial conducted?
4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM
OR THIRD-PARTY COMPLAINT A: After the last pleading has been served and filed,
it shall be the duty of the plaintiff to promptly move
Q: What is the effect of dismissal upon a ex parte that the case be set for pre-trial. (Sec.1,
counterclaim, which was already pleaded? Rule 18)
A:
2. NATURE AND PURPOSE
1. If a counterclaim has already been
pleaded by the defendant prior to the Q: What is the nature of pre-trial?
service upon him of the plaintiff’s motion
to dismiss, and the court grants the said A: It is mandatory (Sec. 2, Rule 18).
motion to dismiss, the dismissal shall be
limited to the complaint. Q: What are the purposes of pre-trial?
2. The defendant if he so desires may
prosecute his counterclaim either in a A: The court shall consider the following purposes:
separate action or in the same action. 1. Possibility of an amicable settlement or of
Should he choose to have his a submission to alternative modes of
counterclaim resolved in the same action, dispute resolution;
he must notify the court of his preference 2. Simplification of the issues;
within fifteen (15) days from notice of the 3. Necessity or desirability of amendments
plaintiff’s motion to dismiss. to the pleadings;
3. The dismissal of the complaint does not 4. Possibility of obtaining stipulations or
carry with it the dismissal of the admissions of facts and of documents to
counterclaim. (Riano, Civil Procedure: A avoid unnecessary proof;
Restatement for the Bar, pp. 266-267, 5. Limitation of the number of witnesses;
2009 ed.) 6. Advisability of a preliminary reference of
issues to a commissioner;
Q: What rule governs the dismissal of 7. Propriety of rendering judgment on the
counterclaim, cross-claim, or third-party pleadings, or summary judgment, or of
complaint? dismissing the action should a valid
ground therefore be found to exist;
A: The rule on the dismissal of a complaint applies 8. Advisability or necessity of suspending
to the dismissal of any counterclaim, cross-claim, or the proceedings; and
third-party claim. A voluntary dismissal by the 9. Such other matters as may aid in the
claimant alone by notice pursuant to Sec. 1, Rule 17 prompt disposition of the action. (Sec. 2,
shall be made before a responsive pleading or a Rule 18)
motion for summary judgment is served or, if there
is none, before the introduction of evidence at the
trial or hearing (Sec. 4, Rule 17).

3. NOTICE OF PRE-TRIAL 5. A manifestation of their having availed or

their intention to avail themselves of
Q: To whom shall notice of pre-trial be served? discovery procedures or referral to
commissioners; and
A: It shall be served on counsel, or on the party who 6. The number and names of the witnesses,
has no counsel. The counsel served with such notice and the substance of their respective
is charged with the duty of notifying the party testimonies and the approximate number
represented by him (Sec. 3, Rule 18). of hours that will be required by the
parties for the presentation of their
4. APPEARANCE OF PARTIES; EFFECT OF FAILURE respective witnesses (Sec. 6, Rule 18).
TO APPEAR
Q: What is the effect of failure to file a pre-trial
Q: Who has the duty to appear at the pre-trial? brief?
A: The parties and their counsel. A: It shall have the same effect as failure to appear
at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).
Q: What is the effect of a party’s failure to appear
during the pre-trial? 6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE
A: Plaintiff’s failure to appear during the pre-trial
shall be a cause for dismissal of the action, with Q: Distinguish pre-trial in civil cases from pre-trial
prejudice, unless otherwise ordered by the in criminal cases.
court. Defendant’s non-attendance during the pre-
trial shall be a cause to allow the plaintiff to present A:
evidence ex parte and the court to render judgment Pre-trial in civil case Pre-trial in criminal case
on the basis thereof (Sec. 5, Rule 18). (1992 Bar It is set when the plaintiff It is ordered by the court
Question) moves ex parte to set the and no motion to set the
case for pre-trial (Sec. 1, case for pre-trial is
Note: The non-appearance of a party may be excused Rule 18) required from either the
only if a valid cause is shown therefore or if a prosecution or the
representative shall appear in his behalf fully defense
authorized in writing to enter into an amicable The motion to set the The pre-trial is ordered by
settlement, to submit to alternative modes of dispute case for pre-trial is made the court after
resolution, and to enter into stipulations or admissions after the last pleading arraignment and within
of facts and of documents. (Sec.4, Rule 18) has been served and filed thirty (30) days from the
(Sec. 1, Rule 18) date the court acquires
5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE jurisdiction over the
person of the accused.
Q: When should the parties file with the court and It considers the It does not include the
serve on the adverse party their pre-trial briefs? possibility of an amicable possibility of amicable
settlement as an settlement of criminal
A: They shall file their respective pre-trial briefs in important objective. liability as one of its
purposes (Sec. 1, Rule
such a manner as shall ensure their receipt thereof
118).
at least three (3) days before the date of the pre-
Requires the proceeding All agreements or
trial (Sec. 6, Rule 18).
during the preliminary admissions made or
conference to be entered during the pre-
Q: What should a pre-trial brief contain? recorded in the “minutes trial conference shall be
of preliminary reduced in writing and
A: conference” to be signed signed by both the
1. A statement of their willingness to enter by both parties and/or accused and counsel,
into amicable settlement or alternative counsel. The rule allows otherwise, they cannot be
modes of dispute resolution, indicating either the party or his used against the accused
the desired terms thereof; counsel to sign the (Sec. 2, Rule 18)
2. A summary of admitted facts and minutes (A.M. No. 03-1-
proposed stipulation of facts; 09-SC).
3. The issues to be tried or resolved; Sanctions for non- The sanctions in a
4. The documents or exhibits to be appearance in a pre-trial criminal case are imposed
presented, stating the purpose thereof; are imposed upon the upon the counsel for the
plaintiff and the accused or the prosecutor
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
defendant in a civil case (Sec. 3, Rule 18) ii.

Construction Disputes
(Sec. 4, Rule 18). iii.
International Commercial
Arbitration
Specifically required to Not specifically required b. Mediation
be submitted in a civil in a criminal case. c. Conciliation
case (Sec. 6, Rule 18) d. Early Neutral Evaluation
e. Mini-trial
7. ALTERNATIVE DISPUTE RESOLUTION (ADR) 2. Court-Annexed Mediation
3. Appellate Court Mediation
Q: What are the other modes of solving disputes? 4. Judicial Dispute Resolution
5. Katarungang Pambarangay Law
A: 6. Small Claims Cases
1. Alternative Dispute Resolution (ADR) 7. Rules on Summary Procedure
a. Arbitration
i. Domestic Arbitration
Q: Distinguish the other modes of solving disputes.
A:
ADR Court-Annexed Mediation/Judicial Dispute Appellate Court Mediation
Resolution (A.M. No, 11-1-6-SC-PHILJA)
Purpose / Object
1. To actively promote party The purposes of CAM and JDR is “to put an 1. After mediation has failed in
autonomy in the resolution end to pending litigation through the lower courts, Appellate
of disputes or the freedom compromise agreement of the parties and Court Mediation provides an
of the parties to make their thereby help solve the ever-pressing added option to put an end to
own arrangements to problem of court docket congestion”. It is costly and long-drawn
resolve their disputes. also intended “to empower the parties to litigation.
2. To achieve speedy and resolve their own disputes and give 2. It facilitates the interest-based
impartial justice and unclog practical effect to the State Policy expressly settlement of the dispute
court dockets. stated in the ADR Act of 2004 (R.A. No. through proposals coming from
9285)” the parties or suggested by the
mediator and accepted by the
parties.
Where to File
Subject to the terms of the Court acquiring jurisdiction of the case Court of Appeals
contract or the submission since mediation is part of the mandatory
agreement, the arbitrators pre-trial
selected must, within 5 days
from notice of appointment, if Note: Court-annexed mediation should be
the parties to the controversy distinguished from court-referred mediation.
reside within the same city or The former is conducted under the court’s
province, or within 15 days after auspices after such court has acquired
appointment if the parties reside jurisdiction of the dispute while the latter is
in different provinces, set a time mediation ordered by the court to be
and place for the hearing of the conducted in accordance with the parties’
agreement when an action is prematurely
matters submitted to them. (Sec.
commenced in violation of such agreement.
12, R.A. 876)
The first stage is the CAM “where the judge
refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their
dispute by trained and accredited mediators”.
Upon failing to secure a settlement of the
dispute during the first stage, “a second
attempt is made at the JDR stage”, where the
JDR judge becomes a “mediator-conciliator-
early neutral evaluator in a continuing effort
to secure a settlement”

Cases Covered
Any dispute or controversy 1. All civil cases and the civil liability of 1. Civil cases brought on ordinary
which may thereafter arise criminal cases covered by the Rule on appeal or petition for review.
between parties to a contract Summary Procedure, including the civil Appeals from final orders,
pursuant to an arbitration clause liability for violation of B.P. 22, except awards, judgments, resolutions
or any controversy or dispute those which by law may not be of the Court of Tax Appeals and
wherein the parties agree to compromised; quasi-judicial agencies in the
submit to an alternative dispute 2. Special proceedings for the exercise of their quasi-judicial
resolution system settlement of estates; functions through petition for
3. All civil and criminal cases filed with a review or certiorari that
certificate to file action issued by questions a decision for having
the Punong Barangay or the Pangkat ng been rendered in grave abuse
Tagapagkasundo under the of discretion amounting to lack
Revised Katarungang Pambarangay Law of jurisdiction.
4. The civil aspect of Quasi-Offenses 2. Special civil actions for
under Title 14 of the Revised Penal Code; certiorari, except those
5. The civil aspect of less grave felonies involving pure questions of
punishable by correctional penalties not law.
exceeding 6 years imprisonment, where 3. Habeas corpus (court order
the offended party is a private person; directing law enforcement
6. The civil aspect of estafa, theft and officials or custodians of
libel; detained persons to produce
7. All civil cases and probate that person in court) cases
proceedings, testate and intestate, involving custody of minors,
brought on appeal from the exclusive and with the consent of the parties,
original jurisdiction granted to the first provided that the minor is not
level courts under Section 33, par. (1) of detained for commission of a
the Judiciary Reorganization Act of 1980; criminal offense.
8. All cases of forcible entry and 4. Criminal cases cognizable by
unlawful detainer brought on appeal the Katarungang Pambarangay
from the exclusive and original (Barangay Justice System)
jurisdiction granted to the first level under R.A. 7160 or offenses
courts under Section 33, par. (2) of the punishable by imprisonment
Judiciary Reorganization Act of 1980; not exceeding one year or a
9. All civil cases involving title to or fine not exceeding P5,000 or
possession of real property or an interest both such fine and
therein brought on appeal from the imprisonment.
exclusive and original jurisdiction granted
to the first level courts under Section 33,
par.(3) of the Judiciary Reorganization Act
of 1980; 13 and
10. All habeas corpus cases decided by
the first level courts in the absence of the
Regional Trial Court judge, that are
brought up on appeal from the special
jurisdiction granted to the first level
courts under Section 35 of the Judiciary
Reorganization Act of 1980.”
Cases Excluded
1. Labor disputes under the 1. Civil cases which by law cannot be 1. Civil cases, which by law cannot
Labor Code compromised (Article 2035, New Civil be compromised.
2. Civil status of persons Code);
3. Validity of a marriage 2. Criminal cases except those
4. Any ground for legal 2. Other criminal cases not covered under which involve habeas corpus of
separation paragraphs 3 to 6 above; minors not detained for a
5. Jurisdiction of courts criminal offense.
6. Future legitime 3. Habeas Corpus petitions;
7. Criminal liability 3. Habeas corpus petitions
8. Those which by law 4. All cases under Republic Act No. 9262 involving custody of minors
cannot be compromised (Violence against Women and Children); when the subject is detained
9. Dispute resolution and for commission of a criminal
services provided by offense.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
government agencies 5. Cases with pending application for

where mediators or Restraining Orders/Preliminary Injunctions. 4. Cases with pending application
arbitrators are selected by for restraining
government agencies: orders/preliminary injunctions,
a. Mining Act; unless both parties request for
b. Consumer Act; or mediation
c. HLURB Resolution
No. R-586
Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on
p.17
Q: Distinguish the different kinds of the ADR system.
A:
Arbitration Mediation Conciliation Early Neutral Mini-Trial
Evaluation
Definition
It is a voluntary It is a voluntary A process whereby It is a process It is a structured
dispute resolution process in which an the parties request a wherein parties and dispute resolution
process in which one impartial and neutral third person or their lawyers are method in which the
or more arbitrators, third party persons to assist brought together merits of a case are
appointed in (mediator), selected them in their attempt early in a pre-trial argued before a
accordance with the by the disputing to reach an amicable phase to present panel comprising of
agreement of the parties, facilitates settlement of their summaries of their senior decision
parties, or rules communication and dispute arising out of cases and receive a makers with or
promulgated negotiation, and or relating to a non-binding without the presence
pursuant to R.A. assists the parties in contractual or other assessment by an of a neutral third
9285, resolve a reaching a voluntary legal relationship (Art. experienced, person after which
dispute by rendering agreement regarding 1 [3], UNCITRAL neutral person, the parties seek a
an award. It results a dispute. Model Law on with expertise in negotiated
in the adjudication of Conciliation) the subject or the settlement.
a dispute. substance of the
dispute.
Functions
Arbitrator acts as Mediator does not A conciliator Early neutral Panel renders a
out-of-court judge render an award but participates only in Evaluator assesses decision based on
and settles the only arranges the the preliminary steps or reviews the the merits of the
dispute facts to be of facilitating issues submitted by arguments of the
extrajudicially. negotiated so that discussion between the parties and parties.
parties can come to the parties and helps tenders its
He makes a a compromise them frame the evaluation which is
determination of the agreement. issues for discussion. non-binding.
facts and applies the He assists the parties
law to those facts to in reaching a
resolve a dispute mutually agreeable
independently of the settlement of their
actual result desired dispute through
by the parties. direct negotiations.
He actively
participates in
resolving the
dispute, and then
gives an opinion.
Effect of decision
The award may be The decision or He does not render a The assessment is It need not be
final and binding if so opinion is not decision. The dispute not binding upon confirmed by the
agreed by the binding on the is left to be settled by the parties. courts.
parties. To be parties. It is the parties
executory, it must recommendatory in themselves.
first be confirmed by nature. The mediator

the RTC. merely suggests a

solution to the
dispute.
Q: What is the State policy in alternative dispute functions in any ADR system. An ADR practitioner
resolution? refers to individuals acting as mediator, conciliator,
arbitrator or neutral evaluator. (Sec.3[b] of R.A. No.
A: The state policy in ADR is to actively promote 9285)
party autonomy in the resolution of disputes or the
freedom of the parties to make their own J. INTERVENTION
arrangements in resolving their disputes.
Q: What is intervention?
Q: What is the Constitutional basis of alternative
dispute resolution? A: It is a legal proceeding by which a third person is
permitted by the court to become a party by
A: The State shall promote the principle of shared intervening in a pending action after meeting the
responsibility between workers and employers and conditions and requirement set by the Rules of
the preferential use of voluntary modes in settling Court. This person who intervenes is one who is not
disputes, including conciliation, and shall enforce originally impleaded in the action (First Philippine
their mutual compliance therewith to foster Holdings Corp. v. Sandiganbayan, G.R. No. 88345,
industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987 Feb. 1, 1996)
Constitution)
Note: Right to intervene is not an absolute right as it
Q: What is the legal basis of alternative dispute can be secured only in accordance with the terms of
resolution? the applicable statute or rule. Riano, Civil Procedure: A
Restatement for the Bar, p. 345, 2009 ed.)
A: The legal basis would be, “the contracting parties
may establish such stipulations, clauses, terms and 1. REQUISITES FOR INTERVENTION
conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, Q: What are the requisites for intervention?
public order, or public policy.” (Art. 1306, NCC)
A:
Q: What is an alternative dispute resolution 1. There must be a motion for intervention
system? filed before rendition of judgment by the
trial court (Sec. 1, Rule 19);
A: It means any process or procedure used to Note: A motion is necessary because leave
resolve a dispute or controversy, other than by of court is required before a person may be
allowed to intervene.
adjudication of a presiding judge of a court or an
officer of a government agency in which a neutral
2. The movant must show in his motion that
third party participates to assist in the resolution of
he has:
issues, which includes arbitration, mediation,
a. Legal interest in the matter in
conciliation, early neutral evaluation, mini-trial, or
controversy;
any combination thereof. (Sec.3[a] of R.A. No. 9285)
b. Legal interest in the success of either
of the parties;
Note: Its purposes are to:
1. Actively promote party autonomy in the c. Legal interest against both parties; or
resolution of disputes or the freedom of the d. So situated as to be adversely
parties to make their own arrangements to affected by a distribution or other
resolve their disputes; disposition of the property in the
2. Achieve speedy and impartial justice; and custody of the court or of an officer
3. Unclog court dockets. thereof (Sec. 1, Rule 19);
3. Intervention will not unduly delay or
Q: Distinguish alternative dispute resolution prejudice the adjudication of the rights of
provider from an alternative dispute resolution original parties; and
practitioner. 4. Intervenor’s rights may not be fully
protected in a separate proceeding
A: An ADR provider means institutions or persons (Mabayo Farms, Inc. vs. CA, GR 140058,
accredited as mediator, conciliator, arbitrator, Aug. 1, 2002).
neutral evaluator, or any person exercising similar
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Is intervention an independent proceeding? Q: May intervention be allowed after judgment

has been rendered by the court?
A:
GR: No. It is not an independent proceeding A:
but is ancillary and supplemental to an existing GR: After rendition of judgment, a motion to
litigation. Hence, the final dismissal of the intervene is barred, even if the judgment itself
principal action results into the dismissal of said recognizes the right of the movant. The motion
ancillary action. to intervene must be filed at any time before
rendition of judgment by the trial court (Sec. 2,
XPN: When intervention has been allowed and Rule 19).
the complaint-in-intervention has already been
filed before plaintiff’s action had been expressly XPNs:
dismissed (Metrobank v. RTC-Manila, G.R. No. 1. With respect to indispensable parties,
89909, Sept. 21, 1990). (2000 Bar Question) intervention may be allowed even on
appeal (Falcasantos v. Falcasantos, G.R.
Q: What does legal interest mean? No. L-4627, May 13, 1952);
2. When the intervenor is the Republic (Lim
A: It must be one that is actual and material, direct v. Pacquing, G.R. No. 115044, Jan. 27,
and of an immediate character, not merely 1995);
contingent or expectant so that the intervenor will 3. Where necessary to protect some interest
either gain or lose by the direct legal operation of which cannot otherwise be protected,
the judgment. (Riano, Civil Procedure: A and for the purpose of preserving the
Restatement for the Bar, p. 346, 2009 ed.) intervenor’s right to appeal (Pinlac v. CA,
G.R. No. 91486, Sept. 10, 2003); or
2. TIME TO INTERVENE 4. May be allowed during the pendency of
the appeal, where the interest of justice
Q: When is the time to intervene? so required (Tahanan Dev. Corp. v. CA,
G.R. No. L-55771, Nov. 15, 1982).
A: The motion to intervene may be filed any time
before rendition of judgment by the trial court. A Q: When shall the intervenor file a pleading-in-
copy of the pleading-in-intervention shall be intervention?
attached to the motion and served on the original
parties. (Sec. 2, Rule 19) A:
1. He shall file a complaint-in-intervention if
Q: What is the procedure for intervention? he asserts a claim against either or all of
the original parties; or
A: 2. An answer-in-intervention if he unites
1. The intervenor shall file a motion for with the defending party in resisting a
intervention attaching thereto his pleading-in- claim against the latter. (Sec. 3, Rule 19)
intervention.
1. If the purpose is to assert a claim Q: When should an answer to complaint-in-
against either or all of the original intervention be filed?
parties – the pleading shall be called
a complaint-in-intervention. A: It shall be filed within fifteen (15) days from
2. If the pleading seek to unite with the notice of the order admitting the same, unless a
defending party in resisting a claim different period is fixed by the court (Sec. 4, Rule
against the latter – file an answer-in- 19).
intervention. (Sec 3, Rule 19)
2. The motion and the pleading shall be 3. REMEDY FOR THE DENIAL OF MOTION TO
served upon the original parties. INTERVENE
3. The answer to the complaint-in-
intervention shall be filed within fifteen Q: What is the remedy for the denial of motion to
(15) days from notice of the order intervention?
admitting the same, unless a different
period is fixed by the courts. (Sec.4, Rule A: The remedy of the aggrieved party is appeal.
19) Mandamus will not lie except in case of grave abuse
of discretion.

K. SUBPOENA Q: What is the rule when application for subpoena

to a prisoner is made?
Q: What is a subpoena?
A: The judge or officer shall examine and study
A: It is a process directed to a person requiring him carefully such application to determine whether the
to attend and to testify at the hearing or the trial of same is made for a valid purpose and no prisoner
an action, or at any investigation conducted under sentenced to death, reclusion perpetua or life
the laws of the Philippines, or for taking of his imprisonment and is confined in prison shall be
deposition (Sec. 1, Rule 21). brought outside the said penal institution for
appearance or attendance in any court unless
1. SUBPOENA DUCES TECUM authorized by the SC (Sec. 2, Rule 21).
Q: What is subpoena duces tecum? Q: What are the contents of subpoena?
A: A process directed to a person requiring him to A: It shall state the name of the court and the title
bring with him any books, documents, or things of the action or investigation, shall be directed to
under his control (Sec. 1, Rule 21). the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also
2. SUBPOENA AD TESTIFICANDUM contain a reasonable description of the books,
documents or things demanded which must appear
Q: What is subpoena ad testificandum? to the court prima facie relevant (Sec. 3).
A: A process directed to a person requiring him to Q: What is the rule on subpoena for depositions?
attend and to testify at the hearing or trial of an
action or at any investigation conducted by A: Proof of service of a notice to take a deposition,
competent authority or for the taking of his as provided in Secs. 15 and 25, Rule 23, shall
deposition (Sec. 1, Rule 21). constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice
Q: Distinguish subpoena from summons. by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
A: however, issue a subpoena duces tecum to any such
Subpoena Summons person without an order of the court (Sec. 5, Rule
An order to appear and Order to answer 21).
testify or to produce books complaint
and documents Q: How is service of subpoena made?
May be served to a non- Served on the
party defendant A: It shall be made in the same manner as personal
Needs tender of Does not need tender or substituted service of summons (Sec. 6, Rule 21).
kilometrage, attendance fee of kilometrage and
and reasonable cost of other fees Note: Service of a subpoena shall be made by the
production fee sheriff, by his deputy, or by any other person specially
authorized, who is not a party and is not less than
3. SERVICE OF SUBPOENA eighteen (18) years of age (Sec. 6, Rule 21).
Q: Who issues subpoena? Q: What should be delivered and tendered to the

person whom subpoena is served?
A:
1. The court before whom the witness is A: The original shall be exhibited and a copy thereof
required to attend; delivered to the person on whom it is served,
2. The court of the place where the tendering to him the fees for one day’s attendance
deposition is to be taken; and the kilometrage allowed by the Rules. If the
3. The officer or body authorized by law to subpoena is duces tecum, the reasonable cost of
do so in connection with investigations producing the books, documents or things
conducted by said officer or body; or demanded shall also be tendered (Sec. 6, Rule 21).
4. Any Justice of the SC or of the CA in any
case or investigation pending within the Note: When a subpoena is issued by or on behalf of
Philippines. (Sec. 2, Rule 21) the Republic of the Philippines or an officer or agency
thereof, the tender need not be made (Sec. 6, Rule 21).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Why must service of subpoena be made? when the subpoena was served (Sec. 4,
Rule 21).
A: The service must be made so as to allow the
witness a reasonable time for preparation and L. MODES OF DISCOVERY
travel to the place of attendance (Sec. 6, Rule 21).
Q: What are the different modes of discovery?
4. COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT A:
1. Depositions pending action (Rule 23)
Q: What is the effect of failure to comply with 2. Depositions before action or pending
subpoena? appeal (Rule 24)
3. Interrogatories to parties (Rule 25)
A: 4. Admission by adverse party (Rule 26)
GR: The court or judge which issued the 5. Production or inspection of documents
subpoena may issue a warrant for the arrest of and things (Rule 27)
the witness and make him pay the cost of such 6. Physical and mental examination of
warrant and seizure, if the court should persons (Rule 28)
determine that his disobedience was willful and Note: The modes of discovery are cumulative. They are
without just cause. The refusal to obey a not alternative nor mutually exclusive.
subpoena without adequate cause shall be
deemed contempt of the court issuing it (Secs. 8 Q: What are the basic purposes of the rules of
and 9, Rule 21). discovery?
XPNs: A:
1. Where the witness resides more than 100 1. To enable a party to obtain knowledge of
km. from his residence to the place where material facts within the knowledge of
he is to testify by the ordinary course of the adverse party or of third parties
travel, generally, by overland through depositions;
transportation (viatory right); or 2. To obtain knowledge of material facts or
2. When the permission of the court in admissions from the adverse party
which the detention prisoner’s case is through written interrogatories;
pending was not obtained (Sec. 10, Rule 3. To obtain admissions from the adverse
21). party regarding the genuineness of
relevant documents or relevant matters
5. QUASHING OF SUBPOENA of fact through requests for admissions;
4. To inspect relevant documents or objects,
Q: How to quash a subpoena? and lands or other property in the
possession and control of the adverse
A: party; and
Subpoena duces tecum: Upon motion promptly 5. To determine the physical or mental
made and, in any event, at or before the time condition of a party when such is in
specified therein: controversy (Koh vs. IAC, 144 SCRA 259).
1. If it is unreasonable and oppressive, or
2. The relevancy of the books, documents or 1. DEPOSITIONS PENDING ACTION; DEPOSITIONS
things does not appear, or BEFORE ACTION OR PENDING APPEAL
3. If the person is whose behalf the
subpoena is issued fails to advance the a. MEANING OF DEPOSITION
reasonable cost of the production thereof
(Sec. 4, Rule 21). Q: What is deposition?
4. That the witness fees and kilometrage
allowed by the Rules were not tendered A: A deposition is the taking of the testimony of
when the subpoena was served any person, whether he be a party or not, but at the
Subpoena ad testificandum: instance of a party to the action. This testimony is
1. That the witness is not bound thereby. taken out of court. Deposition may be:
2. That the witness fees and kilometrage a. An oral examination
allowed by the Rules were not tendered b. Written interrogatories (Sec 1, Rule 23)

Q: When can depositions may be availed of? XPN: If the deposition or any part thereof is
offered in evidence for any purpose (Sec. 8, Rule
A: 23).
a. During a pending action (Rule 23) –
deposition de benne esse XPN to the XPN: Introduction of deposition
b. Before action or Pending appeal (Rule 24) does not make the deponent his witness:
– deposition in perpetuam rei memoriam 1. If the deposition is used for impeaching or
contradicting the deponent (Sec. 8, Rule
Q: When may plaintiff be permitted to take 23); or
depositions? 2. If the adverse party uses the deposition of
the other party (Sec. 4[b], Rule 23)
A:
GR: Before answer is served because plaintiff Q: May a party rebut a deposition?
must await joinder of issues.
A: Yes. At the trial or hearing, any party may rebut
XPN: In cases of special circumstances. There any relevant evidence contained in a deposition
must be some “necessity” or “good reason” for whether introduced by him or by any other party
taking the testimony immediately or that it (Sec.9, Rule 23).
would be prejudicial to the party seeking the
order to be compelled to await joinder of issue. Q: Before whom may depositions be taken?
E.g.: witness is aged or infirm, or about to leave
the court’s jurisdiction. (Herrera, Vol. II, pp. 12- A:
13, 2007 ed.) 1. If within the Philippines
a. Judge;
Q: When is leave of court necessary when taking b. Notary public; or
depositions? When is it not necessary? c. Any person authorized to administer
oaths, as stipulated by the parties in
A: writing (Sec. 10, Rule 23).
1. It is necessary
a. Before service of an answer but after the 2. If outside the Philippines
jurisdiction has been acquired over the a. On notice, before a secretary of
defendant or over the property subject of embassy or legation, consul-general,
the action consul, vice-consul, or consular agent
b. If the deposition to be taken is that of a of the Philippines;
prisoner. (sec 1, Rule 23) b. Before such person or officer as may
be appointed by commission or
2. It is not necessary when an answer has already letters rogatory; or
been served and the deponent is not confined in c. Any person authorized to administer
prison. (sec. 1, Rule 23) oaths, as stipulated by the parties in
writing (Sec. 11, Rule 23).
Q: What is the effect of substitution of parties?
Q: When shall letters rogatory or commission be
A: It does not affect the right to use depositions issued?
previously taken; and when an action has been
dismissed and another action involving the same A: They shall be issued only when necessary or
subject is afterward brought between the same convenient, on application and notice, and on such
parties or their representatives or successors-in- terms and with such direction as are just and
interest, all depositions lawfully taken and duly filed appropriate (Sec. 12, Rule 23).
in the former action may be used in the latter as if
originally taken therefor (Sec. 5, Rule 23). Q: Distinguish commission from letters rogatory.
Q: Should the deponent be deemed a witness of A:

the party taking his deposition? Commission Letters Rogatory
Instrument issued by a Instrument sent in the name
A: court of justice, or and by authority of a judge or
GR: No (Sec. 7, Rule 23). other competent court to another, requesting
tribunal, to authorize the latter to cause to be
a person to take examined, upon interrogatories
depositions or do any filed in a case pending before
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
other act by authority the former, a witness who is not known, a general description sufficient to
of such court or within the jurisdiction of the identify him or the particular class or group to
tribunal. judge or court to whom such which he belongs (Sec. 15, Rule 23).
letters are addressed.
Issued to the appropriate Note: On motion of any party upon whom the notice is
Issued to a non- judicial officer of the foreign served, the court may for cause shown enlarge or
judicial foreign officer country who will direct shorten the time (Sec. 15, Rule 23)
who will directly take somebody in said foreign
the testimony. country to take down Q: When may the court make orders for the
testimony. protection of parties and deponents?
Applicable rules of
Applicable rules of procedure
procedure are those A: After notice is served for taking a deposition by
are those of the foreign court
of the requesting
requested to act. oral examination, upon motion seasonably made by
court.
any party or by the person to be examined and for
Resorted to if the execution of
good cause shown, the court in which the action is
Resorted to if the commission is refused in
permission of the the foreign country. (There
pending may make orders for the protection of
foreign country is must be a showing that the parties and deponents (Sec. 16, Rule 23).
given. commission is inadequate or
ineffective) Q: What are the orders that the court may make
Leave of court is not for the protection of parties and deponents?
Leave of court is necessary.
necessary.
A:
Q: Who are disqualified to be a deposition officer? 1. That the deposition shall not be taken;
2. That it may be taken only at some
A: designated place other than that stated in
1. One who is related to the deponent the notice;
within the 6th degree of consanguinity or 3. That it may be taken only on written
affinity; interrogatories;
2. An employee or attorney of one of the 4. That certain matters shall not be inquired
parties; into;
3. One who is related to the attorney of the 5. That the scope of the examination shall
deponent within the same degree or be held with no one present except the
employee of such attorney; and parties to the action and their officers or
4. One who is financially interested in the counsel;
action (Sec. 13, Rule 23). 6. That after being sealed, the deposition
shall be opened only by order of the
Q: May the parties stipulate in writing for the court, or that secret processes,
taking of depositions? developments, research need not be
closed;
A: Yes. They may do so before any person 7. That the parties shall simultaneously file
authorized to administer oaths, at any time, or specified documents or information
place, in accordance with the Rules, and when so enclosed in sealed envelopes to be
taken may be used like other depositions (Sec. 14, opened as directed by the court; or
Rule 23). 8. The court may make any other order
which justice requires to protect the party
Q: What is the requirement in taking deposition or witness from annoyance,
upon oral examination? embarrassment, or oppression (Sec. 16,
Rule 23).
A: A party desiring to take the deposition of any
person upon oral examination shall give reasonable Q: What are the duties of the officer before whom
notice in writing to every other party to the action the deposition is to be taken?
(Sec. 15, Rule 23).
A: He shall put the witness on oath and shall
Q: What shall the notice state? personally, or by someone acting under his
discretion and in his presence, record the testimony
A: It shall state the time and place for taking the of the witness (Sec. 17, Rule 23).
deposition and the name and address of each
person to be examined, if known, and if the name is Note: The testimony shall be taken stenographically
unless the parties agree otherwise (Sec. 17, Rule 23)
4. Wtness refuses to sign (Sec. 19, Rule 23)

Q: What objections shall be noted by the officer
upon the deposition? Q: What is the effect if the witness does not sign
the deposition?
A: All objections made at the time of the
examination to the: A: The officer shall sign it and state on the record
1. Qualifications of the officer taking the the fact of the waiver or of the illness or absence of
deposition; the witness or the fact of refusal to sign together
2. Manner of taking the deposition; with the reason given therefor, if any, and the
3. Evidence presented; deposition may then be used as fully as though
4. Conduct of any party; or signed, unless on a motion to suppress under Sec.
5. Any other objection to the proceedings 29 (f), Rule 23, the court holds that the reasons
(Sec. 17, Rule 23). given for the refusal to sign require rejection of the
deposition in whole or in part (Sec. 19, Rule 23).
Note: A deposition officer has no authority to rule on
the objection (Herrera, Vol. II, p. 34, 2007 ed.) Q: What are the duties of the officer after the
taking of the deposition?
Q: What may the parties do if they cannot
participate in the oral examination? A: He shall:
1. Certify on the deposition that the witness
A: The parties may transmit written interrogatories was duly sworn to by him and that the
to the officers, who shall propound them to the deposition is a true record of the
witness and record the answers verbatim (Sec. 17, testimony given by the witness;
Rule 23). 2. Then securely seal the deposition in an
envelope indorsed with the title of the
Q: What is the consequence if a party or the action and marked "Deposition of (here
witness refuses to be sworn or refuses to answer insert the name of witness)";
any question after being directed to do so by the 3. Promptly file it with the court in which
court of the place in which the deposition is being the action is pending or send it by
taken? registered mail to the clerk thereof for
filing (Sec. 20, Rule 23); and
A: The refusal may be considered contempt of that 4. Give prompt notice of its filing to all the
court (Sec. 2, Rule 129). parties (Sec. 21, Rule 23).
Q: When shall the deposition be submitted to the Note: Failure to comply with this requirement is a
witness for examination? mere defect in form which cannot affect the
admissibility of the deposition. (Herrera, Vol. II, p. 38,
A: It shall be submitted when the deposition is fully 2007 ed.)
transcribed and shall be read to or by him, unless
such examination and reading are waived by the Q: When shall the officer furnish a copy of the
witness and by the parties (Sec. 19, Rule 23). deposition to any party or to the deponent?
Q: What shall be done with the changes which the A: He shall furnish a copy upon payment of
witness desire to make? reasonable charges therefor (Sec. 22, Rule 23).
A: Any changes in form or substance shall be Q: What is the consequence of failure to attend of
entered upon the deposition by the officer with a the party giving notice?
statement of the reasons given by the witness for
making them (Sec. 19, Rule 23). A: The court may order the party giving the notice
to pay such other party the amount of the
Q: Is the signing of deposition necessary? reasonable expenses incurred by him and his
counsel in so attending, including reasonable
A: attorney’s fees (Sec. 23, Rule 23).
GR: Yes, it shall be signed by the witness.
Q: What is the consequence of failure of party
XPN: giving notice to serve subpoena?
1. Parties by stipulation waive the signing;
2. Witness is ill; A: If because of such failure, the witness does not
3. Witness cannot be found; or attend, and if another party attends in person or by
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
counsel because he expects the deposition of that occurring at the oral examination in the
witness to be taken, the court may order the party manner of taking the deposition in the
giving the notice to pay to such other party the form of the questions or answers, in the
amount of the reasonable expenses incurred by him oath or affirmation, or in the conduct of
and his counsel in so attending, including the parties and errors of any kind which
reasonable attorney’s fees (Sec. 24, Rule 23). might be obviated, removed, or cured if
promptly prosecuted, are waived unless
Q: How is deposition upon written interrogatories reasonable objection thereto is made at
done? the taking of the deposition.
5. As to form of written interrogatories –
A: A party desiring to take the deposition of any Objections to the form of written
person upon written interrogatories shall serve interrogatories submitted under Secs. 25
them upon every other party with a notice stating and 26 are waived unless served in
the name and address of the person who is to writing upon the party propounding them
answer them and the name or descriptive title and within the time allowed for serving
address of the officer before whom the deposition succeeding cross or other interrogatories
is to be taken. Within ten (10) days thereafter, a and within 3 days after service of the last
party so served may serve cross-interrogatories interrogatories authorized.
upon the party proposing to take the deposition. 6. As to manner of preparation – Errors and
Within five (5) days thereafter, the latter may serve irregularities in the manner in which the
re-direct interrogatories upon a party who has testimony is transcribed or the deposition
served cross-interrogatories. Within three (3) days is prepared, signed, certified, sealed,
after being served with re-direct interrogatories, a indorsed, transmitted, filed, or otherwise
party may serve recross-interrogatories upon the dealt with by the officer under Secs. 17,
party proposing to take the deposition (Sec. 25, 19, 20 and 26 are waived unless a motion
Rule 23). to suppress the deposition or some part
thereof is made with reasonable
Note: The duties of the officer under Secs. 17, 19, 20, promptness after such defect is, or with
21 & 22 of Rule 23 shall also be followed on deposition due diligence might have been,
upon written interrogatories (Secs. 26 & 27, Rule 23). ascertained (Sec. 29, Rule 23)
Q: What is the effect of errors and irregularities in Q: Who may file a petition for deposition before
depositions? action?
A: A: Any person who wants to perpetuate his own

1. As to notice – All errors and irregularities testimony or that of another person regarding any
in the notice for taking a deposition are matter that may be cognizable in any court of the
waived unless written objection is Philippines (Sec. 1, Rule 24).
promptly served upon the party giving the
notice. Q: What are the contents of the petition?
2. As to disqualification of officer –
Objection to taking a deposition because A: The petition shall be entitled in the name of the
of disqualification of the officer before petitioner and shall show:
whom it is to be taken is waived unless 1. that the petitioner expects to be a party
made before the taking of the deposition to an action in a court of the Philippines
begins or as soon thereafter as the but is presently unable to bring it or cause
disqualification becomes known or could it to be brought;
be discovered with reasonable diligence. 2. the subject matter of the expected action
3. As to competency or relevancy of evidence and his interest therein;
– Objections to the competency of 3. the facts which he desires to establish by
witness or the competency, relevancy, or the proposed testimony and his reasons
materiality of testimony are not waived for desiring to perpetuate it;
by failure to make them before or during 4. the names or a description of the persons
the taking of the deposition, unless the he expects will be adverse parties and
ground, of the objection is one which their addresses so far as known; and
might have been obviated or removed if 5. The names and addresses of the persons
presented at that time. to be examined and the substance of the
4. As to oral examination and other testimony which he expects to elicit from
particulars – Errors and irregularities
each, and shall ask for an order 3. any purpose by any party if the court
authorizing the petitioner to take the finds that: DR. USE
depositions of the persons to be a. The witness is Dead
examined named in the petition for the b. The witness Resides more than 100
purpose of perpetuating their testimony kilometers from the place of trial or
(Sec.2, Rule 24) hearing, or is out of the Philippines.
Unless it appears that his absence
Q: What is the rule on notice and service of was procured by the party offering
depositions before action? the deposition
c. The witness is Unable to testify
A: The petitioner shall serve a notice upon each because of age, sickness, infirmity or
person named in the petition as an expected imprisonment
adverse party, together with a copy of the petition, d. The party offering the deposition has
stating that the petitioner will apply to the court, at been unable to procure the
a time and place named therein, for the order attendance of the witness by
described in the petition. At least twenty (20) days Subpoena
before the date of the hearing, the court shall cause e. Upon application and notice, that
notice thereof to be served on the parties and such Exceptional circumstances exist
prospective deponents in the manner provided for as to make it desirable in the interest
service of summons. (Sec. 3, Rule 24) of justice (Sec. 4, Rule 23)
Q: What are the contents of the motion for Q: What is the dual function of depositions?
deposition pending appeal?
A:
A: The motion shall state: 1. Rule 23 – method of discovery, with use
1. The names and addresses of the persons on trial not necessarily contemplated; and
to be examined
2. The substance of the testimony which he 2. Rule 24 – a method of presenting
expects to elicit from each testimony.
3. The reason for perpetuating their
testimony. (Sec. 7, Rule 24). Q: What is the use of deposition pending appeal?
Note: If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of A: Depositions are taken pending appeal with the
justice, it may make an order allowing the depositions view to their being used in the event of further
to be taken, and thereupon the depositions may be proceeding in the court of origin or appellate court.
taken and used in the same manner and under the (Sec. 7, Rule 24)
same conditions as are prescribed under Rule 23. (Sec.
7, Rule 24) Note: The deposition taken under this Rule is
admissible in evidence in any action subsequently
b. USES; SCOPE OF EXAMINATION brought involving the same subject matter (Sec. 6, Rule
24)
Q: To whom may the deposition be used against?
Q: What is the scope of the examination of the
A: Any part or all of the deposition, so far as deponent?
admissible under the rules of evidence, may be
used against: A: Unless otherwise ordered by the court as
1. Any party who was present or provided by Sec. 16 or 18, Rule 23, the deponent
represented at the taking of the may be examined regarding any matter, not
deposition; or privileged, which is relevant to the subject of the
2. One who had due notice of the deposition pending action, whether relating to the claim or
(Sec. 4, Rule 23) defense of any other party, including the:
1. Existence;
Q: What are the uses of depositions? 2. Description;
3. Nature;
A: 4. Custody;
1. Contradicting or impeaching the 5. Condition;
testimony of the deponent as a witness; 6. Location of any books, documents, or
2. Any purpose by the adverse party where other tangible things; and
the deponent is a party; or
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
7. The identity and location of persons Q: Distinguish protection order from motion to
having knowledge of relevant facts (Sec. terminate or limit examination.
2, Rule 23).
A:
c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE Motion to Terminate or
Protection Order (Sec.
MADE Limit Examination (Sec.
16, Rule 23)
18, Rule 23)
Q: What is the rule on objections to admissibility Provides protection to Provides such protection
of deposition? the party or witness during the taking of
before the taking of deposition.
deposition.
A: Subject to the provisions of Sec. 29, Rule 23,
The Motion is filed with Motion or petition is filed
objection may be made at the trial or hearing to
the court in which the in the court in which the
receiving in evidence any deposition or part thereof
action is pending. action is pending or the
for any reason which would require the exclusion of
RTC of the place where
the evidence if the witness were then present and the deposition is being
testifying (Sec. 6, Rule 23) taken.
d. WHEN MAY TAKING OF DEPOSITION BE

Q: What is the rule on objections to admissibility
TERMINATED OR ITS SCOPE LIMITED
of deposition?
Q: What are the grounds for the termination or
A: Subject to the provisions of Sec. 29, Rule 23,
limitation of the examination?
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
A:
for any reason which would require the exclusion of
1. Upon a showing that the examination is
the evidence if the witness were then present and
being conducted in bad faith;
testifying (Sec. 6, Rule 23).
2. In such manner as unreasonably to annoy,
embarrass or oppress the deponent or
2. WRITTEN INTERROGATORIES TO ADVERSE
party (Sec. 18, Rule 23); or
PARTIES
3. When the constitutional privilege against
self-incrimination is invoked by deponent Q: What is the purpose of interrogatories to
or his counsel (Herrera, Vol. II, p. 37, 2007 parties?
ed.).
A: For eliciting material and relevant facts from any
Note: If the order made terminates the examination,
adverse party (Sec. 1, Rule 25).
it shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon demand
of the objecting party or deponent, the taking of the Q: Distinguish interrogatories from bill of
deposition shall be suspended for the time necessary particulars.
to make a notice for an order. In granting or refusing
such order, the court may impose upon either party or A:
upon the witness the requirement to pay such costs or Interrogatories Bill of Particulars
expenses as the court may deem reasonable (Sec. 18, Interrogatories to parties Designed to clarify
Rule 23). are not directed to a ambiguities in a pleading
particular pleading. or to state with sufficient
Q: When may taking of deposition be terminated Instead, they seek to definiteness allegations
or its scope limited? disclose all material and in a pleading. It is
relevant facts from a therefore directed to a
A: At any time during the taking of the deposition, party (Sec 1, Rule 25) pleading (Sec 1, Rule 12)
on motion or petition of any party or of the
deponent. (Sec. 18, Rule 23)

Q: Distinguish depositions upon written Note: The party against whom it is directed may make
interrogatories under Rule 23, Section 25 from objections to the interrogatories. (Sec. 2, Rule 25)
interrogatories to parties under Rule 25.
Judgment by default may be rendered against a party
A: who fails to serve his answer to written
Depositions Upon Written interrogatories. (Sec.3[c], Rule 29)
Interrogatories to
Interrogatories to Parties
Parties (Rule 25) Q: How can a party make objections to the
(Sec. 25, Rule 23)
Deponent interrogatories?
Party or ordinary witness Party only
Procedure A: Objections shall be presented to the court within
With intervention of the No intervention. 10 days after service of the interrogatories. The
officer authorized by the Written interrogatories filing of the objections shall have the effect of
Court to take deposition are directed to the deferring the filing and service of the answer to the
party himself interrogatories (Sec. 3, Rule 25).
Not served upon the
adverse party directly. They Served directly upon Q: Is leave of court necessary before a party may
are instead delivered to the the adverse party (Sec be served with written interrogatories?
officer before whom the 1, Rule 25)
deposition is to be taken. A:
(Sec 26, Rule 23)
GR: It is not necessary after answer has been
Scope
served, for the first set of interrogatories.
Direct, cross, redirect, re- Only one set of
cross interrogatories
XPN: It is necessary before answer has been
Interrogatories
served because, at that time, the issues are not
15 days to answer
yet joined and the disputed facts are not yet
No fixed time unless extended or
reduced by the court clear.
Q: What is the scope and use of interrogatories?

Q: What is the procedure in taking
interrogatories?
A: Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23, and
A: The mode of discovery is availed of by filing and
the answers may be used for the same purposes
serving upon the adverse party written
provided in section 4 of the same Rule (Sec. 5, Rule
interrogatories to be answered by the party served.
25).
If the party is a juridical entity, it shall be answered
by any of its officers competent to testify in its
a. CONSEQUENCES OF REFUSAL TO ANSWER
behalf. (Sec 1, Rule 25) The interrogatories shall be
answered fully in writing and shall be signed and
Q: What are the consequences of refusal to
sworn to by the person making them.
answer?
Q: How many interrogatories may a party serve?
A:
A: No party may, without leave of court, serve more (1) If a party or other deponent refuses to answer
than one set of interrogatories to be answered by any question upon oral examination, the
the same party (Sec. 4, Rule 25). examination may be completed on other
matters or adjourned as the proponent of the
Q: How are interrogatories answered? question may prefer. The proponent may
thereafter apply to the proper court of the place
A: The interrogatories shall be answered fully in where the deposition is being taken, for an
writing and shall be signed and sworn to by the order to compel an answer. The same
person making them. The party upon whom the procedure may be availed of when a party or a
interrogatories have been served shall file and witness refuses to answer any interrogatory
serve a copy of the answers on the party submitting submitted under Rules 23 or 25.
the interrogatories within fifteen (15) days after
service thereof, unless the court, on motion and for If the application is granted, the court shall
good cause shown, extends or shortens the time require the refusing party or deponent to
(Sec. 2, Rule 25). answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may require
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
the refusing party or deponent or the counsel arrest of any party or agent of a party for
advising the refusal, or both of them, to pay the disobeying any of such orders except an
proponent the amount of the reasonable order to submit to a physical or mental
expenses incurred in obtaining the order, examination (Sec. 3, Rule 29).
including attorney’s fees.
b. EFFECT OF FAILURE TO SERVE WRITTEN
If the application is denied and the court finds INTERROGATORIES
that it was filed without substantial justification,
the court may require the proponent or the Q: What is the effect of failure to serve written
counsel advising the filing of the application, or interrogatories?
both of them, to pay to the refusing party or
deponent the amount of the reasonable A:
expenses incurred in opposing the application, GR: A party not served with written
including attorney’s fees (Sec. 1, Rule 29). interrogatories may not be compelled by the
adverse party to give testimony in open court,
(2) If a party or other witness refuses to be sworn or to give a deposition pending appeal.
or refuses to answer any question after being
directed to do so by the court of the place in XPN: When allowed by the court and there is
which the deposition is being taken, the refusal good cause shown and the same is necessary to
may be considered a contempt of that court prevent a failure of justice (Sec. 6, Rule 25).
(Sec. 2, Rule 29).
Note: The sanctions adopted by the rules is not one of
(3) If any party or an officer or managing agent of a compulsion in the sense that the party is being
party refuses to obey an order made under compelled to avail of the discovery mechanics, but one
section 1 of this Rule requiring him to answer of negation by depriving him of evidentiary sources
designated questions, or an order under Rule 27 which would otherwise have been accessible to him.
to produce any document or other thing for
inspection, copying, or photographing or to 3. REQUEST FOR ADMISSION
permit it to be done, or to permit entry upon
land or other property, or an order made under Q: What admissions may be requested from the
Rule 28 requiring him to submit to a physical or adverse party?
mental examination, the court may make such
A: Admission of the:
orders in regard to the refusal as are just, and
among others the following: 1. Genuineness of any material and relevant
document described in and exhibited with
(a) An order that the matters regarding
the request; or
which the questions were asked, or the
2. Truth of any material and relevant matter
character or description of the thing or
of fact set forth in the request (Sec. 1,
land, or the contents of the paper, or the
Rule 26).
physical or mental condition of the party,
or any other designated facts shall be
Note: The request for admission must be served
taken to be established for the purposes of
directly upon the party; otherwise, the party to whom
the action in accordance with the claim of
the request is directed cannot be deemed to have
the party obtaining the order; admitted the genuineness of any relevant document
(b) An order refusing to allow the described in and exhibited with the request or relevant
disobedient party to support or oppose matters of fact set forth therein on account of failure
designated claims or defenses or to answer the request for admission (Briboneria v. CA,
prohibiting him from introducing in G.R. No. 101682, Dec. 14, 1992).
evidence designated documents or things
or items of testimony, or from introducing However, the answer to a request for admission
evidence of physical or mental condition; properly served which was signed and sworn to by the
(c) An order striking out pleadings or parts counsel of the party so requested, is sufficient
thereof, or staying further proceedings compliance with this rule, especially in the light of
until the order is obeyed, or dismissing the counsel’s authority under Secs. 21 and 23, Rule 138
action or proceeding or any part thereof, (Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1,
or rendering a judgment by default against 2002)
the disobedient party;
(d) In lieu of any of the foregoing orders or
in addition thereto, an order directing the

Q: When may request for admission be made? Q: When should objections to any request for
admission be submitted?
A: At any time after issues have been joined, a
party may file and serve upon any other party a A: They shall be submitted to the court by the party
written request for the admission by the latter. requested within the period for and prior to the
(Sec. 1, Rule 26). filing of his sworn statement and his compliance
therewith shall be deferred until such objections
a. IMPLIED ADMISSION BY ADVERSE PARTY are resolved, which resolution shall be made as
early as practicable (Sec. 2[b], Rule 26).
Q: When is there an implied admission?
Q: May an admission be withdrawn?
A:
GR: Each of the matters of which an admission A: Yes. The court may allow the party making the
is requested shall be deemed admitted. admission to withdraw or amend the admission
upon such terms as may be just (Sec. 4, Rule 26).
XPN: Unless, the party to whom the request is
directed files and serves upon the party d. EFFECT OF FAILURE TO FILE AND SERVE
requesting the admission a sworn statement REQUEST FOR ADMISSION
either denying specifically the matters of which
an admission is requested or setting forth in Q: What is the effect of failure to file and serve
detail the reasons why he cannot truthfully request for admission?
either admit or deny those matters (Sec. 2, Rule
26). A: A party who fails to file and serve a request for
admission on the adverse party on material and
Note: When the defendant is silent on the plaintiff‘s relevant facts at issue shall not be permitted to
request for admission, he is deemed to have impliedly present evidence on such facts unless otherwise
admitted the facts set forth therein (Herrera, Vol. II, p. allowed by the court for good cause shown and to
56, 2007 ed.) prevent a failure of justice (Sec. 5, Rule 26).
b. CONSEQUENCES OF FAILURE TO ANSWER 4. PRODUCTION OR INSPECTION OF DOCUMENTS

REQUEST FOR ADMISSION OR THINGS
Q: What is the effect for failure to answer a Q: What may the court order under this mode of
request for admission? discovery?
A: The facts or documents are deemed admitted. A: Upon motion of any party showing good cause
Under the Rules, each of the matters of which an therefor, the court in which an action is pending
admission is requested shall be deemed admitted may order any party to:
unless within a period designated in the request 1. Produce and permit the inspection and
which shall not be less than 15 days after service copying or photographing, by or on behalf
thereof, or within such further time as the court of the moving party, or of any designated
may allow on motion, the party to whom the documents, papers, books, accounts,
request is directed files and serves upon the party letters, photographs, objects or tangible
requesting the admission a sworn statement either things, not privileged, which constitute or
denying specifically the matter of which an contain evidence material to any matter
admission is requested or setting forth in detail the involved in the action and which are in his
reason why he cannot truthfully either admit or possession, custody or control; or
deny those matters. (Sec. 2, Rule 26) 2. Permit entry upon designated land or
other property in his possession or
c. EFFECT OF ADMISSION control for the purpose of inspecting,
measuring, surveying, or photographing
Q: What is the effect of admission? the property or any designated relevant
object or operation thereon (Sec. 1, Rule
A: Any admission made by a party pursuant to such 27).
request is for the purpose of the pending action
only and shall not constitute an admission by him
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3, Rule
26).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What are the limitations on the request for A:

production or inspection of documents or things? 1. A motion must be filed by the party
seeking the production or inspection of
A: documents and things and the motion
1. Should not be privileged; must show good cause supporting the
2. Should constitute or contain evidence same. (Sec 1, Rule 27)
material to any matter involved in the 2. The order shall specify the time, place and
action and which are in his (the party manner of making the inspection and
ordered) possession, custody, or control taking copies and photographs, and may
(Sec. 1, Rule 27); and prescribe such terms and conditions as
3. In the petition, the papers and documents are just. (Sec 1, Rule 27)
to be produced must be sufficiently
described. 5. PHYSICAL AND MENTAL EXAMINATION OF
PERSONS
Q: What are privileged communications?
Q: When may physical and mental examination of
A: persons be ordered?
1. Communication between:
a. Husband and wife A: It may be ordered in an action in which the
b. Attorney and client physical or mental condition of a party is in
c. Physician and patient controversy (Sec. 1, Rule 28).
d. Priest and penitent
e. Public officers and public interest Note: Since the results of the examination are
2. Editors may not be compelled to disclose intended to be made public, the same are not covered
the source of published news by the physician-patient privilege.
3. Voters may not be compelled to disclose
for whom they voted Q: What is the procedure to avail physical and
4. Trade secrets mental examination of persons?
5. Information contained in tax census
returns; and A:
6. Bank deposits. 1. A motion must be filed showing good
cause for the examination, with notice to
Q: Distinguish the rule on production or inspection the other parties as well aside from the
of documents or things under Rule 27 from party to be examined. (Sec 2, Rule 28)
subpoena duces tecum. 2. The motion shall specify the time, place,
manner, conditions and scope of the
A: examination and by the person/s by
whom it is made. (Sec 2, Rule 28)
Production or Inspection
Subpoena Duces Tecum 3. The party examined may request the
of Documents or Things
party causing the examination to be made
Essentially a mode of Means of compelling
to deliver to him a copy of a detailed
discovery. production of evidence
written report of the examining physician
It may be directed to any
Limited to the parties to setting out his findings and conclusions.
person whether a party
the action. (Sec 3, Rule 28)
or not.
Issued only upon motion 4. The party causing the examination to be
Issued upon an ex parte made shall be entitled upon request to
with notice to the
application. receive from the party examined a like
adverse party.
report of any examination, previously or
Note: This mode of discovery does not authorize the thereafter made, of the same mental or
opposing party or the clerk of court or other physical condition. (Sec 3, Rule 28)
functionaries of the court to distrain the articles or
deprive the person who produced the same of their Q: What is the effect if the party refuses to deliver
possession, even temporarily (Tanda v. Aldaya, GR No. the report upon request to the person causing the
L-13423, Nov. 23, 1959). examination to be made?
Q: What is the procedure to avail the production A: The court may order requiring the delivery on
or inspection of documents or things? such terms as are just. (Sec 3, Rule 28)

Q: What is the effect if the physician refuses or 1. He has to furnish the other party a copy
fails to make a report? of the report of any previous or
subsequent examination of the same
A: The court may exclude his testimony. (Sec 3, Rule physical and mental condition (Sec. 3,
28) Rule 28)
2. He waives any privilege he may have in
Q: What is the effect if the party examined that action or any other involving the
requests and obtains a report on the results of the same controversy regarding the
examination? testimony of every other person who has
so examined or may thereafter examine
A: him (Sec. 4, Rule 28).
6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Q: What are the sanctions in case of refusal to comply with the modes of discovery?
A:
Refusal to answer any question upon oral examination
1. Order to compel an answer;
2. Contempt;
3. Require payment of reasonable fees incurred by the proponent;
4. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing
the party obtaining the order;
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
7. Render a Judgment by default against the disobedient party
8. Order the arrest of the refusing party.
Refusal to submit to Physical or Mental examination
the party obtaining the order;
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
7. Render a Judgment by default against the disobedient party
Refusal to the request for admission by adverse party
1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4)
2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).
Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not
been affected by the amendment.
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. The matter of how, and
when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the
case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp.,
G.R. No. 172175, Oct. 9, 2006).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
M. TRIAL
Q: When is a case ready for trial?
Q: What is a trial?
A: When the issues are joined. Issues are joined
A: It is a judicial process of investigating and when all the parties have placed their respective
determining the legal controversies starting with theories and the terms of the dispute are placed
the production of evidence by the plaintiff and before the court.
ending with his closing arguments (Riano, Civil
Procedure: A Restatement for the Bar, p. 394, 2009 Q: What is the rule on notice of trial?
ed.)
A: Upon entry of a case in the trial calendar, the
Q: Is trial necessary? clerk shall notify the parties of the date of its trial in
A: such manner as shall ensure his receipt of that
GR: When an issue exists, trial is necessary.
notice at least five (5) days before such date. (Sec.1,
Decision should not be made without trial.
Rule 30)
XPNs: There is no need for trial in the following
cases: 1. ADJOURNMENTS AND POSTPONEMENTS
1. Where the pleadings of the parties tender
no issue at all, a judgment on the Q: What is the rule on adjournment and
pleadings may be directed by the court postponement of trial?
(Rule 34);
A: A court may adjourn a trial from day to day, and
2. Where from the pleadings, affidavits,
to any stated time, as the expeditious and
depositions and other papers, there is
convenient transaction of business may require, but
actually no genuine issue, the court may
shall have no power to adjourn a trial for a longer
render a summary judgment (Rule 35);
period than one month for each adjournment, nor
3. Where the parties have entered into a
more than three months in all, except when
compromise or an amicable settlement
authorized in writing by the Court Administrator,
either during the pre-trial or while the
Supreme Court. (Sec 2, Rule 30)
trial is in progress (Rule 18; Art. 2028,
NCC);
Note: A motion for postponement should not be filed
4. Where the complaint has been dismissed
on the last hour especially when there is no reason
with prejudice (Sec. 5, Rule 16; Sec. 3,
why it could not have been presented earlier (Republic
Rule 17; last. par., Sec. 5, Rule 7); vs Sandiganbayan)
5. Where the case falls under the operation
of the Rules on Summary Procedure (Rule A motion for continuance or postponement is not a
17); matter of right but is addressed to the sound
6. Where, the parties agree in writing, upon discretion of the court, and its action thereon will not
the facts involved in the litigation, and be disturbed by the appellate courts in the absence of
submit the case for judgment on the facts clear and manifest abuse of discretion resulting in the
agreed upon, without the introduction of denial of substantial justice.
evidence. If however, there is no
agreement as to all the facts in the case, 2. REQUISITES OF MOTION TO POSTPONE TRIAL
trial may be held only as to the disputed
facts (1996 Bar Question). Q: What are the criteria in granting
postponements?
Q: Distinguish trial from hearing.
A:
A: 1. Reason for the postponement;
Trial Hearing 2. Merits of the case of the movant
Not confined in trial but
Reception of
embraces several stages of a. FOR ABSENCE OF EVIDENCE
evidence and other
litigation, including the pre-
processes.
trial stage. Q: What are the requisites of a motion to
Does not necessarily imply postpone trial for absence of evidence?
The period for the
presentation of evidence in
introduction of
open court but the parties are A: Affidavit showing:
evidence by both
afforded the opportunity to a. The evidence is material or relevant
parties.
be heard.

b. That due diligence has been used to

procure it
Plaintiff shall adduce evidence in support of his
Note: But the adverse party may avoid it by admitting complaint
the facts sought to be proven by the absent evidence,
even if he objects or reserves the right to their
Defendant shall then adduce evidence in support
admissibility. (Sec.3, Rule 30)
of his defense, counterclaim, cross-claim and
third party complaint
b. FOR ILLNESS OF PARTY OR COUNSEL
Q: What are the requisites of a motion to Third party defendant, if any, shall adduce
postpone trial for illness of party or counsel? evidence of his defense, counterclaim, cross-
claim and fourth-party complaint
A: Affidavit showing:
a. Presence of such party or counsel at
the trial is indispensable; Fourth party, and so forth, if any, shall adduce
b. Character of illness is such as to evidence of the material facts pleaded by them
render his non-attendance excusable
3. AGREED STATEMENT OF FACTS Parties against whom any counterclaim or cross-

claim has been pleaded, shall adduce evidence in
Q: Distinguish stipulation of facts in civil cases vis- support of their defense, in the order to be
a-vis criminal cases. prescribed by the court
A:
Civil Cases Criminal Cases Parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons
May be signed by the
Must be signed both by and in the furtherance of justice, permits them to
counsel alone who has a
the counsel and the adduce evidence upon their original case
special power of
accused.
attorney.
May be made verbally or Strict. It must always be
in writing. in writing. Upon admission of the evidence, the case shall
be deemed submitted for decision, unless the
Q: What is the rule on stipulation of facts?
court directs the parties to argue or to submit
A: The parties to any action may agree, in writing, their respective memoranda or any further
upon the facts involved in the litigation, and submit pleadings
the case for judgment on the facts agreed upon,
without the introduction of evidence. If the parties Note: If several defendants or third party defendants
agree only on some of the facts in issue, the trial and so forth having separate defenses appear by
shall be held as to the disputed facts in such order different counsel, the court shall determine the
as the court shall prescribe (Sec. 7, Rule 30) relative order of presentation of their evidence (Sec. 5,
Rule 30)
Note: Stipulation of facts is not permitted in actions
for annulment of marriage and for legal separation. Q: When is a reverse order of trial allowed?
4. ORDER OF TRIAL; REVERSAL OF ORDER A: Where the defendant, in his answer, relies upon
an affirmative defense, a reverse order of trial shall
Q: What is the procedure in trial? take place. Since the defendant admits the
plaintiff’s claim but seeks to avoid liability based on
A: Subject to the provisions of Sec. 2, Rule 31, and his affirmative defense he shall proceed first to
unless the court for special reasons otherwise prove his exemption.
directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
5. CONSOLIDATION OR SEVERANCE OF HEARING 2. If filed with the different branches of the

OR TRIAL same RTC and one of such cases has not
been partially tried. (Raymundo v. Felipe,
Q: Distinguish consolidation from severance. G.R. No. L-30887, Dec. 24, 1971)
A: Q: When may civil actions be suspended?

Consolidation Severance
Contemplates a single A:
Involves several actions action having a number 1. If willingness to discuss a possible
having a common of claims, counterclaims, compromise is expressed by one or both
question of law or fact cross-claims, third-party parties; or
which may be jointly complaints, or issues 2. If it appears that one of the parties,
tried (Sec.1, Rule 31). which may be separately before the commencement of the action
tried. or proceeding, offered to discuss a
possible compromise but the other party
Q: What are the requisites for consolidation? refused the offer (Sec. 8, Rule 30; Art.
2030, NCC).
A:
1. Actions involving a common question of 6. DELEGATION OF RECEPTION OF EVIDENCE
law or fact; and
2. There must be at least 2 actions pending Q: May the judge delegate the reception of
before the same court (Sec.1, Rule 31). evidence?
Q: What are the ways of consolidating cases? A:

GR: No. The judge shall personally receive and
A: resolve the evidence to be adduced by the
Recasting the Consolidation Test-Case parties.
Cases Proper Method
Reshaping of It is a joint trial By hearing only XPN: The reception of evidence may be
the cases by with joint the principal case
delegated to the Clerk of Court, under the
amending the decision, the and suspending
following conditions:
pleading, cases retaining the hearing on
dismissing their original the other cases 1. The delegation may be made only in
some cases docket until judgment defaults or ex parte hearings, and in any
and retaining numbers. has been case where the parties agree in writing;
only one case. rendered in the 2. The reception of evidence shall be made
There must be principal case. only by the clerk of that court who is a
joinder of The cases retain member of the bar;
causes of their original 3. Said clerk shall have no power to rule on
action and of docket numbers objections to any question or to
parties. (Riano, Civil admission of evidence or exhibits; and
Procedure, p. 96, 4. He shall submit his report and transcripts
2009 ed.). of the proceedings, together with the
objections to be resolved by the court,
within 10 days from the termination of
Q: What is the rule on consolidation of cases? the hearing (Sec. 9, Rule 30).
A: 7. TRIAL BY COMMISSIONERS
GR: Consolidation is discretionary upon the
court to avoid multiplicity of suits, guard against Q: Who is a commissioner?
oppression or abuse, prevent delay, clear
congested dockets, and simplify the work of the A: A person to whom a case pending in court is
trial court and save unnecessary costs and referred, for him to take testimony, hear the parties
expenses. and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered.
XPNs: Consolidation becomes a matter of duty
when: Q: Distinguish delegation to clerk of court under
1. If two or more cases are pending before Rule 30 from trial by commissioner under Rule 32.
the same judge; or

A: b. POWERS OF THE COMMISSIONER

Delegation to Clerk of
Trial by Commissioner
Court Q: What are the powers of a commissioner?
Commissioner can be
Delegation is made appointed even after the A:
during trial. case has become final 1. Power to regulate the proceedings in
and executory. every hearing before him;
Clerk of court must be a Commissioner need not 2. Do all acts and take all measures
lawyer. be a lawyer. necessary or proper for the efficient
Clerk of court cannot rule Commissioner can rule performance of his duties under the order
on objections or on the on objections or on of reference;
admissibility of evidence. admissibility of evidence.
3. Issue subpoenas ad testificandum and
duces tecum;
Q: What is the rule on trial by commissioner? 4. Swear witnesses; and
5. Rule upon the admissibility of evidence
A: (Sec.3, Rule 32).
GR: Discretionary upon the courts.
Note: Requirement of hearing cannot be dispensed
XPNS: with as this is the essence of due process.
1. Expropriation (Rule 67);
2. Partition (Rule 69); Q: What is the effect of failure of parties to appear
3. Settlement of estate of a deceased person before a commissioner?
in case of contested claims; and
4. Submission of accounting by executors or A: The commissioner may proceed ex parte or, in
administrator. his discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his counsel
Note: An irregularity in the appointment of a of the adjournment (Sec.6, Rule 32)
commissioner must be seasonably raised in the trial
court where the defect could still be remedied. It can
c. COMMISSIONER’S REPORT; NOTICE TO PARTIES
be waived by consent of the parties, express or
AND HEARING ON THE REPORT
implied.
Q: What is a commissioner’s report?
a. REFERENCE BY CONSENT OR ORDERED ON
MOTION
A: Upon completion of the trial or hearing or
proceeding before the commissioner, he shall file
Q: How may a case be referred to a commissioner?
with the court his report in writing upon the
matters submitted to him by the order of reference.
A: By written consent of both parties, the court may
When his powers are not specified or limited, he
order any or all of the issues in a case to be referred
shall set forth his findings of fact and conclusions or
to a commissioner to be agreed upon by the parties
law in his report. He shall attach in his report all
or to be appointed by the court (Sec. 1, Rule 32).
exhibits, affidavits, depositions, papers and the
transcript, if any, of the evidence presented before
Q: When may a case be referred to a
him (Sec. 9).
commissioner if the consent of the parties are not
given?
Note: The commissioner’s report is not binding upon
the court which is free to adopt, modify, or reject, in
A: whole or in part, the report. The court may receive
1. When the trial of an issue of fact requires further evidence or recommit the report with
the examination of a long account on instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49
either side; Phil. 39).
2. When the taking of an account is
necessary for the information of the court Q: What is the rule on notice of filing of the
before judgment; report?
3. When a question of fact, other than upon
the pleadings, arises upon motion or A: Upon the filing of the report, the parties shall
otherwise, in any stage of a case; or be notified by the clerk, and they shall be allowed
4. For carrying a judgment or order into ten (l0) days within which to signify grounds of
effect (Sec. 2, Rule 32). objections to the findings of the report, if they so
desire. Objections to the report based upon
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
grounds which were available to the parties during appeal the order of dismissal is reversed he shall be
the proceedings before the commissioner, other deemed to have waived the right to present
than objections to the findings and conclusions evidence. (Sec.1, Rule 33)
therein set forth, shall not be considered by the
court unless they were made before the Q: What is the effect of filing of demurrer to
commissioner. (Sec.10, Rule 32) evidence?
Note: GR: Notice of the filing of the report must be A:

sent to the parties for the purpose of giving them an Motion Granted but
Motion Denied
opportunity to present their objections (Santos vs. Reversed on Appeal
Guzman, 45 Phil. 646). The failure to grant the parties, Movant shall have the Movant is deemed to have
in due form, this opportunity to object, may, in some right to present his waived his right to present
instances, constitute a serious error in violation of evidence evidence. The decision of
their substantial rights (Govt. vs. Osorio, 50 Phil. 864). the appellate court will be
based only on the
XPN: The rule, however, is not absolute. In Manila evidence of the plaintiff as
Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. the defendant loses his
539, it was ruled that although the parties were not right to have the case
notified of the filing of the commissioner’s reports, and remanded for reception of
the court failed to set said report for hearing, if the his evidence.
parties who appeared before the commissioner were Denial is interlocutory,
duly represented by counsel and given an opportunity hence, not appealable. Order of the court is an
to be heard, the requirement of due process has been Sec. 1, Rule 36 (that adjudication on the merits.
satisfied, and a decision on the basis of such report, judgment should state Hence, the requirement in
with the other evidence of the case is a decision which clearly and distinctly the Sec. 1, Rule 36 should be
meets the requirements of fair and open hearing. facts and the law on which complied with.
it is based), will not apply.
Q: What should be heard during the
commissioner’s report hearing? Note: A demurrer to evidence under Rule 33 is in
effect, a motion to dismiss but is not the same as what
A: In the hearing to be conducted on the is described in Rule 16.
commissioner’s report, the court will review only so
much as may be drawn in question by proper Q: Distinguish a demurrer to evidence from a
objections. It is not expected to rehear the case motion to dismiss.
upon the entire record (Kreidt vs. McCullough and
Co., 37 Phi. 474). A:
Motion to Demurrer to
Dismiss Evidence
N. DEMURRER TO EVIDENCE (Rule 16) (Rule 33)
After the plaintiff
Q: What is demurrer to evidence? Before filing of rests its case or after
When answer the completion of the
A: It is a motion to dismiss based on the ground of to file presentation of
insufficiency of evidence and is presented after the evidence
plaintiff rests his case (Regalado, Vol. I, p. 391, 2005
ed.). The aim of this rule is to discourage prolonged The 10 grounds That upon the facts
litigation. Grounds enumerated in and the law, the
Rule 16 plaintiff has shown no
Note: There is only a one side trial, i.e. it is only the right to relief
plaintiff who has presented evidence.
The defendant
If may file his The defendant may
Q: When may a party to the case move for
denied responsive present his evidence.
dismissal based on insufficiency of evidence?
pleading.
The complaint The complaint may
A: After the plaintiff has completed the may be refiled NOT be filed. The
presentation of his evidence, the defendant may depending on the remedy of the
move for dismissal on the ground that upon the If ground of plaintiff is to appeal
facts and the law the plaintiff has shown no right to granted dismissal. from the dismissal.
relief. If his motion is denied, he shall have the right
to present evidence. If the motion is granted but on
Q: ABS Co. is the operator of several buses. One of 2. EFFECT OF DENIAL

the buses owned by ABS Co. rammed with a dump
truck causing the instantaneous death of Nilo, one Q: What is the effect of denial of demurrer to
of the passengers of the ill-fated bus. evidence?
Consequently, Nestor, son of Nilo, filed a
complaint against ABS Co. for damages. After A:
Nestor had rested his case, ABS Co. filed a 1. The defendant shall have the right to
demurrer to evidence, contending that Nestor's present his evidence (Sec. 1, Rule 33)
evidence is insufficient because it did not show (1) 2. The court shall set the date for the
that ABS Co. was negligent and (2) that such reception of the defendant’s evidence.
negligence was the proximate cause of the 3. An order denying a demurrer to evidence
collision. Should the court grant or deny not appealable (because it is
defendant's demurrer to evidence? Reason briefly. interlocutory)
XPN: It can be subject to petition for
A: No, the court should not grant defendant’s certiorari in case of grave abuse of
demurrer to evidence. Under the Rules of Court, discretion or an oppressive exercise of
after the plaintiff has completed the presentation judicial authority.
of his evidence, the defendant may move for 4. The right to present evidence after denial
dismissal on the ground that upon the facts and the of demurrer to evidence does not apply
law the plaintiff has shown no right to relief. to election cases.
Here, Nestor has shown that he is entitled to the 3. EFFECT OF GRANT

relief he is asking for. ABS Co. is a common carrier.
Under Article 1756 of the Civil Code, in case of Q: What is the effect of granting the demurrer to
death of or injuries to passengers, common carriers evidence?
are presumed to have been at fault or to have acted
negligently, unless they prove that they observed A:
extraordinary diligence. Proof that the defendant 1. The case shall be dismissed.
was negligent and that such negligence was the Note: The plaintiff may file an appeal and if that
proximate cause of the collision is not required. appeal was granted, the defendant loses his right
Thus, without proof that ABS Co. has exercised to present evidence. (Sec.1, Rule 33)
extraordinary diligence, the presumption of
negligence stands. (2004 Bar Question) 2. Upon appeal, the appellate court
reversing the order granting the demurrer
Q: What is judgment on demurrer to evidence? should not remand the case to the trial
court. Instead, it should render judgment
A: It is a judgment rendered by the court dismissing based on the evidence submitted by the
a case upon motion of the defendant, made after plaintiff. (Radiowealth Finance
plaintiff has rested his case, on the ground that Corporation vs Del Rosario, 335 SCRA 288)
upon the facts presented by the plaintiff and the
law on the matter, plaintiff has not shown any right 3. The demurrer to evidence abbreviates
to relief. judicial proceedings.
1. GROUND 4. WAIVER OF RIGHT TO PRESENT EVIDENCE
Q: On what ground may the demurrer to evidence Q: When is there a waiver of right to present
be filed? evidence?
A: The only ground for demurrer to evidence is that A: If the demurrer is granted but on appeal the
the plaintiff has no right to relief. order of dismissal is reversed, the defendant is
deemed to have waived his right to present
evidence (Sec.1, Rule 33)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE
Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases.
A:
Civil Case Criminal Case
Leave of court Not required With or Without
The Plaintiff may appeal from the order of The Plaintiff cannot make an appeal from the
If granted dismissal of the case order of dismissal due to the constitutional
prohibition against double jeopardy
The Defendant may proceed to adduce his The Defendant may adduce his evidence only if
evidence the demurrer is filed with leave of court.
If denied If there was no leave of court, accused can no

longer present his evidence and submits the
case for decision based on the prosecution’s
evidence
If the court finds plaintiff’s evidence insufficient,
it will grant the demurrer by dismissing the
If the plaintiff complaint. The judgment of dismissal is If the court finds the prosecution’s evidence
appeals from appealable by the plaintiff. If plaintiff appeals insufficient, it will grant the demurrer by
the order of and judgment is reversed by the appellate court, rendering judgment acquitting the accused.
dismissal it will decide the case on the basis of the Judgment of acquittal is not appealable;
plaintiff’s evidence with the consequence that double jeopardy sets in
the defendant already loses his right to present
evidence. No res judicata in dismissal due to
demurrer
How can
demurrer be The plaintiff files a motion to deny motion to The court may motu proprio deny the motion.
denied? demurrer to evidence.
O. JUDGMENTS AND FINAL ORDERS 5. Judgment nunc pro tunc (Now for then) –
A judgment intended to enter into the
Q: What is a judgment? record the acts which had already been
done, but which do not appear in the
A: It is a final consideration and determination by a records. Its only function is to record
court of the rights of the parties, upon matters some act of the court which was done at
submitted to it in an action or proceeding. a former time, but which was not then
recorded, in order to make the record
Q: What are the kinds of judgment? speak the truth, without any changes in
substance or any material respect.
A: 6. Judgment sin perjuicio – Judgment
1. Judgment upon compromise – It is one without a statement of the facts in
conferred on the basis of a compromise support of its conclusion to be later
agreement entered into between the supplemented by the final judgment. This
parties. is not allowed.
2. Judgment by confession – It is one 7. Judgment by default (Sec. 3, Rule 9) –
rendered by the court when a party Rendered by the court following a default
expressly agrees to the other party’s order or after it received, ex parte,
claim or acknowledges the validity of the plaintiff’s evidence.
claim against him. 8. Judgment on the pleadings (Rule 34) –
3. Judgment upon the merits – It is one that Proper when an answer fails to tender an
is rendered after consideration of the issue because of a general or insufficient
evidence submitted by the parties during denial of the material allegations of the
the trial of the case. complaint or when the answer admits the
4. Clarificatory judgment – It is rendered to material allegations of the adverse party's
clarify an ambiguous judgment or one pleading.
difficult to comply with. 9. Summary judgment (Rule 35) – One
granted by the court for the prompt

disposition of civil actions wherein it A:

clearly appears that there exists no 1. Resolutions of Supreme Court denying the
genuine issue or controversy as to any petitions to review decisions of Court of
material fact. Appeals.
10. Several judgment (Sec. 4, Rule 36) – It is 2. Minute Resolutions – if issued by SC
one rendered by a court against one or denying or dismissing a petition or a
more defendants and not against all of motion for reconsideration for lack of
them, leaving the action to proceed merit, it is understood that the challenged
against the others. decision or order is deemed sustained.
11. Separate judgment (Sec. 5, Rule 36) – It is 3. Interlocutory Orders – those that
one rendered disposing of a claim among determine incidental matters that do not
several others presented in a case, after a touch on the merits of the case or put an
determination of the issues material to a end to the proceedings. E.g. Order
particular claim and all counterclaims denying a motion to dismiss, granting an
arising out of the transaction or extension of time or authorizing an
occurrence which is the subject matter of amendment.
said claim. Note: Appeal is not proper to question an
12. Special judgment (Sec. 11, Rule 39) – One interlocutory order. The proper remedy to
which can only be complied with by the question an interlocutory order is a petition
judgment obligor because of his personal for certiorari under Rule 65.
qualifications or circumstances or one
that requires the performance of an act 1. JUDGMENT WITHOUT TRIAL
other than:
a. Payment of money; and Q: What is a judgment without trial?
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule A: The theory of summary judgment is that
39) – Applicable in cases of: although an answer may on its face appear to
1. Conveyance, delivery of deeds, or tender issues—requiring trial—yet if it is
other specific acts, vesting title; demonstrated by affidavits, depositions, or
2. Sale of real or personal property; admissions that those issues are not genuine, but
3. Delivery or restitution of real sham or fictitious, the Court is justified in
property; dispensing with the trial and rendering summary
4. Removal of improvements on judgment for plaintiff. The court is expected to act
property subject of execution; or chiefly on the basis of the affidavits, depositions,
5. Delivery of personal property. admissions submitted by the movants, and those of
14. Judgment on demurrer to evidence (Rule the other party in opposition thereto. The hearing
33) – A judgment rendered by the court contemplated (with 10-day notice) is for the
dismissing a case upon motion of the purpose of determining whether the issues are
defendant, made after plaintiff has rested genuine or not, not to receive evidence on the
his case, on the ground that upon the issues set up in the pleadings. A hearing is not thus
facts presented by the plaintiff and the de riguer. The matter may be resolved, and usually
law on the matter, plaintiff has not shown is, on the basis of affidavits, depositions,
any right to relief. admissions. Under the circumstances of the case, a
15. Conditional judgment – It is one the hearing would serve no purpose, and clearly
effectivity of which depends upon the unnecessary. The summary judgment here was
occurrence or non-occurrence of an justified, considering the absence of opposing
event. affidavits to contradict the affidavits (Galicia vs.
16. Final judgment – One which disposes of Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs.
the whole subject matter or terminates CA, GR 88218, Dec. 17, 1989).
the particular proceedings or action,
leaving nothing to be done by the court 2. CONTENTS OF A JUDGMENT
but to enforce by execution what has
been determined. Q: What are the two parts of a judgment?
Q: What are those which are not considered as A:

decisions? 1. Ratio decidendi – the body of judgment
2. Fallo – The dispositive portion of the
judgment. It is also the part of judgment
that is subject to execution because this is
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
the judgment of the court itself, i.e. if the Note: in the above cases, the material facts alleged in
petition is granted or denied and the the complaint shall always be proved (Sec. 1, Rule 34)
relief granted.
4. SUMMARY JUDGMENTS
Q: How should a conflict between the parts of a
decision be resolved? Q: What is a summary judgment?
GR: If there is a conflict between the ratio decidendi A: A summary judgment or accelerated judgment is
and the fallo, the fallo should prevail. Reason: the a procedural technique to promptly dispose of
fallo is the final order while the ratio decidendi is cases where the facts appear undisputed and
merely a statement ordering nothing. certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham
XPN: If there is a mere mistake in the fallo and the claims or defenses at an early stage of the litigation
the ratio decidendi is so clear that it states a to avoid the expense and loss of time involved in a
conclusion, the latter should prevail. (Poland trial. Its object is to separate what is formal or
Industrial Limited vs. National Development pretended denial or averment from what is genuine
Company, 467 SCRA 500) and substantial so that only the latter may subject a
party-in-interest to the burden of trial. Moreover,
Q: What are the requisites of a valid judgment? said summary judgment must be premised on the
absence of any other triable genuine issues of fact.
A: Otherwise, the movants cannot be allowed to
1. Authority of the court to hear and obtain immediate relief. A genuine issue is such
determine the case. issue of fact which requires presentation of
2. Jurisdiction – over the parties and the evidence as distinguished from a sham, fictitious,
subject matter contrived or false claim (Monterey Foods Corp. vs.
3. The parties must have been given an Eserjose, GR 153126, Sept. 11, 2003).
opportunity to adduce evidence.
4. The evidence must have been considered Q: What are the requisites of summary
by the tribunal in deciding the case. judgments?
5. The judgment must be in writing,
personally and directly prepared by the A:
judge. 1. There must be no genuine issue as to any
6. The judgment must state clearly the facts material fact, except for the amount of
and the law on which it is based, signed damages; and
by the judge and filed with the clerk of 2. The party presenting the motion for
court. summary judgment must be entitled to a
NOTE: Only for decisions and final orders on judgment as a matter of law.
merits and does not apply to those resolved
through incidental matters. a. FOR THE CLAIMANT
3. JUDGMENT ON THE PLEADINGS Q: When is a claimant allowed to file for summary

judgment?
Q: When is there a judgment based on pleadings?
A: A party seeking to recover upon a claim,
A: Where an answer fails to tender an issue, or counterclaim, or cross-claim or to obtain a
otherwise admits the material allegations of the declaratory relief may, at any time after the
adverse party’s pleading, the court may, on motion pleading in answer thereto has been served, move
of that party, direct judgment on such pleading. with supporting affidavits, depositions or
Note: Judgment must be on motion of the claimant. It admissions for a summary judgment in his favor
cannot be rendered by the court motu proprio. upon all or any part thereof (Sec. 1, Rule 35).
Q: What are cases where judgment on the
pleadings will not apply? b. FOR THE DEFENDANT
A: Q: When is a defendant allowed to file for

1. Actions for the declaration of nullity of a summary judgment?
marriage
2. Actions for annulment of marriage A: A party against whom a claim, counterclaim, or
3. Actions for legal separation cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary d. AFFIDAVITS AND ATTACHMENTS

judgment in his favor as to all or any part thereof
(Sec. 2, Rule 35). Q: What are the rules on affidavits and
attachments on summary judgments?
c. WHEN THE CASE NOT FULLY ADJUDICATED
A:
Q: What happens when a case is not fully 1. Supporting and opposing affidavits shall
adjudicated? be made on personal knowledge, shall set
forth such facts as would be admissible in
A: If on motion, judgment is not rendered upon the evidence, and shall show affirmatively
whole case of for all the reliefs sought and a trial is that the affiant is competent to testify to
necessary, the court at the hearing of the motion, the matters stated therein. Certified true
by examining the pleadings and the evidence copies of all papers or parts thereof
before it and by interrogating counsel shall referred to in the affidavit shall be
ascertain what material facts exist without attached thereto or served therewith
substantial controversy and what are actually and (Sec. 5, Rule 35).
in good faith controverted. It shall thereupon make 2. Should it appear to its satisfaction at any
an order specifying the facts that appear without time that any of the affidavits presented
substantial controversy, including the extent to pursuant to the Rules are presented in
which the amount of damages or other relief is not bad faith, or solely for the purpose of
in controversy, and directing such further delay, the court shall forthwith order the
proceedings in the action as are just. The facts so offending party or counsel to pay to the
specified shall be deemed established, and the trial other party the amount of the reasonable
shall be conducted on the controverted facts expenses which the filing of the affidavits
accordingly (Sec. 4, Rule 35). caused him to incur, including attorney’s
fees. It may, after hearing, further
adjudge the offending party or counsel
guilty of contempt (Sec. 6, Rule 35).
5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS
Judgment on the pleadings Summary judgments

Answer Answer does not tender an issue There is an issue tendered in the answer, but it is
not genuine or real issue as may be shown by
affidavits and depositions that there is no real issue
and that the party is entitled to judgment as a
matter of right
Notice Movants must give a 3-day notice of hearing Opposing party is given 10 days notice
Termination Entire case may be terminated May only be partial
Who can file Only the plaintiff or the defendants as far as Either the plaintiff or the defendant may file it
the counterclaim, cross-claim or third-party
complaint is concerned can file the same
Basis of the Based only on the pleadings alone, hence, Based on the pleadings, affidavits, depositions, and
judgment only on the complaint and the answer admissions
6. RENDITION OF JUDGMENTS AND FINAL ORDERS CA, 6 SCRA 530). It is not the writing of the
judgment or its signing which constitutes rendition
Q: What is a rendition of judgment? of the judgment (Castro vs. Malazo, 99 SCRA 164).
A: Rendition of judgment is the filing of the same Q: How should a judgment be prepared?
with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the A: A judgment or final order determining the merits
rendition. Even if the judgment has already been of the case shall be in writing personally and
put in writing and signed, it is still subject to directly prepared by the judge, stating clearly and
amendment if it has not yet been filed with the distinctly the facts and the law on which it is based,
clerk of court and before its filing does not yet signed by him, and filed with the clerk of the court
constitute the real judgment of the court (Ago vs. (Sec. 1, Rule 36).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
its periods, not more than six (6) months from the
7. ENTRY OF JUDGMENT AND FINAL ORDER entry of the judgment or final order (Sec. 3, Rule 38).
Q: What is an entry of judgment? P. POST JUDGMENT REMEDIES
A: The entry of judgment refers to the physical act Q: What are the available remedies to the
performed by the clerk of court in entering the aggrieved party after rendition of judgment?
dispositive portion of the judgment in the book of
entries of judgment and after the same has become A: The remedies against a judgment may refer to
final and executory. The record shall contain the those remedies before a judgment becomes final
dispositive portion of the judgment or final order and executory and those remedies after the same
and shall be signed by the clerk of court, with a becomes executory.
certificate by said clerk that the judgment has
already become final and executory (Sec. 2, Rule 1. Before a judgment becomes final and executory,
36). the aggrieved party may avail of the following
remedies:
Q: What happens if no appeal was filed on time? a. Motion for Reconsideration;
b. Motion for New Trial; and
A: If no appeal or motion for new trial or c. Appeal
reconsideration is filed within the time provided in
the Rules, the judgment or final order shall 2. After the judgment becomes executory, the
forthwith be entered by the clerk in the book of losing party may avail of the following:
entries of judgments. (Sec. 2, Rule 36)
a. Petition for relief from judgment;
Note: There are some proceedings the filing of which is b. Action to annul judgment;
reckoned from the date of the entry of judgment: (a) c. Certiorari; and
the execution of a judgment by motion is within five
d. Collateral attack of a judgment.
(5) years from the entry of the judgment (Sec. 6, Rule
39); (b) the filing of a petition for relief has, as one of
1. MOTION FOR NEW TRIAL OR RECONSIDERATION

a. GROUNDS
b. WHEN TO FILE
Q: Distinguish motion for new trial from motion for reconsideration.
A:
MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION
Grounds
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) 1. The damages awarded are
which ordinary prudence could not have guarded against and by excessive;
reason of which the rights of the aggrieved party was impaired; or 2. The evidence is insufficient to satisfy
2. Newly discovered evidence, which could not with reasonable the decision or final order; or
diligence, have been discovered and produced at the trial, and which 3. The decisionor final order is contrary
if presented, would probably alter the result (Sec. 1, Rule 37). to law (Sec. 1, Rule 37).
Requisites
1. Must be in writing; 1. Must point out specifically the
2. Affidavit of the existence of FAME and newly discovered evidence; conclusion of judgment;
Note: Whenever a remedy is allowed on the ground of FAME, an affidavit 2. Express reference to testimonial or
of merit is obligatory. documentary evidence or to
3. Affidavit of merit setting forth the particular facts claimed to provisions of law.
constitute a meritorious cause of action;
4. In case of newly discovered evidence:
a. Affidavit of new witnesses; and
b. Duly authenticated documents to be introduced.
Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the
movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere
scrap of paper and will not toll the reglementary period for appeal.
When to file

A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed
before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration
shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is
within the period for taking an appeal.
Note:
The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days
from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special
proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40).
Single motion rule (applicable only on a
Second motion may be allowed so long as based on grounds not existing
judgment or final order but not to
or available at the time the first motion was made. (Sec. 5, Rule 37)
interlocutory order) (Sec. 5, Rule 37)
No new trial or hearing will take place and
the judgment will be based on the
pleadings submitted by the parties. If
If granted, the original judgment or final order shall be vacated, and the
granted, the court may amend such
action shall stand for trial de novo. The recorded evidence taken upon the
judgment or final order accordingly (Sec.
former trial, insofar as the same is material and competent to establish
3, Rule 37).
the issues, shall be used at the new trial without retaking the same (Sec. 6,
Rule 37).
Note: The amended judgment is in the
nature of a new judgment which
supersedes the original judgment.
If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).
Available against judgments or final
Available even on appeal but only on the ground of newly discovered orders of both the trial and appellate
evidence. courts.
Both must be resolved within 30 days from the time it is submitted for resolution
Both are prohibited motions under Summary Procedure
COMMON PROVISIONS c. DENIAL OF THE MOTION; EFFECT
Q: What is the period to file motion for new trial Q: What is the effect if the MNT or MR is denied?
or reconsideration?
A: The movant has a “fresh period” of 15 days from
A: Within the period for taking an appeal or within the receipt or notice of the order denying or
15 days after notice to the appellant of the dismissing the motion within which to file a notice
judgment or final order appealed from. Where a of appeal (fresh period rule). (Neypes v. CA, G.R.
record on appeal is required the appellant shall file No.141524, Sept. 14, 2005)
a notice of appeal and a record on appeal within 30
days after notice of the judgment or final order d. GRANT OF THE MOTION; EFFECT
(Section 1, Rule 40).
Note: No extension of time to file a Motion for New Q: What is the effect of a grant of the motion?
Trial or Motion for Reconsideration shall be allowed.
A: If a new trial be granted in accordance with the
Q: When is a record of appeal required? provisions of the rules, the original judgment shall
be vacated or set aside, and the action shall stand
A: A record of appeal is required only in: for trial de novo; but the recorded evidence taken
1. Special proceedings; upon the former trial so far as the same is material
2. Other cases of multiple or separate and competent to establish the issues, shall be used
appeal (Section 3, Rule 40) at the new trial without retaking the same (Sec. 6).
The filing of the motion for new trial or
Q: What is the effect of filing a MNT/ MR on the reconsideration interrupts the period to
period to appeal? appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
A: The filing of a timely motion interrupts the If the court grants the motion (e.g., it finds that
period to appeal (Section 2, Rule 40; Section 3, Rule excessive damages have been awarded or that the
41). judgment or final order is contrary to the evidence
or law), it may amend such judgment or final order
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
accordingly (Sec. 3). The amended judgment is in

the nature of a new judgment which supersedes Q: What happens if the motion is filed without the
the original judgment. It is not a mere supplemental required affidavits?
decision which does not supplant the original but
only serves to add something to it (Esquivel vs. A: Non- compliance with the requirements of the
Alegre, 172 SCRA 315). If the court finds that a Rules would reduce the motion to a mere pro-
motion affects the issues of the case as to only a forma motion.
part, or less than all of the matters in controversy, Note: Under Sec. 2,Rule 37 a pro- forma motion shall
or only one, or less that all of the parties to it, the not toll the reglementary period of appeal.
order may grant a reconsideration as to such issues
if severable without interfering with the judgment Q: What is a pro- forma motion?
or final order upon the rest (Sec. 7).
A: A pro- forma motion is one which does not
e. REMEDY WHEN MOTION IS DENIED, FRESH 15- satisfy the requirements of the rules and one which
DAY PERIOD RULE will be treated as a motion intended to delay the
proceedings (Marikina Development Corporation v.
Q: What is the remedy if the motion is denied?
Flojo, 251 SCRA 87).
A: The remedy is to appeal from the judgment or
MOTION FOR NEW TRIAL
final order itself subject of the motion for
reconsideration or new trial (Sec. 9, Rule 37, Rules
Q: What is a Motion for New Trial?
of Court). The movant has a fresh period of fifteen
days from receipt or notice of the order denying or
A: It is a motion for the rehearing of a case already
dismissing the motion for reconsideration within
decided by the court but before the judgment
which to file a notice of appeal. It is no longer
rendered thereon becomes final and executory,
assailable by certiorari. (Sec.9, Rule 37, A.M. No. 07-
whereby errors of law or irregularities are
7-12-SC).
expunged from the record or new evidence is
Q: When does the fresh period rule apply?
introduced, or both steps are taken.
A: It applies to:
Q: What are the requisites of newly discovered
1. Rule 40 – MTC to RTC
evidence as a ground for New Trial?
2. Rule 41 – Appeals from RTC
3. Rule 42 – Petition for Review from RTC to CA
A:
4. Rule 43 – Appeals from quasi-judicial agencies
1. The evidence was discovered after trial;
to CA
5. Rule 45 – Appeals by certiorari to the SC 2. Such evidence could not have been
discovered and produced at the trial with
Note: The “fresh period rule” does not refer to the reasonable diligence; and
period within which to appeal from the order denying 3. Such evidence is material, not merely
the motion for reconsideration, but to the period cumulative, corrobative or impeaching,
within which to appeal from the judgment itself and is of such weight that if admitted
because an order denying a motion for reconsideration would probably change the judgment
is not appealable. (BERRY RULE) (CIR v. A. Soriano
Corporation, GR No. 113703 January 31,
Q: When should the motion be resolved? 1997).
A: The motion shall be resolved within 30 days from Q: Distinguish Newly Discovered Evidence from
the time it is submitted for resolution (Section 4, Forgotten Evidence.
Rule 37).
A:
Q: Is a MNT/ MR a prerequisite for taking an NEWLY DISCOVERED FORGOTTEN EVIDENCE
appeal or petition for review? EVIDENCE
Evidence was not Evidence was already
A: A final MNT/ MR is not a prerequisite to an available to a party available to a party and
appeal, a petition for review or petition for review during a trial, and was was not presented
discovered only through inadvertence or
on certiorari. And since the purpose is to expedite
thereafter. negligence of the
the final disposition of cases, a strict or prospective
counsel; it is not a ground
application of said ruling is in order (Habaluyas v. for new trial.
Japson, GR No. 70895, May 30, 1986).

A: The purpose of a motion for reconsideration is

Q: Distinguish extrinsic fraud from intrinsic fraud. precisely to request the court or the quasi- judicial
body to take a second look at its earlier judgment
A: and correct any errors it may have committed
EXTRINSIC FRAUD INTRINSIC FRAUD therein (Reyes v. Pearlbank Securities, GR No.
Connotes any fraudulent Refers to the acts of party 171435, July 30, 2008).
scheme executed by the during trial which does
prevailing party outside not affect the Q: Is a second motion for reconsideration allowed?
trial against the losing presentation of the case
party who because of A: A second motion for reconsideration is not
such fraud was prevented allowed. The prohibition on a second motion
from presenting his side applies only when the motion is directed against a
of the case
judgment or a final order. The rule does not apply
to a motion for reconsideration of an interlocutory
Q: Distinguish Motion for New Trial from Motion order.
for Reopening of the Trial.
Q: When may there be partial reconsideration?
A:
MOTION FOR MOTION FOR REOPENING OF
A: If the court finds that a motion affects the issues
NEW TRIAL TRIAL
of the case as to only a part, or less than all of the
A motion must be The judge may act motu propio
matters in controversy, or only one, or less than all,
filed
Proper only after May properly be presented only
of the parties to it, the order may grant a
promulgation of after either or both parties have reconsideration as to such issues if severable
judgment formally offered and closed without interfering with the judgment or final order
their evidence before judgment upon the rest (Sec. 7, Rule 37).
Based upon Controlled by no other than the
specific grounds paramount interest of justice, Q: In a case filed by Pedro against Juan, the latter
mentioned in Sec. resting entirely on the sound received the adverse decision of the RTC on March
37 in civil cases discretion of the court, the 1, 2008. On March 14, 2008, Juan filed a motion
and Sec. 121 in exercise of such shall not be for reconsideration. Juan received the decision of
criminal cases reviewable on appeal UNLESS a the trial court dismissing his motion on April 1,
clear abuse thereof is shown. 2008. When should Juan file his notice of appeal to
the CA?
Q: Is a second motion for new trial allowed?
A: Juan has 15 days from the receipt of the decision
A: Yes. A second motion for new trial is authorized of the trial court denying his motion for
by the Rules. A motion for new trial shall include all reconsideration to file his notice of appeal. To
grounds then available. Those not so included are standardize the appeal periods provided in the
deemed waived. However, when a ground for a Rules of Court and to afford litigants fair
new trial was not existing or available when the first opportunity to appeal their cases, the SC deemed it
motion was made, a second motion for new trial practical to allow a fresh period of 15 days within
may be filed within the period allowed but which to file the notice of appeal in the RTC,
excluding the time during which the first motion counted from receipt of the order dismissing a
had been (Section 5, Rule 37) motion for a new trial or motion for
reconsideration.
MOTION FOR RECONSIDERATION
Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure
Q: What is a motion for reconsideration? states that the appeal shall be taken within 15 days
from notice of judgment or final order appealed
A: A motion for reconsideration under Rule 37 is from. The order denying the motion for new trial or
one that is directed against a judgment or a final reconsideration is the “final order” (Fresh period
order. It is not the motion for reconsideration of an rule) (Neypes v. CA, G.R. No. 141524, Sept. 14,
interlocutory order which for instance precedes a 2005).
petition for certiorari.
2. APPEALS IN GENERAL
Q: What is the purpose of a MR?
Q: Is the right to appeal part of due process?
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: The right to appeal is not part of due process but RTC in its original appeal beyond that
a mere statutory privilege that has to be exercised jurisdiction, notice of period)
only in the manner and in accordance with the appeal to the RTC must
provisions of law (Stolt- Nielsen v. NLRC, GR No. disclose where appeal is to
147623, December 13, 2005). be taken. (Sec 5, rule 41)
Period available is 15 days If required, the
Q: What are the basic guidelines as regards before the judgment appellant has 30 days
appeal? becomes final and executor to file and serve both
notice and record on
appeal.
A:
Should indicate: If required, copies of
a. No trial de novo shall be made. The
1.Parties to the appeal; both the notice of
appellate courts must decide the case on the 2.Judgment or final order or appeal and the record
basis of the record, except when the part thereof appealed from; on appeal shall be filed
proceedings were not duly recorded as when 3.Material dates showing the In court and served to
there was absence of a qualified stenographer timeliness of the appeal the adverse party.
(Sec. 22[d], BO 129; Rule 21[d], Interim Rules);
b. There can be no new parties; Q: What are those cases which allow multiple
c. There can be no change of theory (Naval vs. appeals?
CA, 483 SCRA 102);
d. There can be no new matters (Ondap vs. A: The civil cases which admit of multiple appeals
Aubga, 88 SCRA 610); are:
e. There can be amendments of pleadings to 1. Actions for recovery of property with
conform to the evidence submitted before the accounting;
trial court (Dayao vs. Shell, 97 SCRA 407); 2. Actions for partition of property with
f. The liability of solidarity defendant who did accounting;
not appeal is not affected by appeal of solidarity 3. Special civil actions of eminent domain
debtor (Mun. of Orion vs. Concha, 50 Phil. 679); and foreclosure of mortgage; and
g. Appeal by guarantor does not inure to the 4. Special proceedings.
principal (Luzon Metal vs. Manila Underwriter,
29 SCRA 184); Q: What is the rationale for allowing multiple
h. In ejectment cases, the RTC cannot award appeals?
to the appellant on his counterclaim more than
the amount of damages beyond the jurisdiction A: To enable the rest of the case to proceed in the
of the MTC (Agustin vs. Bataclan, 135 SCRA event that a separate and distinct issue is resolved
342); by the court and held to be final (Roman Catholic
i. The appellate court cannot dismiss the Archbishop of Manila v. CA, GR No. 111324, July 5,
appealed case for failure to prosecute because 1996).
the case must be decided on the basis of the
record (Rule 21, Interim Rules). a. JUDGMENT AND FINAL ORDERS SUBJECT TO
APPEAL
Q: Distinguish Notice of Appeal from Record on
Appeal? Q: What kind of judgments and final orders are
subject to appeal?
A:
NOTICE OF APPEAL RECORD ON APPEAL
A: An appeal may be taken only from judgments or
Deemed perfected as to Required only in
final orders that completely dispose of the case
him upon the filing of the Special Proceedings
(Sec.1, Rule 41). An interlocutory order is not
notice of appeal. and other cases of
appealable until after the rendition of the judgment
multiple or separate
If decision is made by the appeals. on the merits.
courts of 1st level, notice of
appeal need not state the Deemed perfected as b. MATTERS NOT APPEALABLE
court to which the appeal is to him with respect to
being taken (Sec.3, Rule 40) the subject matter Q: What cases are not appealable?
because there is only one thereof upon its
court to which it shall be approval. (30 days is A:
made – RTC the period for filing, 1. Order denying a petition for relief or any
only the court may similar motion seeking relief from judgment;
If decision is made by the approve the record on 2. Interlocutory order;

3. Order disallowing or dismissing an appeal; Q: Can the court consider errors not raised in the
4. Order denying a motion to set aside a assignment of errors?
judgment by consent, confession or
compromise on the ground of fraud, A:
mistake or duress, or any other ground GR: No. The court as a rule shall not consider errors
vitiating consent; not raised in the assignment of errors
5. Order of execution;
6. Judgment or final order for or against one or XPN: Sec. 5, Rule 51 precludes its absolute
more of several parties or in separate application. The court may consider an error not
claims, counterclaims, cross-claims and raised on appeal provided the same falls within any
third-party complaints, while the main case of the following categories:
is pending, unless the court allows an appeal
therefrom; and a. It is an error that affects the jurisdiction
7. Order dismissing an action without over the subject matter;
prejudice (Sec. 1 as amended by A.M. No. b. It is an error that affects the validity of
07-7-12-SC). the judgment appealed from;
c. It is an error which affects the
Note: The order denying a motion for new trial or proceedings;
reconsideration has been deleted from the list by d. It is an error closely related to or
virtue of A.M. No. 07-7-12-SC. dependent on an assigned error and
properly argued in the brief; or
Q: Can a question that was never raised in the e. It is a plain and clerical error.
courts below be allowed to be raised for the first
time on appeal? Q: What is the basis of the court’s power to rule
on such issues not raised on appeal?
A:
GR: No. A question that was never raised in the A: The court is imbued with sufficient authority and
courts below cannot be allowed to be raised for the discretion to review matters, not otherwise
first time on appeal without offending basic rules of assigned as errors on appeal, as it finds that the
fair play, justice and due process (Bank of consideration is necessary in arriving at a complete
Commerce vs. Serrano, 451 SCRA 484). For an and just resolution of the case or to serve the
appellate court to consider a legal question, it interest of justice or to avoid dispensing piecemeal
should have been raised in the court below (PNOC justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105,
vs. CA, 457 SCRA 32). It would be unfair to the 2007).
adverse party who would have no opportunity to
present evidence in contra to the new theory, c. REMEDY AGAINST JUDGMENTS AND ORDERS
which it could have done had it been aware of it at WHICH ARE NOT APPEALABLE
the time of the hearing before the trial court. it is
true that this rule admits of exceptions as in cases Q: What is the remedy in cases where appeal is
of lack of jurisdiction, where the lower court not allowed?
committed plain error, where there are
jurisprudential developments affecting the issues, A:
or when the issues raised present a matter of public GR: In those instances where the judgment or final
policy (Baluyot vs. Poblete, GR 144435, Feb. 6, order is not appealable, the aggrieved party may
2007). file the appropriate special civil action under Rule
65 (Sec. 1 Rule 41).
XPNs: The rule admits of exceptions as in cases of:
a. Lack of jurisdiction; XPN: An order denying a motion for new trial or a
b. Where the lower court committed plain motion for reconsideration may no longer be
error; assailed by way of Rule 65 as per A.M. No. 07- 7-
c. Where there are jurisprudential 12, the proper ground is to appeal from the
developments affecting the issues, or judgment (Sec. 9, Rule 37).
when the issues raised present a matter
of public policy (Baluyot v. Poblete GR No. d. MODES OF APPEAL
144435, February 6, 2007).
Q: What are the different modes of appeal?
A:
1. Ordinary appeal (Rule 40 and 41)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
a. Notice on appeal 2. Petition for review (Rule 42, 43)

b. Record on appeal 3. Appeal by certiorari(Rule 45)
Q: Distinguish the following modes of appeal.
A:
MODE OF APPEAL PERIOD OF APPEAL PERIOD OF APPEAL IF A MR ISSUES THAT MAY BE
OR MNT WAS FILED RAISED
(Neypes Doctrine)
Ordinary Appeal (MTC to RTC)
Rule 40
a. Notice of Appeal Within 15 days after notice
to the appellant of the Within 15 days from receipt Questions of fact or
judgment or final order of the order denying motion mixed questions of fact
appealed (Sec 2. Rule 40). for reconsideration or new and law.
trial.
b. Record of Appeal Within 30 days after notice
of the judgment or final
order (Sec 2. Rule 40).
Ordinary Appeal (RTC to CA)
Original Jurisdiction Rule 41 Questions of fact or of
a. Notice of Appeal Within 15 days after notice law or mixed question of
to the appellant of the Within 15 days from receipt fact and law that has
judgment or final order of the order denying motion been raised in the court
appealed (Sec 3. Rule 41). for reconsideration or new below and is within the
trial. issues framed by the
b. Record of Appeal Within 30 days after notice parties (Sec. 15, Rule 44).
order (Sec 3. Rule 41).
Note: appeal in habeas

corpus cases shall be taken
within 48 hours from notice
order appealed from (AM
No. 01-1-03-SC, June 19,
2001)
Petition for Review (RTC to CA) Within 15 days from notice Questions of fact, of law,
Appellate Jurisdiction Rule 42 of the decision to be or mixed questions of fact
reviewed or from the denial and law
of a MR or new trial (Sec. 1
Rule 42). Within 15 days from receipt
Note: The court may grant of the order denying motion
an additional period of 15 for reconsideration or new
days provided the extension trial.
is sought:
a. Upon proper motion;
and
b. Upon payment of the
full amount of the
docket and other lawful
fees before the
expiration of the
reglementary period.
Petition for Review (Quasi- Within 15 days from receipt Within 15 days from receipt Questions of fact, of law,
Judicial Bodies to CA) of judgment or final order or of the order denying motion or mixed questions of fact
Rule 43 of last publication (Sec. 4, for reconsideration or new and law (Sec. 3, Rule 43).
Rule 43). trial. Note: The appeal shall not
stay the award, judgment,
final order unless the CA
directs otherwise (Sec. 12,
Rule 43).

Petition for Review on Within 15 days from notice Within 15 days from receipt
Certiorari of the judgment, final order of the order denying motion
Rule 45 or resolution appealed from, for reconsideration or new
1. RTC to SC (Sec 2c, or within 15 days from notice trial Only questions of law
Rule 41); of the denial of the (Sec. 1, Rule 45).
2. CA to SC (Sec. 1, petitioner’s motion for new
Rule 45); trial or motion for
3. Sandiganbayan to SC reconsideration filed in due
(Sec. 1, Rule 45); time (Sec. 2, Rule 45).
4. CTA en banc to SC Note: The SC may for
(Sec. 11, RA 9282; justifiable reason grant an
Sec. 1 Rule 45 as extension of 30 days only
amended by AM No. within which to file the
07- 7-12- SC); petition provided:
5. Appeals from a a. There is a motion for
judgment or final extension of time duly
order in a petition filed and served;
for a writ of amparo b. There is full payment of
to the SC (AM No. the docket and other
07-9-12- SC); and lawful fees and the
6. Appeals from a deposit for costs; and
judgment or final c. The motion is filed and
order in a petition served and the
for a writ of Habeas payment is made
Data (AM No. 08-1- before the expiration of
16-SC). the reglementary
period (Sec. 2, Rule 45).
Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the
appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of
judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR
141524, Sept. 14, 2005)
BEFORE FINALITY OF JUDGMENT

(1) ORDINARY APPEAL
(2) PETITION FOR REVIEW
(3) PETITION FOR REVIEW ON CERTIORARI
Q: Distinguish an ordinary appeal from a petition for review.
A:
Ordinary Appeal Petition for Review
A matter of right Discretionary
All the records are elevated from the court of origin No records are elevated unless the court decrees it
Notice or record on appeal is filed with the court of origin Filed with the CA
As to duration of residual powers: Until the records are As to duration of residual powers: Until the CA gives due
transmitted to the appellate court. course to the petition.
Q: Distinguish Rule 45, Rule 64 and Rule 65.
A:
Review of Judgments, Final
Appeal by Certiorari(Rule 45) Petition for Certiorari(Rule 65)
Orders or Resolutions (Rule 64)
Petition is based on questions of
jurisdiction, that is, whether the
Petition is based only on questions of Petition is based on questions of
lower court acted without
law. law.
jurisdiction or in excess of jurisdiction
or with grave abuse of discretion.
It is a mode of appeal but the
It is a mode of appeal. It is a mode of review.
petition used is Rule 65.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Involves review of judgments, May be directed against an

Involves the review of the judgment
final orders or resolutions of interlocutory order of a court or
final orders or resolutions of the CA,
COMELEC and COA. where there is no appeal or any
Sandiganbayan, CTA, RTC or other
Note: CSC judgments, final orders or other plain, speedy or adequate
courts on the merits
resolutions are governed by Rule 43 remedy.
Filed within 15 days from notice of Filed within 30 days from notice of Filed not later than 60 days from
judgment, final order or resolution judgment, final order or notice of judgment, order or
appealed from. resolution sought to be reviewed. resolution appealed from.
Does not stay the execution Unless a writ of preliminary
Stays the judgment or order appealed unless SC shall direct otherwise injunction or temporary restraining
from upon such terms as it may deem order is issued, it does not stay the
just. challenged proceeding
The judge, court, quasi-judicial
The appellant and the appellee are
The COMELEC and COA shall be agency, tribunal, corporation, board,
the original parties to the action, and
public respondents who are officer or person shall be public
the lower court or quasi-judicial
impleaded in the action. respondents who are impleaded in
agency is not impleaded.
the action.
Motion for reconsideration or for
The filing of MNT or MR, if new trial is required.
Motion for reconsideration is not allowed under the procedural If a motion for reconsideration or
required. rules of the Commission, shall new trial is filed, another 60 days
interrupt period fixed. shall be given to the petitioner (A.M.
No. 02-03-SC)
The court is in the exercise of its The court is in the exercise of its
appellate jurisdiction and power of appellate jurisdiction and power Court exercises original jurisdiction.
review. of review.
Filed with the RTC, CA,
Filed with the SC. Filed with the SC. Sandiganbayan or COMELEC. (1991,
1998, 1999 Bar Question)
e. ISSUES TO BE RAISED ON APPEAL Procedure: A Restatement for the Bar, pp.

445-446, 2009 ed.)
Q: What issues are to be considered in appeal?
f. PERIOD OF APPEAL
A:
GR: Only errors assigned in the brief may be Q: What is the period to appeal?
considered on appeal
A: Within 15 days from notice of the judgment or
XPNs: final order appealed from.
1. Grounds not assigned as errors but affecting
the jurisdiction over the subject matter Where record on appeal is required: Within 30 days
2. Matters not assigned as errors on appeal but from notice of the judgment or final order. In
are evidently plain or clerical errors within habeas corpus cases, 48 hours from notice of
the contemplation of law; judgment or final order appealed from.
3. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving Note: Where both parties are appellants, they may file
at a just decision and complete resolution of a joint record on appeal (Sec. 8, Rule 41). The period
the case or to serve the interest of justice or shall be interrupted by a timely Motion for New Trial
to avoid dispensing piecemeal justice; or Motion for Reconsideration.
4. Matters not specifically assigned as errors on
appeal but raised in the trial court and are Q: May a period of appeal be extended?
matters of record having some bearing on the
A: Yes, under the sound discretion of the court. The
issue submitted which the parties failed to
mere filing of the motion for extension of time to
raise or which the lower court ignored;
perfect the appeal does not suspend the running of
the reglementary period.
closely related to an error assigned; and
Q: What is the effect if the extension of the period
upon which the determination of a question
to appeal is granted/denied?
properly assigned is dependent. (Riano, Civil

A: If granted, and the notice thereof is served Q: What is the effect of judgment on those who
AFTER the expiration of the period to appeal, the failed to appeal?
extension must be computed from the date of A:
notice. 1. As to affirmative relief – an appellee who
has himself not appealed may not obtain
Note: If no action is taken on the motion for extension, from the appellate court any affirmative
or if it is denied after the lapse of the period to appeal, relief other than what was granted in the
THE RIGHT TO APPEAL IS LOST. decision of the lower court
g. PERFECTION OF APPEAL 2. As to reversal of judgment

GR: Binding only on the parties in the appealed
Q: When is an appeal perfected? What is its case and does not affect or inure to the benefit
effect? of those who did not join or were not made
A: parties to the appeal
1. Appeal by notice of appeal – perfected as
to the party upon filing of the notice of XPN: Where the rights of the parties appealing
appeal in due time and upon payment of are so interwoven and dependent on each other
the appellate court docket fee. as to be inseparable, in which case a reversal as
to one operates as a reversal to all.
Effect: the court loses jurisdiction
over the case upon the perfection of Note: Even if the appeal was filed out of time, the
the appeal filed in due time and the court still has jurisdiction to admit and give due course
expiration of the time to appeal of to it, PROVIDED there are justifiable reasons (e.g. in
the other parties the exercise of the equity jurisdiction of the courts,
where a stringent application of the rule would not
2. Appeal by record on appeal – perfected as serve the demands of substantial justice). This is
to the party with respect to the subject tantamount to a valid order granting the extension if
any is prayed for.
matter thereof upon the approval of the
record on appeal filed in due time and
upon payment of the appellate court Q: Is the perfection of an appeal jurisdictional?
docket fee.
A:
Effect: The court loses jurisdiction GR: Yes. Perfection of appeal within the
only over the subject matter upon reglementary period is jurisdictional.
the approval of the records on
appeal filed in due time and the XPN: When there has been extrinsic fraud,
expiration of the time to appeal of accident, mistake, or excusable negligence
the other parties (FAME), resort to Petition for relief from
judgment under rule 38. (Habaluyas v. Japson,
3. Appeal by petition for review – upon the 142 SCRA 208 (1986)).
timely filing of a petition for review and
the payment of the corresponding docket Q: What is the effect of a perfected appeal?
and other lawful fees, the appeal is
deemed perfected as to the petitioner. A:
GR: Judgment is not vacated by appeal, but is
Effect: RTC loses jurisdiction over the merely stayed and may be affirmed, modified
case upon the perfection of the or reversed or findings of facts or conclusions
appeal and the expiration of the time of law may be adopted by reference.
to appeal of the other parties.
XPN: Not applicable to civil cases under the
Note: In either case, prior to the transmittal of the Rules on Summary Procedure which provides
original record or record on appeal to the appellate that the decision of the RTC in civil cases
court, the trial court may, motuproprio or on motion, governed by said Rule including forcible entry
dismiss the appeal for having been taken out of time and unlawful detainer cases, shall be
or for non-payment of the docket and other lawful immediately executory without prejudice to a
fees on time. The court may also exercise its residual further appeal that maybe taken therefrom.
powers.
Q: Would non- payment of docket fees result to
the dismissal of the case?
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: Q: Where to appeal from a judgment or final order

GR: Payment of docket fee is jurisdictional. Without of a Municipal Court?
such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action A: An appeal from a judgment or final order of
and the decision sought to be appealed from Municipal Trial Court may be taken to the Regional
becomes final and executory (Regalado v. Go, GR Trial Court exercising jurisdiction over the area to
No. 167988, February 6, 2007). which the former pertains (Section 1, Rule 40).
However: the rule must be qualified: Q: When should the appeal be taken?
1. The failure to pay appellate court docket
fee within the reglementary period allows A:
only discretionary dismissal, not 1. An appeal may be taken within 15 days after
automatic dismissal, of the appeal; notice to the appellant of the judgment or
2. Such power should be used in the final order appeals from (Section 2, Rule 40);
exercise of the court’s sound discretion 2. Where a record of appeal is required, the
(Republic v. Spouses Luriz, GR No. 158992, appellant shall file a notice of appeal and a
January 26, 2007). record on appeal within 30 days after notice
of the judgment or final order (Section 2, Rule
h. APPEAL FROM JUDGMENTS OR FINAL ORDERS 40).
OF THE MTC
Q: How should the RTC decide an appeal from an
Q: Discuss the procedure of appeal from decisions order of a lower court dismissing a case without
of the MTC to the RTC. trial or those rendered without jurisdiction?
A: A:
1. If the lower court dismissed the case without
Appeal decision of MTC by filing notice of appeal
trial on the merits, RTC may:
within 15 days or 30 days where a record on
a) Affirm- in such case, it is a declaration of
appeal is required from receipt of judgment.
the merits of the dismissal;
b) Affirm and the ground of dismissal is lack
of jurisdiction over the subject matter –
Copies of the notice, and record on appeal when the action of the RTC is a mere
required, shall be served on the adverse party. affirmation of the dismissal. The RTC shall
try the case on the merits as if the case
was originally filed with it;
c) Reverse – it shall remand the case for
The MTC clerk transmits record to the RTC further proceedings.
within 15 days from perfection of appeal. 2. If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
Parties are given notice that the records case, and shall admit amended pleadings and
have been received by the RTC.
additional evidence (Sec. 8, Rule 40).
Q: What if the case is dismissed for lack of

1. Within 15 days from notice of appeal – jurisdiction?
appellant submits memorandum to the RTC.
2. Within 15 days from receipt of appellant’s A: The order of dismissal is one without prejudice
memorandum – appellee files his and the plaintiff may simply refile the complaint in
memorandum. the court with the proper jurisdiction because:
GR: The order dismissing an action without
prejudice is not appealable (Section 1g, Rule 41)
Note: Failure of the appellant to file a memorandum
shall be a ground for the dismissal of the appeal. XPN: Section 8, Rule 40 allows an appeal from an
order of the MTC dismissing a case for lack of
jurisdiction.

i. APPEAL FROM JUDGMENTS OR FINAL ORDERS

OF THE RTC Within 30 days after perfection of the appeals, the
RTC clerk shall verify the records and transmit the
Q: What are the three modes of appeal from the same to the appellate court and shall furnish the
decisions of the RTC? parties with copies of his letter of transmittal of
the records to the appellate court
A:
1. Ordinary appeal or appeal by writ of error
– where judgment was rendered in a civil
or criminal action by the RTC in the Upon receipt of the original records and documents
exercise of original jurisdiction (governed and upon payment of docket fees, the clerk of court
by Rule 41, taken to the CA on questions of the CA shall docket the case and notify the parties
of fact or mixed questions of fact and
law);
2. Petition for review – where judgment was
rendered by the RTC in the exercise of Within 45 days from the receipt of the notice of the
appellate jurisdiction (governed by Rule clerk of court, the appellant shall file a brief with
42, brought to the CA on questions of proof of service to the appellant
fact, of law, or mixed questions of fact
and law); or
3. Petition for review on certiorari – to the Within 45 days from the receipt of the appellant’s
SC (governed by Rule 45, elevated to the brief, the appellee shall file his own brief with proof
SC only on questions of law). of service to the appellant
Note: Rule 41 refers to appeals from RTC exercising

original jurisdiction. An appeal on pure questions of
law cannot be taken to the CA and such improper Within 20 days from the receipt, the appellant may
appeal will be dismissed pursuant to Sec. 2, Rule 50 file a reply brief
(Regalado, Remedial Law Compendium, Vol. 1, p. 526,
2007 ed.).
Note: In petitions for certiorari, prohibition,
ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR mandamus, quo warranto and habeas corpus cases,
FROM THE RTC TO THE CA briefs are not filed. Instead the parties shall file their
memoranda within a non- extendible period of 30 days
Q: What may be the subject of an appeal under from the receipt of notice that all the evidences are
Rule 41? already attached to the record (Sec 10, Rule 44).
A: An appeal may be taken from a judgment or final Q: What is the title of the case when appealed to
order that completely disposes of the case or of a the CA under Rule 41?
particular matter therein when declared by the
Rules to be appealable (Section 1, Rule 41). A: In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
Q: When does Rule 41 on Ordinary Appeal apply? origin but the party appealing the case shall be
referred to as the appellant and the adverse party
A: Rule 41 applies to appeals from the judgment or appellee (Sec 1. Rule 44).
final orders of the RTC in the exercise of its original
jurisdiction (Section 2a, Rule 41). Q: Distinguish a brief from a memorandum.
Q: Discuss the procedure of appeal from decisions A:

RTC to the CAunder Rule 41? Brief Memorandu
m
Ordinary Certiorari, prohibition, mandamus, quo
A:
appeals warranto and habeas corpus cases
Appeal the decision of the RTC by filing notice of Filed within
Filed within 30 days
appeal within 15 days or 30 days where a record 45 days
on appeal is required from receipt of judgment Shorter, briefer, only one issue
Contents
involved – No subject index or
specified by
assignment of errors, just facts and law
rules
Copies of the notice, and record on appeal when applicable
required, shall be served on the adverse party.
88 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
CIVIL PROCEDURE
Q: What are the contents of appellant’s brief? alphabetically arranged, textbooks and
statutes cited with references to the
A: The appellant’s brief shall contain, in the order pages where they are cited;
herein indicated, the following: 2. Under the heading "Statement of Facts,"
the appellee shall state that he accepts
1. A subject index of the matter in the brief the statement of facts in the appellant’s
with a digest of the arguments and page brief, or under the heading "Counter-
references, and a table of cases Statement of Facts," he shall point out
alphabetically arranged, textbooks and such insufficiencies or inaccuracies as he
statutes cited with references to the believes exist in the appellant’s statement
pages where they are cited; of facts with references to the pages of
2. An assignment of errors intended to be the record in support thereof, but without
urged, which errors shall be separately, repetition of matters in the appellant’s
distinctly and concisely stated without statement of facts; and
repetition and numbered consecutively; 3. Under the heading "Argument," the
3. Under the heading "Statement of the appellee shall set forth his arguments in
Case," a clear and concise statement of the case on each assignment of error with
the nature of the action, a summary of page references to the record. The
the proceedings, the appealed rulings and authorities relied on shall be cited by the
orders of the court, the nature of the page of the report at which the case
judgment and any other matters begins and the page of the report on
necessary to an understanding of the which the citation is found (Sec. 14).
nature of the controversy, with page
references to the record; Q: What is the purpose of an appellant’s /
4. Under the heading "Statement of Facts," appellee’s brief?
a clear and concise statement in a
narrative form of the facts admitted by A: To present to the court in a concise form the
both parties and of those in controversy, points and question in controversy, and by fair
together with the substance of the proof argument on the facts and law of the case, to assist
relating thereto in sufficient detail to the court in arriving at a just and proper conclusion/
make it clearly intelligible, with page decision (De Liano v. CA (2006)).
references to the record;
5. A clear and concise statement of the Q: What is meant by Residual Jurisdiction of the
issues of fact or law to be submitted to court?
the court for its judgment;
6. Under the heading "Argument," the A: The term refers to the authority of the trial court
appellant’s arguments on each to issue orders for the protection and preservation
assignment of error with page references of the rights of the parties.
to the record. The authorities relied upon
shall be cited by the page of the report at The concept of residual jurisdiction is available at a
which the case begins and the page of the stage in which the court is normally deemed to
report on which the citation is found; have lost jurisdiction over the case or the subject
7. Under the heading "Relief," a matter involved in the appeal. There is no residual
specification of the order or judgment jurisdiction to speak of where no appeal or petition
which the appellant seeks; and has even been filed (Fernandez v. CA, 458 SCRA
8. In cases not brought up by record on 454).
appeal, the appellant’s brief shall contain,
as an appendix, a copy of the judgment or Q: What are the Residual Jurisdiction/Powers
final order appealed from (Sec. 13, Rule exercised by the trial court?
44).
A:
Q: What are the contents of the appellee’s brief? 1. Issue orders for the protection and
preservation of the rights of the parties
A: The appellee’s brief shall contain, in the order which do not involve any matter litigated
herein indicated, the following: by the appeal.
2. Approve compromise agreements by
1. A subject index of the matter in the brief parties after judgment has been
with a digest of the arguments and page rendered, (there is no rule that forbids
references, and a table of cases
litigants to settle amicably even if there is 4. Must be accompanied by clearly

a judgment already) legible duplicate originals or true
3. Permit appeals of indigent litigants. copies of the judgments or final
4. Order execution pending appeal in orders of both lower courts, certified
accordance with sec. 2, rule 39.
correct by the clerk of court of the
5. Allow withdrawal of appeal.
Regional Trial Court, the requisite
Note: Provided these are done prior to the number of plain copies thereof and of
transmittal of the original record or the the pleadings and other material
record on appeal even if the appeals have portions of the record as would
already been perfected or despite the support the allegations of the
approval of the record on appeal (Section 9,
petition.
Rule 41).
5. There must be a certification against
RULE 42: PETITION FOR REVIEW FROM THE RTC TO forum shopping (Sec. 2, Rule 42).
THE CA
Q: What is the effect of failure to comply with the
Q: When does Rule 42 apply? requirements?
A: Rule 42 applies to an appeal from the judgment A:The failure of the petitioner to comply with
or final order of the RTC to the CA in cases decided any of the foregoing requirements regarding
by the former in the exercise of its appellate the payment of the docket and other lawful
jurisdiction. fees, the deposit for costs, proof of service of
Q: The RTC affirmed the appealed decision of the the petition, and the contents of and the
MTC. You are the counsel of the defeated party documents which should accompany the
and he tells you to appeal the RTC's decision. petition shall be sufficient ground for the
1. What mode of appeal will you adopt? dismissal thereof (Sec. 3, Rule 45).
2. Within what time and in what court
should you file your appeal? Q: Is a petition for review a matter of right?
A: A: It is not a matter of right but discretionary on the

1. The mode of appeal is by petition for CA. It may only be given due course if it shows on
review under Rule 42 of the Rules of its face that the lower court has committed an error
Court. of fact and/or law that will warrant a reversal or
2. The period of appeal is within 15 days modification of the decision or judgment sought to
from notice of the decision subject of the be reviewed or dismiss the petition if it finds that it
appeal or of the denial of a motion for is patently without merit, or prosecuted manifestly
new trial or reconsideration filed in due for delay, or the questions raised therein are too
time to the CA. (1998 Bar Question) unsubstantial to require consideration. (Sec. 42)
Q: What are the contents of the petition for Q: What are the contents of comment to the
review? petition?
A: A:
1. State the full names of the parties to 1. State whether or not he accepts the
statement of matters involved in the
the case, without impleading the
petition;
lower courts or judges thereof either 2. Point out the insufficiencies or
as petitioners or respondents; inaccuracies in petitioner’s statement of
2. Indicate the specific material dates facts and issues; and
showing that it was filed on time; 3. State the reasons why the petition should
3. Set forth concisely a statement of the be denied or dismissed. (Sec. 5, Rule 42)
matters involved, the issues raised,
the specification of errors of fact or Q: Is the doctrine of residual jurisdiction applicable
law, or both, allegedly committed by to Appeals under Rule 42?
the Regional Trial Court, and the A: Yes, provided that such residual jurisdiction/
reasons or arguments relied upon for power is exercised before the CA gives due course
the allowance of the appeal; to the petition (Section 8, Rule 42).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What is the effect of an appeal to the judgment 2. Failure to file the notice of appeal or the
or final order? record on appeal within the period
prescribed by the Rules;
A: The appeal, as a rule, shall stay the judgment or 3. Failure of the appellant to pay the docket
final order; unless the CA, the law or the rules shall and other lawful fees as provided in
provide otherwise. Section 5 Rule 40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or
Note: Civil cases decided under the Rules on Summary additions in the approved record on
Procedure shall not be stayed (Section 8b, Rule 42). appeal as provided in Sec.4 of Rule 44
5. Failure of the appellant to serve and file
Q: Give some instances where the CA may act as a the required number of copies of his brief
trial court. or memorandum within the time
provided by the Rules;
A:
6. Absence of specific assignment of errors
1. In annulment of judgment under Secs. 5
in the appellant’s brief, or of page
and 6, Rule 47. Should the CA find prima
references to the record as required in
facie merit in the petition, the same shall
Sec.13, paragraphs (a), (c), (d) and (f) of
be given due course and summons shall
Rule 44;
be served on the respondent, after which
7. Failure of the appellant to take the
trial will follow, where the procedure in
necessary steps for the correction or
ordinary civil cases shall be observed.
completion of the record within the time
2. When a motion for new trial is granted by
limited by the court in its order;
the CA, the procedure in the new trial
8. Failure of the appellant to appear at the
shall be the same as that granted by a RTC
preliminary conference under Rule 48 or
(Sec. 4, Rule 53).
to comply with orders, circulars, or
3. A petition for habeas corpus shall be set
directives of the court without justifiable
for hearing (Sec. 12, Rule 102).
cause; and
4. In petition for writs of amparo and habeas
9. The fact that the order or judgment
data, a hearing can be conducted.
appealed from is not appealable (En Banc
5. Under Sec. 12, Rule 124 of the Rules of
Resolution, February 17, 1998)
Criminal Procedure, the CA has the power
to try cases and conduct hearings, receive Note: The grounds are discretionary upon the
evidence and perform any and all acts appellate court. The very wording of the rule uses the
necessary to resolve factual issues which word “may” instead of “shall”. This indicates that it is
fall within its original and appellate only directory and not mandatory. Sound discretion
jurisdiction. must be exercised in consonance with the tenets of
6. The CA can grant a new trial based on the justice and fair play, keeping in mind the
ground of newly-discovered evidence circumstances obtaining in each case (Mercury Drug
(Sec. 14, Rule 124). Corporation vs. De Leon, G.R. No. 165622, October 17,
7. The CA under Sec. 6, Rule 46, whenever 2008.)
necessary to resolve factual issues, may
conduct hearing thereon or delegate the RULE 45: APPEAL BY CERTIORARI TO THE SC
reception of the evidence of such issues
to any of its members or to an Q: Is the appeal under Rule 45 a matter of right?
appropriate agency or office.
8. Human Security Act. (2008 Bar Question) A: An appeal or review under Rule 45 is not a
matter of right, but of sound judicial discretion with
Q: What are the grounds for the Court of Appeals the exception of cases where the penalty of death,
to dismiss an appeal? or reclusion perpetua where the an appeal is a
matter of right leaving the reviewing court without
A: Under Sec.1 Rule 50, the CA, upon its own any discretion (People v. Flores, GR No. 170565,
motion or upon the motion of the appellee an January 31, 2006).
appeal may be dismissed on the following grounds:
Q: When does Appeal by Certiorari under Rule 45
1. Failure of the record on appeal to show apply?
on its face that the appeal was taken
within the period fixed by the Rules; A: Appeal by certiorari to the Supreme Court or
petition for review on certiorari applies in the
following cases:

1. Appeal from a judgment or final order of but only from judgments and final orders of the
the RTC in cases where only questions of court enumerated in Sec. 1 thereof. Appeals from
law are raised or are involved and the judgments and final orders of quasi-judicial
case is one decided by the said court in agencies are now required to be brought to the CA
the exercise of its original jurisdiction on a verified petition for review, under the
(Section 2c, Rule 41); requirements and conditions in Rule 43 which was
2. Appeal from the judgment, final order or precisely formulated and adopted to provide for a
resolutions of the Court of Appeals where uniform rule of appellate procedure for quasi-
the petition shall raise only questions of judicial agencies. (Fabian v. Desierto, G.R. No.
law (Section 1, Rule 45); 129742, Sept. 16, 1998)
3. Appeal from the judgment, final order or
resolutions of the Sandiganbayan where Q: Is the mode of appeal prescribed under Rule 45
the petition shall raise only questions of applicable to criminal cases?
law (Section 1, Rule 45);
4. Appeals from the decision or ruling of the A: Yes. Except in criminal cases where the penalty
Court of Tax Appeals en banc (Section 11, imposed is death, reclusion perpetua or life
RA 9282; Section 1, Rule 45 as amended imprisonment (Section 9, Rule 45).
by AM No, 07-7-12-SC);
5. Appeals from a judgment or final order in Q: Can a case decided by the RTC in the exercise of
a petition for writ of amparo to the its appellate jurisdiction be appealed by way of a
Supreme Court which may raise questions petition for review on certiorari under Rule 45?
of fact, questions of law or of both fact
and law (AM No. 08-1-16-SC, Rule on the A: No, where a case is decided by the RTC in the
Writ of Amparo (Section19) October 24, exercise of its appellate jurisdiction, regardless of
2007); whether the appellant raises questions of fact, of
6. Appeal from judgment or final order in a law or mixed questions of fact and law, the appeal
petition for the writ of Habeas Data. The shall be brought to the CA by filing a petition for
appeal may raise questions of fact or law review under Rule 42 (Quezon City v. ABS-CBN
or both (AM No. 08-1-16-SC, Rule on the Broadcasting Corporation, GR No. 166408 October
Writ of Habeas Data (Section 19) February 6, 2008).
2, 2008).
Q: Discuss the procedure for filing an appeal by
Q: When is there a question of law? How does it
certiorari.
differ from a question of fact?
A: There is a question of law when the doubt or A:

difference arises as to what the law is on a certain RTC, Sandiganbayan or RTC renders decision.
set of facts.
A question of fact on the other hand is when the Aggrieved party files a petition for review on
doubt or difference arises as to the truth or certiorari within 15 days from notice of final
falsehood of the facts alleged. judgment or order of lower court or notice of denial
of motion for reconsideration or new trial.
Q: May a petition for review on certiorari include
prayer for the grant of provisional remedies?
Petitioner serves copies on adverse parties and the
A: The petition for review on certiorari may include lower court and pays the corresponding docket fees.
an application for a writ of preliminary injunction or
other provisional remedies. The petitioner may also
seek the same provisional remedies by verified SC may either dismiss the petition, or require the
motion filed in the same action or proceeding at appellee to comment.
any time during its pendency (Sec. 1, Rule 45 as
amended by A.M. No. 07-7-12-SC). If given due course, parties may submit memoranda.
Q: Does Rule 45 include appeals from quasi-

judicial bodies? SC may affirm, reverse, or modify judgment of the
lower court.
A: No. Under the present Rule 45, appeals may be
brought through a petition for review on certiorari
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
With the SC (Section 5 (1)

Article VIII, 1987
Within 20 days from the receipt, the appellant may Constitution).
file a reply brief
Q: When may the SC, on its own initiative, deny

Note: the petition shall raise only questions of law,
the petition for review?
which must be distinctly set forth. Appeals to the SC
are made only by verified petitions for review on
A:
certiorari,
1. The appeal is without merit;
XPN: appeals from judgements of the RTC in criminal 2. Prosecuted manifestly for delay; or
cases where the penalty imposed is life imprisonment 3. That the questions raised therein are too
or reclusion perpetua (elevated by ordinary appeal), or unsubstantial to require consideration
death penalty (subject to automatic review). (sec.5, Rule 45)
Q: Distinguish Certiorari under Rule 45 and j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF
Certiorari under Rule 65. THE CA
A: Q: May a reversal of judgment benefit a party who

CERTIORARI (RULE 45) CERTIORARI (RULE 65) did not join or was not made a party to the
Mode of appeal which Special civil action; an appeal?
seeks to review final original action (Rule 65). It
judgments and orders may be directed against an A:
(Section 2, Rule 41) interlocutory order or GR: The reversal of a judgment on appeal is
matters where no appeal generally binding only on the parties in the
may be taken from (Section appealed case and does not affect or inure to
1, Rule 41) the benefit of those who did not join or were
Raises questions of law Raises questions of not made parties to the appeal.
jurisdiction
It shall be filed within It shall be filed not later XPN: Where the rights of such parties are so
15 days from notice of than 60 days from notice of interwoven and dependent on each other as to
judgment or final order judgment, order or be inseparable due to community of interests.
appealed from resolution sought to be
assailed and in case a MR Q: When may the SC review the findings of fact of
or motion for new trial is
the CA?
timely filed, whether such
motion is required or not,
A:
the 60 day period shall be
GR: CA’s findings of fact are final and conclusive
counted from the notice of
denial of said motion and cannot be reviewed on appeal to the SC.
Does not require prior Requires as a general rule,
The SC shall not entertain questions of fact
motion for a prior MR because its jurisdiction is limited to reviewing
reconsideration errors of law (Natividad v. MTRCB, GR No.
Stays the judgment Does not stay the 161422, December 13, 2007).
sought to be appealed judgment or order subject XPNs:
of the petition unless 1. The conclusion of the CA is grounded
enjoined or restrained. entirely on speculations, surmises
The parties are the The tribunal, board, officer and conjectures;
original parties with the exercising judicial or quasi- 2. The inference made is manifestly
appealing party as the judicial functions is mistaken, absurd or impossible;
petitioner and the impleaded as respondent 3. There is grave abuse of discretion;
adverse party as (Section 5 Rule 65). 4. The judgment is based on
respondent without misapprehension of facts;
impleading the lower 5. The findings of facts are conflicting;
court or its judge 6. The CA in making its findings went
(Section 4a, Rule 45).
beyond the issues of the case and
Filed with the SC Filed with the RTC (Section the same is contrary to the
(Section 1, Rule 45). 21, BP 129);
admissions of both appellant and
With the CA (Section 9, BP
appellee;
129);

7. The findings are contrary to those of A: A judgment, resolution or final order of the
the trial court; COMELEC and the COA may be brought by the
8. The findings of facts are conclusions aggrieved party to the SC on certiorari under Rule
without citation of specific evidence 65 by filing the petition within 30 days from notice
on which they are based; (Sec. 2, Rule 64).
9. The facts set forth in the petition as
well as in the petitioner’s main and On the other hand, judgments, final orders or
reply briefs are not disputed by the resolutions of the CSC may be taken to the CA
respondents; under Rule 43 of the Rules of Court (Sec. 1, 3 Rule
10. The findings of fact of the CA are 43).
premised on the supposed absence
of evidence and contradicted by the o. REVIEW OF FINAL JUDGMENTS OR FINAL
evidence on record; or ORDERS OF THE OMBUDSMAN
11. Those filed under Writs of amparo,
habeas data, or kalikasan. Q: Does the CA have jurisdiction to review the
decisions in criminal and administrative cases of
k. APPEAL FROM JUDGMENTS OR FINAL ORDERS the Ombudsman?
OF THE CTA
A: It depends
Q: Where should the appeal from the decision of
the CTA en banc be taken? 1. In administrative disciplinary cases, the
rulings of the Office of the Ombudsman
A: A party adversely affected by a decision or ruling are appealable to the CA under Rule 43.
of the CTA en banc may file with the SC a verified
Note: The provision of Section 27 of RA 6770 (The
petition for review on certiorari pursuant to Rule 45
Ombudsman Act of 1987) insofar as it allowed a
(Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC).
direct appeal to the Supreme Court was declared
unconstitutional as it increased the appellate
Q: Melissa filed with the BIR a complaint for
jurisdiction of the SC without the advice and
refund of taxes paid, but it was not acted upon.
concurrence of the Court (Fabian v. Deseirto, 356
So, she filed a similar complaint with the CTA SCRA 787).
raffled to one of its divisions. Melissa's complaint
was dismissed. Thus, she filed with the CA a 2. In criminal cases, the ruling of the
petition for certiorari under Rule 65. Does the CA Ombudsman shall be elevated to the SC
have jurisdiction over Melissa's petition? by way of Rule 65. Where the findings of
the ombudsman on the existence of
A: No. A decision of a division of the CTA is probable cause in criminal cases is tainted
appealable within 15 days to the CTA en banc. On with grave abuse of discretion amounting
the other hand, a party adversely affected by a to lack or excess of jurisdiction, the
decision or ruling of the CTA en banc may file with aggrieved party may file a petition for
the SC a verified petition for review on certiorari certiorari with the SC under Rule 65
pursuant to Rule 45 of the Rules of Court. (Enemecio vs. Office of the Ombudsman,
419 SCRA 82)
9282 expanded the jurisdiction of the
CTA and elevated the same to the level Q: What is the remedy of a party aggrieved by the
of a collegiate court equivalent to the decision of the Sandiganbayan?
rank of the CA. Hence, the CA no longer
has jurisdiction to review the decisions A: Decisions and final orders of the Sandiganbayan
of the CTA en banc. (2006 Bar shall be appealable to the SC by way of certiorari
l. REVIEW OF FINAL JUDGMENTS OR FINAL
Question) under Rule 45 raising pure questions of law (Section
ORDERS OF THE COA 1, Rule 45).
m. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC p. REVIEW OF FINAL JUDGMENTS OR FINAL
n. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC
ORDERS OF THE CSC
Q: What is the remedy of a party aggrieved by the
Q: What is the remedy of a party aggrieved by the decision of the NLRC?
decision of the COMELEC, COA and CSC?
A: The remedy is to promptly move for the
reconsideration of the decision and if denied, to
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
timely file a special civil action of certiorari under A: Appeals from judgment and final orders of quasi-
Rule 65 within 60 days from notice of the decision. judicial bodies/ agencies enumerated in Rule 43 are
In observance of the doctrine of hierarchy of courts, now required to be brought to the CA under the
the petition for certiorari should be filed in the CA requirements and conditions set forth in Rule 43
(St. Martin Funeral Homes vs. NLRC, G.R. No. (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).
130866, September 16, 1998). If filed with SC it shall
be dismissed instead of referring the action to the Q: What issues may be raised on appeal?
CA (A.M. No. 99-2-01-SC).
A: The appeal under Rule 43 may raise issues
Note: Those judgments and final orders or resolutions involving questions of fact, of law or mixed
of the Employees Compensation Commission should questions of fact and law (Section 3, Rule 43).
be brought to the CA through a petition for review
under Rule 43. Q: What are the contents of comment to the
petition and when must it be filed?
q. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF QUASI- JUDICIAL AGENCIES A: The comment shall be filed within 10 days from
notice in 7 legible copies and accompanied by
Q: What is a quasi-judicial agency? clearly legible certified true copies of such material
portions of the record referred to therein together
A: An organ of the government other than a court with other supporting papers.
and other than a legislature, which affects the
rights of private parties through either adjudication The comment shall:
or rule-making. 1. Point out the insufficiencies or
inaccuracies in petitioner’s statement of
Q: What are the agencies included under Rule 43? facts and issues; and
2. State the reasons why the petition should
A: be denied or dismissed. (Sec. 9 Rule 43)
1. Civil Service Commission;
2. Central Board of Assessment Appeals; Note: The appellate court may also require the filing of
3. Securities and Exchange Commission; a reply, but further submissions are governed by the
4. Office of the President; resolution in AM No. 99-2-04.
5. Land Registration Authority;
6. Social Security Commission; Q; What is the effect of the appeal on the award,
7. Civil Aeronautics Board; judgment, final order or resolution?
8. Bureau of Patents, Trademarks and
Technology Transfer; A: The appeal shall not stay the award, judgment,
9. National Electrification Administration; final order or resolution sought to be reviewed
10. Energy Regulatory Board; unless the CA shall direct otherwise upon such
11. National Telecommunications terms as it may deem such (Section 12, Rule 43).
Commission;
12. Department of Agrarian Reform under Q: What is the remedy of a party aggrieved by the
R.A. 6657; decision of a Quasi-judicial Agency?
13. GSIS;
14. Employee Compensation Commission; A: Within 15 days from:
15. Agricultural Inventions Board; 1. Notice of the award, judgment, final order
16. Insurance Commission; or resolution; or
17. Philippine Atomic Energy Commission; 2. Date of publication, if publication is
18. Board of Investments; required by law for its effectivity; or
19. Construction Industry Arbitration 3. Denial of petitioner’s MNT or MR, the
Commission; and aggrieved party must file a verified
20. Voluntary Arbitrators authorized by law petition for review under rule 43 in 7
(Sec. 1 Rule 43). legible copies with the CA. Furnish a copy
to the lower court and adverse party. The
Note: The office of the Prosecutor is NOT a quasi- appeal may involve questions of fact, of
judicial body and its action approving the filing of law, or mixed questions of fact and law.
information is not appealable to the CA under Rule 43.
Q: Is extension of time to file petition for review
Q: Where should the judgments and final orders of allowed?
quasi- judicial bodies be appealed?

A: Yes. Upon proper motion and the payment of the (Quelnan v. VHF Philippines, G.R. No. 138500, Sept.
full amount of the docket fee before the expiration 16, 2005).
of the reglementary period, the CA may grant
additional period of 15 days only within which to Q: Purcon was hired as a seaman, he was
file a petition for review. No further extension shall repatriated due to his ailment. After undergoing
be granted except for the most compelling reason some medications, he went back to work but was
and in no case to exceed 15 days. (Sec. 4, Rule 43) not re-hired due to lack of vacany. Purcon then
filed a case for reimbursment of medical expenses
Q: Distinguish appeal from RTC as appellate court with the NLRC. The LA dismissed the complaint for
under Rule 42 and appeal from quasi-judicial lack of merit. A memorandum of appeal with the
agencies under Rule 43. NLRC was filed but was dismissed. Petitioner filed
petition for review on certiorari under Rule 65
A: with the CA which was also denied, the MR was
RTC as likewise denied. This prompted the petitioner to
Appellate Appeal from Quasi-judicial agencies file with the SC a petition for review on certiorari
Court (Rule (Rule 43) under Rule 45 which was denied. As a last
42) recourse, petitioner filed a petition for relief from
GR: Decision is immediately judgment. Whether or not the petitioner can avail
Decision is executory. It is not stayed by an of a petition for relief from judgment after the
stayed by an appeal denial of the SC of his petition for review?
appeal. XPN: CA shall direct otherwise upon
such terms as it may deem just A: No. A petition for relief from judgment is not an
Factual available remedy in the Court of Appeals and
Factual findings are conclusive upon Supreme Court. It should be filed with the same
findings not
CA if supported by substantial
conclusive to court which rendered the decision. While Rule 38
evidence.
CA. uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts.
Q: Is Rule 43 applicable where the resolution was If a petition for relief from judgment is not among
issued by a quasi-judicial agency with grave abuse the remedies available in the CA, with more reason
of discretion? that this remedy cannot be availed of in the
Supreme Court. This Court entertains only
A: No, Rule 43 is not applicable where the petition questions of law. A petition for relief raises
contains an allegation that the challenged questions of facts on fraud, accident, mistake, or
resolution is patently illegal and was issued with excusable negligence, which are beyond the
grave abuse of discretion and beyond respondent’s concerns of this Court (Purcon v. MRM Philippines
jurisdiction. The appropriate remedy is Rule 65 on Inc., GR No. 182718, September 26, 2008).
certiorari.
Q: Distinguish motion for new
Q: When is the withdrawal of an appeal a matter trial/reconsideration from petition for relief from
of right? judgment.
A: As a matter of right, appellant may withdraw his A:

appeal at any time before the filing of the Motion for New Trial / Petition for Relief from
appellee’s brief. Thereafter, it is in the discretion of Reconsideration Judgment
the court. Available before judgment
Available after judgment has
becomes final and
become final and executory.
AFTER FINALITY OF JUDGMENT executory.
Applies to judgments, final
orders and other
3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER
Applies to judgments or proceedings:
PROCEEDINGS
final orders only. e.g. land registration; special
proceedings; order of
Q: What is the nature of petition for relief from
execution.
judgment? What is its purpose?
Grounds for motion for
new trial:
A: It is a legal remedy whereby a party seeks to set Grounds:
1. Fraud, accident,
aside a judgment rendered against him by a court Fraud, accident, mistake or
mistake or excusable
whenever he was unjustly deprived of a hearing or excusable negligence.
negligence;
was prevented from taking an appeal because of 2. Newly discovered
fraud, accident, mistake or excusable neglect
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
evidence Note: The bond is conditioned that if the petition is

dismissed or the petitioner fails on the trial of the case
Grounds for motion for upon its merits, he will pay the adverse party all
reconsideration: the damages and costs that may be awarded to him by
damages awarded are reason of issuance of such injunction or the other
excessive; that the proceedings following the petition.
evidence is insufficient to
justify the decision or final a. GROUNDS FOR AVAILING OF THE REMEDY
order, or that the decision
or final order is contrary to Q: What are the grounds for petition for relief?
law (Sec. 1).
Filed within 60 days from A:
knowledge of the judgment 1. A judgment or final order is entered,
Filed within the time to
and within 6 months from or any other proceeding is thereafter
appeal.
entry of judgment(1990 Bar
Question)
taken against a party in any court
The order of denial is not The order of denial is not through fraud, accident, mistake, or
appealable. The remedy is appealable; the remedy is excusable negligence (Sec. 1, Rule
to appeal from judgment appropriate special civil 38); or
or final order. action under Rule 65 2. The petitioner has been prevented from
Legal remedy. Equitable remedy. taking an appeal by fraud, accident,
Motion need not be mistake, or excusable negligence (Sec. 2,
Petition must be verified.
verified. Rule 38).
Note: A party who has filed a timely motion for new Q: Where should the petition be filed?
trial cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one A:
another. The remedy is to appeal from the judgment
1. If the petition is filed because of the first
(Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).
ground, the petition shall be filed in such
court and in the same case (not in
Q: Who may file the petition for relief from
another or higher court). The petition
judgment?
shall pray that the judgment, order or
A: A petition for relief from judgment together with
proceeding be set aside (Sec. 1, Rule 38).
a motion for new trial and a motion for
2. If the petition is filed under the second
reconsideration are remedies available only to
ground, the petition shall likewise be filed
parties in the proceedings where the assailed
in such court and in the same case (not in
judgment is rendered. A person who was never a
another or higher court) but the prayer
party to the case, or even summoned to appear
this time is that the appeal be given due
therein, cannot avail of a petition for relief from
course (Sec. 2, Rule 38)
judgment. (Alaban v. CA, 470 SCRA 697)
b. TIME TO FILE PETITION
Q: What are the duties of the court after an
answer to the petition has been filed
Q: When should the petition for relief be filed?
A: After the hearing and the court finds the
A:
allegations therein not true, it shall dismiss the
1. Within sixty (60) days after the petitioner
petition.
learns of the judgment, final order, or
other proceeding to be set aside; and
If the allegations are true, the court shall set aside
2. Not more than six (6) months from entry
the judgment, final order or proceeding complained
of. (Sec. 6, Rule 38) of such judgment, order or other
proceeding (Sec. 3).
Q: Is the remedy of preliminary injunction
Note: These two periods must concur and are also not
available pending the resolution of the petition for
extendible and never interrupted (Riano, Civil
relief?
Procedure: A Restatement for the Bar, p. 479, 2009
ed.).
A: Yes. The court may grant such preliminary
injunction as may be necessary for the preservation Q: May a defendant who has been declared in
of the rights of the parties upon the filing of a bond default right away avail of a petition for relief from
(Sec. 5, Rule 38). the judgment subsequently rendered in the case?
A: No. The remedy of petition for relief from remedies are no longer available through no fault of
judgment is available only when the judgment or the petitioner (Sec. 1, Rule 47).
order in question is already final and executory, i.e.,
no longer appealable. As an extraordinary remedy, Q: Who may avail this remedy?
it may be availed only in exceptional cases where
no other remedy is available. (2007 Bar Question) A: A person need not be a party to the judgment
sought to be annulled. What is essential is that he
c. CONTENTS OF THE PETITION can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he
Q: What is the form and contents of the petition would be adversely affected thereby (Islamic
for relief? Da’wah Council v. CA, G.R. No. 80892, Sept. 29,
1989).
A:
1. The petition for relief must be verified; The extraordinary action to annul a final judgment
2. It must be supported by affidavit showing is restricted to the grounds provided by law to
the FAME relied upon; and prevent it from being used by a losing party to
3. The affidavit of merit accompanying the make a mockery of a duly promulgated decision
petition must also show facts constituting that has long become final and executory.
the petitioner’s good or substantial cause
of action or defense. Q: Where should the petition be filed?
Note: An affidavit of merit serves as the jurisdictional A:

basis for the court to entertain a petition for relief. Judgments of RTC Judgments of MTC
However, it is not a fatal defect to warrant a denial of Filed with the CA Filed with the RTC
the petition, so long as the facts required to be set out Basis – It has exclusive
also appear in the verified petition. Basis – RTC as a court of
original jurisdiction over
general jurisdiction
said action under Sec. 9
Q: When shall the court issue an order to answer? under Sec. 19 (6), BP 129
(2), BP 129
CA may dismiss the case
A:When the petition is sufficient in form and RTC has no such
outright; it has the
discretion. It is required
substance to justify relief, the court in which it is discretion on whether or
to consider it as an
filed, shall issue an order requiring the adverse not to entertain the
ordinary civil action.
parties to answer the same within fifteen (15) days petition.
from the receipt thereof (Sec. 4, Rule 38).
a. GROUNDS FOR ANNULMENT
4. ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS Q: What are the grounds for the annulment of
judgment of the RTC?
Q: What is annulment of judgment?
A:
A: It is a remedy in law independent of the case 1. Extrinsic fraud or collateral fraud – not a
where the judgment sought to be annulled was valid ground if it was availed of, or could
rendered. The purpose of such action is to have the have been availed of in a motion for new
final and executor judgment set aside so that there trial or petition for relief.
will be renewal of litigation. 2. Lack of jurisdiction over the subject
matter and over the person – May be
Note: A co-equal court cannot annul the final barred by estoppels by laches, which is
judgment of a similar court. CA has exclusive that failure to do something which should
jurisdiction over actions for annulment of judgments of be done or to claim or enforce a right at a
RTC. An action to annul a judgment or final order of proper time or a neglect to do something
MTC shall be filed in the RTC having jurisdiction in the which one should do or to seek or enforce
former and it shall be treated as an ordinary civil a right at a proper time. (1998 Bar
action. (Secs. 1 &10, Rule 47). Question)
3. Denial of due process (Alaban v. CA, G.R.
Q: When may it be availed of?
No. 156021, Sept. 23, 2005).
A: The remedy of annulment of judgment may be
Q: What is extrinsic fraud?
availed of when the ordinary remedies of new trial,
appeal, petition for relief or other appropriate
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: Fraud is regarded as extrinsic where it prevents a amount of the dishonored check. The trial court
party from having a trial or from preventing a party ruled in favor of Jenny. Allied remitted to the
from having a trial or from presenting his entire sheriff a manager’s check amounting to P800,000
case to the court, or where it operates upon drawn on Rhea’s account which was duly received
matters pertaining not to the judgment itself but to by Jenny. Rhea filed a petition in the CA seeking to
the manner in which it is procured (Alaban v. CA, annul and set aside the trial court’s decision on the
GR no. 156021, September 23, 2005). ground of extrinsic fraud. The appellate court
granted Rhea’s petition. Is the CA correct?
Q: What is meant by lack of jurisdiction?
A: Yes. Annulment of judgment is a remedy in law
A: Lack of jurisdiction as a ground for annulment of independent of the case where the judgment
judgment refers to either lack of jurisdiction over sought to be annulled is promulgated. It can be
the person of the defending party or over the filed by one who was not a party to the case in
subject matter of the claim. which the assailed judgment was rendered. Here,
Rhea may avail of the remedy of annulment of
b. PERIOD TO FILE ACTION judgment under Rule 47. The ordinary remedies of
new trial, appeal and petition for relief were not
Q: What is the period to file an action? available to her for the simple reason that she was
not made a party to the suit against Allied
A: (Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
1. If based on extrinsic fraud, the action 5. COLLATERAL ATTACK OF JUDGMENTS
must be filed within four (4) years from its
discovery. Q: What is a collateral attack on judgment?
2. If based on lack of jurisdiction, the action
must be brought before the action is A: It is made in another action to obtain a different
barred by laches or estoppel (Sec. 2, Rule relief; an attack on the judgment is made as an
47). incident in said action. This is proper only when the
judgment, on its face is null and void, as where it is
c. EFFECTS OF JUDGMENTS OF ANNULMENT patent that the court which rendered such
judgment has no jurisdiction (Co vs. Court of
Q: What is the effect of a judgment of annulment? Appeals, 196 SCRA 705).
A: If based on lack of jurisdiction- It shall have the Q. EXECUTION, SATISFACTION AND EFFECT OF
effect of setting aside the questioned judgment or JUDGMENTS
final order and rendering the same null and void
but the judgment of annulment is without prejudice Q: What is execution?
to the refilling of the original action in the proper
court (Sec.7, Rule 47) A: It is a remedy provided by law for the
enforcement or satisfaction of a final judgment.
Note: The prescriptive period for the refilling of the
action shall be deemed suspended from the filing of 1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT
such original action until the finality of the judgment of FOR PURPOSES OF APPEAL; FOR PURPOSES OF
annulment. But shall not however, be suspended EXECUTION
where the extrinsic fraud is attributable to the plaintiff
in the original action (Sec. 8, Rule 47).
Q: What is meant by final judgment?
If based on extrinsic fraud- The court, upon motion,
A:
may order the trial court to try the case as if a
1. The term “final” when used to describe a
motion for new trial was granted (Sec. 9, Rule 47).
judgment may be used in two senses. In
the first, it refers to a judgment that
Q: Rhea took out a loan of P1 Million from Jenny.
disposes of a case in a manner that leaves
To secure the loan, Rhea issued Jenny an Allied
nothing more to be done by the court in
check in the amount of P750,000 which, however,
respect thereto. In this sense, a final
was dishonored due to a material alteration. Rhea
judgment is distinguished from an
then remitted P600,000 to Jenny as partial
interlocutory order which does not finally
payment of the loan with the balance payable at a
terminate or dispose of the case (Rudecon
later date. Prior to the due date for the payment
Management Corp. vs. Singson, 454 SCRA
of the balance, Jenny filed an action for a sum of
612).
money and damages against Allied for the full

2. In another sense, the word “final” may 1. The judgment has become final and
refer to a judgment that is no longer executory(Section 1, Rule 39);
appealable and is already capable of
being executed because the period for Note: Once a judgment becomes final and
appeal has elapsed without a party having executory, the prevailing party can have it
perfected an appeal or if there has been executed as a matter of right, and the
appeal, it has already been resolved by a issuance of a writ of execution becomes the
highest possible tribunal (PCGG vs. ministerial duty of the court. Once a
Sandiganbayan, 455 SCRA 526). In this decision becomes final and executory, it is
sense, the judgment is commonly the ministerial duty of the presiding judge to
referred to as one that is final and issue a writ of execution except in certain
executory. cases, as when subsequent events would
render execution of judgment unjust
Q: Distinguish final judgments for purposes of (Mangahas vs. Paredes, GR 157866, Feb. 14,
appeal from final judgments for purposes of 2007).
execution.
2. Judgment debtor has renounced or
A: waived his right to appeal;
Final Judgments for Final Judgments for 3. The period for appeal has lapsed without
purposes of appeal purposes of execution an appeal having been filed;
Dispose of, adjudicate, or Becomes final and 4. Having been filed, the appeal has been
determine the right of theexecutory by operation resolved and the records of the case have
parties. of law. been returned to the court of origin
After lapse of period to (Florendo v. Paramount Insurance Corp,
appeal and no appeal now MAA General Insurance Inc., GR No.
Still subject to appeal was perfected, no 167976, January 20, 2010).
further action can be
had. Q: May the court which rendered the judgment
Execution of judgment not Execution of judgment a refuse to issue writ of execution?
a matter of right. matter of right.
A:
2. WHEN EXECUTION SHALL ISSUE GR: Execution of judgment is a matter of right
on the part of the winning party. The court
a. AS A MATTER OF RIGHT cannot refuse execution.
Q: When shall execution be issued? XPN:

1. When the judgment has already been
A: Execution is a matter of right upon the expiration
executed by the voluntary compliance
of the period to appeal and no appeal was
thereof by the parties (Cunanan v. CA,
perfected from a judgment or order that disposes
G.R. No. L-25511, Sept. 28, 1968);
of the action or proceeding (Sec. 1, Rule 39) Note: This is a situation where there is a
satisfaction of the judgment without need
Q: How is an execution issued? for its execution by the court.
A: Execution shall issue upon motion. Therefore, 2. When the judgment has been novated by
there is a need to file a motion for the issuance of a the parties (Dormitorio v. Fernandez, G.R.
writ of execution. Even in judgments which are No. L-25897, Aug. 21, 1976);
immediately executory, there must be a motion to Note: The parties, despite the existence of a
that effect and a hearing called for that purpose. judgment, are at liberty to novate a
Also, under SC circular no. 24-94, a motion for the judgment by entering into a compromise. A
issuance of a writ of execution must contain a compromise is a contract recognized by
notice to the adverse party (Lou vs. Siapno, 335 substantive law (Art. 2028, NCC).
SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1,
304 SCRA 440) 3. When a petition for relief is filed and a
preliminary injunction is granted in
Q: When is an execution a matter of right? accordance with Sec. 5, Rule 38;
4. When the judgment sought to be
A: Execution will issue as a matter of right when: executed is conditional (Co Unjieng v.
HijosMabalacat Sugar Co., G.R. No. L-
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
32644, Oct. 4, 1930) or is incomplete (Del 1. There must be a motion filed by the
Rosario v. Villegas, G.R. No. L-25726, Nov. prevailing party with notice to the
22, 1926); adverse party;
5. When facts and circumstances transpire 2. There must be a hearing of the motion for
which would render execution inequitable discretionary execution;
or unjust (Bacharach Corp. v. CA, G.R. No. 3. There must be good reasons to justify the
128349, Sept. 25, 1998); discretionary execution; and
6. When execution is sought more than 5 4. The good reasons must be stated in a
years from its entry without the judgment special order (Sec. 2, Rule 39)
having been revived;
7. When execution is sought against Q: Where should you file an application for
property exempt from execution under discretionary execution?
Sec. 13, Rule 39; or When the refusal to
execute the judgment. A:
1. The motion for discretionary execution
b. AS A MATTER OF DISCRETION shall be filed with the trial court:
a. While it has jurisdiction over the case and
Q: When is execution discretionary? b. While it is in possession of either the
original record or the record on appeal; or
A:
1. Execution pending appeal; and 2. After the trial court has lost jurisdiction,
2. While trial court has jurisdiction over the the motion for execution pending appeal
case and is in possession of either the may be filed in the appellate court
original record or record on appeal; (Bangkok Republic Company Limited vs.
3. When trial court has lost jurisdiction but Lee, G.R. No. 159806, January 20, 2006).
has not transmitted records of the case to
the appellate court; and Q: What is the remedy where the judgment
4. When trial court has lost jurisdiction and subject to discretionary execution is reversed or
has transmitted records (motion for annulled?
execution pending appeal with appellate
court). A: The trial court may, on motion, issue such orders
5. Execution of several, separate or partial of restitution or reparation of damages as equity
judgment(Florendo v. Paramount and justice may warrant under the circumstances
Insurance Corp, now MAA General (Sec. 5, Rule 39).
Insurance Inc., GR No. 167976, January
20, 2010).. Q: In a complaint filed by Granger for rescission
and damages, the RTC ruled against JP Latex,
Note: As such exception, the court’s discretion in defendant. On Aug. 5, 2006, Granger moved for
allowing it must be strictly construed and firmly the execution pending appeal of the decision.
grounded on the existence of good reasons. Upon receipt of the decision, JP Latex filed a
“Good reasons,” has been held, to consist of motion for reconsideration (MR). The RTC granted
compelling circumstances that justify immediate the execution “pending appeal” without acting on
execution lest the judgment becomes illusory. the motion for reconsideration. Is the order of the
Circumstances must be superior, outweighing the trial court correct?
injury or damages that might result should the
losing party secure a reversal of the judgment. A: No. Discretionary execution is allowed only when
Lesser reasons would make of execution pending the period to appeal has commenced but before
appeal, instead of an instrument of solicitude and the trial court loses jurisdiction over the case. The
justice, a tool of oppression and inequity period to appeal where a motion for
(Florendov. ParamountInsurance Corp. reconsideration has been filed commences only
(nowrenamed MAA General Insurance Inc.), G.R.
upon the receipt of the order disposing of the MR.
No. 167976, Jan. 20, 2010).
The pendency of a MR, therefore, prevents the
running of the period to appeal.
Q: What are the requisites for discretionary
execution? The MR filed by JP Latex had not been acted upon
by the RTC before it ruled on the motion for
A: execution “pending appeal.” The pendency of the
MR has prevented the period to appeal from even
commencing. The period within which a party may
1
move for an execution pending appeal of the RTC’s A: It may be stayed upon approval by the proper
decision has not yet started. Thus, where there is court of a sufficient supersedeas bond filed by the
pending MR, an order of execution pending appeal party against whom execution is directed,
is improper and premature. (JP Latex Technology, conditioned upon the performance of the judgment
Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. or order allowed to be executed in case it shall be
No. 177121, Mar. 16, 2009) finally sustained in whole or in part (Sec. 3 Rule 39).
Q: How may a discretionary execution be stayed?
3. HOW JUDGMENT IS EXECUTED
Q: How can a judgment be executed?
A: Judgment is executed by motion within 5 years

from date of its entry
Execution is a matter of Discretionary execution If the winning party does not

right after expiration of upon good reasons move for execution within 5
period to appeal and no stated in a special order years but before 10 years from
appeal is perfected. after due hearing. the date of entry of judgment,
the same can only be revived by
means of new action / petition.
Sheriff executes writ of execution
Losing party is made to indemnify thru:

1. Payment with interest;
2. Levy and sale of personal property;
3. Levy and sale of real property;
4. Delivery of personal and/or real property.
Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.
a. EXECUTION BY MOTION OR BY INDEPENDENT prevailing party after 5 years from the date of entry
ACTION of judgment, such motion is considered null and
void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry
Q: What are the modes of execution of judgment? vs. People, 314 SCRA 669)
A: Q: Can execution be effected by motion after five

a. Execution by motion-if the enforcement years?
of the judgment is sought within 5 years
from the date of its entry; and A:
b. Execution by independent action -if the GR:No, execution of a judgment can no longer be
five year period has elapsed and before it effected after 5 years. The remedy would be to file
is barred by statute of limitations (Sec. 6, an independent action for the revival of the
Rule 39) judgment.
Q: When is there a need to file an independent XPNs: The court in certain instances allowed
action for execution? execution of the judgment by mere motion despite
the lapse of the 5 year period. In instances where
A: There is a need for the prevailing party to file an the delay in the execution of the judgment were
independent action for the revival of the judgment through causes attributable to the judgment debtor
before the action is barred by statute of limitations or when the delay is incurred for his benefit.
when a writ of execution is issued by motion of the
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What is revival of judgment? Q: What are the defenses available in an action for
enforcement?
A: This means that from the date of the finality of
judgment, no motion was filed for the execution of A:
said judgment, thus the need for its enforcement by 1. Prescription;
action. 2. Satisfaction of claim; and
3. Counterclaims.
Q: When should the action for revival of judgment
be filed? Q: Will execution issue upon death of a party?
A: The action to revive a judgment must be filed A:

within 10 years from the date of judgment became a. Death of an obligee – execution will issue
final because an action to enforce a judgment in any case, upon application of his
prescribes in 10 years from the finality of the executor, administrator, or successor-in-
judgment. interest
b. Death of an obligor
Q: What is the nature of a revived judgment? - Death before levy:
- Action for recovery of real or
A: A revived judgment is deemed a new judgment personal property or any lien –
separate and distinct from the original judgment. execution will issue.
- Action for a sum of money –
execution will NOT issue. The judgment
Q: How do you enforce a revived judgment?
obligee should file a claim against the
estate of the judgment obligor under
A: A revived judgment may be enforced by motion Rule 86
within 5 years from the date of its entry and - Death after levy:
thereafter by action also before it is barred by the - Execution will issue against his
statute of limitations (Sec. 6, Rule 39). executor, administrator, or successor-
in-interest because the property is
Q: May the period to execute the judgment be already separated from the estate of
stayed? the deceased and is deemed in
custodia legis.
A: Yes: by agreement of the parties; by injunction;
or by taking an appeal or writ of error. b. ISSUANCE AND CONTENT OF A WRIT OF
EXECUTION
Q: What is the effect of an appeal to the execution Q: What is a writ of execution?

of the judgment?
A: It is a judicial writ issued to an officer authorizing
A: him to execute the judgment of the court.
GR: An appeal perfected in due time stays the
execution of a judgment. Q: What is the lifetime of a writ of execution?
A: The writ is enforceable within 5 years from the

XPNs: There are judgments which by express
entry of judgment as provided for in Sec. 6 of Rule
provision of law not stayed by appeal: 39.
1. Those judgments which by express Q: What are the contents of a writ of execution?
provision of the rules are immediately
executor and are not stayed by appeal A:
(Sec. 4, Rule 39); 1. The name of the court which granted the
Note: These are: judgment for injunction, motion;
receivership, accounting and support unless 2. The case number;
the court rule otherwise. 3. The dispositive portion of the judgment
or order subject of the execution; and
2. Those judgments that have become the 4. Shall require the sheriff or other proper
object of discretionary execution (Sec. 2, officer to whom it is directed to enforce
Rule 39).

3
the writ according to its terms (Sec.8, Rule a. Demand from the obligor the immediate
39) payment of the full amount stated in the
judgment including the lawful fees in
Note: The motion for execution and the writ of cash, certified check payable to the
execution must state specifically the amount of judgment obligee or any other form of
interest, costs, damages, rents, or profits due as of the payment acceptable to him.
date of issuance of the writ, aside from the principal b. If the judgment obligor cannot pay all or
obligation. part of the obligation in cash, certified
Q: Is a writ of execution subject to a motion to check or other mode of payment, the
quash? officer shall levy upon the properties of
the judgment obligor. The judgment
A: A writ of execution may be quashed on certain obligor shall have the option to choose
grounds: which property or part thereof may be
1. When the writ of execution varies the levied upon. If the judgment obligor does
judgment; not exercise the option, the officer shall
2. When there has been a change in the first levy on the personal properties, if
situation of the parties making the any, and then on the real properties if the
execution inequitable or unjust; personal properties are insufficient to
3. When execution is sought to be enforced answer for the personal judgment but the
against a property exempt from sheriff shall sell only so much of the
execution; property that is sufficient to satisfy the
4. When it appears that the controversy has judgment and lawful fees.
never been submitted to the judgment of c. The officer may levy on the debts due the
the court; judgment debtor including bank deposits,
5. When the terms of the judgment are not financial interests, royalties, commissions
clear enough and there remains room for and other personal property not capable
interpretation thereof; of manual delivery in the possession or
6. When it appears that the writ of con troll of third parties. This is called
execution has been improvidently issued; garnishment. (Sec. 9, rule 39)
7. When it appears that the writ of
execution is defective in substance, or is Q: What is levy?
issued against the wrong party, or that
the judgment debt has been paid or A: It is the act by which an officer sets apart or
otherwise satisfied or the writ is issued appropriates a part of the whole of the property of
without authority (Reburiano v. CA, 301 the judgment debtor for purposes of the execution
SCRA 342). sale.
c. EXECUTION OF JUDGMENTS FOR MONEY Q: What is garnishment?
Q: What are the 3 ways to enforce a judgment for A: It is the act of appropriation by the court when
money? the property of the debtor is in the hands of third
persons.
A:
1. Immediate payment on demand Note: The garnishee or the third person who is in the
2. Satisfaction by levy possession of the property of the judgment debtor is
- The judgment obligor exercises deemed a forced intervenor.
discretion to choose which property
to levy; if not exercised, the officer Q: Distinguish attachment from garnishment.
shall levy first on personal property,
then on real property. The sheriff A: Attachment refers to corporeal property in the
shall only sell property sufficient to possession of the judgment debtor.
satisfy the judgment and other
lawful fees. Garnishment refers to money, stocks, credits and
3. Garnishment of debts and credits. other incorporeal property which belong to the
judgment debtor but is in the possession or under
Q: What are the steps in executing a judgment for the control of a third person. (1999 Bar Question)
money?
Q: The writ of execution was returned unsatisfied.
A: The judgment obligee subsequently received
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
information that a bank holds a substantial 1. In case of conveyance, if a party fails to

deposit belonging to the judgment obligor. If the comply with the time specified, the court
bank denies holding the deposit in the name of the may direct the act to be done at the cost
judgment obligor but your client's informant is of the disobedient party.
certain that the deposit belongs to the judgment 2. In case of delivery or restitution of real
obligor under an assumed name, what is your properties, the officer shall demand the
remedy to reach the deposit? losing party to peaceably vacate the
property within 3 working days, and
A: A motion may be filed for a court order requiring restore possession to the judgment
the proper bank officer to appear in court for oblige; otherwise the officer shall oust
examination under oath as to such bank deposit, such disobedient party.
and subsequently move for a court order 3. In case of removal of improvements on
authorizing the filing of an action against such bank property subject of execution, the officer
for the recovery of the judgment obligor’s shall not destroy, demolish or remove
deposit/interest therein and to forbid a transfer or improvements except upon special order
other disposition of such deposit/interest within of the court.
120 days from notice of the order (Secs. 37 and 4. In judgments for the delivery of personal
43).(2008 Bar Question) property, the officer shall take possession
of the same and forthwith deliver it to the
Q: How is money judgment implemented if the party entitled to satisfy any judgment for
obligee is absent at the time of payment? money as therein provided.
A: Sec. 9, Rule 39 lays down the procedure to be Q: How can judgment be executed for the
followed by the sheriff in implementing money following specific acts if the judgment debtor
judgments. refuses/fails to comply therewith?
When the judgment obligee is not present at the A:

time the judgment obligor makes the payment, the Judgments for
sheriff is authorized to receive it. However, the Specific Act (Sec. Manner of Execution
money received must be remitted to the clerk of 10)
court within the same day or, if not practicable, Court can appoint some other
Conveyance,
deposited in a fiduciary account with the nearest person at the expense of the
delivery of deeds,
government depository bank. Sheriffs are not disobedient party and the act
or other specific
permitted to retain the money in their possession done shall have the same effect as
acts, vesting title.
beyond the day when the payment was made or to if the required party performed it.
deliver the money collected directly to the Sell such property and apply the
Sale of real and
judgment oblige (Peña, Jr. v. Regalado II, A.M. No. proceeds in conformity with the
personal property
P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P), judgment.
Feb. 16, 2010). If the party refuses to deliver, a
writ of execution directing the
d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS sheriff to cause the defendant to
vacate is in the nature of a
haberefaciaspossesionemand
Q: What are considered specific acts?
authorizes the sheriff to break
Delivery or
open the premises where there is
A: restitution of real
no occupant therein.
1. Conveyance, delivery of deeds, or other property
specific acts vesting title; If party refuses to vacate
2. Sale of real or personal property; property, remedy is not contempt.
3. Delivery or restitution of real property; The sheriff must oust the party.
4. Removal of improvements on property But if demolition is involved, there
subject of execution; and must be a special order.
5. Judgments for the delivery of personal The officer may destroy, demolish
Removal of
property. or remove the improvements
improvements on
upon special order of the court,
property subject of
Q: What are the steps in executing a judgment for issued upon motion of the
execution
specific acts? judgment obligee.
The officer shall take possession
Delivery of
A: and deliver to the party entitled
personal property
thereto.

5
whom the same is rendered, or upon any other

person required thereby, or by law, to obey the
Q: May a judgment debtor be cited in contempt in same, and such party or person may be punished
case of refusal to comply with judgment of the for contempt if he disobeys such judgment (Sec 11,
court? Rule 39).
A: f. EFFECT OF LEVY ON THIRD PERSON

GR: The judgment debtor cannot be cited in
contempt of court. Generally, contempt is not a Q: What is the effect of levy on execution as to
remedy to enforce a judgment. third persons?
XPN: A: It creates a lien in favor of the judgment obligee

1. Refusal to perform a particular act or over the right, title and interest of the judgment
special judgments under Sec. 11 where he obligor in such property at the time of the levy,
may be cited in contempt. subject to liens and encumbrances then existing
2. In case of the provisional remedy of (Sec. 12).
support pendente lite under Rule 61, the
judgment debtor may still be cited for Q: Aiza obtained a judgment for money against
contempt even if the decision is not a Bert. The sheriff enforcing the corresponding writ
special judgment and requires the latter went to Celywho, is the pledgee of a ring Bert had
to pay money. given as security for a loan and insisted on taking
possession of the ring for the purpose of
Note: If a party refuses to: eventually selling it at the execution sale to satisfy
a. Vacate the property – the sheriff must oust the judgment debt of Bert to Aiza. Does Cely have
the party. A demolition order from the court the obligation to surrender the ring to the sheriff?
is required to effect removal of an Explain.
improvement constructed by the defeated
party. A: No, because Cely has the right to retain the ring
b. Deliver – the sheriff will take possession and in his possession until the loan is paid (Art. 2098,
deliver it to the wining party
NCC). If the sheriff should take possession of the
c. Comply – the court can appoint some other
ring, Cely may file a third-party claim. (1987 Bar
person at the expense of the disobedient
party and the act shall have the same effect
Question)
as if the required party performed it.
Q: What are the remedies available to a third-
party claimant in levy of real property?
e. EXECUTION OF SPECIAL JUDGMENTS
A:
Q: What is a special judgment?
1. Summary hearing before the court which
authorized the execution;
A: It is a judgment that can be complied with only
2. Terceriaor third party claim filed with the
by the obligor himself. It requires the performance
sheriff;
of any other act other than payment of money, or
3. Action for damages on the bond posted
the sale or delivery of real or personal property.
by judgment creditors; or
4. Independent reinvindicatory action. (Sec.
Q: What is the effect of failure to comply with
16, Rule 39)
special judgments?
The remedies are cumulative and may be resorted
A: Failure to comply with special judgment under
to by the third party claimant independently of or
Section 11 is punishable by contempt by
separately from the others.
imprisonment.
Note: The officer shall not be liable for damages for
Q: How is execution of special judgments the taking or keeping of the property, to any third-
executed? party claimant if there is a bond filed by the winning
party. If there is no bond, the sale cannot proceed.
A:When a judgment requires the performance of However, the judgment obligee can claim damages
any act other than those mentioned in the two against a third-party claimant who filed a frivolous or
preceding sections, a certified copy of the judgment plainly spurious claim, and such judgment obligee can
shall be attached to the writ of execution and shall institute proceedings therefor in the same or separate
be served by the officer upon the party against action (Sec. 16, Rule 39).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What are other properties ESPECIALLY exempt

from execution?
4. PROPERTIES EXEMPT FROM EXECUTION
A:
Q: What are the properties exempt from 1. Property mortgaged to DBP (Sec 26, CA
execution? 458)
2. Property taken over by Alien Property
A: Administration (Section 9[f], US Trading
1. The judgment obligor’s family home as with the Enemy Act)
provided by law, or the homestead in 3. Savings of national prisoners deposited
which he resides, and land necessarily with the Postal Savings Bank (Act 2489)
used in connection therewith; 4. Backpay of pre-war civilian employees (RA
2. Ordinary tools and implements personally 304)
used by him in his trade, employment or 5. Philippine Government backpay to
livelihood; guerillas (RA 897)
3. 3 horses, cows, or carabaos, or other 6. Produce, work animals, and farm
beasts of burden, such as the judgment implements of agricultural lessees,
obligor may select necessarily used by subject to limitations (Sec 21, RA 6389)
him in his ordinary occupation; 7. Benefits from private retirement systems
4. His necessary clothing and articles for of companies and establishments, with
ordinary personal use, excluding jewelry; limitations (RA 4917)
5. Household furniture and utensils 8. Labor wages, except for debts incurred
necessary for housekeeping, and used for for food, shelter, clothing, and medical
that purpose by the judgment obligor and attendance (Art 1708, NCC)
his family, such as the judgment obligor 9. Benefit payments from the SSS (Sec 16 RA
may select, of a value not exceeding 1161 as amended by PDs 24, 65, and 177)
P100,000; 10. Copyrights and other rights in intellectual
6. Provisions for individual or family use property under the former copyright law
sufficient for 4 months; (PD 49 cf Sec 239.3, RA 8293); and
7. The professional libraries and equipment 11. Bonds issued under RA1000 (NASSCO v.
of judges, lawyers, physicians, CIR L-17874 31 August 1963) (Regalado, F.
pharmacists, dentists, engineers, Remedial Law Compendium Vol. 1, 9th ed.,
surveyors, clergymen, teachers, and other pp. 481-482)
professionals, not exceeding P300,000 in
value; 5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY
8. 1 fishing boat and accessories not THIRD PERSONS
exceeding the total value of P100,000
owned by a fisherman and by the lawful Q: When can you file a third party claim?
use of which he earns his livelihood;
9. So much of the salaries, wages, or A: At any time, so long as the sheriff has the
earnings of the judgment obligor for his possession of the property levied upon, or before
personal services within the 4 months the property is sold under execution.
preceding the levy as are necessary for
the support of his family; Q: What are the requisites for a claim by a third
10. Lettered gravestones; person?
11. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of A: Requisites for a claim by a third person:
any life insurance;
12. The right to receive legal support, or
1. The property is levied;
money or property obtained as such
2. The claimant is a person other than the
support, or any pension or gratuity from
judgment obligor or his agent;
the government; and
3. Makes an affidavit of his title thereto or
13. Properties specially exempted by law.
right to the possession thereof stating the
grounds of such right or title; and
But no article or species of property mentioned
4. Serves the same upon the officer making
above shall be exempt from execution issued upon
the levy and the judgment obligee.
a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage hereon (Sec.
13).
7
Q: What is the procedure for a 3rd party claim? A: No, Cathy has not been impleaded as a party
defendant. He cannot be held liable for the
A: 3rd party should make an affidavit of his title judgment against Bob without a trial. In fact, since
thereto, or right of possession thereof, and should no bond was filed by Allen, the sheriff is liable to
serve such affidavit upon the sheriff and a copy Cathy for damages. Cathy can file a separate action
thereof to the judgment obligee. to enforce his third-party claim. It is in that suit that
Allen can raise the ground of fraud against Cathy.
Q: What is the duty of the officer if the property However, the execution may proceed where there
sought to be levied on is claimed by another is a finding that the claim is fraudulent (Tanongan v.
person and proper proof of ownership or Samson, G.R. No. 140889, May 9, 2002). (2005 Bar
possession is served upon the officer making levy? Question)
A: If the property levied on is claimed by any person Q: If the writ of execution is issued in the name of
other than the judgment obligor or his agent, and the Republic of the Philippines and the property
such person makes an affidavit of his title thereto object of the levy is being claimed by a third
or right to the possession thereof, stating the person, is there a necessity for filing a bond?
grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof A: When the writ of execution is issued in favor of
upon the judgment obligee, the officer shall not be the Republic of the Philippines, or any officer duly
bound to keep the property, unless such judgment representing it, the filing of such bond shall not be
obligee, on demand of the officer, files a bond required, and in case the sheriff or levying officer is
approved by the court to indemnify the third-party sued for damages as a result of the levy, he shall be
claimant in a sum not less than the value of the represented by the Solicitor General and if held
property levied on. In case of disagreement as to liable therefor, the actual damages adjudged by the
such value, the same shall be determined by the court shall be paid by the National Treasurer out of
court issuing the writ of execution. No claim for such funds as may be appropriated for the purpose.
damages for the taking or keeping of the property
may be enforced against the bond unless the action a. IN RELATION TO THIRD PARTY CLAIM IN
therefor is filed within one hundred twenty (120) ATTACHMENT AND REPLEVIN
days from the date of the filing of the bond.
Certain remedies available to a third person not
The officer shall not be liable for damages for the party to the action but whose property is the
taking or keeping of the property, to any third-party subject of execution:
claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
1. Terceria – By making an affidavit of his title
person from vindicating his claim to the property in
thereto or his right to possession thereof,
a separate action, or prevent the judgment obligee
stating the grounds of such right or title. The
from claiming damages in the same or a separate
affidavit must be served upon the sheriff and
action against a third-party claimant who filed a
the attaching party (Sec. 14, Rule 57). Upon
frivolous or plainly spurious claim.
service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
Q: Allen obtained a money judgment against Bob. attachment except if the attaching party files a
After the finality of the decision, the court issued a bond approved by the court. the sheriff shall
writ of execution for the enforcement thereof. not be liable for damages for the taking or
Conformably with the said writ, the sheriff levied keeping of the property, if such bond shall be
upon certain properties under Bob's name. Cathy filed.
filed a third-party claim over said properties 2. Exclusion or release of property – Upon
claiming that Bob had already transferred the application of the third person through a
same to him. Allen moved to deny the third-party motion to set aside the levy on attachment,
claim and to hold Bob and Cathy jointly and the court shall order a summary hearing for
severally liable to him. After due hearing, the the purpose of determining whether the
court denied the third-party claim and rendered sheriff has acted rightly or wrongly in the
an amended decision declaring Bob and Cathy performance of his duties in the execution of
jointly and severally liable to Allen for the money the writ of attachment. The court may order
judgment. Is the ruling of the court correct'? the sheriff to release the property from the
Explain. erroneous levy and to return the same to the
third person. In resolving the application, the
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
court cannot pass upon the question of title to Once he redeems,

the property with any character of finality but no further
only insofar as may be necessary to decide if redemption is
the sheriff has acted correctly or not (Ching vs. allowed. The person Further redemption is allowed,
CA, 423 SCRA 356). to whom even after lapse of 1 year, as
3. Intervention – This is possible because no redemption was long as each redemption is
made must execute made within 60 days after the
judgment has yet been rendered and under
and deliver to the last.
the rules, a motion for intervention may be
judgment obligor a
filed any time before the rendition of the
certificated of
judgment by the trial court (Sec. 2, Rule 19). redemption.
4. Accion Reinvindicatoria – The third party
claimant is not precluded by Sec. 14, Rule 57 Note: The period of redemption is not suspended by
from vindicating his claim to the property in an action to annul the foreclosure sale. The periods for
the same or in a separate action. He may file a redemption are not extendible; but the parties may
separate action to nullify the levy with agree on a longer period, in such case, it would be a
damages resulting from the unlawful levy and conventional redemption.
seizure. This action may be a totally distinct
action from the former case. Note: A surety is not a successor in interest. The right
of redemption cannot be levied on by judgment
6. RULES ON REDEMPTION creditor.
Q: Is the right of redemption available to any type

of property? Q: Can redemption be made in other forms than
cash?
A: No. There is no right of redemption as to
personal properties for the sale is absolute. Such A: Yes. The rule is liberal in allowing redemption
right is available only to real properties. and it has been allowed in the case of a cashier’s
check and certified bank checks.
Q: Distinguish a judgment obligor from a
redemptioner? What are their rights as regards Q: Who may redeem the real property sold?
redemption of real property?
A: Real property sold, or any part thereof sold
A: separately, may be redeemed by the following
JUDGMENT persons:
REDEMPTIONER
OBLIGOR 1. Judgment obligor, or his successor in interest
One who has a lien by by virtue in the whole or any part of the property;
of an attachment judgment, 2. Redemptioner – a creditor having a lien by
judgment, or mortgage on the virtue of an attachment, judgment or
Judgment obligor,
property sold, SUBSEQUENT to mortgage on the property sold, or on some
or his successor in
the lien under which the part thereof, subsequent to the lien under
interest (e.g.
property was sold (Sec. 27)
transferee, which the property was sold.
Note: If creditor’s lien is prior
assignee, heirs, joint
to the judgment, he is not a
debtors) Note: A mortgagee can be a redemptioner even if his
redemptioner because his
interests in his lien are fully mortgage has not yet matured, but his mortgage
protected. contract must have been executed after the entry of
1. Within 1 year from the judgment. Generally in judicial foreclosure sale, there
date of registration of the is no right of redemption, but only equity of
certificate of sale if he is redemption. In sale of estate property to pay off debts
the first redemptioner, or of the estate, there is no redemption at all. Only in
Within 1 year from extrajudicial foreclosure sale and sale on execution is
2. Within 60 days from the
the date of there the right of redemption.
last redemption, if he be a
registration of the
subsequent
certificate of sale.
redemptioner, provided Q: What are the requirements to enable the
that the judgment debtor redemptioner or judgment obligor to redeem the
has not exercised his right real property?
of redemption.
A: The judgment obligor, or redemptioner, may
redeem the property from the purchaser at any

9
time within 1 year from the date of the registration 2. Reversal or setting aside of
of the certificate of sale by paying the purchaser: judgment;
1. the amount of his purchase; 3. The fact that the property was
2. amount of any assessments or taxes which the exempt from execution; or
purchaser may have paid after purchase; 4. If a third person has vindicated his
3. if the purchaser be also a creditor having a claim to the property (Sec. 34).
prior lien to that of the redemptioner, other
than the judgment under which such purchase Q: What is the remedy of purchaser of real
was made, the amount of such other lien; and property sold on execution in the above
4. With 1 percent per month interest up to the situations?
time of redemption.
A:
Q: Is the bona fide tender or delivery of the 1. Bring an action against the judgment
redemption price required in offer to redeem? creditor;
2. File a motion for revival of judgment in his
A: name against the judgment debtor; or
GR: The offer to redeem must be accompanied 3. Bring an action to recover possession of
with a bona fide tender or delivery of the property.
redemption price.
7. EXAMINATION OF JUDGMENT OBLIGOR WHEN
XPN: The right to redeem is exercised through JUDGMENT IS UNSATISFIED
the filing of a complaint to redeem in the
courts. Q: What is the effect when the judgment was
returned unsatisfied?
Q: What are the rights of a judgment debtor?
A:
A: 1. The judgment creditor may cause
1. To remain in possession of the property examination of the judgment debtor as to
until the expiration of period of his property and income (Sec. 36) (2008
redemption; Bar Question);
2. To collect rents and profits until the 2. The judgment creditor may cause
expiration of period of redemption (Sec. examination of the debtors of the
32); judgment debtor as to any debt owed by
3. To use the property in the same manner it him or to any property of the judgment
was previously used; debtor in his possession (Sec. 37);
4. To make necessary repairs; and 3. If the court finds, after examination, that
5. Use it in the ordinary course of husbandry there is property of the judgment debtor
(Sec. 31). either in his own hands or that of any
person, the court may order the property
Q: When is the purchaser entitled to possession applied to the satisfaction of the
and conveyance of the property sold on judgment (Sec. 37);
execution? 4. If the court finds the earnings of the
judgment debtor are more than sufficient
A: The purchaser is entitled to possession and for his family’s needs, it may order
conveyance of the property if no redemption is payment in fixed monthly installments
made within one (1) year from the date of the (Sec. 40);
registration of the certificate of sale (Sec. 33). 5. The court may appoint a receiver for the
property of the judgment debtor not
Q: What are the instances when the purchaser exempt from execution or forbid a
may recover the purchase price from the judgment transfer or disposition or interference
obligor? with such property (Sec. 41);
6. If the court finds that the judgment
A: debtor has an ascertainable interest in
1. If the purchaser or his successor-in- real property either as mortgagor,
interest fails to recover possession of the mortgagee, or otherwise, and his interest
property sold on execution sale; or can be ascertained without controversy,
2. Is evicted due to: the court may order the sale of such
1. Irregularities in the proceedings interest (Sec. 42); and
concerning the sale;
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
7. If the person alleged to have the property A:

of the judgment debtor or be indebted to 1. If judgment or final order is on a specific
him, claims an adverse interest in the thing, the same is conclusive upon the
property, or denies the debt, the court title to thing (Sec. 47, Rule 39).
may authorize the judgment creditor to 2. With respect to a probate of a will, or the
institute an action to recover the administration of the estate of a deceased
property, forbid its transfer and may person, the same is conclusive upon the
punish disobedience for contempt (Sec. will or administration but the probate of
43). the will or the granting of letters of
administration shall only be prima facie
Q: Anna, a Manila resident, sued Betsie resident of evidence of the death of the testator or
Malolos, Bulacan, in the RTC Manila for a sum of intestate and not a conclusive
money. The trial court rendered judgment holding presumption of death (Sec.47, Rule 39).
Anna liable for the entire amount prayed for in the 3. With respect to the personal, political or
complaint. After the judgment had become final, a legal condition or status of a particular
writ of execution was issued by the court. As the person or his relationship to another, the
writ was returned unsatisfied, Anna filed a motion judgment or final order is conclusive upon
for an order requiring Betsie to appear before it the condition, status or relationship
and be examined regarding his property and (Sec.47, Rule 39).
income. How should the court resolve the motion? 4. In other cases, if the judgment be with
respect to the matter directly adjudged or
A: The RTC Manila should deny the motion. Betsie as to any other matter that could have
resides in Malolos, Bulacan. When a writ of been raised in relation thereto, the
execution is returned unsatisfied, the judgment judgment or final order is conclusive
obligee, at any time after such return is made, shall between the parties and their successors
be entitled to an order from the court which in interest by title subsequent to the
rendered the said judgment, requiring such commencement of the action or special
judgment obligor to appear and be examined proceeding, litigating for the same thing
concerning his property and income before such and under the same title and the same
court or before a commissioner appointed by it. capacity, relationship (Sec.47, Rule 39).
However, no judgment obligor shall be so required 5. In any other litigation between the same
to appear before a court or commissioner outside parties or their successors in interest, that
the province or city in which such obligor resides or only is deemed to be adjudged in a
is found (Sec. 36). (2002 Bar Question) former judgment or final order which
appear upon its face to have been
8. EXAMINATION OF OBLIGOR OF JUDGMENT adjudged, or which was actually and
OBLIGOR necessarily included therein or necessary
thereto (Sec.47, Rule 39).
Q: How is examination of obligor of judgment
obligor done? Q: When the judgment is final and executory, is it
always ministerial upon the court to order
A: Court may order to be examined any person or execution?
corporation who has property of the debtor in
order to bind the credits due to debtor. A:
GR: Trial Court has ministerial duty to order
Note: The garnishee becomes a forced intervenor,
execution of final and executor judgments. It
requiring him to pay his debt not to the judgment
cannot refuse execution and is compellable by
debtor but to the creditor (a form of involuntary
novation). mandamus.
Note: A party or other person may be compelled, by
an order of subpoena, to appear before the court or XPN: (Same as grounds to Quash writ of execution)
commissioner to testify as provided in Sec 36 & 37. 1. Change in the situation of the parties
Failure to obey may be punished by contempt. If which makes the execution inequitable or
examination is before a commissioner, he must take it unjust;
in writing and certify it to the court. All examinations 2. Writ of execution varies judgment;
and answers must be under oath. 3. Controversy was never submitted to the
judgment of the court;
9. EFFECT OF JUDGMENT OR FINAL ORDERS 4. Execution is sought against property
exempt from execution;
Q: What is the effect of final judgments?
5. Terms of the judgment are not clear and Q; Discuss the effect of judgment under paragraph
leaves room for interpretation; A and B of Section 47
6. Writ of execution is improvidently issued;
7. Writ of execution is defective in A:
substance; In Rem (Par. a) In Personam (Par. b)
8. Writ of execution is issued against the The decision is The judgment or final order
wrong party; conclusive upon the title is conclusive between
9. Judgment debtor has been paid or of the thing, the will or parties and their
administration or the successors-in-interest,
otherwise satisfied; and
condition, status or litigating for the same thing
10. Writ of execution was issued without
relationship of the and under the same title
authority. person. and in the same capacity.
Note: In the above exceptions, remedy is certiorari
(Rule 65) i.e. land registration
i.e. actionreinvindicatoria
cases
Q: When may execution of final and executory
judgment be enjoined? Note: In both instances, the judgment may be repelled
by evidence of want of jurisdiction, notice, collusion,
A: fraud or clear mistake of law or fact. (par. 4, Sec. 48)
1. Upon fling of a petition for relief from
judgment; Q: What are the requisites of res judicata?
2. Attack against a judgment which is void
for lack of jurisdiction, or obtained A:
through fraud; 1. Former judgment or order must be final
3. On equitable grounds; and and executory;
4. In cases falling under the 10 exceptions 2. Court has jurisdiction over subject matter
above. and parties;
3. Former judgment or order was on merits;
Note: Judgment novated by a subsequent agreement and
cannot be executed (e.g. agreement entered into by 4. Identity of parties, subject matter, and
the parties other than terms of payment). cause of action between first and second
action. (TEST: determine identity if cause
Note: judgment for support is not final in a sense that of action)
it cannot be modified. Support depends not only on
the varying conditions affecting the ability of the 10. ENFORCEMENT AND EFFECT OF FOREIGN
oblgor to pay, but also upon the ever-changing needs JUDGMENTS OR FINAL ORDERS
of the beneficiary himself.
Q: What is the effect of a foreign order?
Q: Can final and executory judgments be
modified? A:
1. Against a specific thing – conclusive upon
A: title to the thing.
GR: Final and executor judgments cannot be 2. Against a person – presumptive evidence
amended or modified. Any amendment which of a right as between the parties and their
substantially affects a final and executor judgment successors in interest by a subsequent
is null and void for lack of jurisdiction. title.
Note: In both instances, the judgment may be repelled
XPN: Judgment may be modified as to: by evidence of want of jurisdiction, notice, collusion,
1. Clerical errors or mistakes - errors not as a fraud, or clear mistake of law or fact.
result of exercise of judicial functions
2. To clarify ambiguity; or Q: How is a foreign judgment enforced?
3. To enter nunc pro tunc orders – to make a
present record of an order which the A: By filing an action based on said judgment;
court rendered at a previous terms but, foreign judgment is presumed to be valid and
by inadvertence has not been entered. binding.
Note: to recognize a foreign judgment, raise the

foreign judgment as res judicata in the defense (not in
a separate motion)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
R. PROVISIONAL REMEDIES
Q: Distinguish the different kinds of provisional remedies.
A:
Preliminary
Preliminary Injunction Receivership (Rule Replevin (Rule Support Pendente
Attachment (Rule
(Rule 58) 59) 60) Lite (Rule 61)
57)
Subject Matter
Personal property
Personal and real Personal and real Money or other forms
Particular act(s) capable of
property property of support
manual delivery
Jurisdiction (Court which can grant it)
GR: Family Court
XPN: In criminal
actions, as long as the
civil aspect is tried
SC, CA, RTC, Family
SC, CA, RTC, Family RTC, Family Court, together with it , the
Court, SC, CA, RTC, Family
Court, Metropolitan, Metropolitan, RTC or MTC having
Metropolitan, Court, Metropolitan,
Municipal and Municipal, and jurisdiction may also
Municipal and Municipal and Municipal
Municipal Circuit Trial Municipal Circuit issue this remedy.(e.g
Municipal Circuit Circuit Trial Courts
Courts Trial Courts Art. 345 (3) RPC, in
Trial Courts
crimes against
chastity, “In every
case to support the
offspring..”)
Who may grant it
Court where action is
pending, the CA or
Only the Court where the SC, or a member
Courts where the action is pending; thereof, even if action Court of origin and
action is pending, Lower court, CA or SC is pending in the Only the court appellate court.
the CA or the SC provided action is lower court. where action is (Ramos v. CA, GR No.
(Sec. 2) pending in the same Appellate court may pending. L-31897, June 30,
court which issues the allow application for 1972)
injunction (Sec. 2) receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the At the
At the
At any stage of the At any stage of the proceeding and even commencement of
commencement
action but before action but before after finality of the action or at any
of the action but
entry of final judgment or final order judgment; anytime time prior to the
before answer is
judgment (Sec. 1) (Sec. 1) prior to satisfaction of judgment or final
filed (Sec. 1)
judgment order (Sec. 1)
How applied for
File verified application File verified
and applicant’s bond; if application and
application is included in applicant’s bond;
the initiatory pleading, application may also
File affidavits and File affidavits and File verified
the adverse party should be included in
applicant’s bond applicant’s bond application; bond not
be served with summons initiatory pleading in
(Sec. 3) (Sec. 2) required (Sec. 1)
together with a copy of actions for
the initiatory pleading and foreclosure of
the applicant’s affidavit mortgage (Secs. 1 and
and bond (Sec.4) 2)
Purpose(s)
1. To seize the To require a party or a To place the To recover To compel adverse
property of the court, agency or a property subject of possession of party to provide
adverse party in person to refrain from an action or personal support while the

advance for the doing a particular act proceeding under property. (1999 action is pending in
satisfaction of or to require the the control of a Bar Question) court.
judgment that may performance of a third party for its
be recovered in particular act preservation and
cases falling under administration litis
Sec.1, Rule 57. To prevent future pendentia and to
2. To enable the court injury and maintain protect the rights of
to acquire the status quo. all the parties under
jurisdiction over the (Kencht v. CA, G.R. No. the direction of the
action by the actual 97962, Nov. 17, 1993) court.
or constructive
seizure of the
property in those
instances where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan,G.R.No.L54158,
Nov. 19, 1982)
Ground(s)
1. GR: In an action for 1. When the
the recovery of a applicant has an
specified amount or 1. That the applicant is interest in the
damages. entitled to the relief property or fund
XPN: demanded which subject of the
a. moral and consists in proceeding and
exemplary restraining the such property is in
b. against a party commission or danger of being
who is about to continuance of the lost, removed or
depart from the act complained of, materially injured
Philippines with or in requiring the unless a receiver
intent to defraud performance of an is appointed;
Applicant is:
his creditors; act for a limited 2. In foreclosure of
1. The owner
2. In an action for money period or mortgage, when
of the
or property embezzled perpetually the property is in
property
or fraudulently 2. Commission, danger of being When equity and
claimed; or
misapplied or continuance or non- wasted or justice require,
converted to his own performance of the dissipated or having due regard to
2. Entitled to
use by a public officer, act during the materially injured the probable
the
or by any other person litigation would and that its value outcome of the case
possession
in a fiduciary capacity, probably work is probably and such other
thereof but
or for a willful injustice to the insufficient to circumstances as
the
violation of duty; applicant; or discharge the may suggest the
property is
3. In an action to recover 3. Party, court, agency mortgage debt or reasonability of
wrongfully
the possession of or a person is doing, that it has been granting support
detained by
property unjustly or threatening, or is agreed upon by pendente lite
the adverse
fraudulently taken, attempting to do, or the parties;
party (Sec.
detained or is procuring or 3. After judgment, to
2)
converted, when the suffering to be preserve the
property has been done, some act property during
concealed, removed probably in the pendency of
or disposed of to violation of the an appeal or to
prevent its being rights of the dispose of it
found or taken by the applicant respecting according to the
applicant or an the subject of the judgment or to aid
authorized person; action and tending execution when
4. In an action against a to render the execution has
party who has been judgment been returned
guilty of fraud in ineffectual (Sec. 3) unsatisfied of the
contracting the debt judgment obligor
or incurring the refuses to apply
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
obligation or in its his property in

performance satisfaction of the
5. In an action against judgment, or
a party who has otherwise to carry
removed or the judgment into
disposed of his effect; or
property, or is about 4. When
to do so, with intent appointment of
to defraud his receiver is the
creditors; most convenient
6. In an action against and feasible
a party who does means of
not reside and is not preserving,
found in the administering or
Philippines, or on disposing of the
whom summons property in
may be served by litigation (Sec. 1).
publication
Whether principal or ancillary action
Ancillary to:
1. Action for
support; or
2. In a criminal
action where civil
liability includes
Principal action/ Principal action/ Principal action/ support for the
Ancillary remedy
ancillary remedy ancillary remedy ancillary remedy offspring provided
the civil aspect
thereof has not
been waived,
reserved or
instituted prior to
its filing.
Effectivity
During the
During the pendency of During the pendency
pendency of the
the case unless earlier of the case unless Until discharged by During the pendency
case unless the
discharged or quashed by earlier discharged or the court of the case.
defendant files a
the court quashed by the court
redelivery bond.
Requirement of Hearing
GR: Required
XPN: Great or Required – Within 3
Not required; may be irreparable injury would Not required ; days after comment
issued ex parte (2001 result / extreme urgency Required may be issued ex is filed or after
Bar Question) and applicant will suffer parte expiration of period
grave injustice and of filing
irreparable injury (Sec. 5)
Bond Requirement
Bond executed to the adverse party in the amount fixed by the court to Bond executed to the
cover the costs which may be adjudged to the adverse party and all adverse party in double the
damages that he may sustain by reason of the granting of provisional value of the property, for
remedy prayed for, if the court shall finally adjudge that the applicant the return of the property
was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59 to the adverse party if such No bond
) return be adjudged and for required.
the payment to the adverse
2 bond requirement for receivership: party of such sum as he may
1. Filed by the applicant; and recover from the applicant
2. Filed by the receiver. in the action (Sec. 2)
Immediately Executory
No Yes Yes No Yes
Discharge of Remedy
By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge Not applicable.
of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the
court or to the value of the property if with respect to a particular property to secure the payment of
any judgment that the adverse party may recover in the action.
Counter Bond
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof
would cause irreparable
Amount of Amount of counter-
Cash deposit may be damage to the party or
counter-bond to bond should be
made in lieu of the person enjoined while the Not applicable.
be fixed by the double the value of
counter-bond (Sec. 12) applicant can be fully
court (Sec. 3) the property (Sec. 5)
compensated for such
damages as he may suffer;
counter-bond alone will
not suffice to discharge
the injunction (Sec. 6)
Other Grounds For Discharge
1. Improper or irregular
issuance or
enforcement or 1. Plaintiff’s bond is
1. Appointment
insufficiency of bond. found to be
1. Insufficiency of the was obtained
(Sec. 13) insufficient or
application (Sec. 9) without
2. Judgment rendered defective and is
sufficient cause.
against attaching not replaced with
2. Other grounds (e.g.
creditor (Sec. 19) proper bond; or
applicant’s bond is 2. Bond posted by
3. Property attached is
insufficient/ defective), the applicant /
exempt from execution 2. Property is not
upon affidavits of the receiver is
(Sec. 2 & 5) delivered to the
party or person insufficient (Sec.
4. Attachment is plaintiff for any
enjoined 3).
excessive, but the reason (Sec. 6).
discharge shall be
limited to the excess
(Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy
When the judgment or
final order finds that the
person who has been
Requisites: providing support
1. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not
before judgment becomes executory an application for damages; liable therefor, the court
2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient
to damages and amount thereof; and to return the amounts
3. Such damages may be awarded only after proper hearing and shall be included in the already received with
judgment of the main case. interest from the date of
actual payment, without
If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of
remedy was effected: the recipient to obtain
Application must be filed with the appellate court before the judgment of the reimbursement in a
appellate court becomes executory. Appellate court may allow application to be heard separate action from
and decided by the trial court. the person legally
obliged to give support.
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail
to satisfy the award: If the recipient fails to
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. reimburse the amount,
9, Rule 59; Sec. 10, Rule 60) the person who
. provided the same may
Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a
recovered in the same case. The recovery of damages cannot be had in a separate action. separate action from
the person legally
obliged to give such
support (Sec. 7)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
1. NATURE OF PROVISIONAL REMEDIES d. Production Order

(Riano, Civil Procedure: A Restatement for
Q: What are provisional remedies? the Bar, p. 534-536, 2009 ed.)
A: Provisional remedies are writs and processes 2. JURISDICTION OVER PROVISIONAL

available during the pendency of the action which PROVISIONAL REMEDIES
may be resorted to by a litigant to preserve and
protect certain rights and interests therein pending Q: Which court has jurisdiction over applications
rendition, and for the purpose of the ultimate for provisional remedies?
effects, of a final judgment in the case.
A:
Q: What is the nature of provisional remedies? GR: Applications must be filed with the court having
jurisdiction over the pending principal action. Even
A: an inferior court may grant such remedy, however,
1. Temporary measures availed of during where the main action is for support, the
the pendency of the action provisional remedy of support pendente lite may
2. Mere incidents and are dependent upon not be granted by a Municipal Trial Court because
the result of the main action the main action is within the jurisdiction of the
Family Court. (Riano, Civil Procedure: A
Q: What are the purposes of provisional remedies? Restatement for the Bar, p. 532, 2009 ed.)
A: Provisional remedies are resorted to: XPN: in criminal actions, as long as the civil aspect
1. To preserve or protect their rights or is tried together with it, the RTC or MTC having
interests while the main action is jurisdiction may also issue the remedy of Support
pending; pendent Lite. (e.g. Art 345 (3) RPC, in crimes against
2. To secure the judgment; chastity, “in every case to support the offspring…”)
3. To preserve the status quo;
4. To preserve the subject matter of the Q: When are these provisional remedies available?
action.
A:
1. Attachment, injunction and support
Q: What are the Provisional Remedies under the pendent lite – may be applied for before
Rules of Court? final judgment
2. Replivin – may be applied before the
A: answer
1. Preliminary Attachment (Rule 57) 3. Receivership – may be applied for at any
2. Preliminary Injunction (Rule 58) stage of the action and even after final
3. Receivership (Rule 59) judgment.
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61) 3. PRELIMINARY ATTACHMENT
Q: What are the Other Provisional Remedies Q: What is Preliminary Attachment?

available?
A: It is a provisional remedy issued upon order of
A: the court where an action is pending to be levied
1. Temporary custody over a minor upon the property of the defendant for the same to
2. Deposit in Actions for Annulment of Sale be held by the Sheriff as security for the satisfaction
(Reyes v. Lim) of whatever judgment may be rendered in the case
3. Restraining order against the accused in ( Davao Light and Power, Inc.v. CA, 204 SCRA 343).
cases of violence among immediate
family members living in the same Note: This is only an ancillary remedy. There is no
domicile and household separate action called preliminary attachment. It is not
4. Hold departure orders issued by Regional a distinct proceeding and is availed of within a
Trial Courts in criminal cases principal action because it is a mere provisional
5. Interim reliefs under Writ of Amparo remedy. The grant of remedy is addressed to the
a. Temporary Protection Order discretion of the court. (Riano, Civil Procedure: A
Restatement for the Bar, p. 537, 2009 ed.)
b. Witness Protection Order
c. Inspection Order
Q: What is the purpose of preliminary Q: What are the kinds of attachment?

attachment?
A:
A: Preliminary attachment is designed to: 1. Preliminary attachment- one issued at the
1. seize the property of the debtor before final commencement of the action or at
judgment and put the same in custodialegis even anytime before entry of the judgment as
while the action is pending for the satisfaction of a security for the satisfaction of any
later judgment (Insular Bank of Asia and America v. judgment that may be recovered in the
CA, 190 SCRA 629); or cases provided for by the rules.
2. Garnishment- the plaintiff seeks to
2. to enable the court to acquire jurisdiction over subject either the property of the
the res or the property subject of the action in defendant in the hands of the third
cases where service in person or any other service person called the garnishee, to his claim
to acquire jurisdiction over the defendant cannot or the money in which said third person
be effected (Philippine Commercial International owes the defendant (RCBC v. Castro, No.
Bank v. Alejandro, 533 SCRA 738). L- 34548, November 29, 1988).
Garnishment simply impounds the
Q: Who may apply for a preliminary attachment? property in the possession of the
garnishee and maintains the status quo
A: It is not only the plaintiff who may apply for a until the main action is finally decided.
writ of preliminary attachment. A defendant who 3. Levy on execution- writ issued by the
asserts a counterclaim, a cross-claim or a third- court after judgment by which the
party claim may also avail of the remedy. Sec. 1 of property of the judgment obligor is taken
Rule 57 provides that the “plaintiff or any proper into the custody of the court before the
party may have the property of the adverse party sale of the property on execution for the
attached.” (Borja v. Platon, 73 Phil. 659) (Riano, satisfaction of a final judgment.
Civil Procedure: A Restatement for the Bar, p. 538,
2009 ed.) Q: Distinguish Preliminary attachment from Final
attachment.
Q: What is the nature of the proceeding?
A:
A: Attachment is in the nature of proceeding quasi PRELIMINARY FINAL ATTACHMENT
in rem (Banco- Espanol Filipino v. Palanca, 37 Phil ATTACHMENT (Rule 57) (Rule 39)
921) although sometimes referred to as an actionin It is an auxiliary remedy It is a means for the
rem (Valdemieso v. Damalerio, 451 SCRA 638, to give security for a execution of a final
February 17, 2005). judgment still to be judgment.
rendered.
Note: Whether in rem or quasi in rem, the legal effects There is no sale because It should always be
are identical because in both cases jurisdiction over the decision has not yet accompanied by a sale at
the person of the defendant is not required as long as been rendered. public auction.
the court acquires jurisdication over the res (Biaco v. Resorted to at the Available after the
Countryside Rural Bank, 515 SCRA 106). commencement of the judgment in the main
action or at any time action had become
Q: Once prayed for, is it mandatory that the court before the entry of executor, and for the
grant the writ of preliminary attachment? judgment, for the satisfaction of said
temporary seizure of the judgment.
property of the adverse
A: The grant of preliminary attachment is addressed
party
to the sound discretion of the court.
The proceeds of the sale, The proceeds of the sale
in cases allowed, are in are turned over to the
Q: What is the effect if a preliminary action is custodial egis (Sec. 11) attaching creditor
availed of and is granted in an action purely in
rem?
a. GROUNDS FOR THE ISSUANCE
A: When availed of and granted in an action purely
Q: What are the groundsfor the issuance of a writ
in personal, it converts the action to one that is
of preliminary attachment? (When is a Preliminary
quasi in rem. This transformation of the nature of
Attachment Proper?)
the action dispenses with the need of acquiring
jurisdiction over the person of the defendant.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: b. To answer for all costs and damages

1. Actions for the recovery of a specified
amount of money or damages Note: No notice to the adverse party or hearing is
XPN: required as the time which the hearing will entail could
o moral and exemplary damages be enough to enable the defendant to abscond or
o against a party who is about to depart dispose of his property before the writ issues
from the Philippines which intent to (Regalado, Remedial Law Compendium, Vol I, p. 624,
defraud his creditors 2007 ed.).
2. Actions for money or property embezzled
or fraudulently misapplied or converted Q: When may an order for preliminary attachment
to his own use by a public officer, or an be applied?
officer of a corporation, or an attorney,
factor, broker agent, or clerk, in the A: The writ may be applied:
course of his employment as such, or by 1. At the commencement of the action, or
other person in a fiduciary capacity, or for 2. At any time before entry of judgment
a willful violation of duty (Sec. 1, Rule 57).
3. Actions to recover the possession of
property unjustly or fraudulently taken, c. ISSUANCE AND CONTENTS; AFFIDAVIT AND
detained or converted, when the BOND
property, or any part thereof, has been
concealed, removed, or disposed of to Q: When may an order of attachment be issued
prevent its being found or taken by the and what should be contained therein?
applicant or an authorized person
4. Actions against a party who has been A: (Sec. 2, Rule 57):
guilty of a fraud in contracting the debt or 1. May be issued ex-parte or
incurring or performance the obligation 2. upon motion after notice and hearing
upon which the action is brought Requiring sheriff to attach as much property which
5. Actions against a party who has removed is not exempt from execution, as may be sufficient
or disposed of his property, or is about to to satisfy the judgment
do so, with intent to defraud his creditors
6. Actions against non-residents not found Q: What should the affidavit contain?
in the Philippines, or person upon whom
summons may be served by publication A: The Affidavit of the applicant, or some other
Note: Insolvency of defendant is not a ground for person who personally knows the facts, must show
attachment especially when defendant has not been that:
shown to have committed any act intended to defraud 1. sufficient cause of action exists;
its creditors (Spouses Yu v. Ngo Yet Te, G.R. No. 2. the case is one of those mentioned in
155868, February 6, 2007). Section 1; and
3. there is no other sufficient security for
b. REQUISITES the claim sought to be enforced by the
action, and that the amount due the
Q: What are the requisites in the application for a applicant, or the value of the property the
writ of preliminary attachment? possession of which he is entitled to
recover, is as much as the sum for which
A: the order is granted above all legal
1. Filed at the commencement of action or counterclaims.
any time before entry of judgment (Sec.
1, Rule 57) Q: What is the basis of the bond’s amount?
2. Application by any party and affidavit
showing: (Sec. 3, Rule 57) A: The bond shall answer for:
a. Sufficient cause of action 1. All the costs which may be adjudged to
b. Based on grounds mentioned in the adverse party; and
Section 1 2. All damages which he may sustain by
c. No other sufficient security reason of the attachment.
d. Amount due to applicant or value of
property he is entitled to recover Q: How may the writ be issued?
3. Filing of a bond (Sec. 4, Rule 57):
a. Executed in favor of an adverse party A: The writ of preliminary attachment may be
in an amount fixed by court granted by:

1. By motion and notice of hearing by the accompanied by service of summons, copy of

court in which the action is pending and complaint, application and affidavits for the
may even be issued by the CA or the SC attachment and the bond upon the adverse party.
(Sec. 2, Rule 57);
2. It may also be issued ex parte and even Jurisdiction must first be acquired through valid
before summons is served upon the service of summons first before a preliminary
defendant. However, the writ may not be attachment may be enforced.
enforced and may not validly This Rule is not necessary for the validity of the
implemented unless preceded by a ISSUANCE of a writ of attachment (Davao Light v.
service of summons, a copy of the CA, 204SCRA 343 (1991)), it is however necessary
complaint, the application for for the validity of the ENFORCEMENT of the writ.
attachment, the order of attachment and (Onate v. Abrogar, 241 SCRA 659 (1995))
the attachment bond (Davao Light &
Power Co., Inc. v. CA, 204 SCRA 343). Q: What are the cases in which contemporaneous
service is not required?
Q: What is the rationale for allowing the ex parte
issuance of a writ of preliminary attatchment? A: The requirement of prior or contemporaneous
service of summons shall not apply where:
A: An ex parte issuance of the writ is intended to a. the summons could not be served despite
preempt any possible disposition of property by the diligent efforts;
adverse property to the detriment of the attaching b. the defendant is a resident of the
creditor and thus defeat the very purpose of Philippines temporarily absent therefrom;
attachment (Mindanao Savings & Loan Association, c. the defendant is a non-resident of the
Inc. v. CA, 172 SCRA 480). Philippines; or
d. The action is in rem or quasi in rem (Sec.
Q: Alfred filed an action against Banjo for 5, Rule 57).
collection of sum of money with an ex-parte
application for a writ of preliminary attachment e. MANNER OF ATTACHING REAL AND PERSONAL
which was granted by the trial court. A notice of PROPERTY
garnishment was served by the sheriff upon the
bank and summons was subsequently served upon Q: How can a property be attached?
Banjo. Banjo then filed a motion to dissolve the A: (Sec. 7, Rule 57)
writ of preliminary attachment on the ground that 1. Real property, growing crops or interest
the court did not acquire jurisdiction over his therein
person as the writ was served ahead of the a. File a copy of the Order of
summons. Resolve the motion. Attachment with the proper Registry
of Deeds and Occupant or his agent
A: The motion should be denied. The fact that the within the province
writ of preliminary attachment was served ahead of b. Description of the property
the summons did not affect the jurisdiction of the c. Notice of attachment
court over his person. It makes the writ 2. Personal property capable of manual
unenforceable, however, all that is required is to redelivery – sheriff taking into custody and
serve the writ. (2005 Bar Question) safely keeping it, he wll issue a receipt;
3. Stocks, shares or interest – Leaving copy
Note: Where the writ of preliminary attachment had of the writ and notice of attachment with
already been implemented, the subsequent service of President or Managing Agent
summons does not confer a retroactive acquisition of 4. Debts and credits, bank deposits, financial
jurisdiction over her person because the law does not interests, royalties, commission and other
allow for retroactivity of a belated service. (Torres v. personal property not capable of manual
Satsatin, G.R. No. 166759, November 25, 2009) delivery - Leaving copy of the writ and
notice of attachment with person owing
d. RULE ON PRIOR OR CONTEMPORANEOUS or having custody over the property
SERVICE 5. Interest in the estate of a decedent –
Leaving copy of writ and notice of
Q: What is the Rule on Prior or Contemporaneous attachment with:
Service of Summons? a. Executor or administrator of estate
b. Clerk of Court where estate is being
A: Enforcement of the writ of preliminary settled
attachment must be preceded by or simultaneously
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
c. Heir, devisee, or legatee; A:

6. Property in custodialegis – writ to the 1. It must be based on the following
court or agency and notice to custodian. grounds:
a. Writ was improperly or irregularly
Q: What remedies are available if property is being issued or enforced (Sec. 13, Rule 57)
claimed by a third person? b. Insufficiency of bond (Sec. 13, Rule
57)
A: c. Excessive attachment (Sec. 13, Rule
1. File a Third Party Complaint or terceria 57)
(Sec. 14, Rule 57) o Effect: Partial discharge (Regalado,
2. File a Motion for Intervention Remedial Law Compendium, Vol. I,
3. File an independent action to recover p. 683, 2005 ed.)
property d. No ground for attachment (Sec. 1,
Rule 57)
f. DISCHARGE OF ATTACHMENT OF ATTACHMENT e. Property is exempt from execution
AND COUNTERBOND (Secs 2 and 5, Rule 57)
f. Judgment is rendered against the
Q: How is attachment discharged? attaching creditor (Sec. 19, Rule 57)
g. Dissolution of attachment 1 month
A: next preceding the commencement
1. If the attachment has already been of insolvency proceedings
enforced, the party whose property has (Insolvency Law) (Feria, Civil
been attached may file a motion to Procedure Annotated, Vol. II, p. 305,
discharge the attachment. 2001 ed.)
Note: This motion shall be with notice and 2. Filing of a cash deposit or counterbond
hearing. After due notice and hearing, the (Sec. 12, Rule 57)
court shall discharge the attachment if the 3. Notice and Hearing (Sec. 12, Rule 57)
movant makes a cash deposit or files a
counterbond executed to the attaching Q: May an ex parte discharge of attachment be
party with the clerk of court where the allowed?
application is made in an amount equal to
that fixed by the court in the order of
attachment exclusive of costs (Sec. 12, Rule A: No. A discharge of attachment must be made
57). only after hearing.
2. Attachment may likewise be discharged Q: What is a counterbond?

without the need for filing of a counter-
bond. This is possible when the party
A: Counterbonds are replacements of the property
whose property has been attached files a
motion to set aside or discharge the formerly attached, and just as the latter, may be
attachment and during the hearing of the levied upon after final judgment (Security Pacific
motion he proves that: Assurance Corporation v. Tria- Infante, 468 SSCRA
a. The attachment was improperly 526).
or irregularly issued or enforced
(Sec. 13, Rule 57); Q: After Defendant AAA’s properties were
b. That the bond of the attaching attached, AAA filed a sufficient counterbond and
creditor is insufficient or that the trial court discharged the attachment. For
the attachment is excessive and having suffered substantial prejudice due to the
must be discharged as to the unwarranted attachment, the trial court rendered
excess (Sec. 13, Rule 57); a judgment ordering plaintiff to pay damages since
c. That the property is exempt the latter was not entitled to the attachment. AAA
from execution, and as such is moved to charge plaintiff’s attachment bond and
also exempt from preliminary such was objected to by the plaintiff and his
attachment (Sec. 2, Rule 57). sureties on the ground that the counter-bond
lifted plaintiff’s attachment bond from all liability.
Q: What are the grounds for the discharge of a Rule on AAA’s motion.
preliminary attachment?
A: AAA’s motion should be granted since the filing
of a counterbond does not constitute a waiver of

his right to proceed against the attachment bond. 4. Ordinary execution.

Furthermore, it is a condition in an attachment
bond that applicant will pay all the costs and 4. PRELIMINARY INJUNCTION
damages which may be adjudged to the adverse
party. (DM Wenceslao and Associates, Inc. v a. DEFINITION AND DIFFERENCES: PRELIMINARY
Readycon Trading and Construction Corp., G.R. No. INJUNCTION AND TEMPORARY RESTRAINING
154106, June 29, 2004) ORDER
g. SATISFACTION OF JUDGMENT OUT OF Q: What is an injunction?

PROPERTY ATTACHED
A: It is an ancillary or preventive remedy where a
Q: How can the judgment be satisfied out of the court requires a person, a party or even a court or
attached property? tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the
A: (Sec. 15, Rule 57) pendency of an action. (Riano, Civil Procedure: A
1. Payment to judgment creditor of all sales Restatement for the Bar, p. 564, 2009 ed.)
of perishable or other property
2. If any balance remains, selling property as Q: Distinguish a main action for injunction from a
may be necessary to satisfy the judgment preliminary injunction (2006 Bar Question).
3. Collecting from all persons having
possession of credits belonging to the A:
judgment debtor and paying the proceeds INJUNCTION AS AN INJUNCTION AS A MAIN
to judgment creditor ANCILLARY REMEDY ACTION
Note: If it remains unsatisfied, recovery may be had on Exist as an incident to a Independent action
the counterbond upon demand and notice and hearing principal action
to surety (Sec. 17, Rule 57). Seeks to preserve the Seeks a judgment
status quo or to prevent embodying a final
Q: What is the order of satisfaction of judgment of future wrongs in order to injunction, to enjoin the
attached property? preserve and protect defendant from the
certain interests or rights commission or
during the pendency of continuance of a specific
A: Order of satisfaction of judgment of attached
the action (Cortez- act, or to compel a
property: Estrada v. Heirs of particular act in violation
1. Perishable or other property sold in Domingo Samut, 451 of the rights of the
pursuance of the order of the court; SCRA 275, February 14, applicant (Almeida v. CA,
2. Property, real or personal, as may be 2005). 448 SSCRA 681, January
necessary to satisfy the balance; 17, 2005).
3. collecting from debtors of the judgment
obligor;
Q: What are the distinctions among a preliminary injunction, prohibition and status quo order?
A:
Injunction Prohibition Status Quo Order
Directed against a court, Directed against the adverse party and is issued
Directed against a party in an
tribunal or person exercising by the court motu propio(Regalado, Remedial
action
judicial powers Law Compendium, Vol. I, p. 721, 2005 ed.)
Cease and Desist Order intended to maintain
Issued on the ground that the the last, actual, peaceable and uncontested
Does not involve the jurisdiction court against whom the writ is state of things preceding the controversy
of the court sought acted without or in without requiring the doing or undoing of an
excess of jurisdiction act (Regalado, Remedial Law Compendium, Vol.
I, p. 722, 2005 ed.)
May be the main action (final Special Civil Action / Main
injunction) or provisional remedy action
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Distinguish a preliminary injunction from a b. REQUISITES

temporary restraining order.
Q: What are the requisites for the grant of a writ
A: of preliminary injunction?
Preliminary Injunction Temporary Restraining
Order A:
Specie of preliminary 1. Verified application stating the grounds
injunction to maintain for its issuance
status quo before the 2. Applicant must establish that he has a
resolution of the writ of right to relief, a right in esse or a right to
preliminary injunction on be protected and the act against which
the ground of irreparable the injunction is directed is violative of
injury such right
3. Bond executed in favor of the person
Note: Injury is irreparable if enjoined to answer for all damages
it is not susceptible to
4. Service of summons
mathematical computation
(DFA and BSP v. Falcon and XPNs:
BCA Int’l Corp., G.R. No. a. Summons could not be served
176657, September 1, 2010) personally or by substituted service
Effective during the Duration (non-extendible): b. Adverse party is a resident but is
pendency of the action (Sec. 5, Rule 58) temporarily absent from the
unless earlier dissolved 1. If issued by Philippines
RTC/MTC – c. Adverse party is a non-resident
Note: The trial court, 20days from 5. Notice and hearing (Sec. 5, Rule 58)
the Court of Appeals, notice to person
the Sandiganbyan or the restrained c. KINDS OF INJUNCTION
Court of Tax Appeals 2. If issued by CA –
that issued a writ of 60 days from Q: What are the classes of injunction?
preliminary injunction notice
against a lower court, 3. If issued by SC –
A:
board, officer, or quasi- until lifted
Preliminary Injunction Final Injunction
judicial agency shall
Note: Prohibition against the
(Ancillary Remedy) (Injunction as main
decide the main case or
renewal applies only if the action)
petition within six (6)
months from the same is sought under and by Order granted at any Issued after final
issuance of the writ. reason of the same ground stage of the action or judgment of the case
(Sec. 5, Rule 58 as for which it was originally proceeding prior to the permanently
amended by A.M. No. issued (Regalado, Remedial judgment or final order, restraining the
07-7-12-SC) Law Compendium, Vol. I, p. requiring a party or a defendant or making
725, 2005 ed.) court, agency, or a person the preliminary
to refrain from or to injunction permanent
Note: TRO is deemed perform particular act or (Sec. 9, Rule 58)
automatically lifted after the acts (Sec. 1, Rule 58)
expiration of the effectivity GR: Bond is required No bond is required
period
XPN: Exempted by court
Notice and hearing GR: Notice and hearing (Sec. 4, Rule 58)
always required (Sec. 5, required
Rule 58) XPN: To prevent urgent /
Q: What are the kinds of preliminary injunction?
irreparable injury, TRO
may be issued by an
Executive Judge or A:
Presiding Judge for Preventive / Prohibitory Mandatory
72hours and a summary Injunction Injunction
hearing be subsequently Requires a person to Requires the
conducted within such refrain from doing an act performance of a
period particular act
Can be issued to compel Cannot be issued to To preserve status quo To restore status quo
the performance of an compel the performance of
act an act

d. WHEN MAY WRIT BE ISSUED Q: In what actions will a preliminary injunction not
lie?
Q: When may a writ for preliminary injunction be
issued? A:
1. Against Department of Public Works and
A: Highways to stop government
1. In petitions for relief from judgment infrastructure projects (Secs. 3 & 4,
entered through FAME; RA8975)
2. In petitions for certiorari, prohibition, and XPNs:
mandamus; a. Extreme urgency
3. In actions for annulment of judgments b. Matter involves a constitutional
obtained through fraud; issue
4. In actions for annulment of judgment c. Grave injustice and irreparable
which are not patent nullities ( want of injury will arise
jurisdiction, lack of due process of law) d. Supreme Court may issue the
(BancoEspanol v. Palanca, 37 Phil. 921); writ of preliminary injunction
5. To restrain continued breach of valid Note: Injunctive writs cannot be issued
negative obligation; against any person or entity involved in
6. To enjoin repeated trespass on land; the execution, implementation and
7. To restrain city from proceeding with operation of government
abatement of nuisance per accidens infrastructure projects (P.D. 1818).
before it has been judicially declared as 2. Act/s perpetrated outside the inferior
such; courts’ territorial jurisdiction
8. To restrain voting of disputed shares of 3. Against judgments of coordinate courts
stocks; and quasi judicial bodies of equal rank
9. To restrain sheriff from selling property 4. Issuance will effectively dispose of the
on execution not belonging to judgment main case without trial and/or due
debtor; process (Boncodin v. Nat’l Power
10. To restrain criminal prosecutions as an Corporation Employees Consolidated
exception, in the following cases: Union, G.R. No. 162716, September 27,
a. To afford adequate protection 2006)
to constitutional rights of 5. Labor disputes
accused; 6. In issuance of licenses, concessions as to
b. When there is a prejudicial disposition, exploitation, utilization,
question which is sub judice; exploration and/or development of
c. Prosecution under an invalid natural resources (Sec. 1, PD605)
law; 7. Implementation of Comprehensive
d. Double jeopardy is clearly Agrarian Reform Program, collection of
apparent; taxes, criminal prosecutions
e. Court wthout jurisdiction over 8. Mandatory foreclosure of a mortgage by
the offense; a government financial institution (Sec. 2,
f. Case of persecution rather than P.D. 385)
prosection; XPN: After hearing, it is established
g. Charges manifestly false and that 20% of outstanding arrearages is
motivated by lust for paid after the filing of the
vengeance; foreclosure proceedings
h. There is clearly no prima facie 9. Act/s sought to be enjoined already
case against accused and consummated
motion to quash on said ground XPN: Preliminary mandatory
is denied; and injunction may be availed of such
i. Preliminary injunction issued by that the dispossessor in forcible
SC to prevent threatened entry can be compelled to restore
unlawful arrest of petitioners. possession to the original possessor
and an electric company can be
compelled to provisionally reconnect
the service it had disconnected.
(Regalado, Remedial Law
Compendium, Vol. I, p. 718, 2005 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
10. To transfer the property in litigation from 1. Insufficiency of application for injunction
the possession of one party to another or restraining order
where the legal title is in dispute and the 2. Issuance or continuance of injunction or
party having possession asserts restraining order causes irreparable injury
ownership thereto (Almeida v. CA and Sy, while applicant may be fully compensated
G.R. No. 159124, January 17, 2005) for damages by bond
XPN: 3. Extent of injunction or restraining order is
a. Forcible entry and unlawful too great
detainer cases – preliminary Effect: modification
mandatory injunction may be 4. Insufficiency or defective bond (Sec. 7,
issued (Sec. 15, Rule 70) Rule 58).
11. Generally, injunction will not be granted Note: Filing of verified motion and bond as well as
to take property out of the possession of hearing is required
one party and place it in another whose
title not clearly established; g. DURATION OF TRO
12. When action for damages would
adequately compensate injuries caused Q: What is the duration of a TRO?
(Golding v. Balatbat, 36 Phil.941);
13. To prevent directors from discharging A:
their offices and restoring former 1. 20 days from notice : if great or
directors; irreparable injury would result to the
14. To restrain criminal prosecution where applicant before the matter can be heard
the Ombudsman had authorized the on notice.
Special prosecutor to conduct a 2. 72 hours from issuance (issued ex parte) :
preliminary investigation or to file an if the matter is of extreme urgency and
injunction. the applicant will suffer grave injustice
and irreparable injury.
Note: Only the SC may issue injunction against the
government, officials or any person or entity whether Note: after conducting a summary hearing within the
public or private acting under the government 72 hours period until the application for Preliminary
direction, to restrain, prohibit, or compel acts pursuant injunction can be heard, an extension of the 72-hour
to the implementation and completion of TRo may be asked. The total period of effectivity of the
infrastructure projects. (Sec 3, RA 8975) TRO shall not exceed 20 days including the 72 hours.
While the efficacy of the TRO is ordinarily non-
e. GROUNDS FOR ISSUANCE extendible, and the trial courts have no discretion to
extend it considering the mandatory tenor of Rule 58,
Q: What are the grounds for the issuance of a there is no reason to prevent a court from extending
preliminary injunction? the 20-day period when it is the parties themselves
who ask for such extension or for the maintenance of
A: (Sec. 3, Rule 58) the status quo. (Federation of Land Reform Farmers of
the Philippines v. CA, 246 SCRA 175 (1995)).
1. Clear legal right of the applicant
2. The commission, continuance or non-
Note: a TRO issued by the trial court or CA expires
performance of the act or acts
automatically upon the lapse of the 20 day period and
complained of will cause injustice to the 60 day period respectively. There is no need for any
applicant judicial declaration of dissolution (Paras v. Roura, 163
3. Person against whom injunction is sought SCRA 1 (1988))
is doing, threatening, attempting,
procuring or suffering to do some act or Q: What happens to the TRO if before the
acts in violation of applicant’s rights expiration of the 20-day period, the application for
tending to render the judgment preliminary injunction is denied?
ineffectual.
A: It will be automatically vacated. (Bacolod City
f. GROUNDS FOR OBJECTION, DISOLUTION OF Water District v. Labayan, G.R. No. 157494,
INJUNCTION OR RESTRAINING ORDER December 10, 2004)
Q: What are the grounds for objections or

dissolution of injunction or restraining order?
A: (Sec. 6, Rule 58)

Q: Is a second application for preliminary i. RULE ON PRIOR OR CONTEMPORANEOUS

injunction allowed? SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
A: A second application for injunction, which rests
in the sound discretion of the court, will ordinarily Q: What is the rule on prior or contemporaneous
be denied unless it is based on facts unknown at service of summons in relation to attachment?
the time of the first application. (Reyes v. Court of
Appeals and Sun Life Insurance Office, Ltd., G.R. No. A: No levy on attachment pursuant to the writ of
87647, May 21, 1990). preliminary attachment shall be enforced unless it
is preceded, or contemporaneously accompanied,
h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF by theservice of summons, together with a copy of
TRO OR WRIT OF INJUNCTION IN CASES the complaint, the application forattachment, the
INVOLVING GOVERNMENT INFRASTRUCTURE applicant’s affidavit and bond, and the order and
writ ofattachment, on the defendant within the
Q: During the Marcos regime, a reclamation Philippines.
contract was signed between the City of Mandaue
and MALAYAN. However, that transaction The requirement of prior or contemporaneous
appeared to be unauthorized. After sometime a service of summons shall not apply in the following
confirmatory agreement was entered by the instances:
parties whereby MALAYAN bound itself to
undertake the project at its own expense. After 1. Where the summons could not be served
the People power, the plan was resubmitted to personally or by substituted servicedespite
the President for approval, the City of Mandaue diligent efforts;
however started negotiated and contracted with 2. The defendant is a resident of the
FF Cruz & Co. for the reclamation project. Philippines who is temporarily out of the
MALAYAN filed a protest with the OP. The country;
Executive Secretaery disapproved the project with 3. The defendant is a non-resident; or
MALAYAN, this prompted MALAYAN to file with 4. The action is one in rem or quasi in
the RTC a petition for prohibitory and mandatory rem (Sec. 5).
preliminary injunction. RTC issued a TRO. Upon
posting a bond, injunction was issued. Whether or 5. RECEIVERSHIP
not a writ of preliminary injunction may be issued
against the government? Q: What is Receivership?
A: Receivership is a provisional remedy wherein the

A: Under PD 1818 and RA 8735, injunction is not
court appoints a representative to preserve,
available to stop infrastructure projects of the
administer, dispose of and prevent the loss or
government (Malayan Integrated Industries vs. CA,
dissipation of the real or personal property during
GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre
the pendency of an action.
and Stevedoring Services, 475 SCRA 426). This
includes arrestre and stevedoring services.
It may be the principal action itself or a mere
provisional remedy; it can be availed of even after
Note: Section 1 of PD 1818 provides that:No court in the judgment has become final and executory as it
the Philippines shall have jurisdiction to issue any may be applied for to aid execution or carry
restraining order, preliminary injunction, or preliminary judgment into effect.
mandatory injunction in any case, dispute, or
controversy involving an infrastructure project, or a
Q: Who is a receiver?
mining, fishery, forest or other natural resource
development project of the government, or any public
utility operated by the government, including among A: Person appointed by the court in behalf of all the
others public utilities for the transport of the goods or parties to an action for the purpose of preserving
commodities stevedoring and arrastre contracts, to the property involved in the suit and to protect the
prohibit any person or persons, entity or government rights of all the parties under the discretion of the
official from proceeding with, or continuing the court.
execution or implementation of any such project, or
the operation of such public utility, or pursuing any Q: Can a party to the action be appointed as a
lawful activity necessary for such execution, receiver?
implementation or operation. A:
GR: Cannot be appointed
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
XPN: Consented to by all parties b. REQUISITES
Note: A clerk of court cannot be appointed as a Q: What are the requisites in the application for
receiver (Abrigo v. Kayanan, G.R. No. L-28601, March receivership?
28, 1983)
A:
Q: Which court may appoint a receiver? 1. Party applying for receivership has an
existing interest in the property in
A: (Sec. 1, Rule 59) litigation
1. Court where action is pending 2. Verified application filed at any stage of
2. Court of Appeals or Supreme Court or a the proceedings even after final
member thereof judgment, prior to the satisfaction of
Note: During pendency of appeal, appellate court judgment (Sec. 1, Rule 59)
may allow receiver to be appointed by court of 3. Posting of bond (Sec. 2, Rule 59)
origin 4. Grounds stated in Sec. 1, Rule 59
5. Receiver must be sworn to perform his
Q: What is the effect of a contract executed by a
duties faithfully
receiver without court approval?
c. REQUIREMENTS BEFORE ISSUANCE OF AN
A: Such contract will constitute his personal ORDER
undertakings and obligations (Pacific Merchandising
Corp. v. Consolacion Insurance & Surety Co., G.R. Q: What is the requirement before an order of
No. L-30204, October 29, 1976) appointment may be issued?
Note: Receivership cannot be effected on a property in A: The applicant must file a bond executed in favor
custodialegis (LizarragaHnos. V. Abada, 40phil124).
of the party against whom the application is
But a receiver can be appointed where a property in
presented, in an amount fixed by court, to pay
custody of an administrator or executor is in danger of
imminent loss or injury. (Dolor v. Sindian, G.R. No. L- damages in case receivership is procured without
27631, April 30, 1971) sufficient cause. (Sec. 2, Rule 59)
a. CASES WHEN A RECEIVER MAY BE APPOINTED Note: The court may require an additional bond for
further security. (Sec. 2, Rule 59)
Q: In what cases may a receiver be appointed?
d. POWERS OF A RECEIVER
Q: What are the powers of a receiver?
1. Applicant has an interest in the property
or fund subject of the action is in danger
of being lost, removed, or materially
1. Power to bring and defend actions in his
injured
own name
2. Mortgaged property is in danger of being
Note: No action may be filed by or against a
dissipated or materially injured and that
receiver without leave of court which
its value is probably insufficient to
appointed him
discharge the mortgage debt or 2. Take and keep possession of the property
3. Stipulation in the contract of mortgage in controversy
4. To preserve the property after judgment
3. Receive rents
during the pendency of the appeal or to 4. Collect debts due to himself as receiver or
dispose it according to judgment to the fund, property, estate, person or
5. To aid execution when execution has corporation of which he is a receiver
been returned unsatisfied 5. Compound for and compromise debts
6. Judgment debtor refuses to apply his collected
property in satisfaction of the judgment 6. Make Transfers
or to carry on the judgment 7. Pay outstanding debts
7. Appointment of receiver is most 8. Divide money and other property that
convenient and feasible means of shall remain among the persons legally
preserving, administering or disposing of entitled to receive the same
the property in litigation 9. Invest funds in his hands only by order of
the court upon written consent of all the
parties to action;
10. Other acts which the court may authorize in specie, the recovery of damages being only
incidental (Am. Jur. 6). Replevin may be a main
Note: Funds in the hands of a receiver may be invested action or a provisional remedy. As a principal action
only by court order and written consent of all parties its ultimate goal is to recover personal property
to an action. capable of manual delivery wrongfully detained by
a person. The main action for replevin is primarily
e. TWO KINDS OF BONDS possessory in nature and generally determines
nothing more than the right of possession.
Q: What is the 2-bond requirement in
receivership?
Note: A writ of replevin may be served anywhere in
the Philippines (Regalado, Remedial Law Compendium,
A: Vol. I, p. 749, 2005 ed.)
1. Bond posted by the applicant (Sec. 2, Rule
59) Q: Distinguish replevin from preliminary
2. Bond posted by receiver appointed (Sec. attachment.
4, Rule 59)
A:
f. TERMIINATION OF RECEIVERSHIP Replevin Preliminary Attachment
Recovery of possession of Available even if
Q: What are the grounds for the discharge of personal property is the recovery of personal
receiver? principal relief and property is only an
damages are incidental incidental relief
A: This is available before Available from
1. Posting of counterbond by adverse defendant files an answer commencement but
party (Sec. 3, Rule 59) before entry of
Note: Where counterbond is judgment
insufficient or defective, receiver may Available only where May be resorted to even
be re-appointed (Sec. 5, Rule 59) defendant is in actual or if personal property is in
2. Appointment of receiver was made constructive possession of the custody of a third
without sufficient cause (Sec. 3, Rule personal property involved person
59) Extends only to personal Extends to all kinds of
3. Insufficient or defective applicant’s property capable of property whether real,
bond (Sec. 5, Rule 59) manual delivery personal or incorporeal
4. Insufficient or defective receiver’s Used to recover personal Recover property being
bond (Sec. 5, Rule 59) property even if not being concealed, removed or
5. Receiver no longer necessary (Sec. 8, concealed, removed or disposed
Rule 59) disposed
Cannot be availed of when Can be resorted to even
Q: How is receivership terminated? property is in if property is in
custodialegis(under custodialegis
attachment) or seized
under search warrant
1. By court motupropio or on motion by
Property of GOCCs cannot Properties of GOCCs
either party be reached may be reached if
2. Based on the following grounds: utilized in its proprietary
a. Necessity for receiver no longer function.
exists Sheriff takes possession of Sheriff does not take
b. Receiver asserts ownership over the the property subject of the possession of the
property (Martinez v. Graño, G.R. replevin and hold the property attached
No. L-25437, August 14, 1926) same for a period of 5 except contructively
3. After due notice and hearing to all days after which said placing it under custodia
interested party property will be delivered legis.
to the party who obtained
6. REPLEVIN the writ.
Bond to be posted is Bond amount is fixed by
Q: What is replevin? double the value of the court and does not
property sought to be exceed the claim or
recovered value of the property to
A: Replevin is a proceeding by which the owner or be attached
one who has a general or special property in the
thing taken or detained seeks to recover possession
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
Note: These remedies cannot be availed of in the same 1. Applicant is the owner of the property
case. claimed, particular description of such,
entitlement to possession
Q: To be able to secure financial accommodations 2. Property is wrongfully detained, alleging
from Makati Leasing, Wearever discounted and cause of detention according to
assigned several receivables under a Receivable applicant’s knowledge, information and
Purchase Agreement. To secure the collection of belief
the receivables assigned, private respondent 3. Property has not been taken for tax
executed a chattel mortgage over certain assessment or fine, or seized by writ of
machineries which were bolted to the ground. execution, preliminary attachment, in
Upon default Makati Leasing move for custodialegis, if so seized, that it is
extrajudicial foreclosure of the mortgage exempt or should be released from
properties and filed an action for replevin which custody
was granted by the court. Can the machineries 4. Actual market value of the property
bolted to the ground be a subject of replevin?
c. AFFIDAVIT AND BOND; REDELIVERY BOND
A: Machineries bolted to the ground are real
properties that may not be the subject to replevin Q: What are the contents of the affidavit?
(Makati Leasing and Finance Corporation v.
Wearever Textile Mills Inc. GR No L- 58469, May 16, A: Affidavit, alleging:
1983). 1. That the applicant is the owner of property
claimed, describing it or entitled to its possession;
a. WHEN MAY WRIT BE ISSUED 2. That the property is wrongfully detained by the
adverse party, alleging cause of its detention;
Q: When may a writ of replevin be issued? 3. That the property has not been distrained or
taken for tax assessment or fine or under writ of
A: This may only be obtained when the defendant execution/attachment or placed under
in the action has not yet filed his answer to the custodialegis or if seized, that it is exempt or should
complaint where it is necessary to: be released; and
1. Protect plaintiff’s right of possession to 4. The actual market value of the property.
property
2. Prevent defendant from destroying, Q: What is redelivery bond?
damaging or disposing of the property
Q: Can a writ of replevin be issued anywhere in the
Philippines? A: Bond, which must be double the value of
property, to answer for the return of property if
A: Under the Resolution of the Supreme Court adjudged and pay for such sum as he may recover
enbanc dated January 11, 1983, providing for the from the applicant (Sec. 2).
interim rules and guidelines relative to the
implementation of BP 129, a writ of replevin like Q: When is it required?
the one issued in the present case may be served
anywhere in the Philippines (Fernandez v. A: It is required that the redelivery bond be filed
International Corporate Bank now Union Bank of within the period of 5 days after the taking of the
the Philippines, GR No 131283, October 7, 1999). property. The rule is mandatory (Yang vs. Valdez,
177 SCRA 141).
b. REQUISITES
d. SHERIFF’S DUTY IN THE IMPLEMENTATION OF
Q: What are the requisites in applying for THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD
replevin? PARTY
A: Q: What are the duties of the sheriff?

1. Filing of Affidavit by any party before an
answer is filed A:
2. Posting of bond double the value of the 1. Serve a copy of the court order,
property application, affidavit and bond upon the
adverse party
Q: What are the contents of the affidavit? 2. Take the property and retain it in his
custody
3. If property is concealed, make a public rules that are applicable only to specific special civil
demand for the delivery of the property actions (sec. 3) The fact that an action is subject to
4. If property is not delivered, sheriff must special rules other than those applicable to ordinary
cause the building or enclosure to be civil actions is what makes a civil action special.
broken and take property and keep such
in his custody 2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
5. Deliver the property to the party entitled ACTIONS
to such upon receiving his fees.
Q: Distinguish ordinary civil action from special
Q: When may a property subject of replevin be civil action.
returned?
A:
A: Ordinary Civil Action Special Civil Action
1. Filing of a redelivery bond double the Must be based on a Cause of action not
value of the property cause of action – act necessarily needed
2. Plaintiff’s bond is insufficient or defective or omission in Examples:
violation of the rights 1. Declaratory relief –
and is not replaced with a proper bond
of another action is brought before
3. Property is not delivered to the plaintiff
there is any breach
for any reason 2. Interpleader – plaintiff
files a complaint even if
Q: What are the remedies of a third person whose he has not sustained
property is taken by virtue of a replevin? actual transgression of
his rights
A: Venue is determined Not necessarily true as in quo
1. Third party shall file and serve affidavit either by the warranto, the venue is where
upon sheriff and applicant stating his residences of the the Supreme Court or Court
entitlement to possession parties where the of Appeals if the petition is
2. Sheriff shall return the property to third action is personal or commenced in any of these
person unless applicant files a bond (same by the location of the courts without taking into
amount as the value of the property) property where the consideration the residences
approved by court to indemnify the third action is real of the parties
person May be filed in Some actions may be filed
3. Claim for damages upon said bond must Municipal Trial Court only in the Municipal Trial
be filed within 120days from date of filing or the Regional Trial Court, some cannot be
of the bond Court depending commenced therein
upon the
jurisdictional amount
Q: Is the Rule on Prior or Contemporaneous
or nature of the
Service of Summons observed in Replevin? action
May be commenced May be commenced by the
A: Yes. Although the writ of replevin may be issued only by the filing of filing of a complaint or
ex-parte, it cannot be implemented or enforced if complaint petition
not preceded or accompanied by a service of
summons. Q: What are the special civil actions under the
Rules of Court?
S. SPECIAL CIVIL ACTIONS
A:
1. NATURE OF SPECIAL CIVIL ACTIONS 1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies
Q: What are Special Civil Actions? (Rule 63)
3. Review of judgments and final orders of
A: Since a civil action in general is one by which a the COMELEC and the Commission on
party sues another for the enforcement or Audit (Rule 64)
protection of a right, or the prevention or redress of 4. Certiorari, prohibition and mandamus
a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special (Rule 65)
civil action is generally brought or filed for the same 5. Quo warranto(Rule 66)
purpose. 6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule
Note: although both types of actions are governed by
68)
the rules for ordinary civil actions, there are certain
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
8. Partition (Rule 69) Declaratory Relief

9. Forcible entry and unlawful detainer RTC
(Rule 70) Note: It would be error to
10. Contempt (Rule 71) file the petition with the SC
which has no original Where the petitioner or
jurisdiction to entertain a the respondent resides
Q: What are the three special civil actions which
petition for declaratory relief
are within the jurisdiction of inferior courts? (Tano v. Socrates, G.R. No.
110249, Aug. 14, 1997)
A: Expropriation
1. Interpleader, provided that the amount is Land: where the
within the jurisdiction of such inferior RTC (incapable of
property is located
pecuniary estimation)
court
(Barangay San Roque v.
2. Ejectment suits Personal property: the
Heirs of Pastor, G.R. No.
3. Contempt place where the plaintiff
138896, June 20, 2000)
or defendant resides
Q: What special civil actions are initiated by Certiorari, Prohibition, Mandamus
complaints and initiated by petitions? RTC: if it is directed
against a municipal trial
A: court, a corporation, a
1. by complaint-FIFEP board, an officer or a
a. interpleader person.
b. expropriation
CA or with the SB,
c. foreclosure of real estate mortgage
whether or not the
d. partition
same is in aid of the
e. forcible entry and unlawful detainer court’s appellate
2. by petition--DRCPMQc jurisdiction.
a. declaratory relief
b. review of judgments and final If the petition involves
orders or resolutions of the RTC, CA, SC,
an act or an omission of
Sandiganbayan COMELEC
COMELEC / COA a quasi-judicial agency,
in aid of its appellate
c. Certiorari unless otherwise
jurisdiction (A.M. No. 07-
d. Prohibition provided by law or the
7-12-SC)
e. Mandamus Rules, the petition shall
f. Quo Warranto be filed with and be
g. Contempt cognizable only by the
Court of Appeals.
3. JURISDICTION AND VENUE
In election cases
involving an act or
Q: Who has jurisdiction over special civil actions
omission of MTC /RTC,
and where should it be filed? it shall be filed
exclusively with the
A: COMELEC, in aid of its
Jurisdiction Venue appellate jurisdiction
Interpleader (Sec. 4, Rule 65)
MTC – where the value of Quo Warranto
the claim or the personal Where the plaintiff or
any of the principal With the SC, CA, or in
property does not exceed the RTC exercising
P300,000 or P400,000 in plaintiff resides or where
jurisdiction over the
Metro Manila or where the the defendant or any of territorial area where
value of the real property the principal defendants the respondent or any
does not exceed P20,000 resides
of the respondents
or P50,000 in Metro RTC, CA, SC, SB in aid of its resides. When the
Manila. Note: The venue of special
civil actions is governed by appellate jurisdiction Solicitor General
the general rules on commences the action,
RTC – if the value exceeds it may be brought in a
venue, except as
the above amounts or if RTC in the City of
otherwise indicated in the
the subject matter is particular rule for said Manila, in the CA, or in
exclusively within the special civil action. the SC (Sec. 7, Rule 66)
jurisdiction of the RTC

Note: Subject to the

principle of Hierarchy of Q: Distinguish between interpleader and
Courts intervention.
Contempt
Where the charge for A:
indirect contempt has
INTERPLEADER INTERVENTION
been committed against
Special civil action, Not an original action but
RTC or a court of
independent and mere ancillary and
equivalent or higher
original depends upon the
rank, or against an
existence of a precious
officer appointed by it,
pending action.
the charge may be filed
Commenced by the Commenced by a motion
with such court.
filing of a complaint. to intervention filed in a
pending case attaching
Where such contempt
thereto the pleading- in-
MTC, RTC, CA, SC has been committed
intervention.
against a lower court,
the charge may be filed Filed by a person who Filed by a person who has a
with the RTC of the has no interest in the legal interest in any of the
place in which the lower subject matter of the following:
court is sitting; but the action or if he has an a. The subject matter of
proceedings may also interest, the same is the litigation;
be instituted in such not disputed by the b. The success of either
lower court subject to claimants. of the parties; or
appeal to the RTC of c. The success of both of
such place (Sec. 5, Rule the parties; or
70) d. He may be adversely
affected by the
Forcible Entry
disposition or
Metropolitan Trial Courts;
Where the property is distribution of
covered by Rule on
located property in the
Summary Procedure
judgment.
Unlawful Detainer
The defendants are If a complaint- in-
Metropolitan Trial Courts;
Where the property is brought into the intervention is filed, the
covered by Rule on
located action only because defendants are already
Summary Procedure.
they are impleaded as parties to an existing suit
Partition
such in the complaint. not because of the
1. Real property –
intervention but because
where the property
of the original suit.
RTC is located
(incapable of pecuniary 2. Personal property
estimation) – the place where a. REQUISITES FOR INTERPLEADER
the plaintiff or
defendant resides Q: What are the requisites in order that the
(Sec. 13, Rule 69) remedy of interpleader may be availed of?
Foreclure of REM
RTC (incapable of A:
pecuniary estimation) 1. Plaintiff claims no interest in the subject
Where the land or any
(Barangay San Roque v. matter or his claim is not disputed
part thereof is located
Heirs of Pastor, G.R. No. 2. Two or more claimants asserting
138896, June 20, 2000) conflicting claims
3. The subject matter must be one and the
4. INTERPLEADER same
4. Person in possession or obliged files a
Q: What is an interpleader? complaint.
5. The parties to be interpleaded must make
A: It is a special civil action filed by a person against effective claims.
whom two conflicting claims are made upon the 6. Payment of docket and other lawful fees.
same subject matter and over which he claims no
interest, to compel the claimants to interplead and Note: Upon filing of complaint, the court shall issue an
to litigate their conflicting claims among order requiring conflicting claimants to interplead.
themselves. (Sec. 1, Rule 62). (Sec. 2, Rule 62)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
b. WHEN TO FILE 2. Cross-claim

3. Third-party complaints
Q: When must an action for interpleader be filed? 4. Responsive pleadings
A: Within a reasonable time after a dispute has Q: May an interpleader be availed of the resolve
arisen without waiting to be sued by claimants and breach of undertaking?
before such is barred from laches. (Feria, Civil
Procedure Annotated, Vol. II, p. 425, 2001 ed.) A: No. Such issue should be resolved in an ordinary
civil action for specific performance or other relief
Q: Which court has jurisdiction over an (Beltran v. PHHC, G.R. No. L-25138, August 28,
interpleader? 1969)
A: Inferior courts have jurisdiction so long as the 5. DECLARATORY RELIEF AND SIMILAR REMEDIES
amount involved is within their jurisdiction
Q: What is a declaratory relief?
Q: Should there be service of summons in
interpleader? A: A special civil action brought by a person
interested under a deed, will, contract or other
A: Summons and copies of the complaint and order written instrument, or whose rights are affected by
shall be served upon conflicting claimants. (Sec. 3, a statute, executive order or regulation, ordinance
Rule 62) or any other governmental regulation, before
breach or violation thereof, asking the court to
Note: Claimants shall have 15days to file an answer determine any question of construction or validity
and such answer must be served upon the plaintiff and arising, and for a declaration of his rights or duties
co-defendants. (Sec. 5, Rule 62). thereunder.
Q: What is the effect of failure of a claimant to file Q: What is the purpose of an action for declaratory
an Answer? relief?
A: Upon motion, the court may declare such

claimant in default and render a judgment barring A:
him from any claim in respect to the subject matter. 1. To determine any question of
(Sec. 5, Rule 62) construction or validity or
constitutionality of an instrument,
Q: May a motion to dismiss be filed? ordinance or regulation
2. Declaration of rights and duties
A: Yes. It may be filed by any of the claimant within thereunder
the time for filing an answer. (Sec. 4, Rule 62)
Q: Distinguish declaratory judgment from ordinary
Q: What are the grounds for filing a motion to judgment.
dismiss?
A:
A: (Sec. 4, Rule 62) DECLARATORY ORDINARY JUDGMENT
1. Impropriety of the interpleader action JUDGMENT
2. Grounds specified under Rule 16 of the Declaratory judgment Ordinary judgment
Rules of Court stands by itself and no involves executor or
executory process coercive relief
Q: What is the effect of filing a motion to dismiss? follows
Intended to determine Intended to remedy or
A: Period to file an answer is tolled and if the any question of compensate injuries
construction or validity already suffered
motion is denied, the answer may be filed within
prior to breach or
the remaining period which shall not be less than
violation
5days from notice of denial. (Sec. 4, Rule 62)
Q: What are the other allowed pleadings in an a. WHO MAY FILE THE ACTION
interpleader?
Q: Who may file an action for declaratory relief?
1. Counterclaim A: Any person:

1. Interested under a deed, will, A: Court may motupropio or upon motion refuse
contract or other written instrument based on the following grounds:
2. Whose rights are affected by a 1. A decision will not terminate the
statute, executive order or uncertainty or controversy which gave
regulation, ordinance or any other rise to the action
governmental regulation 2. Declaration or construction is not
necessary and proper under the
b. REQUISITES OF ACTION FOR DECLARATORY circumstances
RELIEF
Note: Discretion to refuse does not extend to actions
Q: What are the requisites of an action for for reformation of an instrument quiet title or remove
declaratory relief? clouds or to consolidated ownership in a pacto de retro
sale. (Regalado, Remedial Law Compendium, Vol. I, p.
A: 769, 2005 ed.)
1. Filing of Petition before there is a breach
or violation Q: Can the court exercise discretion in application
2. Subject matter is a deed, will, contract, for declaratory relief?
written instrument, statute, executive
order, regulation or ordinance A:
1. In declaratory relief, the court is given
Note: The enumeration of the subject the discretion to act or not to act on the
matter is exclusive, hence, an action not petition. It may therefore choose not to
based on any of the enumerated subject construe the instrument sought to be
matters cannot be the proper subject of construed or could refrain from
declaratory relief. (Riano, Civil Procedure: A declaring the rights of the petitioner
Restatement for the Bar, p. 613, 2009 ed.) under the deed or the law. A refusal of
3. There is justiciable controversy the court to declare rights or construe
4. Issue is ripe for judicial determination an instrument is actually the functional
(Republic v. Orbecido III, G.R. No. 154380, equivalent of the dismissal of the
October 5, 2005), i.e. litigation is petition.
imminent and inevitable (Tolentino v. 2. On the other hand, the court does not
Board of Accountancy, G.R. No. L-3062, have the discretion to refuse to act with
September 28, 1951) respect to actions described as similar
5. Adequate relief is not available through remedies. Thus, in an action for
other means or other forms of action or reformation of an instrument, to quiet
proceedings (Ollada v. Central Bank, G.R. or to consolidate ownership, the court
No. L-11357, May 31, 1962) cannot refuse to render a judgment (Sec.
6. The controversy is between persons 5, Rule 63).
whose interests are adverse;
d. CONVERSION TO ORDINARY ACTION
Q: To whom shall notices be given?
Q: When may an action for declaratory relief be
A: converted into an ordinary action?
1. Solicitor general if subject matter
involves: A: After filing of petition for declaratory relief but
a. Validity of statute, executive order, before the final termination of the case or rendition
regulation or governmental of judgment, a breach or violation of an instrument,
regulation statute, executive order, regulation or ordinance
b. Constitutionality of local government takes place. (Sec. 6, Rule 63)
ordinance
2. Prosecutor or attorney of the local Q: Distinguish Ordinary Civil Action from Special
government unit if subject matter Civil Action for Declaratory Relief.
involves validity of local government unit
A:
c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL 1. Ordinary civil action – plaintiff alleges that his
DECLARATION right has been violated by the defendant; judgment
rendered is coercive in character; a writ of
Q: When may a court refuse to make a judicial
execution may be executed against the defeated
declaration?
party.
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
2. Special civil action of declaratory relief – an

impending violation is sufficient to file a declaratory A: It is not an action brought to reform a contract
relief; no execution may be issued; the court merely but to reform the instrument evidencing the
makes a declaration. contract. It presupposes that there is nothing wrong
with the contract itself because there is a meeting
Q: Is a third-party complaint proper in an action of minds between the parties. The contract is to be
for declaratory relief? reformed because despite the meeting of minds of
the parties as to the object and cause of the
A: No. Because in a third-party complaint, such contract, the instrument which is supposed to
person seeks to obtain contribution, indemnity, embody the agreement of the parties does not
subrogation or other reliefs and a declaratory relief reflect their true agreement by reason of mistake,
is confined merely to the interpretation of the inequitable conduct or accident. The action is
terms of a contract. (Commission of Customs v. brought so the true intention of the parties may be
Cloribel, G.R. No. 21036, June 30, 1977). expressed in the instrument (Art. 1359, CC).
Q: What are the instances wherein a declaratory Q: When may an instrument be reformed?
relief is unavailable?
A: The instrument may be reformed if it does not
A: express the true intention of the parties because of
1. To obtain judicial declaration of lack of skill of the person drafting the instrument
citizenship; (Art. 1363, CC). If the parties agree upon the
2. To establish illegitimate filiation and mortgage or pledge of property, but the instrument
determine hereditary rights; states that the property is sold absolutely or with a
3. The subject of the action is a court right of repurchase, reformation of the instrument
decision; is proper (Art. 1365, CC).
4. Actions to resolve political questions;
5. Those determinative of the issues rather Q: What is the remedy if the consent of a party to
than a construction of definite status, a contract has been procured by fraud, inequitable
rights and relations; conduct, or accident?
6. Terms of assailed ordinances are not
ambiguous or of doubtful meaning; A: Where the consent of a party to a contract has
7. In a petition to seek relief from a moot been procured by fraud, inequitable conduct or
and academic question; accident, and an instrument was executed by the
8. Where the contract or statute on which parties in accordance with the contract, what is
action is based has been breached; defective is the contract itself because of vitiation
9. When the petition is based on the of consent. The remedy is not to bring an action for
happening of a contingent event; reformation of the instrument but to file an action
10. When the petitioner is not the real party for annulment of the contract (Art. 1359, CC).
in interest; and
11. Where the administrative remedies have Note: Reformation of the instrument cannot be
not yet been exhausted. brought to reform any of the following:
1. Simple donation inter vivos wherein no condition
e. PROCEEDINGS CONSIDERED AS SIMILAR is imposed;
REMEDIES 2. Wills; or
3. When the agreement is void (Art. 1666, CC).
Q: What are the similar reliefs referred to under
Rule 63? (2) CONSOLIDATION OF OWNERSHIP
A:
Q: What is the purpose of an action brought to
1. Reformation of an instrument
consolidate ownership?
2. Quiet title to real property or to remove
clouds
3. Consolidation of ownership (Art. 1607, A: The action brought to consolidate ownership is
Civil Code) not for the purpose of consolidating the ownership
of the property in the person of the vendee or
(1) REFORMATION OF AN INSTRUMENT buyer but for the registration of the property. The
lapse of the redemption period without the seller a
Q: What is meant by reformation of instrument? retro exercising his right of redemption,

consolidates ownership or title upon the person of A: The plaintiff need not be in possession of the real
the vendee by operation of law. Art. 1607 requires property before he may bring the action as long as
the filing of the petition to consolidate ownership he can show that he has a legal or an equitable title
because the law precludes the registration of the to the property which is the subject matter of the
consolidated title without judicial order (Cruz vs. action (Art. 477, Civil Code).
Leis, 327 SCRA 570).
6. REVIEW OF JUDGMENT AND FINAL ORDERS OR
Note: The concept of consolidation of ownership RESOLUTIONS OF THE COMELEC AND COA
under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the Q: What is the constitutional basis for the
law, a contract of sale may be extinguished either by application of Rule 65 under Rule 64?
legal redemption (Art. 1619) or conventional
redemption (Art. 1601). Legal redemption (retracto
legal) is a statutory mandated redemption of a
A: Sec. 7, Art. IX-A of the Constitution reads, “unless
property previously sold. For instance, a co-owner of a otherwise provided by the Constitution or by law,
property may exercise the right of redemption in case any decision, order or ruling of each commission
the shares of all the other co-owners or any of them may be brought to the Supreme Court on certiorari
are sold to a third person (Art. 1620). The owners of by the aggrieved party within 30 days from receipt
adjoining lands shall have the right of redemption of a copy thereof.” The provision was interpreted
when a piece of rural land with a size of one hectare or by the Supreme Court to refer to certiorari under
less is alienated (Art. 1621). Conventional redemption Rule 65 and not appeal by certiorari under Rule 45
(pacto de retro) sale is one that is not mandated by the (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison,
statute but one which takes place because of the 176 SCRA 84). To implement the above
stipulation of the parties to the sale. The period of constitutional provision, the SC promulgated Rule
redemption may be fixed by the parties in which case 64.
the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the Q: What is the mode of review for judgments and
date of the contract (Art. 1606). When the redemption final orders of the COMELEC and COA?
is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607 A: The petition may be brought by the aggrieved
provides that the consolidation of ownership in the party to the Supreme Court on Certiorari under
vendee shall not be recorded in the Registry of Rule 65, except otherwise provided.
Property without a judicial order, after the vendor has
been duly heard. Note: Rule 65 applies to the mode of review under
Rule 64.Said mode of review is based on Article IX-A of
(3) QUIETING OF TITLE TO REAL PROPERTY the 1987 Constitution providing that the proper mode
of review is certiorari under Rule 65 to be filed before
the Supreme Court.Under R.A. 7902 the Court of
Q: What is an action for quieting title to real Appeals has jurisdiction over all adjudications of the
property? Civil Service Commission.
A: This action is brought to remove a cloud on title Note: The order to comment under Sec. 6, Rule 64 in
to real property or any interest therein. The action case the Supreme Court finds the petition sufficient in
form and substance is equivalent to summons in
contemplates a situation where the instrument or a
ordinary civil action.
record is apparently valid or effective but is in truth
and in fact invalid, ineffective, voidable or
Q: What is the period for filing certiorari as
unenforceable, and may be prejudicial to said title
referred to in Rule 64?
to real property. This action is then brought to
remove a cloud on title to real property or any
A: The petition for certiorari referred to in Rule 64
interest therein. It may also be brought as a
shall be filed within 30 days from notice of the
preventive remedy to prevent a cloud from being
judgment, final order or resolution of the COMELEC
cast upon title to real property or any interest
and the COA sought to be reviewed (Sec. 3, Rule
therein (Art. 476, Civil Code).
64).
Q: Is it required that the plaintiff be in the Note: While Rule 64 makes reference to the certiorari
possession of the property before an action is under Rule 65, the period for the filing of the petition
brought? for certiorari assailing the judgment of the COMELEC
and COA is shorter than that provided under Rule 65
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: When may the court issue an order to aggrieved party may file aggrieved party will have
comment? the petition within the another 60 days within
remaining period, but which to file the petition
A: If the SC finds the petition sufficient, which shall not be less counted from the notice
respondents will be ordered to file a verified than 5 days. of denial.
comment within 10days from notice of such order.
(Sec. 6, Rule 64) b. DISTINCTION IN THE APPLICATION OF RULE 65
TO JUDGMENTS OF THE COMELEC AND COA AND
Q: What are basic requirements for the petition? THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS
A: The following basic requirements must be
complied with: Q: Distinguish the mode of review of judgment,
1. The petition shall be verified and filed in 18 final orders or resolutions of COMELEC and COA
copies; from other tribunals, persons and officers.
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment, final order or A:
resolution subject thereof, together with certified Review of judgment,
true copies of documents relevant and pertinent to final orders or
Rule 64 for COMELEC
the petition; resolutions of other
and COA
3. The aggrieved party is named as the petitioner tribunals, persons and
officer
and shall join as respondent the commission
Petition is based on Petition is based on
concerned and all the persons interested in
questions of law questions of law
sustaining the judgment, final order or resolution.
It is a mode of appeal
4. The petition shall state the facts with certainty,
but the petition used It is a mode of appeal
present clearly the issues involved, set forth the is Rule 65
grounds and brief arguments relied upon for Involves review of Involves the review of
review; judgments, final the judgment final
5. Petition shall state the specific material dates orders or resolutions orders or resolutions of
showing that it was filed within the period fixed by of COMELEC and COA the CA, Sandiganbayan,
the Rules. CTA, RTC or other courts
6. The petition shall be accompanied by proof of Filed within 30 days Filed within 15 days
service of a copy thereof on the commission from notice of from notice of
involved and on the adverse party, and of the judgment, final order judgment, final order or
timely payment of docket and other lawful fees or resolution sought resolution appealed
(Sec. 5, Rule 64) to be reviewed from
7. Certification against non forum shopping
8. Petition shall pray for a judgment annulling or Does not stay the
modifying the questioned judgment, final order or execution unless SC
resolution. shall direct otherwise Stays the judgment or
upon such terms as it order appealed from
Note: The failure of the petitioner to comply with any may deem just
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition (Sec. 5, Rule The appellant and the
The COMELEC and
64). appellee are the original
COA shall be public
parties to the action,
respondents who are
and the lower court or
a. APPLICATION OF RULE 65 UNDER RULE 64 impleaded in the
quasi-judicial agency is
action
not impleaded
Q: Distinguish Rule 64 from Rule 65.
The filing of MNT or
A: MR, if allowed under
Rule 64 Rule 65 Motion for
the procedural rules of
Directed only to the Directed to any tribunal, reconsideration is not
the Commission, shall
judgments, final orders or board or officers required
interrupt period fixed
resolutions of the exercising judicial or
COMELEC and COA; quasi-judicial functions; The court is in the
Must be filed within 30 Must be filed within 60 The court is in the
exercise of its
days from notice of days from notice of exercise of its appellate
appellate jurisdiction
judgment or resolution judgment or resolution jurisdiction and power
and power of review
If MR is denied, the If MR is denied, the of review

Petition for certiorari Petition for certiorari is b. Certified true copy of material
is to be filed before to be filed only with the records of the case
the SC Court of Appeals 4. Statement of material dates
5. Sworn certification against forum
Q: What are the requisites for a review under Rule shopping
64? 6. Proof of service
A:
1. Filing of verified petition within 30days Q: What are the grounds for the outright dismissal
from notice of the judgment, final orders of the petition?
or resolutions (Sec. 3, Rule 64)
Note: Interlocutory orders must be assailed A: (Sec. 6, Rule 64)
under Rule 65, not Rule 64 1. Petition is not sufficient in form and
2. Payment of docket and other lawful fees substance (Sec. 5, Rule 64)
(Sec. 4, Rule 64) 2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Note: The filing of the petition for certiorari does not
stay the execution of the assailed judgment, final order Q: Are findings of fact reviewable under Rule 64
or resolution of the Commission unless SC directs using Rule 65?
otherwise by the issuance of a temporary restraining
order or preliminary injunction. (Sec. 8, Rule 64)
A: The petition under Rule 64 using Rule 65, cannot
question the findings of fact of the commission
Q: What are the contents of the petition?
involved where such findings are supported by
substantial evidence. Such findings when so
supported by the requisite quantum of evidence
1. Verified petition filed in 18copies joining
are final and non- reviewable (Sec 5, Rule 64).
as respondents the Commission
concerned and person/s interested in
Q: What is the effect of filing of a motion for new
sustaining the judgment, final order or
trial or reconsideration if allowed under the
resolution a quo
procedural rules of the commission concerned?
2. Statement of facts, issues, grounds for
review, arguments and relief prayed for
A: It will interrupt the period for filing the petition
3. Attachment of:
and if motion is denied, the petition may be filed
a. Duplicate original or certified true
within the remaining period which shall not be less
copy of assailed judgment, final
than 5days. (Sec. 3, Rule 64)
order or resolution
7. CERTIORARI, PROHIBITION AND MANDAMUS
GENERAL MATTERS
a. DEFINITIONS AND DICTINCTIONS
CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ
annulling or modifying the commanding a tribunal, commanding a tribunal, corporation, board
proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done:
officer exercising judicial or quasi- whether exercising judicial, quasi- (a) When he unlawfully neglects the
judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law
board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no
in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in
with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or
amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another
jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or
any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3,
remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65).
(Sec. 1, Rule 65). 65).
Directed against a person exercising to Directed against a person exercising Directed against a person exercising
judicial or quasi-judicial functions judicial or quasi-judicial functions, ministerial duties
or ministerial functions
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
To correct an act performed by To prevent the commission of an To compel performance of an act

respondent act
Purpose is to annul or modify the Purpose is to stop the proceedings Purpose is to compel performance of the act
proceedings required and to collect damages
Person or entity must have acted Person or entity must have acted Person must have neglected a ministerial
without or in excess of jurisdiction, or without or in excess of jurisdiction, duty or excluded another from a right or
with grave abuse of discretion or with grave abuse of discretion office
Extends to discretionary and
Extends to discretionary acts Only for ministerial acts
ministerial acts
Only against a respondent exercising
Against respondents who exercise judicial and/or non-judicial functions
judicial or quasi-judicial functions
Q: When does the court acquire jurisdiction over the law is, what the rights of the parties
the person of the respondent in original actions are, and undertakes to determine these
for certiorari, prohibition and mandamus? questions and adjudicate upon the rights
of the parties.
A: 2. Without jurisdiction – is where the
1. If the action is filed with the RTC – Follow respondent does not have the legal
the rules on ordinary civil actions. power to determine the case.
Jurisdiction is acquired by the service of 3. Excess of jurisdiction – is where the
summons to the respondent or by his respondent, being clothed with the power
voluntary appearance in court. to determine the case, oversteps his
2. If the action is filed with the CA or the SC – authority as determined by law.
The court acquires jurisdiction over the 4. Grave abuse of discretion – is where the
respondents with the service on them of respondent acts in a capricious,
its orders indicating its initial action on whimsical, arbitrary or despotic manner
the petition or by voluntary submission to in the exercise of his judgment as to be
such jurisdiction. said to be equivalent to lack of
jurisdiction. The abuse of discretion must
CERTIORARI be so patent and gross as to amount to an
evasion of positive duty or to a virtual
Q: What is certiorari? refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as
A: A writ issued by a superior court to an inferior where the power is exercised in an
court, board or officer exercising judicial or quasi- arbitrary and despotic manner by reason
judicial functions whereby the record of a particular of passion or personal hostility.
case is ordered to be elevated for review and 5. Plain, speedy and adequate remedy – is
correction in matters of law. one which promptly relieves the
petitioner from the injurious effects of
Note: An original action for certiorari, prohibition, and the judgment and the acts of the lower
mandamus is an independent action. As such, it does court or agency.
not interrupt the course of the principal.
Q: Which court has jurisdiction over petitions for
Note: A petition for certiorari must be based on certiorari?
jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error A: The courts have concurrent jurisdiction,
committed by him or it in the exercise thereof will
however, petitions are subject to the rule on
amount to nothing more than an error of judgment
hierarchy of courts.
which may be reviewed or corrected by appeal
(Microsoft Corp. vs. Best Deal Computer Center Corp.,
GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,
Aug. 16, 2006). Q: Does the filing of a petition for certiorari
interrupt the running of the reglamentary period?
Q: Define the following.
A: No. The rule is the same for prohibition and
A: mandamus since the remedies under Rule 65 are
1. Judicial function – is where the tribunal or independent actions.
person has the power to determine what

Q: Distinguish certiorari under Rule 65 and principal case. It is necessary therefore, to avail of
certiorari under Rule 45. either a temporary restraining order or a writ of
preliminary injunction to be issued by a higher
A: court against the public respondent so the latter
Rule 65 Rule 45 may, during the pendency of the petition, be
Findings of fact of Court GR: Findings of fact of CA enjoined from further proceeding with the case (sec
of Appeals are not are conclusive 7, Rule 65).
conclusive or binding
upon SC Q: Are the remedies of appeal and certiorari
Involves question of Involves question of law exclusive?
jurisdiction
Mode of appeal Mode of review A:
Directed against an Involves the review of the GR: Where the proper remedy is appeal, the
interlocutory order of a judgment final orders or action for certiorari will not be entertained.
court or where there is resolutions of the CA, Certiorari is not a remedy for errors of
no appeal or any other Sandiganbayan, CTA, RTC
judgment. Errors of judgment are correctible by
plain, speedy or adequate or other courts
appeal; errors of jurisdiction are reviewable by
remedy
certiorari.
Filed not later than 60 Filed within 15 days from
days from notice of notice of judgment, final
judgment, order or order or resolution XPN: A petition for certiorari may be allowed
resolution appealed from appealed from despite the availability of the remedy of appeal
Unless a writ of Stays the judgment or when:
preliminary injunction or order appealed from 1. Appeal does not constitute a speedy and
temporary restraining adequate remedy;
order is issued, it does 2. Orders were issued either in excess of or
not stay the challenged without jurisdiction;
proceeding 3. For certain special considerations as for
The judge, court, quasi- The appellant and the public policy or public welfare;
judicial agency, tribunal, appellee are the original 4. Order is a patent nullity;
corporation, board, parties to the action, and 5. Decision in the certiorari case will avoid
officer or person shall be the lower court or quasi- future litigation; or
public respondents who judicial agency is not 6. In criminal actions, the court rejects
are impleaded in the impleaded rebuttal evidence for the prosecution as,
action in case of acquittal, there could be no
Motion for Motion for remedy (Regalado, Remedial Law
reconsideration or for reconsideration is not
Compendium, Vol. I, p. 783, 2007 ed.).
new trial is required. required
Note: When the remedy by appeal had already been
If a motion for lost due to petitioner’s own neglect or error in the
reconsideration or new choice of remedies, certiorari cannot lie. The two
trial is filed, another 60 remedies are mutually exclusive (Meralco v. CA, G.R.
days shall be given to the No. 88396, July 4, 1990).
petitioner (A.M. No. 02-
03-SC) PROHIBITION
Court exercises original The court is in the
jurisdiction exercise of its appellate Q: What is prohibition?
jurisdiction and power of
review. A: A remedy to prevent inferior courts,
Filed with the RTC, CA, Filed with the SC corporations, boards or persons from usurping or
Sandiganbayan or
exercising a jurisdiction or power which they have
COMELEC
not been vested by law.
Q: Will the filing of a petition for certiorari Note: It is commenced by a verified petition
interrupt the course of the principal case? Or is an accompanied by a certified true copy of the judgment,
injunctive relief necessary? order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
A: The filing of a petition for certiorari against the thereto, and a sworn certification of non-forum
lower court or tribunal or any other public shopping (Sec. 2, Rule 65).
respondent does not interrupt the course of the
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Distinction between Prohibition and injunction ministerial duty

To perform a positive To prevent an act to
A: legal duty and not to undo maintain the status quo
INJUNCTION PROHIBITION what has been done between the parties
Directed only to the Directed to court itself,
party litigants, without commanding it to cease b. REQUISITES
in any manner from the exercise of a
interfering with the jurisdiction to which it has CERTIORARI PROHIBITION MANDAMUS
court. no legal claim. That the petition The petition is The plaintiff has a
is directed directed against a clear legal right to
Q: What is the function of writ of prohibition? against a tribunal, the act
tribunal, board corporation, demanded;
A: It is a preventive remedy. Its function is to or officer board or person
restrain the doing of some act about to be done. It exercising exercising
is not intended to provide a remedy for acts already judicial or quasi-judicial, quasi-
accomplished. If the thing be already done, the writ judicial judicial, or
of prohibition cannot undo it (Agustin v. De la functions; ministerial
functions;
Fuente, G.R. No. L-2345, Aug. 31, 1949).
The tribunal, The tribunal, It must be the
board or officer corporation, duty of the
MANDAMUS
has acted board or person defendant to
without, or in must have acted perform the act,
Q: What is mandamus? excess of without or in which is
jurisdiction or excess of ministerial and
A: A writ issued in the name of the State, to an with abuse of jurisdiction or not discretionary,
inferior tribunal, corporation, board or person, discretion with grave abuse because the same
commanding the performance of an act which the amounting to of discretion is mandated by
law enjoins as a duty resulting from an office, trust lack or excess or amounting to lack law;
or station. jurisdiction of jurisdiction;
There is no There is no The defendant
Note: It is commenced by the filing of a verified appeal or any appeal or any unlawfully
petition accompanied by certified true copy of the plain, speedy and plain, speedy and neglects the
judgment, order or resolution subject thereof, copies adequate adequate remedy performance of
of all pleadings and documents relevant and pertinent remedy in the in the ordinary the duty enjoined
thereto and a sworn certification of non-forum ordinary course course of law. by law;
shopping (Sec. 3, Rule 65). of law.
Accompanied by Accompanied by There is no appeal
Q: Distinguish mandamus from quo warranto. a certified true a certified true or any plain,
copy of the copy of the speedy and
A: judgment or judgment or adequate remedy
Mandamus Quo Warranto order subject of order subject of in the ordinary
Available when one is Available against the the petition, the petition, course of law.
unlawfully excluded from holder of an office, who copies of all copies of all
the use or enjoyment of is the person claiming the pleadings and pleadings and
an office against a person office as against documents documents
who is responsible for petitioner, not relevant and relevant and
excluding the petitioner necessarily the one who pertinent pertinent thereto,
excludes the petitioner thereto, and and sworn
sworn certification of
certification of non-forum
Q: Distinguish mandamus from injunction.
non-forum shopping under
shopping under Rule 46.
A: Rule 46.
Mandamus injunction
Special civil action Ordinary civil action
Directed against a Directed against a litigant Q: What are the requisites of a valid certiorari?
tribunal, corporation
board, or officer A:
Purpose is for tribunal, For the defendant either 1. There must be a controversy;
corporation, board or to refrain from an act or 2. Respondent is exercising judicial or quasi-
officer to perform to perform not judicial functions;
ministerial and legal duty necessarily a legal and

3. Respondents acted without or in excess of A:

its jurisdiction or with grave abuse of 1. Summary procedure
discretion amounting to lack of 2. Writ of Amparo
jurisdiction; and 3. Writ of Habeas Data
4. There must be no appeal or other plain, 4. Small claims cases (Riano, Civil Procedure:
speedy and adequate remedy. (Sec. 1, A Restatement for the Bar, p. 629, 2009
Rule 65) ed.)
Note: Certiorari is not the remedy for a loss appeal. Q: When is prohibition issued?
Q: What are the requisites of a valid prohibition? A:

GR: Prohibition does not ordinarily lie to
A: Sec. 2, Rule 65 restrain an act which is already fait accompli.
1. There must be a controversy
2. Respondent is exercising judicial, quasi- XPN: It will lie to prevent the creation of a new
judicial functions or ministerial functions province by those in the corridors of power who
3. Respondents acted without or in excess of could avoid judicial intervention and review by
its jurisdiction or with grave abuse of merely speedily and stealthily completing the
discretion amounting to lack of commission of such illegality. (Tan v. COMELEC,
jurisdiction G.R. No. 73155, July 11, 1986)
4. There must be no appeal or other plain,
speedy and adequate remedy Note: Prohibition and not mandamus, is the remedy
where a motion to dismiss is wrongfully denied
Q: What are the requisites of a valid mandamus? (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30,
1949)
A: Sec. 3, Rule 65
1. There must be a clear legal right or duty Q: What are the grounds for mandamus?
2. The act to be performed must be within
the powers of the respondent to perform; A:
3. The respondent must be exercising a 1. When any tribunal, corporation, board,
ministerial duty officer or person unlawfully neglects the
4. The duty or act to be performed must be performance of an act which the law
existing (a correlative right will be denied specifically enjoins as a duty resulting
if not performed by the respondent) from an office, trust or station; or
5. There is no appeal or other plain, speedy 2. When any tribunal, corporation, board,
and adequate remedy in the ordinary officer or person unlawfully excludes
course of law another from the use and enjoyment of a
right or office to which the other is
c. WHEN PETITION FOR CERTIORARI, PROHIBITION entitled (Sec. 3)
AND MANDAMUS IS PROPER
Q: Will mandamus issue despite the availability of
Q: What are the grounds for the filing of a petition administrative remedies?
for certiorari?
A:
A: That a tribunal, board or officer exercising GR: Mandamus will not issue when
judicial or quasi-judicial functions acted: administrative remedies are still available.
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to
lack or excess of jurisdiction XPN:
1. If the party is in estoppel (Vda. de Tan v.
Note: It is commenced by the filing of a verified Veterans Backpay Commission, G.R. No. L-
petition accompanied by certified true copy of the 12944, Mar. 30, 1959); or
judgment, order or resolution subject thereof, copies 2. Only questions of law are raised.
of all pleadings and documents relevant and pertinent (Madrigal v. Lecaroz, G.R. No. L-46218,
thereto and a sworn certification of non-forum Oct. 23, 1990)
shopping. (Sec. 1, Rule 65).
Q: May mandamus be used to compel a
Q: When is certiorari under Rule 65 unavailable? discretionary duty?
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: Mandamus is only applicable to a ministerial Raises only questions of Raises questions of

duty. However, mandamus can be used to the law; jurisdiction because a
extent of requiring the performance of a tribunal, board or officer
discretionary duty to act but not to require exercising judicial or quasi-
performance of such duty in a particular manner. judicial functions has acted
without jurisdiction or in
Q: May the CA award damages in mandamus excess of jurisdiction or
proceedings? with grave abuse of
discretion amounting to
lack of jurisdiction;
A: Yes. The CA in resolving a petition for mandamus
Filed within 15 days from Filed not later than 60 days
is authorized to award civil damages in the same
notice of judgment or final from notice of judgment,
petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3
order appealed from, or of order or resolution sought
1992) the denial of petitioner’s to be assailed and in case a
motion for reconsideration motion for reconsideration
d. INJUNCTIVE RELIEF or new trial; or new trial is timely filed,
whether such motion is
Q: When is injunctive relief proper? required or not, the 60 day
period is counted from
A: The court in which the petition is filed may issue notice of denial of said
orders expediting the proceedings, and it may also motion;
grant a temporary restraining order or a writ of Extension of 30 days may Extension no longer
preliminary injunction for the preservation of the be granted for justifiable allowed;
rights of the parties pending such proceedings. The reasons
petition shall not interrupt the course of the Does not require a prior Motion for
principal case unless a temporary restraining order motion for Reconsideration is a
or a writ of preliminary injunction has been issued reconsideration; condition precedent,
subject to exceptions
against the public respondent from further
Stays the judgment Does not stay the
proceeding in the case (Sec. 7, Rule 65).
appealed from; judgment or order subject
The public respondent shall proceed with the
of the petition unless
principal case within ten (10) days from the filing of enjoined or restrained;
a petition for certiorari with a higher court or Parties are the original The tribunal, board, officer
tribunal, absent a Temporary Restraining Order parties with the appealing exercising judicial or quasi-
(TRO) or a Writ of Preliminary Injunction, or upon party as the petitioner and judicial functions is
its expiration. Failure of the public respondent to the adverse party as the impleaded as respondent
proceed with the principal case may be a ground for respondent without
an administrative charge (AM 07-7-12-SC, Dec. 12, impleading the lower court
2007). or its judge;
Filed with only the May be filed with the
e. CERTIORARI DISTINGUISHED FROM APPEAL BY Supreme Court Supreme Court, Court of
CERTIORARI; PROHIBITION AND MANDAMUS Appeals, Sandiganbayan,
DISTINGUISHED FROM INJUNCTION; WHEN AND or Regional Trial Court
WHERE TO FILE PETITION SC may deny the decision
motupropio on the ground
Q: Distinguish certiorari from appeal by certiorari. that the appeal is without
merit, or is prosecuted
manifestly for delay, or
Certiorari as a Mode of Certiorari as a Special Civil
that the questions raised
Appeal (Rule 45) Action (Rule 65)
therein are too
Called petition for review A special civil action that is
unsubstantial to require
on certiorari, is a mode of an original action and not a
consideration.
appeal, which is but a mode of appeal, and not a
continuation of the part of the appellate
appellate process over the process but an Note: The remedies of appeal and certiorari are
original case; independent action. mutually exclusive and not alternative or successive.
Seeks to review final May be directed against an The antithetic character of appeal and certiorari has
judgments or final orders; interlocutory order of the been generally recognized and observed save only on
court or where not appeal those rare instances when appeal is satisfactorily
or plain or speedy remedy shown to be an inadequate remedy. Thus, a petitioner
available in the ordinary must show valid reasons why the issues raised in his
course of law petition for certiorari could not have been raised on

appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305).
Q: Distinguish prohibition and mandamus from injunction.
A:
Prohibition Mandamus Injunction
Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to
commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the
board or person, whether exercising board or person, to do an act required to commission or continuance of a
judicial, quasi-judicial or ministerial be done: specific act, or to compel a particular
functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the
proceedings when said proceedings are performance of an act which the law applicant. Preliminary injunction is a
without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the
with abuse of its discretion, there being no other plain, speedy and adequate status quo and prevent future wrongs
no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect
adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the
of law (Sec. 2, Rule 65). another from the use and enjoyment of pendency of an action.
a right or office to which the other is
entitled (Sec. 3, Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain
usurpation or assumption of jurisdiction; ministerial and legal duty; from an act or to perform not
necessarily a legal and ministerial
duty;
May be directed against entities May be directed against judicial and non- Directed against a party
exercising judicial or quasi-judicial, or judicial entities
ministerial functions
Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to
ministerial, discretionary or legal
functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial
Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the
the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent
jurisdiction over the territorial area jurisdiction over the territorial area resides.
where respondent resides. where respondent resides.
f. EXCEPTIONS TO FILING OF MOTION FOR passed upon by the lower court, or are
RECONSIDERATION BEFORE FILING PETITION the same as those raised and passed upon
in the lower court;
Q: Is it an absolute rule that before recourse to 3. Urgent necessity for the resolution of the
certiorari is taken a motion for reconsideration question, and any further delay would
must be filed? prejudice the interests of the Government
or of the petitioner, or the subject matter
A: of the action is perishable;
GR: Petition for certiorari will not be 4. Under the circumstances, a motion for
entertained unless the public respondent has reconsideration would be useless;
been given first the opportunity through a 5. Petitioner was deprived of due process
motion for reconsideration to correct the error and there is extreme urgency for relief;
being imputed to him. 6. In a criminal case, relief from an order of
arrest is urgent and the granting of such
XPNs: A prior motion for reconsideration is not relief by the trial court is improbable;
necessary to entertain a petition for certiorari 7. Proceedings in the lower court are a
where: nullity for lack of due process;
1. Order is a patent nullity, as where the 8. Proceedings were ex parte or in which the
court a quo has no jurisdiction; petitioner had no opportunity to object;
2. Questions raised in the certiorari and
proceedings have been duly raised and
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
9. Issue raised is one purely of law or where without merit, prosecuted manifestly for delay, or
public interest is involved. raises questions which are too unsubstantial to
require consideration?
g. RELIEFS PETITIONER IS ENTITLED TO
A: The court may dismiss the petition. In such
Q: What are the reliefs a petitioner is entitled to event, the court may award in favor of the
with this action? respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
A: counsel to administrative sanctions under Rules 139
The primary relief will be the annulment or and 139-B.
modification of the judgment, order, or resolution
or proceeding subject of the petition. It may also The Court may impose motu proprio, based on res
include such other Incidental reliefs as law and ipsa loquitur, other disciplinary sanctions or
justice may require (sec 1, Rule 65) The court may measures on erring lawyers for patently dilatory
also award damages in its judgment and the and unmeritorious petitions for certiorari (Sec. 8, as
execution of the award for damages or costs shall amended by A.M. No. 07-7-12-SC).
follow the procedure in sec 1 of rule 39 (sec 9, rule
65). 8. QUO WARRANTO
h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION Q: What is quo warranto?

CASES
A: A proceeding or writ issued by the court to
Q: What is the rule on acts or omissions of the determine the right to use an office, position or
MTC or RTC regarding election cases? franchise and to oust the person holding or
exercising such office, position or franchise if his
A: In election cases involving an act or an omission right is unfounded or if a person performed acts
of a municipal or a regional trial court, the petition considered as grounds for forfeiture of said exercise
shall be filed exclusively with the Commission on of position, office or franchise.
Elections, in aid of its appellate jurisdiction. (Sec.4,
Rule 65, As amended by AM No. 07-7-12-SC, Dec. Note: It is commenced by a verified petition brought in
12, 2007) the name of the Republic of the Philippines or in the
name of the person claiming to be entitled to a public
office or position usurped or unlawfully held or
i. WHERE TO FILE PETITION
exercised by another. (Sec. 1)
Q: When and where to file petition?
Q: What are the classifications of quo warranto
proceedings?
A:
1. Supreme Court- Subject to the doctrine of A:
hierarchy of courts and only when compelling 1. Mandatory – brought by the Solicitor
reasons exist for not filing the same with the lower General or Public prosecutor when:
courts. a. directed by the President;
2. Court of Appeals only- If the petition involves an b. upon complaint or when he has
act or an omission of a quasi-judicial agency, unless reason to believe that the cases for
otherwise provided by law or rules. quo warranto can be established by
3. Court of Appeals and Sandiganbayan- Whether proof (Sec. 2)
or not in aid of appellate jurisdiction. c. at the request and upon the relation
4. Regional Trial Court- If the petition relates to an if another person (ex relatione), but
act or an omission of an MTC, corporation, board, leave of court must first be obtained.
officer or person. (Sec. 3)
5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC 2. Discretionary – brought by the Solicitor
As amended by AM No. 07-7-12-SC, Dec. 12, 2007. General or a public prosecutor at the
request and upon the relation of another
j. EFFECTS OF FILING OF AN UNMERITORIOUS person, provided there must be:
PETITION a. leave of court
b. at the request and upon the relation
Q: What is the effect of a petition for certiorari, of another person
prohibition or mandamus which is patently c. indemnity bond (Sec. 3)

protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25,

Q: Distinguish quo warranto in elective office from 1929).
an appointive office.
b. WHEN GOVERNMENT COMMENCE AN ACTION
A: AGAINST INDIVIDUALS
c. WHEN INDIVIDUAL MAY COMMENCE AN
Elective Office Appointive Office ACTION
Issue: eligibility of the Issue: validity of the
respondent appointment Q: Who commences the action?
Court will oust the
Occupant declared
person illegally A:
ineligible/disloyal will be
appointed and will order 1. The solicitor general or public prosecutor,
unseated but petitioner
the seating of the person
will not be declared the when directed by the President of the
who was legally
rightful occupant of the Philippines, or when upon complaint or
appointed and entitled to
office. otherwise he has good reason to believe
the office.
that any case specified in the proceding
section can be established by proof.
a. DISTINCTION FROM QUO WARRANTO UNDER
(mandatory quo warranto)
OMNIBUS ELECTION CODE
2. The Solicitor General or a public
Q: Distinguish quo warranto under Rule 66 from prosecutor may, with the permission of
quo warranto under Omnibus Election Code. court, bring an action at the request and
upo n the relation of another person.
A: (discretionary quo warranto)
Quo Warranto Under Rule Quo Warranto In 3. A person claiming to be entitled to a
66 Electoral Proceedings public office or position or unlawfully held
Prerogative writ by which or exercised by anoher may also bring
the government can call action, in his own name.
To contest the right of
upon any person to show
an elected public officer
by what title he holds a Q: Against whom a quo warranto may be filed?
to hold public office.
public office or exercises a
public franchise. A: The action must be filed against:
Grounds: 1. A person who usurps, intrudes into, or
Grounds: 1. usurpation
ineligibility or unlawfully holds or exercises a public
2. forfeiture
disqualification to hold office, position or franchise;
3. illegal association
the office 2. A public officer who does or suffers an act
Presupposes that the which, by the provision of law, constitutes
respondent is already a ground for the forfeiture of his office;
actually holding office and
Petition must be filed and
action must be
within 10 days from the 3. An association which acts as a corporation
commenced within 1 year
proclamation of the within the Philippines without being
from cause of ouster or
candidate. legally incorporated or without lawful
from the time the right of
petitioner to hold office authority so to act (Sec. 1, Rule 66).
arose.
The petitioner must be the Note: Actions of quo warranto against corporations
government or the person now fall under the jurisdiction of the RTC (Sec. 5.2,
May be filed by any Securities Regulations Code).
entitled to the office and
voter even if he is not
who would assume the
entitled to the office. Q: A group of businessmen formed an association
same if his action
succeeds. in Cebu City calling itself Cars Co. to distribute/sell
Person adjudged entitled Actual or compensatory cars in said city. It did not incorporate itself under
to the office may bring a damages are recoverable the law nor did it have any government permit or
separate action against the in quo warranto license to conduct its business as such. The
respondent to recover proceedings under the Solicitor General filed before the RTC in Manila a
damages. Omnibus Election Code. verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The
Note: If the dispute is as to the counting of votes or on latter filed a motion to dismiss the petition on the
matters connected with the conduct of the election, ground of improper venue claiming that its main
quo warranto is not the proper remedy but an election office and operations are in Cebu City and not in
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Manila. Is the contention of Cars Co. correct? Q: What are the requisites of a valid
Why? expropriation?
A: No. As expressly provided in the Rules, when the A:

Solicitor General commences the action for quo 1. Due process of law
warranto, it may be brought in a Regional Trial 2. Payment of just compensation
Court in the City of Manila, as in the case, in the CA 3. Taking must be for public use
or in the SC (Sec. 7, Rule 66). (2001 Bar Question)
Q: What is the power of eminent domain?
d. JUDGMENT IN QUO WARRANTO ACTION
A: It is the right of the State to acquire private
Q: What is the effect of a judgment in Quo property for public use upon the payment of just
Warranto case? compensation.
A; When the respondent is found guilty of usurping, Q: When is expropriation proper?

intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall A: It is proper only when the owner refuses to sell
be rendered that such respondent be ousted and or, if the latter agrees, agreement as to the price
altogether excluded therefrom, and that the cannot be reached.
petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered a. MATTERS TO BE ALLEGED IN COMPLAINT FOR
determining the respective rights in and to the EXPROPRIATION
public office, position or franchise of the parties to
the action as justice requires (Sec. 9, Rule 66). Q: Matters to be allege in a complaint for
expropriation.
e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO
A: right and purpose of expropriation, describing
PUBLIC OFFICE
the property sought to be expropriated, and joining
Q: What are the rights of persons adjudged to be as defendants all persons owning or claiming to
entitled to the office? own any part thereof or interest therein (Sec. 1).
A: if judgment be rendered in favor of the person b. TWO STAGES IN EVERY ACTION FOR
averred in the complaint to be entitled to the public EXPROPRIATION
office, he may, after taking the oath of office and
Q: What are the two (2) stages in expropriation
executing any official bond required by law:
proceedings?
1. take upon himself the execution of the
office;
A:
2. may immediately thereafter demand all
1. Determination of the authority of the
the books and papers in the respondent’s
plaintiff to exercise the power of eminent
custody or control appertaining to the
domain and the propriety of the exercise
office to which the judgment relates; and
in the context of the facts involved.
3. may bring an action against the
2. Determination of just compensation.
respondent to recover damages sustained
by such persons by reason of usurpation.
Q: City of Iloilo (petitioner) represented by Mayor
Treñas filed a complaint for eminent domain
Note: when there is a judgment in a quo warranto
against Javellana seeking to expropriate two
action finding usurpation to be existent, respondent
must be ousted and altogether excluded therefrom, parcels of land. Mayor Treñas filed a motion for
and that the petitioner or relator, as the case may be, issuance of writ of possession alleging that it had
recover his cost. Such further judgment may be deposited 10% of the amount of compensation of
rendered determining the respective rights in the which the court issued. A writ of possession was
public office, position, or franchise of all the parties to subsequently issued, and petitioner was able to
the action, as justice requires. take physical possession of the properties. After
which, the expropriation proceedings remained
9. EXPROPRIATION dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that
Q: What is expropriation? when he sought to withdraw the money, he
discovered that no deposit was made. Thus,
A: The procedure for enforcing the right of eminent Javellana filed a complaint for recovery of
domain.
possession, fixing and recovery of rental and owner upon the filing of the complaint to be
damages. The City of Iloilo argues that Javellana entitled to a writ of possession. As a relevant
could no longer bring an action for recovery since standard for initial compensation, the market value
the subject property was already taken for public for the property as stated in the tax declaration or
use. The trial court in its orders and amended the current relevant zonal valuation of the Bureau
orders maintained that the assailed orders issued of internal Revenue (BIR), whichever is higher and
by it were interlocutory in character and as such the value of the improvements and/or structures
are always subject to modification and revision by using the replacement cost method.
the court anytime. Is the order of expropriation
final? Note: RA 8974 applies in instances when the national
government expropriates property for national
A: Expropriation proceedings have two stages. The government infrastructure projects. Thus, if
first phase ends with an order of dismissal, or a expropriation is engaged by the national government
determination that the property is to be acquired for purposes other that national infrastructure
for a public purpose. The second phase consists of projects, the assessed value standard and the deposit
mode prescribed in Rule 67 continues to apply.
the determination of just compensation. Both
orders, being final, are appealable.
The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
An order of condemnation or dismissal is final,
payment in cases involving national government
resolving the question of whether or not the infrastructure projects is indeed very clear (MCWD v. J.
plaintiff has properly and legally exercised its power King and Sons, GR 175983, April 16, 2009)
of eminent domain. Once the first order becomes
final and no appeal thereto is taken, the authority d. NEW SYSTEM OF IMMEDIATE PAYMENT OF
to expropriate and its public use can no longer be INITIAL JUST COMPENSATION
questioned. Thus, it has become final, and the
petitioner’s right to expropriate the property for a Q: What is the new system of immediate payment
public use is no longer subject to review. (City of of initial just compensation?
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010). A: For the acquisition of right-of-way, site or
location for any national government infrastructure
Q: May Congress enact a law providing that a
project through expropriation, upon the filing of the
5,000 square meter lot, a part of the UST
filing of the complaint, and after due notice to the
compound in Sampaloc, Manila, be expropriated
defendant, the implementing agency shall
for the construction of a park in honor of former
immediately pay the owner of the property the
City Mayor ArsenioLacson? As compensation to
amount equivalent to the sum of (1) 100 percent of
UST, the City of Manila shall deliver its 5-hectare
the value of the property based on the current
lot in Sta. Rosa, Laguna originally intended as a
relevant zonal valuation of the BIR; and (2) the
residential subdivision for the Manila City Hall
value of the improvements and/or structures as
employees. Explain.
determined under Sec. 7 of RA 8974 (Sec. 4, RA
8974).
A: Yes, Congress may enact a law to expropriate
property but it cannot limit just compensation. The
determination of just compensation is a judicial e. DEFENSES AND OBJECTIONS
function and Congress may not supplant or prevent
the exercise of judicial discretion to determine just Q: What must be filed when defendant has an
compensation. Under Sec. 5, Rule 67 of the Rules of objection?
Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 A: If a defendant has any objection to the filing of
Bar Question) or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER serve his answer within the time stated in the
INTO POSSESSION OF THE REAL PROPERTY summons. The answer shall specifically designate or
identify the property in which he claims to have an
Q: What is the new system of immediate payment interest, state the nature and extent of the interest
of initial compensation? claimed, and adduce all his objections and defenses
to the taking of his property. No counterclaim,
A: RA 8974 provides a modification of sec 2, Rule 67 cross-claim or third-party complaint shall be alleged
where the Government is required to make or allowed in the answer or any subsequent
immediate and direct payment to the property pleading.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Note: if there are no objections, he must file and serve overruled or when no party appears to object to or
a notice of appearance and manifestation to that to defend against the expropriation (Sec 4, Rule 67).
effect. And thereafter, shall be entitled to notice of all
proceedings. Note: after the rendition of the order of expropriation,
the plaintiff shall not be permitted to dismiss or
Q: What is the duty of the court if the defendant discontinue the proceeding except upon such terms as
waives his defenses or objections? the court deems just and equitable (Sec 4, Rule 67)
A: If a defendant waives all defenses and objections g. ASCERTAINMENT OF JUST COMPENSATION

not so alleged, the court, in the interest of justice,
Q: What is just compensation?
may permit amendments to the answer to be made
not later than ten (10) days from the filing thereof.
A: Just compensation is equivalent to the fair
However, at the trial of the issue of just
market value of the property at the time of its
compensation, whether or not a defendant has
taking or filing of complaint whichever comes first.
previously appeared or answered, he may present
It is the fair and full equivalent for the loss
evidence as to the amount of the compensation to
sustained by the defendant.
be paid for his property, and he may share in the
distribution of the award (Sec. 3, Rule 67). Q: What is the formula for the determination of
just compensation?
Q: How may appeal be taken from an order of
expropriation by the party aggrieved thereby? A:
JC = FMV + CD – CB
A: It may be appealed by the defendant by record
If CB is more than CD then,
on appeal. This is an instance when multiple
appeals are allowed because they have separate JC = FMV
and/or several judgments on different issues e.g.
issue on the right to expropriate or issue of just
compensation JC – Just compensation
FMV – Fair market value
Note: An appeal does not delay the right of the CD – Consequential damages
plaintiff to enter upon the property of the defendant CB – Consequential benefits
and appropriate the same for public use.
Note:Sentimental value is not computed.
Q: What is the effect if the order of condemnation
was reversed? Q: What is the reckoning point for determining
just compensation?
A: The owner shall repossess the property with the
right to be indemnified for all damages sustained A:The value of just compensation shall be
due to the taking (Sec. 11, Rule 67) determined as of the date of the taking of the
property or the filing of the complaint, whichever
Note: The landowner has the option of proving came first. (Sec. 4)
damages either in the same expropriation case or in
a separate action instituted for that purpose, as the GR: When the taking of the property sought to
judgment denying the right of expropriation is not be expropriated coincides with the
res judicata on the issue of damages arising from commencement of the expropriation
such illegal expropriation (Republic v. Baylosis, G.R. proceedings, or takes place subsequent to the
No. L-6191, Jan. 31, 1955). filing of the complaint for eminent domain, the
just compensation should be determined as of
f. ORDER OF EXPROPRIATION the date of the filing of the complaint. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
Q: What is an order of expropriation? 168967, Feb. 12, 2010).
A: An order of expropriation (or order of Note: Typically, the time of taking is

condemnation) will be issued declaring that the contemporaneous with the time the petition is
plaintiff has a lawful right to take the property for filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10,
the public use or purpose described in the 2009)
complaint upon the payment of just compensation
in the event the objections of the defendant are XPNs:
1. Grave injustice to the property owner

Air Transportation Office cannot the construction of the public

conveniently invoke the right of eminent improvement for which the land was
domain to take advantage of the taken. To permit them to do so would be
ridiculously low value of the property at to allow them to recover more than the
the time of taking that it arbitrarily value of the land at the time when it was
chooses to the prejudice of the land taken, which is the true measure of the
owners. (Heirs of Mateo damages, or just compensation, and
Pidacan&RomanaEigo v. Air would discourage the construction of
Transportation Office, G.R. No. 162779, important public
June 15, 2007) improvements.(Provincial Gov’t of Rizal v.
2. The taking did not have color of legal Caro de Araullo, G.R. No. L-36096, Aug.
authority 16, 1933)
To allow NAPOCOR to use the date it
constructed the tunnels as the date of h. APPOINTMENT OF COMMISSIONERS;
valuation would be grossly unfair. First, it COMMISSIONER’S REPORT; COURT ACTION UPON
did not enter the land under warrant or COMMISSIONER’S REPORT
color of legal authority or with intent to
expropriate the same. It did not bother to Q: May the court dispense with the assistance of
notify the owners and wrongly assumed it commissioners in the determination of just
had the right to dig those tunnels under compensation in expropriation proceedings?
their property. Secondly, the
“improvements” introduced by A: No. The appointment of commissioners in
NAPOCOR, the tunnels, in no way expropriation proceedings is indispensable. In such
contributed to an increase in the value of cases, trial with the aid of commissioners is a
the land. The trial court rightly computed substantial right that may not be done away with
the valuation of the property as of 1992, capriciously or for no reason at all (MERALCO v.
when the owners discovered the Pineda, G.R. No. L-59791, Feb. 13, 1992).
construction of the huge underground
Note: Objections to the order of appointment must be
tunnels beneath their lands and
filed within 10 days from service of the order and shall
NAPOCOR confirmed the same and
be resolved within 30 days after all the commissioners
started negotiations for their purchase received the copies of the objections (Sec. 5)
but no agreement could be reached.
(NAPOCOR v. Ibrahim, G.R. No. 168732, Q: When may the court appoint a commissioner in
June 29, 2007) expropriation proceedings?
3. The taking of the property was not initially
for expropriation
A: Upon the rendition of the order of expropriation,
There was no taking of the property in
the court shall appoint not more than three (3)
1985 by Public Estates Authority (PEA) for
competent and disinterested persons as
purposes of expropriation. As shown by
commissioners to ascertain and report to the court
the records, PEA filed with the RTC its
the just compensation for the property sought to
petition for expropriation on Sept. 22,
be taken. The order of appointment shall designate
2003.The trial court was correct in
the time and place of the first session of the hearing
ordering the Republic, through PEA, upon
to be held by the commissioners and specify the
the filing of its complaint for
time within which their report shall be submitted to
expropriation, to pay Tan just
the court (Sec. 5, Rule 67).
compensation on the basis of the BIR
zonal valuation of the subject property.
(Tan v. Republic, G.R. No. 170740, May Q: When should the commissioner make a report?
25, 2007)
4. The owner will be given undue increment A: The court may order the commissioners to
advantages because of the expropriation report when any particular portion of the real
The value of the property in question was estate shall have been passed upon by them, and
greatly enhanced between the time when may render judgment upon such partial report, and
the extension of the street was laid out direct the commissioners to proceed with their
and the date when the condemnation work as to subsequent portions of the property
proceedings were filed. The owners of the sought to be expropriated, and may from time to
land have no right to recover damages for time so deal with such property. The commissioners
this unearned increment resulting from shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
not be effectual until the court shall have accepted a. JUDGMENT ON FORECLOSURE FOR PAYMENT
their report and rendered judgment in accordance OR SALE
with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be Q: What is judgment on foreclosure?
filed within sixty (60) days from the date the
commissioners were notified of their appointment, A: It is the judgment of the court ordering the
which time may be extended in the discretion of debtor to pay within a period not less than 90 days
the court. Upon the filing of such report, the clerk nor more than 120 days from the entry of judgment
of the court shall serve copies thereof on all after ascertaining the amount due to the plaintiff
interested parties, with notice that they are allowed (Sec. 2, Rule 68).
ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7, Rule Q: What is foreclosure sale?
67).
A: When the defendant fails to pay the amount of
i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND the judgment within the period specified therein,
PAYMENT the court, upon motion, shall order the property to
be sold in the manner and under the provisions of
Q: What are the rights of the plaintiff after Rule 39 and other regulations governing sales of
payment? real estate under executions (Sec.3, Rule 68).
A: After payment of just compensation, as Q: When is the sale of mortgaged property proper
determined in the judgment, the plaintiff shall have and how must it be brought about?
the right to enter upon the property expropriated
and to appropriate the same for the public use or A: if the mortgagor fails to pay the sum due within
purpose defined in the judgment or to retain the period (90-120 days) stated by the court in its
possession already previously made in accordance judgment, it would be good practice for the
with Sec 2, Rule 67. mortgagee to file a motion for the sale of the
mortgaged property because under the Rules, the
j. EFFECT OF RECORDING OF JUDGMENT court shall order the sale of the property only
“upon motion of the mortgagee” (sec 3, rule 68)
Q: What is the effect of the recording of the
judgment? Note: it has been held that the motion for the sale of
the mortgaged property is non-litigable and may be
A: When real estate is expropriated, a certified copy made ex parte. After the foreclosure sale has been
of such judgment shall be recorded in the registry effected, the mortgagee should file a motion for the
confirmation of the sale which requires notice and
of deeds of he place in which the property is
hearing.
situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for b. SALE OF MORTGAGED PROPERTY
such public use or purpose (Sec 13, Rule 69).
Q: What is the effect of confirmation of the sale?
10. FORECLOSURE OF REAL ESTATE MORTGAGE
A: It shall divest the rights in the property of all the
Q: What is foreclosure of Real Estate Mortgage
parties to the action and shall vest their rights in
(REM)?
the purchaser, subject to such rights of redemption
as may be allowed by law (Sec 3, Rule 68)
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to Note: it is said that title vests in the purchaser upon a
another, by proceeding against the property used valid confirmation of the sale and retroacts to the date
to secure said obligation. of sale.
Note: It is commenced by a complaint setting forth the c. DISPOSITION OF PROCEEDS OF SALE

date and due execution of the mortgage; the names
and residences of the mortgagor and the mortgagee; a Q: How is the disposition of the proceeds of the
description of the mortgaged property; date of the sale done?
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
A: The proceeds of the sale of the mortgaged
unpaid thereon; and the names and residences of all
property shall, after deducting the costs of the sale,
persons having or claiming an interest in the property
subordinate in right to that of the holder of the
be paid to the person foreclosing the mortgage, and
mortgage (Sec. 1). when there shall be any balance or residue after

paying off the mortgage debt due, the same shall On January 10, 2003, GAP filed an ex-parte motion
be paid to junior encumbrances in the order of their with the court for the issuance of a writ of
priority. If there be any further balance after paying possession to oust Gretchen from the land. It also
them or if there be no junior encumbrances, the filed a deficiency claim for P800,000 against Arlene
same shall be paid to the mortgagor or any person and Gretchen. The deficiency claim was opposed
entitled thereto (Sec. 4) by Arlene and Gretchen.
Q: What claims shall be satisfied from the 1. Resolve the motion for the issuance of a
proceeds of the public sale of the mortgaged writ of possession.
property (in order)? 2. Resolve the deficiency claim of the bank.
A: A:
1. Costs incurred in the sale of property; 1. In judicial foreclosure by banks such as GAP,
2. Claim of the person foreclosing the the mortgagor or debtor whose real
property; property has been sold on foreclosure has
3. Claims of junior encumbrancers in the the right to redeem the property within 1
order of their priority; year after the sale (or registration of the
4. Residue goes to the mortgagor or his sale). However, under Sec. 47 of the General
authorized agent, or any other person Banking Law of 2000, the purchaser at the
entitled to it. auction sale has the right to obtain a writ of
possession after the finality of the order
d. DEFICIENCY JUDGMENT confirming sale. The motion for writ of
possession, however, cannot be filed ex
Q: What is deficiency judgment? parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be
A: It is the judgment rendered by the court holding enforced against the mortgage debtor
the defendant liable for any unpaid balance due to Arlene, but it cannot be enforced against
the mortgagee if the proceeds from the foreclosure Gretchen, the owner of the mortgaged
sale do not satisfy the entire debt. property, who did not assume personal
liability of the loan. (2003 Bar Question)
Q: What are the instances when the court cannot
render deficiency judgment? (1) INSTANCES WHEN COURT CANNOT RENDER
DEFICIENCY JUDGMENT
A: where the debtor-mortgagor is a non-resident
and who at the time of the filing of the action for Q: What are the instances when the courts cannot
foreclosure and during the pendency of the render deficiency judgment?
proceedings was outside the Philippines, then it is
not procedurally feasible. It is by nature in A: When the:
personam and jurisdiction over the person is
mandatory. 1. Case is covered by the Recto Law (Art.
1484, NCC);
Q: Arlene borrowed P1 million from GAP Bank 2. Mortgagor is a non-resident and is not
(GAP) secured by the titled land of her friend found in the Philippines, unless there is
Gretchen who, however, did not assume personal attachment;
liability for the loan. Arlene defaulted and GAP 3. Mortgagor dies, the mortgagee may file
filed an action for judicial foreclosure of the real his claim with the probate court under
estate mortgage impleading Arlene and Gretchen Sec. 7, Rule 86; and
as defendants. The court rendered judgment 4. Mortgagee is a third person but not
directing Arlene to pay the outstanding account of solidarily liable with the debtor.
P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL
the judgment debt within the period specified in FORECLOSURE
the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was Q: Distinguish judicial foreclosure from
confirmed by the court, and the confirmation of extrajudicial foreclosure.
the sale was registered with the Registy of Deeds
on January 5, 2002. A:
Judicial Foreclosure Extrajudicial Foreclosure
Governed by Rule 68 Governed by Act 3135
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
There is only an equity of appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.
Right of redemption
redemption except when No. 73341, Aug. 21, 1987)
exists
the mortgagee is a bank
Requires court No court intervention 11. PARTITION
intervention necessary
Mortgagee is given a Q: What is partition?
special power of attorney
Mortgagee need not be
in the mortgage contract A: It is a process of dividing and assigning property
given a special power of
to foreclose the
attorney. owned in common among the various co-owners
mortgaged property in
thereof in proportion to their respective interests in
case of default.
said property.It presupposes the existence of a co-
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which
ownership over a property between two or more
case, he will be deemed to have waived his right to persons. The rule allowing partition originates from
proceed against the property in a foreclosure a well-known principle embodied in the Civil Code,
proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, that no co-owner shall be obliged to remain the co-
1959) ownership. Because of this rule, he may demand at
any time the partition of the property owned in
f. EQUITY OF REDEMPTION VERSUS RIGHT OF common (Art. 494).
REDEMPTION
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: Distinguish equity of redemption from right of
redemption. Q: What are the requisites of a valid partition?
A: A:
Equity of Redemption Right of Redemption 1. Right to compel the partition;
Right of the debtor, his 2. Complaint must state the nature and
Right of the defendant
successor in interest or any extent of plaintiff's title and a description
mortgagor to
judicial creditor or judgment of the real estate of which partition is
extinguish the
creditor of said debtor or demanded; and
mortgage and retain
any person having a lien on 3. All other persons interested in the
ownership of the
the property subsequent to
property by paying the property must be joined as defendants
the mortgage or deed of
debt within 90-120 (Sec. 1, Rule 69)
trust under which the
days after the entry of
property is sold to redeem
judgment or even after a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE
the property within 1 year
the foreclosure sale MADE DEFENDANT
from the registration of the
but prior to
Sheriff’s certificate of
confirmation Q: Who may file and who should be made
foreclosure sale
Governed by Secs. 29-31, defendants?
Governed by Rule 68
Rule 39
A: The action shall be brought by the person who
Note: There is no right of redemption in judicial has a right to compel the partition of real estate
foreclosure sale after the confirmation of sale except (Sec. 1, Rule 69) or of an estate composed of
those granted by banks or banking institutions in favor personal property, or both real and personal
of non-judicial persons as provided by the General property (Sec. 13, Rule 69). The plaintiff is a person
Banking Act (Government Insurance System v. CFI of who is supposed to be a co-owner of the property
Iloilo, G.R. No. 45322, July 5, 1989). or estate sought to be partitioned. The defendants
are all the co-owners.
In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the Q: What is the effect of non-inclusion of a co-
registration of the deed of sale. However, Sec. 47 of owner in an action for partition?
the General Banking Act provides that in case of
extrajudicial foreclosure, juridical persons shall have A:
the right to redeem the property until, but not after, 1. Before judgment – not a ground for a
the registration of the certificate of foreclosure sale motion to dismiss. The remedy is to file a
which in no case shall be more than 3 months after
motion to include the party.
foreclosure, whichever is earlier.
2. After judgment – makes the judgment
The pendency of the action stops the running of the
therein void because co-owners are
right of redemption. Said right continues after indispensable parties.
perfection of an appeal until the decision of the
Note: Creditors or assignees of co-owners may 2. Judgment as to the fruits and income of
intervene and object to a partition affected without the property
their concurrence. But they cannot impugn a partition 3. Judgment of partition (Riano, Civil
already executed unless there has been fraud or in Procedure: A Restatement for the Bar, p.
case it was made notwithstanding a formal opposition 596, 2009 ed.)
presented to prevent it. (Sec. 12, Rule 69)
d. ORDER OF PARTITION AND PARTITION BY
b. MATTERS TO ALLEGE IN THE COMPLAINT FOR AGREEMENT
PARTITION
Q: What is an order of partition?
Q: What are the matters to be alleged in the
complaint for partition?
A: The order of partition is one that directs the
parties or co-owners to partition the property
A: The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate Q: When does the court issue the order of
description of the real estate of which partition is partition?
demanded, and shall join as defendants all other
persons interested in the property (Sec. 1, Rule 69). A: During the trial, the court shall determine
He must also include a demand for the accounting whether or not the plaintiff is truly a co-owner of
of the rents, profits and other income from the the property, that there is indeed a co-ownership
property which he may be entitled to. These cannot among the parties, and that a partition is not legally
be demanded in another action because they are proscribed thus may be allowed. If the court so
parts of the cause of action for partition. They will finds that the facts are such that a partition would
be barred if not set up in the same action pursuant be in order, and that the plaintiff has a right to
to the rule against splitting a single cause of action. demand partition, the court will issue an order of
partition.
c. TWO (2) STAGES IN EVERY ACTION FOR
PARTITION Note: The court shall order the partition of the
property among all the parties in interest, if after trial
Q: What are the two aspects of partition it finds that the plaintiff has the right to partition (Sec.
proceedings? 2, Rule 69). It was held that this order of partition
including an order directing an accounting is final and
A: not interlocutory and hence, appealable; thus,
1. Existence of co-ownership; and revoking previous contrary rulings on the matter. A
2. Accounting or how to actually partition final order decreeing partition and accounting may be
the property. appealed by any party aggrieved thereby.
Note: During the trial, the court shall determine Q: When is partition by agreement proper?
whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally
proscribed, the court will issue an order of partition. It A: The parties may make the partition among
directs the parties to partition the property by proper themselves by proper instruments of conveyance, if
instruments of conveyance, if they agree among they agree among themselves. If they do agree, the
themselves. court shall then confirm the partition so agreed
upon by all of the parties, and such partition,
If they do agree, the court shall then confirm the together with the order of the court confirming the
partition so agreed and such is to be recorded in the same, shall be recorded in the registry of deeds of
registry of deeds of the place in which the property is the place in which the property is situated (Sec. 2,
situated (Sec 2, Rule 69). There always exist the Rule 69).
possibility that the parties are unable to agree on the
partition. Thus, the next stage is the appointment of
e. PARTITION BY COMMISSIONERS; APPOINTMENT
commissioners.
OF COMMISSIONERS, COMMISSIONER’S REPORT;
Q: What are the stages in an action for partition COURT ACTION UPON COMMISSIONER’S REPORT
which could be the subject of appeal?
Q: Can the appointment of commissioners be
A: dispensed with in an action for partition?
1. Order determining the propriety of the A: The appointment of commissioners is mandatory

partition unless there is an extrajudicial partition between
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
the parties. They have the power to effect the A; The provisions of this Rule shall apply to
partition but not to inquire into question of partitions of estates composed of personal
ownership or possession property, or of both real and personal property, in
so far as the same may be applicable (Sec. 13, Rule
Note: if parties cannot agree, the court shall appoint 69).
not more than 3 commissioners of competent and
disinterested persons to make partition. They shall h. PRESCRIPTION OF ACTION
make full and accurate report to the court of all their
proceedings as to the partition. Upon the filing of such Q: What is the rule on prescription in an action of
report, copies of which shall be served to the clerk of
partition?
court upon all interested parties with notice that they
are allowed 10 days within which to file objections to
A: Prescription of action does not run in favor of a
the findings of the report, if they so desire.
co-owner or co-heir against his co-owner or co-
The court may upon hearing accept the report and heirs as long as there is a recognition of the co-
render judgment in accordance with the same, may ownership expressly or impliedly (Art. 494). Also,
recommit to the commissioners for further the action for partition cannot be barred by
proceedings, or reject the report and render judgment prescription
that shall effectuate a fair and just partition.
12. FORCIBLE ENTRY AND UNLAWFUL DETAINER
f. JUDGMENT AND ITS EFFECTS
a. DEFINITIONS AND DISTINCTION
Q: What should the judgment contain and its
effects? Q: What is forcible entry?
A: The judgment shall state definitely, by metes and A: It is entry effected by force, intimidation, threat,
bounds and adequate description, the particular strategy, or stealth; the action is to recover
portion of the real estate assigned to each party, possession founded upon illegal possession from
the effect of the judgment shall be to vest in each the beginning.
party to the action in severalty the portion of the
real estate assigned to him. A certified copy of the Note: It is commenced by a verified complaint. (Sec. 1)
judgment shall in either case be recorded in the
registry of deeds of the place in which the real Q: What are the requisites of a valid forcible
estate is situated, and the expenses of such entry?
recording shall be taxed as part of the costs of the
action (Sec. 11, Rule 69). A:
a. If the whole property is assigned to one of the 1. A person is deprived of possession of any
parties upon his paying to the others the sum or land or building by force, intimidation,
sums ordered by the court, the judgment shall state threat, strategy, or stealth; and
the fact of such payment and of the assignment of 2. Action is brought within 1 year from the
the real estate to the party making the payment, unlawful deprivation. (Sec. 1)
and the effect of the judgment shall be to vest in
the party making the payment the whole of the real Q: What are the questions to be resolved in an
estate free from any interest on the part of the action for forcible entry?
other parties to the action.
A:
b. If the property is sold and the sale confirmed by
1. Who has actual possession over the real
the court, the judgment shall state the name of the
property;
purchaser or purchasers and a definite description
2. Was the possessor ousted therefrom
of the parcels of real estate sold to each purchaser,
within one year from the filing of the
and the effect of the judgment shall be to vest the
complaint by force, intimidation, strategy,
real estate in the purchaser or purchasers making
threat or stealth; and
the payment or payments, free from the claims of
3. Does the plaintiff ask for the restoration
any of the parties to the action.
of his possession (Dizon v. Concina, G.R.
No. 23756, Dec. 27, 1969)
g. PARTITION OF PERSONAL PROPERTY
Q: What is unlawful detainer?
Q: What is the rule on partition of personal
property?
A: It is unlawful detention by a person who has
acquired possession rightfully, but who detains the

property after the right to keep possession has force, intimidation, the possession of the
ended. strategy, threat property under his
or stealth. contract with the plaintiff.
Demand is jurisdictional if
Note: It is commenced by a verified complaint. (Sec. 1) No previous demand for the ground is non-
the defendant to vacate payment of rentals or
Q: What are the requisites of a valid unlawful the premises is necessary. failure to comply with the
detainer? lease contract.
The plaintiff must prove
A: that he was in prior
The plaintiff need not
1. Possession of any land or building is physical possession of the
have been in prior physical
unlawfully withheld from a lessor, vendor, premises until he was
possession.
vendee, or other person after the deprived thereof by the
expiration or termination of the right to defendant.
hold possession by virtue of any contract The 1 year period is
Period is counted from the
generally counted from
express or implied; date of last demand or last
the date of actual entry on
2. Action is brought within 1 year after such letter of demand.
the land.
unlawful deprivation or withholding of
possession; and
b. DISTINGUISHED FROM ACCION PUBLICIANA
3. Demand to pay or comply with the
AND ACCION REINVINDICATORIA
conditions of the lease and to vacate is
made upon the lessee. (Sec. 1) Q: What are the possessory actions on real
property?
Q: Is formal contract a prerequisite in unlawful
detainer? A:
Accion Accion Accion
A: The existence of a formal contract is not Interdictal Publiciana Reinvindicatoria
necessary in unlawful detainer. Even if there is no Summary
formal contract between the parties, there can still A plenary action
action for the An action for the
be an unlawful detainer because implied contracts for the recovery
recovery of recovery of
of the real right
are covered by ejectment proceedings. Possession physical ownership,
of possession
by tolerance creates an implied promise to vacate possession which
when the
the premises upon the demand of the owner (Peran where the necessarily
dispossession
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). disposses-sion includes the
has lasted for
has not lasted recovery of
more than 1
Q: Does the amount of rents and damages prayed for more than possession.
year.
for in an action for forcible entry and unlawful 1 year.
detainer affect the jurisdiction of the courts? RTC has
All cases of RTC has
jurisdiction if
forcible entry jurisdiction if the
A: No. The amount of rents and damages claimed the value of the
and unlawful value of the
does not affect jurisdiction of the MTCs because the property
detainer property
same are only incidental or accessory to the main exceeds
irrespective of exceeds P20,000
P20,000 or
action (Lao SengHian v. Lopez, G.R. No. L-1950, May the amount of or P50,000 in
P50,000 in
16, 1949). damages or Metro Manila.
Metro Manila.
unpaid rentals
Note: If only rents or damages are claimed in an sought to be MTC has
MTC has
ordinary action, the action is personal and the amount recovered jurisdiction if the
jurisdiction if
claimed determines whether it falls within the should be value of the
the value of the
jurisdiction of the RTC or the MTC. brought to the property does
property does
MTC. not exceed the not exceed the
Q: Distinguish forcible entry from unlawful above amounts. above amounts.
detainer.
Note: Forcible entry and unlawful detainer actions are
A:
summary in nature designed to provide for an
Forcible Entry Unlawful Detainer
expeditious means of protecting actual possession or
(Detentacion) (Desahucio)
the right to possession of the property involved
Possession of the land by Possession is inceptively
(Sudaria v..Quiambao, GR No. 164305, November 20,
the defendant is unlawful lawful but it becomes
2007)
from the beginning as he illegal by reason of the
acquires possession by termination of his right to
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What rule should govern the proceedings of A: The only pleadings allowed to be filed are the
accion interdictal? complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers
A: thereto. All pleadings shall be verified (Sec. 4, Rule
GR: Ejectment cases are summary proceedings 70).
intended to provide an expeditious means of
protecting actual possession or right to f. ACTION ON THE COMPLAINT
possession of property.
Q: What action will the court make upon receipt of
XPN: When the decision of the MTC is appealed
to the RTC, the applicable rules are those of the the complaint?
latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996). A: The court may, from an examination of the
allegations in the complaint and such evidence as
c. JURISDICTION IN ACCION PUBLICIANA AND may be attached thereto, dismiss the case outright
ACCION REINVINDICATORIA on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
Q: In which court accion publiciana and accion dismissal is found, it shall forthwith issue summons
reinvindicatoria filed? (Sec. 5, Rule 70).
A: The actions of forcible entry and unlawful

g. WHEN DEMAND IS NECESSARY
detainer are within the exclusive and original
jurisdiction of the MTC, MeTC and MCTC (Sec.
Q: When is demand necessary?
33[2], BP 129; RA 7691) and shall be governed by
the rules on summary procedure irrespective of the
amount of damages or rental sought to be A: Unless there exists a stipulation to the contrary,
recovered (Sec. 3, Rule 70). an unlawful detainer case shall be commenced only
after the demand to pay or comply with the
conditions of the lease and to vacate is made upon
d. WHO MAY INSTITUTE THE ACTION AND WHEN;
the lessee (Sec. 2). The requirement for a demand
AGAINST WHOM THE ACTION MAY BE
implies that the mere failure of the occupant to pay
MAINTAINED
rentals or his failure to comply with the conditions
Q: Who may institute the action? of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure
A: Subject to the provisions of the next succeeding to comply with the demand that vests upon the
section, a person deprived of the possession of any lessor a cause of action.
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or Q: In what form should the demand be made?
other person against whom the possession of any
land or building is unlawfully withheld after the A: The demand may be in the form of a written
expiration or termination of the right to hold notice served upon the person found in the
possession, by virtue of any contract, express or premises. The demand may also be made by
implied, or the legal representatives or assigns of posting a written notice on the premises if no
any such lessor, vendor, vendee, or other person, person can be found thereon (Sec. 2). It has been
may, at any time within one (1) year after such ruled, however, that the demand upon a tenant
unlawful deprivation or withholding of possession, may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
bring an action in the proper Municipal Trial Court Sufficient evidence must be adduced to show that
against the person or persons unlawfully there was indeed a demand like testimonies from
withholding or depriving of possession, or any disinterested and unbiased witnesses.
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs (Sec. 1, Rule 70). h. PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
e. PLEADINGS ALLOWED
Q: Can the court grant injunction while the case is
pending?
Q: What are the pleadings allowed?
A: The court may grant preliminary injunction, in
accordance with the provisions of Rule 58, to
prevent the defendant from committing further k. SUMMARY PROCEDURE; PROHIBITED

acts of dispossession against the plaintiff. A PLEADINGS
possessor deprived of his possession through
forcible entry or unlawful detainer may, within five Q: What is the nature of an action for forcible
(5) days from the filing of the complaint, present a entry and unlawful detainer?
motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary A: Forcible entry and unlawful detainer actions are
mandatory injunction to restore him in his summary in nature designed to provide for an
possession. The court shall decide the motion expeditious means of protecting actual possession
within thirty (30) days from the filing thereof (Sec. or the right to possession of the property involved
15, Rule 70). (Tubiano vs. Riazo, 335 SCRA 531). These action
shall both fall under the coverage of the Rules of
i. RESOLVING DEFENSE OF OWNERSHIP Summary Procedure irrespective of the amount of
damages or unpaid rental sought to be recovered
(Sec. 3, Rule 70).
Q: In what instances may the court resolve issue of
ownership?
Q: What are the prohibited pleadings and motion
A: When the defendant raises the issue of under Rule 70?
ownership, the court may resolve the issue of
ownership only under the following conditions: A: Prohibited pleadings and motions:
(a) When the issue of possession cannot be 1. Motion to dismiss the complaint except
resolved without resolving the issue of ownership; on the ground of lack of jurisdiction over
and the subject matter, or failure to comply
(b) The issue of ownership shall be resolved only with section 12;
to determine the issue of possession (Sec. 16). 2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
Note: The assertion by the defendant of ownership
over the disputed property does not serve to divest reopening of trial;
the inferior court of its jurisdiction. The defendant 4. Petition for relief from judgment;
cannot deprive the court of jurisdiction by merely 5. Motion for extension of time to file
claiming ownership of the property involved (Rural pleadings, affidavits or any other paper;
Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; 6. Memoranda;
Perez vs. Cruz, 404 SCRA 487).If the defendant raises 7. Petition for certiorari, mandamus, or
the question of ownership and the issue of possession prohibition against any interlocutory
cannot be resolved without deciding the question of order issued by the court;
ownership, the issue of ownership shall be resolved 8. Motion to declare the defendant in
only to determine the issue of possession (Sec. 3, RA default;
7691). 9. Dilatory motions for postponement;
10. Reply;
j. HOW TO STAY THE IMMEDIATE EXECUTION OF 11. Third-party complaints;
JUDGMENT 12. Interventions
Q: How is the execution of judgment stayed? 13. CONTEMPT
A: Defendant must take the following steps to stay

Q: What is contempt?
the execution of the judgment:
1. Perfect an appeal;
A: It is a defiance of the authority, justice or dignity
2. File a supersedeas bond to pay for the rents,
of the court; such conduct as tends to bring the
damages and costs accruing down to the time of
authority and administration of the law into
the judgment appealed from; and
disrespect or to interfere with, or prejudice litigant
3. Deposit periodically with the RTC, during the
or their witnesses during litigation (Halili v. CIR, G.R.
pendency of the appeal, the adjudged amount of
No. L-24864, Nov. 19, 1985)
rent due under the contract or if there be no
contract, the reasonable value of the use and Note: It is commenced by a verified petition with
occupation of the premises (Sec. 19, Rule 70). supporting particulars and certified true copies of
documents or papers involved therein (Sec. 4).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
a. KINDS OF CONTEMPT d. Failure to obey a subpoena duly

served.
Q: What are the kinds of contempt? e. Assuming to be an attorney or an
officer of the court without
A: authority.
1. Direct or indirect, according to the f. Rescue or attempted rescue, of a
manner of commission. person or property in the custody of
2. Civil or Criminal, depending on the nature an officer.
and effect of the contemptuous act. g. Any improper conduct tending to
degrade the administration of justice
Q: Distinguish direct from indirect contempt? (Sec. 3)
A: Q: Distinguish criminal contempt from civil

Direct Contempt Indirect Contempt contempt.
Committed in the presence Not committed in the
of or so near a court. presence of the court. A:
Punished after being Criminal Contempt Civil Contempt
Summary in nature
charged and heard
Punitive in nature Remedial in nature
If committed against: IF COMMITTED AGAINST:
1. RTC – fine not 1. RTC – FINE NOT
Purpose is to provide a
exceeding P2,000 or EXCEEDING P30,000 Purpose is to
remedy for an injured suitor
imprisonment not OR IMPRISONMENT preserve the court’s
and to coerce compliance
exceeding 10 days or NOT EXCEEDING 6 authority and to
with an order for the
both. MONTHS OR BOTH punish disobedience
preservation of the rights of
2. MTC – fine not 2. MTC – fine not of its orders
private persons
exceeding P200 or exceeding P5,000
imprisonment not or imprisonment
Intent is necessary Intent is not necessary
exceeding 1 day, or not exceeding 1
both. month or both
Instituted by the aggrieved
Remedy:Certiorari or Remedy: Appeal (by party or his successor or
prohibition notice of appeal) State is the real
someone who has pecuniary
Contempt in facie curiae Constructive contempt prosecutor
interest in the right to be
protected
Q: What are the grounds of contempt?
Proof required is Proof required is more than
A: proof beyond mere preponderance of
1. Direct contempt reasonable doubt. evidence
a. Misbehavior in the presence of or so
If accused is If judgment is for
near a court as to obstruct or
acquitted, there can respondent, there can be an
interrupt the proceedings
be no appeal. appeal
b. Disrespect towards the court
c. Offensive personalities toward
others; or
Q: Lawyer Mendoza, counsel for the accused in a
d. Refusal to be sworn or to answer as
criminal case, was cited for direct contempt by
a witness, or to subscribe an affidavit
Judge Tagle and was sentenced to 10 days
or deposition when lawfully required
imprisonment. Lawyer Mendoza was placed in
to do so (Sec. 1)
prison immediately. Lawyer Mendoza manifested
2. Indirect contempt
his readiness to post a bond and to appeal the
a. Misbehavior of an officer of a court
order by certiorari to stay its execution but Judge
in the performance of his official
Tagle said that the order is immediately executory.
duties or in his official transactions;
Is Judge Tagle correct?
b. Abuse or any unlawful interference
with the proceedings not A: No. An order of direct contempt is not
constituting direct contempt. immediately executory or enforceable. The
c. Disobedience of or resistance to a contemner must be afforded a reasonable remedy
lawful writ, process, order, or to extricate or purge himself of the contempt.
judgment of a court or unauthorized Under Sec. 2, Rule 71, of the Rules of Court, a
intrusion to any real property after person adjudged in direct contempt by any court
being ejected.
may not appeal therefrom, but may avail himself of lower court, the penalty is a fine not
the remedies of certiorari or prohibition. The exceeding 200 pesos or
execution of the judgment shall be suspended imprisonment not exceeding one (1)
pending resolution of such petition, provided such day, or both (Sec. 1)’;
person files a bond fixed by the court which c. If the contempt consists in the
rendered the judgment and conditioned that he will refusal or omission to do an act
abide by and perform the judgment should the which is yet within the power of the
petition be decided against him (Tiongco v. Judge respondent to perform, he may be
Salao, A.M. No. RTJ-06-2009, July 27, 2006). imprisoned by order of the court
concerned until he performs it.
b. PURPOSE AND NATURE OF EACH 2. A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the
Q: What is the purpose of the power to contempt?
court which adjudged him in direct contempt
(Sec. 2). Pending the resolution of the petition
A: The reason for the power to punish for contempt for certiorari or prohibition, the execution of
is that respect of the courts guarantees the stability the judgment for direct contempt shall be
of their institution. Without such guarantee, said suspended. The suspension however shall take
institution would be resting on shaky foundation place only if the person adjudged in contempt
(Cornejovs.Tan, 85 Phil. 772). files a bond fixed by the court which rendered
the judgment. This bond is conditioned upon
Q: What is the nature of contempt power? his performance of the judgment should the
petition be decided against him.
A: The power to punish for contempt is inherent in
all courts; its existence is essential to the d. REMEDY AGAINST INDIRECT CONTEMPT;
preservation of order in judicial proceedings and to PENALTY
the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the
Q: What is theremedy against indirect contempt
due administration of justice.
and its penalty?
Q: What are the dual aspects on the power to
punish contempt? A:
1. The punishment for indirect contempt depends
A: upon the level of the court against which the act
1. Primarily, the proper punishment of the was committed;
guilty party for his disrespect to the (a) Where the act was committed
courts; and against an RTC or a court of equivalent or
2. Secondarily, his compulsory performance higher rank, he may be punished by a fine
of some act or duty required of him by the not exceeding 30,000 pesos or
court and which he refuses to perform. imprisonment not exceeding 6 months, or
both;
c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY (b) Where the act was committed
against a lower court, he may be
punished by a fine not exceeding 5,000
Q: What is theremedy against direct contempt and pesos or imprisonment not exceeding one
its penalty? month, or both. Aside from the applicable
penalties, if the contempt consists in the
A: violation of a writ of injunction, TRO or
1. The penalty for direct contempt depends upon status quo order, he may also be ordered
the court which the act was committed; to make complete restitution to the party
a. If the act constituting direct injured by such violation of the property
contempt was committed against an involved or such amount as may be
RTC or a court of equivalent or alleged and proved (Sec. 7);
higher rank, the penalty is a fine not (c) Where the act was committed
exceeding 2,000 pesos or against a person or entity exercising
imprisonment not exceeding 10 quasi-judicial functions, the penalty
days, or both; imposed shall depend upon the provisions
b. If the act constituting direct of the law which authorizes a penalty for
contempt was committed against a
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
contempt against such persons or pursuant to law, Rule 71 shall apply suppletorily (Sec
entities. 12, Rule 71)
(2) The person adjudged in indirect contempt
may appeal from the judgment or final order of the Quasi-judicial bodies that have the power to cite
court in the same manner as in criminal cases. The persons for indirect contempt pursuant to Rule 71 of
appeal will not however have the effect of the Rules of Court can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and
suspending the judgment if the person adjudged in
competence to decide the indirect contempt cases.
contempt does not file a bond in an amount fixed
by the court from which the appeal is taken. This
Q: May a non-party be held for contempt?
bond is conditioned upon his performance of the
judgment or final order if the appeal is decided A: No, unless he is guilty of conspiracy with any one
against (Sec. 11). of the parties in violating the court’s orders
(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
e. HOW CONTEMPT PROCEEDINGS ARE 1982).
COMMENCED
Q: Ray, through Atty. Velasco, filed a complaint for
Q: How may an action for indirect contempt be quieting of title against Chiz. Chiz, however,
commenced? interposed the defense that the documents relied
upon by Ray and Atty. Velasco were forged and
A: falsified. Finding that the said documents were
indeed forged and falsified, Judge Victoria cited
1. By order or other formal charge by the Ray and Atty. Velasco for direct contempt and
court requiring the respondent to show ordered them to serve 10 days of detention at the
cause why he should not be punished for Municipal Jail. Ray and Atty. Velasco filed a
contempt (motuproprio); or motion for bail and a motion to lift the order of
2. By a verified petition with supporting arrest. But they were denied outright by Judge
particulars and certified true copies of the Victoria. Is Judge Victoria correct?
necessary documents and papers
(independent action) (Sec. 4). A: No. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
Note: The first procedure applies only when the without hearing. Indirect or constructive contempt,
indirect contempt is committed against a court or in turn, is one perpetrated outside of the sitting of
judge possessed and clothed with contempt powers. the court.
The second mode applies if the contemptuous act was Here the use of falsified and forged documents is a
committed not against a court or a judicial officer with contumacious act. However, it constitutes indirect
authority to punish contemptuous acts. (Nazareno v. contempt not direct contempt. The imputed use of
Barnes, G.R. No. L-59072, Apr. 25, 1984) a falsified document, more so where the falsity of
the document is not apparent on its face, merely
The court does not declare the respondent in default constitutes indirect contempt, and as such is
since the proceeding partakes the nature of a criminal subject to such defenses as the accused may raise
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct.
in the proper proceedings. Thus, following Sec. 3,
28, 1982).
Rule 71, acontemner may be punished only after a
charge in writing has been filed, and an opportunity
Q: What are the procedural requisites before the
accused may be punished for indirect contempt? has been given to the accused to be heard by
himself and counsel.
A:
Moreover, settled is the rule that a contempt
1. A charge in writing to be filed;
proceeding is not a civil action, but a separate
2. An opportunity for the person charged to
proceeding of a criminal nature in which the court
appear and explain his conduct; and
exercises limited jurisdiction. Thus, the modes of
3. To be heard by himself or counsel.
procedure and the rules of evidence in contempt
(Regalado v. Go, G.R. No. 167988, Feb. 6,
proceedings are assimilated as far as practicable to
2007)
those adapted to criminal prosecutions. Thus, the
NOTE: The rules on contempt under Rule 71 apply to judge erred in declaring summarily that Ray and
contempt committed against persons or entities Judge Velasco are guilty of direct contempt and
exercising quasi-judicial functions or in case there are ordering their incarceration. He should have
rules for contempt adopted for such bodies or entities conducted a hearing with notice to Ray and Judge

Velasco (Judge Espaool v. Formoso, G.R. No. g. WHEN IMPRISONMENT SHALL BE IMPOSED
150949, June 21, 2007).
Q: When shall imprisonment be imposed?
f. ACTS DEEMED PUNISHABLE AS INDIRECT
CONTEMPT A: When the contempt consists in the refusal or
omission to do an act which is yet in the power of
Q: What are the acts which are deemed the respondent to perform, he may be imprisoned
punishable as indirect contempt? by order of the court concerned until he performs
it. Indefinite incarceration may be resorted to
A:After a charge in writing has been filed, and an where the attendant circumstances are such that
opportunity given to the respondent to comment the non-compliance with the court order is an utter
thereon within such period as may be fixed by the disregard of the authority of the court which has
court and to be heard by himself or counsel, a then no other recourse but to use its coercive
person guilty of any of the following acts may be power. When a person or party is legally and validly
punished for indirect contempt: required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to
1. Misbehavior an officer of a court in the
bring the person or party before it.
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful Note: The punishment is imposed for the benefit of a
writ, process, order, or judgment of a complainant or a party to a suit who has been injured
court, including the act of a person who, aside from the need to compel performance of the
orders or decrees of the court, which the contemnor
after being dispossessed or ejected from
refuses to obey although able to do so. In effect, it is
any real property by the judgment or
within the power of the person adjudged guilty of
process of any court of competent contempt to set himself free.
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES
acts of ownership or possession, or in any
manner disturbs the possession given to Q: What is the rule on contempt against quasi-
the person adjudged to be entitled judicial bodies?
thereto;
3. Any abuse of or any unlawful interference A: The rules on contempt apply to contempt
with the processes or proceedings of a committed against persons or entities exercising
court not constituting direct contempt quasi-judicial functions or in case there are rules for
under section 1 of this Rule; contempt adopted for such bodies or entities
4. Any improper conduct tending, directly or pursuant to law, Rule 71 shall apply suppletorily.
indirectly, to impede, obstruct, or Quasi-judicial bodies that have the power to cite
degrade the administration of justice; persons for indirect contempt can only do so by
5. Assuming to be an attorney or an officer initiating them in the proper RTC. It is not within
of a court, and acting as such without their jurisdiction and competence to decide the
authority; indirect contempt cases. The RTC of the place
6. Failure to obey a subpoena duly served; where contempt has been committed shall have
7. The rescue, or attempted rescue, of a jurisdiction over the charges for indirect contempt
person or property in the custody of an that may be filed (Sec. 12).
officer by virtue of an order or process of
a court held by him (Sec. 3).
Note: Failure by counsel to inform the court of the

death of his client constitutes indirect contempt within
the purview of Sec. 3, Rule 71, since it constitutes an
improper conduct tending to impede the
administration of justice.
REMEDIAL LAW TEAM:


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GENERAL PRINCIPLES

I. GENERAL PRINCIPLES 7. Court decisions (Herrera, Vol. I, p. 2, 2007

A: 1. LIMITATIONS ON THE RULE-MAKING POWER OF

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

D. NATURE OF PHILIPPINE COURTS 5. COURTS OF GENERAL AND SPECIAL

Q: What is a court? Q: Distinguish Courts of general jurisdiction from

3. CLASSIFICATION OF PHILIPPINE COURTS A:

REMEDIAL LAW TEAM:

Q: What are courts of record?

A: These are courts whose proceedings are enrolled

8. PRINCIPLE OF JUDICIAL HIERARCHY

Q: What is the policy of Judicial Hierarchy or

A: A higher court will not entertain direct resort to

Q: What is Doctrine of Non-Interference or Judicial

A: Courts of equal and coordinate jurisdiction

Note: GR: No court has the authority to interfere by

XPN: The doctrine does not apply where a third party

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

II. JURISDICTION Q: Distinguish jurisdiction over the subject matter

A: It is acquired from the moment of filing the Note: Tenancy relationship is

REMEDIAL LAW TEAM:

2. JURISDICTION VERSUS THE EXERCISE OF

Q: Distinguish jurisdiction from exercise of Q: What is Doctrine of Primary Jurisdiction?

Q: Distinguish error of jurisdiction from error of Q: What is Doctrine of Ancillary Jurisdiction?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

5. When the proceedings in the court because it cannot be tolerated by reason

REMEDIAL LAW TEAM:

Civil Cases Criminal Cases

REMEDIAL LAW TEAM:

b. Civil Service Commission

2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,

Note: g. P.D. No. 1433 - Plant Quarantine Law

r. R.A. 8749 - Clean Air Act; of directors, business associates, its

Civil Cases Criminal Cases

REMEDIAL LAW TEAM:

jurisdiction (R.A. 7691).

3. COURT OF TAX APPEALS

Tax Cases Criminal Cases

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

With Commissioner of Customs

Civil Cases Criminal Cases

REMEDIAL LAW TEAM:

Sandiganbayan, after going over the information,

5. REGIONAL TRIAL COURTS

Civil Cases Criminal Cases

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

Civil Cases Criminal Cases

7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Civil Cases Criminal Cases

REMEDIAL LAW TEAM:

4. Actions involving title to or possession of real property or a.

Note: The value shall be ascertained by the affidavit of the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

REMEDIAL LAW TEAM:

These claims or demands may be:

thereto agree to submit their obligation which is not purely

Q: What is the Aggregate or Totality Rule?

A: Where there are several claims or causes of

REMEDIAL LAW TEAM:

III. CIVIL PROCEDURE

6. LOCAL AND TRANSITORY ACTIONS

7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

Q: Distinguish actions in rem, in personam and quasi in rem